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to said contract and provided in said contract that the said real property should be taken subject to a crop mortgage and in favor of said Producers Fruit Co. of Cal. in the sum of twenty thousand dollars; deny that in computing and determining payments to be made under said contract, said crop mortgage was computed and estimated at $20,000.00; deny that it was computed and estimated to be any greater sum than fourteen thousand dollars; deny that said defendants received credit on the purchase price of said real property conveyed to them by the plaintiff and his said wife in the sum of $20,000.” The answer further alleges that the lands were conveyed to defendants subject to a crop mortgage of $14,000 only. The case was tried before a jury. Both parties introduced evidence tending to support their respective contentions and the jury rendered a verdict in favor of the plaintiff as prayed for in the complaint.

[1] It is contended that the court erred in sustaining objection to a question propounded to plaintiff on crossexamination. The answer alleges and respondent seems to concede that the crop mortgage referred to was given for the principal sum of $10,000, with a provision for future advances to the amount of $10,000 additional. At the time the contract to exchange properties was executed future ad. vances had been made to the amount of $7,502.27. Thereafter and prior to the exchange of deeds the mortgagee advanced to the plaintiff the additional sum of $2,142.30. Referring to the last stated sum counsel for defendants asked the plaintiff: “What did you do with the money you drew from the Producers Fruit Company?The court sustained plaintiff's objection to the question, saying: “He claimed it as his own, so what he did with it is immaterial.'

immaterial.” The ruling was clearly right. Plaintiff made no claim that he had used the money for the benefit of defendants, or for anyone but himself. The only material question was whether plaintiff had the right to receive the money. It was immaterial what use he made of it.

[2] Appellant urges that the court erred in giving the following instruction:

"It is provided in the contract of April 19, 1921, that the real property to be conveyed by the plaintiff and his wife to the defendants shall be taken by the defendants subject to a crop mortgage in favor of the Producers Fruit Company in the sum of Twenty Thousand Dollars ($20,000.00). It is admitted by the defendants that the amount due on the crop mortgage at the time the real property was conveyed was the sum of Nineteen Thousand Six Hundred Forty-four and 57–100 Dollars ($19,644.57). If you find from the evidence that the defendants were credited with the sum of Twenty Thousand Dollars ($20,000.00) on the purchase price of said real property because of the said crop mortgage, then you shall award plaintiff, on his third cause of action, the difference between the credit so received, namely, Twenty Thousand Dollars ($20,000), and the amount actually due on said mortgage, Nineteen Thousand and Six Hundred Forty-four and 57-100 Dollars ($19,644.57), or the sum of Three Ilundred Fifty-five and 43–100 Dollars ($355.43.)”

The instruction correctly states the issues raised by the pleadings and the amount due upon the crop mortgage at the time the property was conveyed to defendants, as shown by undisputed evidence. No erroneous statement of law therein is pointed out and it seems to present the case fairly to the jury.

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

[Civ. No. 4189. Second Appellate District, Division One.-July 3,


In the Matter of the Estate of CATHERINE FITZGER

ALD, Deceased. THE ROMAN CATHOLIC BISHOP OF MONTEREY AND LOS ANGELES (a Corporation Sole), Appellant, v. EDWARD TYNAN et al., Respondents.

[Civ. No. 4190. Second Appellate District, Division One.—July 3,


In the Matter of the Estate of CATHERINE FITZGERALD, Deceased. ANNIE McLINDEN


CATION OF SECTION 1313, CIVIL CODE.-A residuary bequest in a will as follows: "I give, devise and bequeath to the Roman Catholic Bishop of Monterey and Los Angeles, a corporation sole, all the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever situated," being not limited to a specific purpose, is one for the general use and benefit of the church within said diocese, and as such it retains the character of a charitable bequest and is subject to the provisions of sec

tion 1313 of the Civil Code. [2] ID.-CHARITABLE BEQUESTS—RIGHT TO INTEREST.-The limitation

contained in section 1313 of the Civil Code, wherein it is provided that the charitable devises or bequests contained in a will shall not collectively exceed one-third of the estate of the testator leav. ing legal heirs, applies to the principal only of such devises or legacies; and the provision of section 1369 of that code that legacies bear interest from the time when they are due is applicable both to specific charitable bequests and to a charitable bequest of the residue of an estate where such residuary bequest has, in effect, been reduced to a specific bequest by reason of the fact that the total of the charitable bequests and legacies exceeds the one-third limitation contained in section 1313 of said code.

APPEALS from a decree of the Superior Court of Los Angeles County. James C. Rives, Judge. Affirmed.

1. Devise or bequest to church as charitable use, rotes, 4 Ann. Cas. 1139; 9 Ann. Cas. 1202; Ann. Cas. 1914A, 1218.

The facts are stated in the opinion of the court.

J. Wiseman Macdonald for Appellant in No. 4189 and for Roman Catholic Bishop, etc., et al., Respondents in No. 4190.

H. A. Massey and Ben F. Gray for Appellants in No. 4190 (Respondents in No. 4189).

CONREY, P. J.-In case No. 4189 the Roman Catholic Bishop of Monterey and Los Angeles, a corporation sole (hereafter called the Bishop), appeals from a decree of distribution of the estate of Catherine Fitzgerald, deceased. In case No. 4190 Annie McLinden, Sarah Sloan, Rosie Heaton, and Theresa Fitzgerald appeal from the same decree.

We will first consider the appeal in case No. 4189. The questions presented on this appeal arise out of the fact that by her will the decedent made several gifts to charitable societies or corporations which, according to the decision of the court, collectively exceeded one-third of the estate of the testatrix leaving legal heirs. The testatrix died on the third day of May, 1918. At that time section 1313 of the Civil Code read as follows:

1313. Restrictions on devises or bequests for charitable uses. No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made at least thirty days prior to such death, such devise or legacy and each of them shall be valid; provided, that no such devise or bequest shall collectively exceed one-third of the estate of the testator, leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law; and provided, further, that bequests and devises to the state, or to any state institution, or for the use or benefit of the state or any state institution, are excepted from the restrictions of this section.” (Stats. 1917, p. 272.)

The total distributable estate of the deceased, after settlement of the final account of the executors, and at the time of the entry of the decree of distribution, was $39,973.07.

The specific bequests for charitable uses in the aggregate amounted to $11,300.

The residue of the estate after payment of all charges against the estate, including the specific bequests, but not including interest on bequests), amounted to $12,693.07.

The will by its terms gave to the Bishop all of the residne of the estate. The court determined that this bequest to the Bishop was a bequest to a charitable corporation, organized for charitable purposes, and, therefore, determined that the total of charitable bequests was $23,993.07.

The court further found that since only one-third of the estate (being $13,324.36) could lawfully be devised or bequeathed to such charitable societies or corporations or persons, the Bishop was only entitled to receive that part of the residue which, together with the specific charitable bequests (but exclusive of interest), did not exceed said sum of $13,324.36. This reduced the amount of the residue distributable to the Bishop from the sum of $12,693.07 to the sum of $2,024.36, exclusive of interest.

The court further determined that the bequests were entitled to bear interest at seven per cent per annum from May 3, 1919, to December 14, 1921, on all of the legacies, including the residuary bequest. It is provided by sections 1368 and 1369 of the Civil Code that legacies are due and deliverable at the expiration of one year after the testator's decease, and that they bear interest from the time when they are due and payable (with exceptions not pertinent to this case).

Accordingly, the court by this decree of distribution awarded to the Bishop, under the residuary bequest, the sum of $2,024.36, plus interest, $362.31; total, $2,386.67; and found that after allowing also the interest on the other legacies) there remained of the residue of the estate the sum of $5,347.80.

The court being of the opinion that under section 1313 of the Civil Code this remainder should go to the heirs at law, distributed said sum of $5,347.80 in equal shares to Annie McLinden, Sarah Sloan, Rosie Heaton, Theresa Fitzgerald,

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