Petitioners Reply Brief — Estate of Peck v. Board of Trustees of Leland Stanford Junior University

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ILE. COPY - Pee Bipreme Cat OS,

SEP 17 1958

In the Supreme Court. 0 the

c .... Anited. States |.

Ocroszr Tram, 1959 “0, _

No. ”. — k

In the Matter of the Estate of ' ae ;

. Janet M. PEcx, | ; )

Deceased, |° - :

‘ Aaron M. Sargent, Cornea M. Sarcent, a

. _Mapetyn Georaian, Guardian ad Litem

of Heren M. Sarcent, Jr., Frank. M.

. Howe, Jz, Orein P. Howex1, Manr-

eTTA Gann Bunpy, EizapetH Gann

Hanvet, Lovise Fury, Frep. ‘Howe,

Cuartorte More MeEtoney, Frank |- .

Morr and Marcaret More Waite, “See!

ay 7 Petitioners,

: ci et li .

Txe Boarp or TRUSTEES OF THE LELAND

StaNwonD JUNIOR UNIVERSITY, i

pe ian

‘Petitioners’ Reply Brief sae

On Petition for Writs of Certiorari to the Supreme Court of the State of bs

* California, to the District Court of Appeal, First Appellate District, to

‘the Superior Court in and for the City and County'of San Francisco.

Aaron M. Sarcent

1115 Hobart Building

. San Francisco 4, California

Attorney for Petitioners

a PRINTING COMPANY, 180 FIRST STREET, SAN FRANCISCO 8

JAMS R. BROWNING, Clerk

. SUBJECT INDEX .

‘ : : oo.

: . Pee

Summary of Argumes ‘ Sotpeke oes ly Heth EERE LON he

NIN loses ooics sok eich ce essa ee eee knee ease ea elie ane te Cs

Statement of the Tssues.... Ey x

- ° : 4 /

Federal QueStions: Presented 00 tate ee

. , . ie : / a

Falsehoods pt gO, en Len

The True Situation 0000000........ : RG Sieec ie Coon ae” «fa

Refusal ta Eyforee Stathites Controlling 2 aan ee

Entry ofr Jugment Based on’ tllegal Eviden® 0... ., 4a

. Arbitrary Presumption in Favor of Respondent. ie ARES

Refusal to Enforce Laws of InheFitance. Ne Miz. i : ; 17

Excreise of Legislative Power by Judiciary. 000. 17

: : Constitutional . Protection for Property Rights... hate te ee ig.

Z Cortiorari to Enforce Constitutional Rights... ee ie tae : pi

Summary tne! Ce AONE ni. co MB Bee ee 24

Wenidl of Dre Process on See merce boa 25

The Motion tor Disqualification... 0. oe

Kqual Prote@lion on Cortlovert. oc... 532.260... 28

° ®

> Additional Questions Presented for Review.

Additional -Rénsons for Issuing the Worits.0000000000........° 30

Status of Petitioners... MEN, SRST, Rann See area . 3

fonelusion atid Soits Recados Caer ae sla eon ee

Appendix a

‘

° ° ~

; e °

F {

Sg oe pee ek /

hE TABLE OF AUTHORITIES CITED. * **

. CASES Berge re ie 4 ——. Pages

Adamson vy. Catifornia, $32 (| 46" : ha a

Ashdown v. Utah. 307 U.S. 4200-7 ‘ Gamrane oe R

. Ps ~ Sa, : 3

Barsky v. Board of Revents, 347 US. iy ee ee |

Beilan v. Board of Edueation, 357 U.S. 399. See he ae ane

Benanti v. United States,.355 TLS, re shea L Siaispaidnsnendtite RR

Blackburn v.-Alabamay.354 US. 393. ue oe eae 23425

solling v. Sig ae i. a. Ye ae eee pee ina ak

soutn, Estate of, 235 Cal. App: 2d 590, 43 Pd 293.:0000000000.0 OM

“Brown'y. Bodrd of Education, 8347 US: 483 aoe re

ee ae ene \ a .

Carson.v. Warli@k,-238 Fi2d T2Hb0 ol. WM

Chacmabai 2 Feet BAT ME Ta ono esos kcacdtentipeenns

Cieenia vo Lagay, 357 US. 504.0 > En OR RTT: EO NEY

Colt y. Young, 351.08. 536.000.0000, eae 21

County of Adleghényey. Frank Mashuda Co., No, 347, Ott.

Term 195». DR ee eee TE Geen tee ae 3

Cour ©. Sarton, Tar UM, SES icici cet ciccchnttecc. a

we pane s ee .

Dayton v. Dulles. 39% US. 144 ONS ee til wn

DeCirgirane Estate of, 150 Cal. GR we PP. 633...” aries Nee

“Dell Paoli v. United States, 36° US. 232 ; Teas eee

DeVries vi Bataagartner’s Electric ( onstruetion et a. Xo. Mh, <~ *

ae te Ree Renee: UA Aer ech en NESE: Si

Dickinson ve U ited States, $46 ti a. “ye pit parescoge ee ieee acces Oe

Dunean v. Kahamimoko, 827 US, 304. 000 es

Dyer vo SEC, No, 67, Oct. Rein: see SOE cI HORE ny «gir

. ‘ A i a ‘ ri

Eubanks y. Louisiana. +356 ik Sea OP iets or Seaham Retencenopeoe at ee

Evans v. Superior Conrt, 000 Cel. Agi Fie ia a Oe =

Pikes v. ‘Slahama: 392 1S. 191.............. oy a Sait] = Geen a

2 inst Uyitas: li Church Los Angeles, 357 U8. 545.7 ; |

(iometti v. Etienne. Pe Cal. GOs], Ds P2d 013 is ehey cee

(rordegieho VP ted Staten, Fai i Ae re By 1h.

— Granville-Smith v. Granville-Smith, 349 UL, 1 oa. 1 .

Greene vo McElroy, No, 1805 Oct. Terin 1958, June PQ. 1959

a, itd

CRN ee A ON hi ccer ds csit asec Hee aitaca cares cannes iat nan kant Qn aed ae

Griffin v, Tlinois, 351 US. 1? PM eet OS

Grocery Drivers Union Local No, 4s. Seven-Up Bottling

Company of Los Angeles. No716o. Oet, Term 10$s. 00 00. A

P ors

- . oie

- | oe ~ ¥ ‘i

nee TABLE oF AUTHORITIES CITED ee il :

‘ y mn : ‘ ; oe t é

ree i : : Pages ;

Handford v. United States, Np. O78, Oet: Term 15s. > ; =

¢ Harmotiy. Bruckner, 399 US. 974... pe Acad sa 8

: Hawkins vo United States. No. 20 Oct. erm 195s. COLL p.

113 Pac liksks | i Renee: a

_therman v. Claudy, Bo U. . “116 DBE ne ep me eR See 7

Hernatdez v. Texas, 347 LR Been Sie cue otter seer ieee 9

Huchner, Estate of, 127 Cal. App.244. 15 Pld T5800: 17

, * Ingram, Estate of 7s Cal. 586; 21 P4332... a anes ic oD

~ oe lrwin ve Dowd, No. 63. Qct.Terms 1958, May 4.91959 (CCH s

‘emt’ Wien SS

Kirby, Estate of, 162 Cal, 91,121 P. Ric i: ome

Kitehens v. United States, Mise. No. 31, Oct. Tern 195 ae So

“Kline, Estate of, 188° Cal. App. 514. 32 P.2d . eee: : ane

Konigsberg v. State Bar, 393 US. 292. PRs ila ees sca. es

. oo Lassiter v.wNorthampton ¢ ‘ounty. Board of Elections, No 584 |

Oet. Term 1958 (CCH p. 1523). A eer nae eo ,

Lerner vo aeer, 323i US: O68... , ee Rete hota, ne 22

Levwh Vee, BO 0 OO es cl

Lyons, Estate of, 36 Cal. App. 2d.92:496 P2d 101s. 00 0.

ae Thited States. 3540 Ss. Ho. : mer aees 23

Masciale v. Untited States, 356 ULS. B86... | See oa

~ Maud vy. Catherwood, 67 Cal, 2 4s Pd.636 : 135 333; F494 1s

- Miller v. United States, 357 - NE AN ia ap ce B16. D4

Mitchel v, Louisiana, 350° U.S. in We ee rt. a

. ; * : : : 2

JNapue, v. Illinois, No.’ 583 Oct, ferm 1958; CCIE p. 1657... 7

_ New Orleans City Park: Improvement Asn. v. Detiege, No,

295, Oct. Term 1958 7. ee, ne

_ —Netthentt Esti teat HCAT ORT OR 107 L. = Seer,

Nowak v. ited mates, Son Uss. 600.00-.. oak a er 33

Offutt vo United States, a ee : Sees . _2R

Ohio ex rel. Klapps v. Dayton sia & Light Co. Na: Sol,

te RD. RMN SIRO . ooliey.ocoentieci Fad i ria

a / > »

’ $

“aN Tati or Averioniribs Cirep .

Peters v. Plobha. 349 U's. 381. ate a 123]

: : : > :

Realy. United States, 3a 1-8. 214 ; oo *

Reece veGeorgia, SOUS. 85 : : 3

Reid v. Covert, 354 U28. . Nt RMS ORE oe 1s)

Rowoldt vo Perfette 355° US. 115. + eee 23

; : | :

Sagamon Valley Television Aur. v. United States, Now 2:49.

. Oct. Term W9s.......5-.: Aalto se \ ; v4

‘Schware Ne Board of Bar E xamiiners; 343 US, Ks rita; Ciaghybaaee eee

Shelley vo Kraemer, MAUS & Ho. DAM SS 1

Shernfin v. United States. 356 TLS 369. a : pee 33

Shuttlesworth vo Birmingham Boprd ot? FE dite: Mion. No. 3541

Qet. Term 195s, CCTL p. 92... “ r

Shuttlesworth vo Birmingham Board of E ducati ic

Supp, 384 20 Den eae ae {

Slochower y, Board:of Edueation, 330. US. 551 seers a.

: smith v. United States: Mise. No. 192..0¢t, Tern 1955. * Wee

Speiser Vo Randall, 357 U.S. egg ran en Soe % a.

~Sutro, Estate of. 155 Gal. 727, 102 P. 920.7". De,

Mitare|h vw Se wien. Ny 101, Oer, Lert, 13 ms COT \. M30 OW:

Pirate \ Athatsds, 356 0S, is ,

Peahode. Estage ot 27 Cal. Nya a if 2 24"

Pearson v. Hansen. 86 Cal Npp. 2d $04, 215 Pitd eee

Penns, ivaniia i Nelson, 350-08. 497,

Sweezy vo New Snes for Us, wae: =

“hited States v. Sachi roetal. Ds? heapice ‘

Vane: Estate “¥ Lis Cail Yip. 13, + Pp "0

Tavtor v. MeElroy, 2 Od. (es Te rm, W958. COTE p. 2080", 19,20)

Thomson v. Butler, #36 Fo2d 644. eat iee eee ELL

Townsend v, Sait, Mise. No. S52, ete Teen 105 s =

Ulimann ov. & hited States, out t M, S22... ome : i

United? States. ex rel, ‘Karisworth vo Marphy. No. a2. ete.

Term: 195s eee : eR ON e =F

United States \ iden. Nootoo, Met, Term Tans J

TABLeor Ata HoRPTIES CITED hak ; \

; ’ ‘ ? a ane Pages

Walkerly, Estate of, jos ( = 627, 41 772 a ee

Willi IMIS V.Gemrgia, 34" US 375 ) eeemeere sy GRE

AWIRL Tele Vision i nek aah cv sie States, No. 242. et. Term *

ne epee etna LORS thine | 4

WORZ, Ines v. Fedral 4 a Comm., No. 34%

et. Term {os Bae ae Bier. Sia ay

+ \oune: Metettot- 198 Cal. 297,54 PION eS.

Youngstown. Sheet & Tube @o., et alo v. Sawyer, 343 ULS. 5H 20. 30.

| “2 ONSTITUTIONS

Cogistit utign of r ‘alifornia’: 4 % a

Arts LL. Seetion 1. - es ie Ee ae ge 2.) ee

Arte VI, Section 4a..%......... ie: e Paves Se i es 26

e . a. ole ; ™

Constiattion of the United States:

“Amendment. Veo se esas bh. 3. 16°

Amendment AGW: 2 u.. Seen? ERR AE ee CRO! FA 4et seq.

- te oe Fa

Be STATUTES AND Rev Ls

ign as ,

( nae at & Livil- Prensa:

Section 1700 |. . : ‘s ‘ rs In.

Nees, 1959, 1061, 190d, 1963... i. ae f. 2¥5

Education Code, Sees. 21 101. P1B0B eis 1

as : ¢ ch rs 5 A Pa

Probate Code: =f 7 \ > : ay ; ‘

Seetion 50° m \vx,/ LY 13

‘ . é a* . / hF ‘ .

I SU ios al ee ec oteressr eon - 13

Section 102. .....!...4..-.4-. es ane ce =. 14.15

Np MR ls Anne , ifs veut eee

3 Section 106 - 4 oe ¥s ; . bf a l4

ules of the CLS. Supreme € ourts 7 ,

Wee on x fe pieces Sa

ile Sia Nf jee a,

Rule 400¢)

ape \.. Sections 1244. T2574 : pap deaey a

ee s

. ,

“

linthe Su preme Court of the

‘United 'S tates

; ‘ ‘Ocrobnn Teno, eu: “0 7

a “eof : ; y ; é

pie No, 200

: i . . a . e . § i \

leer ere In the Matter of the estate of. «

fas See a. Pee Races

‘. Ae nash ie a Deceased, -

SARGENT, ff

ad Litem - on

Krank M.-efo

Aarox MM, SARGE sr fCo ORNELIA M,

Mapetyn GEORGIAN, Ciardian

“of Heren M, Rides st, Ji,

» . Hower, Jr. Orres® PL dower. Magi.

ETTA GANN Bunxpy, Evizaberu GAaNnN \ “

HMaxpen, Louise Fussy Frep Hower, ./

2 Crarnorérn © More . Meronry, © Frank

. . More and Minuten Mork Warerre,

7 Pe lilioners,

_* ary e

VS.

P.-@

Tire Boarp ov #RusteEES OF THE LELAND |

PAN FORD.) & Nion U NIVERSIT:

We spor: rly ut.

2 ~

a Petitioners’ Reply Brief.

rl .

On Petition for Writs of Certiorari. to the Cine eit of. the State of

“California, to the District Court of Appeal, First Appellate District, to

the Superior Court in and for the City and tii yi San Francisco. ;

‘::

so) 2: State judiciary.

: = ° ” >

SUMMARY OF ‘ARGUMENT

In compliatiree wth Rule 4001), Petitioners. submit: the

following outline: 20° + priee ‘

The Ixsues. Questions ether than the Inte pretation oft

awill or validity ofa trust ‘are involved: The I: ‘éderal que>-

tans arise fron uncondtitutional adimintstr ation. of State,

laws Sy “discrimination in thigir ap plication, and an unwar-.

ranted exercise of legislative power by the State judiciary, .

| Fede ralkQue stions. ° :

(1) False interpretation éf awwill:

2) Misrepresentatiom of! other facts o record ;

(3) Refusal to enforce statutes of interpretation?

(4) .Refusal to enforce laws invalidating a trust :

(6), Resort toa presumptiqg prohibited hy laiw “sind

@e will; 3 - ee

(7) Arbitrary dise rimination without. a “facta

(S) Denial of procedural dite sprocess .on appea ul;

(9) Exerefse Gf legislative power bevond aaithincity of

‘

a = om — aaa ie : } 7

Misrépresentations. In six_imstances of (major impor

-.tance, the contents of the will sind ‘of the record are mis-

represented and falsely. stated. A) true iuterpretation of

the will discloses authority teengage in discretionary non-

charitable ac tiv ities —a situ ition invalidating the trust.

Now cnforee ment of: Statute s.. Decisions in other cases -

reveal that the, statutes controlling interpretation | were

strictly enforced. there, and not here. The sane situation.

exists aS-to the laws invalidating the trust.

‘Tigaa! Presuniption, “The Jadgment is actuallt based_on

“a presumption prohibited bythe statutes and is therefore

the resylt of an unlawful act, equivalent to the receipt of

wivil actions, Se hota

=? »

3 \

iliegal: ev vidence. I’ Ix also des: product of an arbitrary pre-

snption in favor, of one J@irty ans md against others.

Tass iercise of La gislatins Powe 7 The State - “ors tition

‘ides. for a separation of powers, and the dudigi lary Is

withont ‘aut jusrity to change laws of inheritance. The judg:

ment hiere is therefore inyalid to the sie extent as in ¢ a

where, Departinents-of the Federal Government have been

heid wifhout authoritate make laws opatherwi ine act outside |

the fr jurisdiction, «

Dy fense’ af: Propertii Rights. < nder? the © onstitutjon,

“property rights of all kinds are entitled to equal proteetian

and enforcement. The re ix “prege ntly" it ne ed for a décision |

of this Court definmeg constitutional rights in re ‘ference to:

. Fnforeeme vit Procedurds, Rule 19 was rot Intendedt to.

cover all {y yes of cases. There is certiorari jurischetion to

| i

enforce compliance with the Constitution, regar: dless of the,

i : ‘ 4

Sresence or absence of unusual, important, or unsettlec ,

CHSCs, : f

: * / : 2, : 2 .

. Sump: ‘aru{Relict. “There is also power;to ‘issue a writ

and erant SUMATY re ligt, as lias leon dome in otheranatters.

Due Process some Appeal, ~The due process ¢ rlause applies |

Nn the prode edinies of the appell: ite courts of a state, as.

well as te the trial courts. ; .

Motion tor Disqualification. VP etitiaiers were just! Hed i i

| woking disqualitic dtion of one of thy Associate Justices of.

the’ Distriet Court of Appeals and his. failure to participate”

herem and take an active part in the proceedings, after

deniakof the Anotion, amounted to a denial of due process,

Baual Protec ot, on Certiorarti” The die process clause’

of the. Fifth Smetidme nt ineludes equal protection, and it.

oa plies te the ‘Pederal’ Mette Miry, The eXerersé of certiorarl

jurisdiction ix subject tu this rev nipe ient,

-siprtiond of law. That power has been exercised in many |...

o x . ‘

whe iivcuad Wiestionselnvoalr ed, "The distinction, it any,

‘ v

between ceiminal and evil Cases, in respect to “dite process

and equal protection; Reftisal to enforce laws as a denial °

of constitutional rights; State exereise of judicial power

as an cunconstitutiqnal act. erie. se i

Additional Reaxons tor Writs? Effeet o f the judginent

Ite eon, Fadletal Revenue Laws, particularly the Federal

estate tan: Cotrec on of thee ror in the die tun in Shelley ev,

Nracwer, 3384 * a. t.21.m respec to possible iitation on

scope of the IF eee Aime nd fie nt. *

, ARGUMENT

Vhis Imief is filed pursuant to Rule 2404) asa jurisdie-

tional statene nt and i re ply to the objections raised) by:

ae on thet fimited ero, The anerits. Will be

Liseussed £0 the antent required to chiow that the questions.

nee sented: are Mode ral and substantial U nless otherwise

sthted, all itakies and other ciphitats ised lierei is OunS,

‘

STATEMENT OF THE ISSUES)

Respondent questions the jerisdietion, asserting (1) that —

the judge nt is basedon the interpre tation ofa willyand (2)

that the validity of the trust depends on State or “tooal’ Law,

Thisis aclever but pvasive, analysis. A erent deal more is

involved, coe

“There- Was ne. “rats ypretation” of’ the will n the legal

“segise, Maalse sts ttements and hadt truths we he pean

for leva anitlysis. This conduet wits deliberate. There Was

misrepresemtation as to the content cof the records refusal

to enforce the statutes controttine NTerpretanton s um un

6 copstitutional adinimistsr: tion of those pie resort Jo ine

admissible evidence in deter tihing The Ment of detedent

eu ale itor ‘eourent of the laws voOVernine rights of inheri-’

tanees gnearbitrary discrimination in faver of Respondent:

denial of diecprocess on appeals and an ny of [peurbs-

Intive _ power hevend the authority of the judi@iury an act

a ¢ » . /

equivalent ta usurpation.

° ee ne ema

Fad

he Fourteenti Atiems Hnient was adopted te put an ened

to just such practices av these! That was the basis od this:

Coiyrt’s order in Shuttle sworth oe. i: opiwnhain Roard or

;, a is

BE hication, No. O4k Oat. Ferm, boas, COTE p. O2" upholding

el See ae 1X to Cdyn hoy wt Justioe Diack. in Yolapane " ie

berth fornie ees i =: Mit Hat sey 4 a 4

2 Commerce Clearing Haiise bie United States Sipreme Coun

Bulletin, Nov. 24 195s page [2. bab Tie k rsbications will te here

epee eS ites

Pe ey LL CTT Meee eer ae Oe er, aves eT EREONOER.

the Alabama Pupil Placeme wt daw ye nding AN EXETELSE Oo!

™~

further inrisdiction, vine

. "Per Curran: The ene thn is granted and

the judgment is attired upon the limited #rounds on.

Which the District Court rested) itst decision. 162. 6,

Supp. eae” Rie

x. is . ‘

The District Court opinion so approved had the following

proviso: ; . es

“ALL that has heen wud in this present OPEN LOm tntts!

be limited to the constitutionality of the law apou ifs

face, The Schook Placeme yt Law urnishes the legal

machinery: foran orderly administre ation ‘of the publ

schodls ina constitutional manner ** *) We presi:

that at will le so administered. TY mot, in some future

proceeding it is possthle that it may be deelared a

i constitutional ino its applreation | Nhutth smorth ¢.

Birmingham. Board of BRducation: We FB. Sup p. oS+)

See opinion of Chief Judge Parker in Carson ¢. Warltek,

2388 F.2d T24; sustaining the North Carolina Pupil Enrotl

ment Act on the same grojind. | |

In Lassiter cc Northampton County Boardtot Elections. —

No. S84 Oct. Term 1958 (CCH p. 1523), this Court upheld a

‘voters’ literacy fest-as valid on its face. Jurisdiction was

again reserved to determine Whether inequality in’ ttiet

might result fronf its adniinistration. The following come

ment appears therein: are

“Tf they (whites) were allowed te vete without taking

a literacy test and if appellant (a Negro)-were denied

the right ty vote unless she passed it¢ inembers of the

white race would receive preferential privileges on the

ballot contrary, to the command of wie Fifteenth:

Amendment. That would be py to the problens -

posed in the elassie ease ofitveh Woe. Mophins, 11s

US 346. where an ordimince uni peachable on its face

was applied in such a way as to violaté the guarantee

“of equal protection contained inthe Fourteenth Amend.

‘

, > ment. But this issue ‘of diserinMation, in the aetual

* operation of the ballot laws *

* 8. So we'do not reach it. But we Mengion ig an

passing sQ that it may be clear that nothing We say or

do here will prejudice appellant in tendering that issue

insthe federal proceedings whieh await the tertaination

of this state ¢ court litigation * **, ae

“OF course a literae ‘Y test, fair on its face, may be

emploved to perpetuate that discrimination whieh the

- Fifteenth Amendiient With designed ta Uproat, No suc ‘hi

_ influence is charged here.’

It is clear From thtese cases that the unequal acininistra

tion of a valid law isa de vial of die process. “Phe testin ad

» these situations is the result : vot the means hie whieh itds

aecomnplishpd. in the: Pupil Placement cases the rehts

asserted ave as dudicidaals wet as members of a particular

elass’or grotyp (Carsan o. Warlich. 238 F. 2d C29)" Ut Fol-

‘lows that these Opinions are alse valid duthority in situa:

tions where the persons, tnvolved Inive ne ste heeronp aftil-

lation, -

It is it “dvhial of due process fora District Attorney te:

tise pe bjured evide nee With knowledwe of its falsity « Nap

.Mlinois, No. DSB Oete Term Ls CCH |). 1657 The same

rule Inust app” Where jhe State acts through a Court,

instead of a prosecutor, Fe :

Kalsifie: ation of amayp sii ree iain in ct ele nal ot dite process

Che SSMIGH 4, Teéts. hd we id, Judgments hi: [ve been cs

reve ‘rsed on constitutional 6 ee whe re based on Wire

tapping (Benanty" ee cMited States, 855 $s. SO). testimons

siven by a Wife over the Objection of de ‘Tendant. her lus-

hand (Hawkins 1 . United State New 20 Oct, Tern Phos,

3: The re Is Ne athe Stien as teothe rirehy at thes se howl « Aihdve tn

he admitted to the schools of North @rolina withent diserinsinas

re on the ground of race. They are adriitts however, as and irid

ws. not as a elass or groupsand it Is astadicudaals that their’rights

tinder the ¢ OUSTIM tion ave j isscrtee :

* dias et been Framed,

“.

¥ oe |

CCH p. 113): evidence obtajyned with a search, warrant

based on hearsay (Giordencllo 4 . United States, 357 Us.

480): and proof secured by illegal entry and arrest without

a warrant (Miller cv. United States, 354 U.S. 301). F ‘ecleral

officers have been enjoined: from’ turning over to. state

authorities evidence obtained | onan illegal federal search

and se igure, and restraine dd ffom testify ing Ina state court

in reference thereto (Rea rv. United States, 340 US. 214).

These are criminal cases. Jlowever, the Fourteenth

Awnendment surrounds property rights with the saine pro

teccor given to /fe" and “Hherty’ rights whieh norma

are the subject.of ernminal proceedings. There is no valid

basys for distinction between eriminal and civil.actions, or

as between enforcement of rights in, Prone rty and rights of

the person. All rights of all persons are constitutional

secured. ; |

The only ditférence hoteien criminal and civil proceed

ings lies in the facet that in some cases the conduct com.

plained ‘of does not constitute: the “act of the State” For

example. it Was held in Thomson vo. Butler, (6 bid O44,

H47-448, that: | se _ ee

The due. process clause of the Fourtéenth Amend

ment is not a cuarantee against the use or results of

ates jury or Fraud by * partic s to preate Ltigatioy. tn

state courts, une ountenanced by the general standards

cand proe exs¢es of the state court system. * * * “The rule

recognized in Pyle vr. State of Kansas, VG US 215

‘+ and athe woeases * * * has application only do public

litigation | in which authorities of the’State, with respon.

sibility for the litigation, litve committed or gounte

naneed a fraud or fundamental unfairness * * whieh

has entered into : a de ‘privation of lite. liberty Or -prep-

e rty by the State” | | : ‘i

It seems clearthat no such rie ean apply ina civil action

where the State acts through its judi¢iary in imposing such

a | | |

69 -

consequences on one of the litigants. Vhis constitutes “State

action” within the meaning of the Fourteenth Aniendinetit.

It was so held in Shelley cr bh rae mer, 304 US. 11 The jury

“sélection cases also rest oon. the pfoposition that State,

judicial action is the-causeof the prohibited result.”

FEDERAL QUESTIONS PRESENTED ti

Due process and the-eqial protection of the laws. have .

— heen here denied, by judicial action, in each of the following

respects : pr

Firsts By a deliberately false and untruthful “imterpre-

° ae . . . . ‘ N id

tation” of ee = will:

Second: By ancuntruthful opinion Inisrepre senting other

OSS ntial facts, of records

Third: By arefusak to enboree, and vive till legal ffeet

. the statutes controlling the interpretation of this will:

"Pani: By a refusal to enforce, and give full legal

effect to, the @nstitutional provision: and statute under

which decedent's trust is invi alia:

Fifth: By oan unconstitubian: be achitttixtration ar te lest

CASES 3 ta : ’ eae

; f * . . Pa

Sites By entry gota; judgment based on imtidiiissible

evidence-in the form of a “presuinptlon™” contrary. to. the

terms of the will:

4. “That the action of state courts : mel juds ‘ lat officers im then

"official capacities is to be regivdeg) as cactio Hof tie State within the

teaming oF the Fourteenth Mistielment. is a pa geesitton whieh: bats

lone been established bw dhocisiens at thts Coauart. That }? rye Tple Was

ceiver expression in the feartest cas x iene The Genstbietiean wor

theftermis of the Fourteenth Amenelment. 7 Writ iets at Chict Justice :

‘Vinson: 334 U.S. 14. |

ae VTi rpande : Ts run, 3 1; 1° oy a 5 Re |. i pli. tefopen at freon, 349

SS. Sis: Retce v.. fix Omir | he a “s ) Ae a Lows Same, B50

CS. i, 104: and Buhunks ie fanaa ts sie I.

e ¢ ‘

laws, contrary to the foree and effect.given thereto in other

Seventh:

By exercise of an arbitrary and dise ‘rinina-

tory presumption.in favor o& Respondent :

_E tghth. :

sy conduct amounting to a denial of due

proc

OSs and equal protection on appeal:

Ninth: By

an attempt to exercise? Jogislative power

bevond the authority of the State Judici ary. ,

”

Falsehoods of Major Importance.

There are six false representations bearing direetly on

the validity of the judgment—

following analysis:

. THE OPINION

1. Prohibition.

“In the instant case, the will

restricts the use of trust property

solely to charitable purposes."

(Op. vi: 4-5.)

; 2.—Single purpose,

It is represented that the trust

has only one purpose—''to con-

tribute toward world peace by

providing education for news-

papermen.” (Op. iv: 17-20.)

3. Educational purpose.

“Such a purpose is ieniante.”

tally educational. It has long been

the law in this state, that o trust.

| for educational purposes is a trust

for charitable purposes."’ (Op. iv:

Rome Nn Sige Se

ee he impleme nt fg |

follows:

aitise

“OY the sweat ul

‘T haye therefore lone chévistiod the hope that Praight be

-a fact that is lear from the

THE TRUTH

No prohibition.

There is no clause or term im

posing any such restriction.

Multiple purposes. veal

The plural form in the words

“‘conditions'' and ‘‘purposes'’ re-

quires the interpretation that there”

ore several purposes and more

than one condition to be reme-

died.*

Not ‘cgndiieit.

There is no clause requiring ‘that

- educational means be used either

in whole: or. in part. Non-educa-

tional activity is permitted.

$1926 reads as

able to da somthing 1 he ‘Ap tiw arde thre COrree theory of the Ne condi

tions,

estate anal property

* & €

and to that end bhereby give and bequeath *

im trust for the foregoing purposes * * *."

* all of my

’

7 See

, ables for the

4. Fora professorship.

“If the trust income is insuffi-

cient, the trustees are to establish

a professorship."’ (Op. vi: 11-15.)

5. Bequest to Stanford.

The testatrix intended to make

a bequest to the governing body

of Stanford University.’” (Op. vii:

18-20.) |

5 °

Will 626-709

rien a the: thet privonmne abe

ulomsaid

eoollrne possible,

ells stahlish i rull- time prof

DLP Dies,

it iN tay ogee ated co pore beahiere that wrx sitled

swe ship hi re nner

Not required.

Precatory words used in this

clause disclose an intent to im-

pose no legally sai obliga-

tion.’ ‘

Not for the University.

"The will contains no clause re:

quiring the trust to be adminis-

tered for benefit of the University

or any department thereof. The

Foundation may be set up in an-

other State or place; operated ‘ine

dependently of the University.”

—<«¥

‘Tn the qadministratien at ‘yt Founda

rived: from said: trust propert

J aed avail

sritticie nt ter om ake steh

runte

(fa ty Ba

im oles

wider

“Sarid Trustees”. ‘

n Throvghout the will dees (lent reters tes ite Pehstees as ae

There are twelve suede rete nee igiedicaatinige that the

DePSatis wetting Miall: be trtistees ter tier ‘bye fit srtiel peat For the use

we henett ot Stanford. The ENPPESS pur'pes ot thi trust in tor esterh,

Nvhoa Fouridation cetsel potenti TE With ineotme Prom reside at the

estate OWiR S225. The Pourmedationt tiaye dee established ai ams

pritee or places It yis thet leuran tty Necessany that the owe LIVE SETA been

anv wan sunaeher with oat Khe “will shows: that cleeeedenet hal in

tt ined the prosstbilite st Phat Streeesscr Trustees tigi bse appy nite te

TY id it out see Wills -107 : a ;

; “dt -n ust : ratede: stood “Yh, ato the saberter Pespechive Preentees

to the si 1 prediviedtiads dretade mameek cares te bee parte an

ull and without fail. and of ma said Trustees aad ov sated The

Leland Stanford Pinfer Universit, witt fer

Foundation of World Relations, hereinabove provided: ror,

they Wilist ela sO sitliteet ter stich hayue on beth the carpus of

derived theretran: igi _ *

aceept the said

“Said trust estate end all dieotie

ee a

“6. ‘Charitable status.

ee ie under the terns of

the founding grant, which is made

applicable to ‘all bequests fo the.

Stanford Trustees” by section 10 of

‘article IX of the State Constitu-

tion, the Stanford Trustees are

prohibited from using the income

and profits of the trust for any

private pyrposes.'' (Op. vi: 14-

19.) |

The True Situation.

Non-charitable powers:

The Stanford Board is a corpo

rate body with both charitable .

‘and non-charitable powers. It has

acted in bath capacities at various .

times. It has” power to function on

“a non- -charitable basis in refer-

+ ence to this. trust.”

‘1. By. a failure to prohibit: nen- -charitable activity, the

testatrix authorize “d her

)

cucational me ans, she aut

By a failure to instruct or

T ruste es to enter this: field.

require shen to ehrplos

rized activities both eduea

tional and non-educational, thus conferring a&dliscretionary

power of selee tion.

“3. Itappears on the face of the wilkthat express ; pewe I

_Wwere relied on in_respect. te administration of the corpus

ofthe: trust Tund set aside for maintenanée, sand that

implied fowers were-to be used by the Foundation in. the

execution of the trust purposes.” "

q, Cosparite powers are’

Fy; 30601-21303. On October 17,

affiliate,

search .on a- fee

charitable business ever since:

contract basis.

conferred by

1946.

“Stanford Research Institute’,

See

Edueat ion ( ‘ode Sees

Respondent anearperated an

to conduct industrial re

and it lias engaged li this mon

Footnotes S10) at page PM at.

the Petition for other data redarding ‘non-charitable powers _

activities of the Stanford Joard.

There is power to incorporate and

operate decedent's Foundation on the same basis.

10. The express powers conferred ino respect fo *idministration

of trust funds inelude:

in securities, land. real estate

CONVEY ;

nite term. See Will 5:62-6:17.

Right to postpome expenditures ;

morteages ;

authority to retain a specific block of stock for an indeti

There is no provision indiearting the

to invest

power to sell, assign. and

means to be used invearrving out-the trust purpioses, Unless there

is broad implicd power

avonld fail for uncertainty.

there is ne poWere in which case the trust

* . -

. * .

. r . ° ”

. . e

13 . / a Ps : ; >.

4 ‘

- 4. dh addition, there is a broad frant of general power

to do anything likely to cor reet an of the conditions. nen-

tioned in the pret amble.!

——— 2 —- * = be Ss °

~ The | ‘oundation oe perpetually maimtaimed with estate

income will have charter purposes capable of being, éar ried

out bw either edueational or non-educational, charitable

noncharitable, means. The molding. of public opinion mals

he tempted by entering the television and radio broad:

pmunere ‘ial sponsorship. The knowledge.

of our cifize ns in retard to- fore ‘ign affairs may bei inere rmasect

easting field l. “with ce

hy publishing a magazine, newspaper, or information, bul.

Jetin te a list of paid subscribers. Re search may be con-

ducted on a fee contract basis for the benefit of publishers

wot edue ‘ational materials by marr angement similar to that

“NOW used hy Responde atin TTT C ascot Stantopd Re search

Institute. These are only a few of the possibilities, The

Foundation will have discretionary: power to Cngave Un any,

ofthem | Shoat Ne Rae PR

An outline of the true legal interpret: ition of his will Ix

. .

set forth in the ee mdix.

Refusal to Enforce Statutes Controllieig Interpretation

, The statutes’ which control here sure the P Dia ‘ihe

> Segtions cited at page Vol the Petition.

Section no requires alf wills to he in writing.> >

x: nder Section 100, the © ‘ode angepilte to: it Rill au Poetines

prape rty with the State. ;

Se tion 105 restricts? the determination of inte nt to the

1S Will 4219. pe ae have therefore lene cherished the luope

that | nueht, he able bes cder some thang to. he ly) toward the correction

af these conditions, and to that end Ihe reby’ itive «4

"aie | ; re ees.

words of a will. It prohibits resort to extrinsie evide “1

except wheré the words used are ambiguous: or wicertain.

asx to meaning.” a Mies ee

Under Section 102, meaning and some «ffect inust. be

given to all of. tin words in the will.

Section 10G requires, that, the words be taken in’ their.

ordinary pm grammatical sense; that ‘technical words die

given technical mei ming. eee ee Sri ee

These rules havé been strictly enforced | — ASUS,

We cite the followi ingas examples: .

E state of } oung, 123 Cal. BOT, 44390 P. “101 1: inten:

tian to he sought for is not what existed in the

* anind of testitor “hut nat which is “éxpressed in

is the language of the will.” Sree teeters

ee Bstate-of Lyons, 36 Cal. App. 2d 92; 36 Pad TIS:

‘ = there can be no reformation of a will on the round

of accident or fnistake. | 7 .

= Prirson Ty thane ny, fo-Cat Appe 2d Bote PT Pa

ee if the language of a will is cledr, ie inte nt ‘as.

shown ‘by such lan: enage must be carried out,

* vardless of -how-sunusual or unre: sonable the, ane

may sie hi chicas eae

See. alo CASES cited in the footnote. ” mbes

———, 4.

. \?

a ee. Se ‘hie ‘nan uncertainty arises upon to face

of a will, as to fhe application of any ‘of its provisions, the testator’s

intention is to he-ascertdined fromm the words of the will, takingints

#ee

view the circumstances under w hich it was made, ,

13. E state of Northeutt, 16 Cal. 2d Bs ( ISS. 107 P.2d 607, G10:

words of"a will are to reegive an interpret: ition whieh will give some

"effect to every expression rather thar render certain parts, inopera-

tive; technica] ‘words are to be-taken Ina te¢hniéal sense where fhe’

will was the work ‘of a legal dPattsmiin. Estate of Boarn, 25 Cal:

App. 24 590, 595.73 P.2d 193, 196; words must be taken in their

grammatical sense, and technigal terms in their techmieal meaning

where the draftsman was an attorney. Estate of Walkerly, 108 Cat.

‘Weetion of the laws.

The failure to enforce these statufory ules in, like Inan-

net in the case agbar as deprived Petitioners of their prop-

erty without due process, and denied them thé equal spro-

Entry of a Judgment Based on Illegal. Evidence.

: a

APpresmmption, lawfully: applicd.:ig, evidence ‘to the gine

extent as any other form of proof.!! ‘Khe State court sought

here to apply a presumption in Respondent's “favor indis-

regard ofthe meaning of the words in the will and i in Viola-

tion of Probate Code Section 102: |

“The Wwerds ‘of a will are to receive an interpretation

which wil wive to every explessiongsome effeet, rather

than one which will render any of the expressions ine

-yperativer and of fico modes of mtcrpreting a will, that

is tobe preferred which will prevent a total intestacy.”

xy he re is no rich to apply’ such, pre <imuption except. whe re

the words have fito or pais possible Interprebkataoiys one

: he

pot sealed weet pentilt ite tH -Hites betes

tere Hit ~ eee ie

en,”

‘theiy ordinary and grammatical sense,

There is no, provision wuthorizing a presumption in favor

of Seharite’ as.sucli. The only basis for “presuming” in its

favor is that provided in Section LO2, Mieawords inthe will

must have vat least two possible miterpretations to justify:

resort to any’ presumption of any kind, ate :

Here, the words ‘are -both clear agd contin. Taken in

i, disclose i trust:

for a mixture of charitable andnon-charitable objects, Dis-

41 PL 7722 awhile itt may be xard of all wily that “the testator

eB is toomake a valid disposit! on. a court is nets authorized on

that round to modifye or yary-the plam lengnage.s ‘hus creating a

new and valid will ever though mie he certain thatthe testator

would have adopted such inte Ypreti ve had he known that his own

attempt wi as invalid, ;

14.0) Code € iv. Proe. Nees, 150: 1961, ger 903.

. “ae 16°

rep arding this factual situation, the Court resorted toa

“presumption” on ge nerd pracctples.” Tts condtict wats une,

authorized, and a Violation of State law. The judgment is.

based atithis ind of ile ul evidence. A de mia! of due proc.

Oss ‘and equal protection Was the result,

In criminal cases it fy settled that due process isalenied

by the ‘receipt of *iMegal ev idence." The due process Clause

has the same me: aning in’ the F ifth and F ‘ourteenth Amend.

ments, From the due process standpoint, there ean le ne

difference between criminal” and Civil proceedings. It fol

lows that the Gourt, in relying on illegal evidence in the

form of ‘ah unauthorized: “prestunpyion™ . Was. party’ toa

violaMin-ot constitutional rights. ee Am =a

Arbitrary: Presumption i in Favor of licen:

"No State has pewer to establish or enforée a rule where hy

one part’.to a civil action will be Tavored or “preferred: to

the detriment of another. In-such case, due process and

equal protection gre denied, regardless of whether the

“rule” is one based on statute or a jude ‘ial interpretation.

ofthe Peommon law" ¢Shelleg ve. Kraem mer, ddde JS. 1, 17).

The conStitational standards required, i Sueh a case are:

those emuneiated | i Bstate of Kling, 138.Cal App. S14. |

319-520, 82 2.2 md Oct, cited at pase | oof the Petition. The pan

15. The epinion states. thaf ** * * courts look with favor “upon

all attempted charitable Jequests and eg resis no authority to con-

. strue a charitable bequest, as legally void if it can possiply be made

_ good. It is the poliex of the law to favor gifts for charitable par-

poses and a will providing such wil'ts will be liberally constiuyd tos

actomplish the inte ‘nt of the donor.’’ (Op. iv: 4-10.)

16 Benants v. United Statis, 355 US. 96 Hawkins ¥, nite

States, a ark et. ‘Term 158, CEM p. 118; Giordenello v, United -

States, 357 US? 480: Millir v denited States, 357 S. 301. “The use

of prohibiged ig v cdi te deprive Petitioners of their gproperty.

‘rights in a State court. is: similarly. i Vivlation of the Fourteeyth — g

» a .

Ame ndme nt. we ; . ."

, . P ’

. ‘ ‘ 6°. -« o

+ failure to apply the minha constitutional standards set

forth’ in this opimion Was a widlation of, thie ‘Fourteenth: |

- Minendinént.; Respondent is trol above-the Taw, It is subject,

to theo same rules ds

case confers no

‘

hand

anee of an individual Waving ne power or influences Under

“he Constitation, all porsous are suave anteed” due. process

and equal protec tion,

—————

other litigants. [ts presence in this: “afl

Gater poweron a Fourt than the appe aur : :

Refusal to Enforce Laws of ehactlenes: , as |

+3. constitutional and stators v rule seainst dixeretion- -

e ane non- charitable powers ix/part of the lawsof inher ifance

of the-Mtate of: ¢ ‘alifornia. There is no right to inhe ‘rit under

| a perpetual tr containing such a provision, It was the :

hate of the Cou¥t to enforce this’ law as ie fect git date.

| of death: It has heen strictly and uniformly “enforced. i n

= : other res : a ee ae a

- seen : oe

q : Extate of Sutro, loo Cal. 727, 102 PL vos:

| Estate st Vance, FES Cal. App. 163.4 Pi LOTT: c °

. OE stateot Meher, VeCal. App. 244, chsnigt: ‘a8 |

: thas Estate of Kline ABS Call pp. 514,32 Pld 677:

j Ne | Bistafc oft [. abodi, LE Cal, App.: eo coe. TO PoPd 249.

Due process a ee qatanl protee tion Were de nied Dv a iyi

cal failure to provide the same kind of enforcement an thie

case at bar. sa aa |

‘

- Exercise of Legislative Power by Judiciary.

The ¢ ourt souvhit to change the State law of Inbreritance

Jnvalidating these tris ts byeancvattempt tee vereise Je risa

ive power ret roatet ivy lv. Phe State Jidieiary fits ne such «

— jurisdiction or qutheritv. The modifieation. amendment of

‘ a 18

repeal, of these laws is thie sule pre hagataye of the Legisla

ture. als : be

See: * i |

Estate of Ingram eS ¢ ‘al. js, s88; 21 2. 4353"

. state of DeC arn, fol. Cal, GS2, GSS; SOP, S83,

. S36; - .

. °° eatetle of Kirby, Po2 Cal. U1, oF TSE PAs

Mand veo Catherwood, 67 Cal. App. Yd 656, 645+ 105

‘ ect? 114." ae | Soh ;

Artic ‘le TLE, See. 1, of the State Constitution, provides kor

a complete peters of powe rs? Thesanauthorized act of

any departine nt.of government is unlaw fu aud therefore a

denial of due process. This ( ‘our#4iax x0 Fifled ivmany cases

— power and perheche tion atthe § ede ral be oe

= /

—Wee: A ae, ; _—", ‘

Given reo MeKlroy, No. ISO, Oct. .Terin, 15s, -C C oT

p. LOSS; lack of authority by-R&ecutive Order or

Act of Congress to sustain exercise of jurisdiction

contend that ina ease like the one at bar the children of a deceased

sister cught to have.a’ share in the estate * * * Succession ta’estates

‘is purely a- niatte rof stafutory.regulation, whieh cannot he changed

by the courts.”” (75,Cal. 88.)

18. Involves the question whether 4 Bete not convicted ot

murder of the decedent but held giulty OF manslaughter could in

_herit. See 162 Cal. 94: °° The right of inheritance in this state does

“not depend upon the ideas of court or counsel as fo justice and nati

ral right. The entire matter is in the control of the legislature and

depends wholly upon the provisions ‘of the stataite; regardless of our

_notions of natural right and justice.

19. .°** * * We must bow to legislative direetion when. we. are

told that if the descendants are not of equal degree ot “kindred * they

take by ‘ight of- representation” * * *) ‘StTeeession to estates: is

purply a matter of statutow@rezulation, which cannot be changed

\ a

by courts.” °

20. ‘**The powers of the coverpment of the state of California

shall be divided ‘into three ap de partinents--the legislatave:

executive, and judicial: and no person charged with the exercise of

powers properly belonging to one of these de ‘partinents shall exer

cise any funetions vs abies te cither of the others * * #7’

17. It is vain to argue against the injustice of the rnle, or to.

f x: / |

' : 19 ait, é Pa

by the Office of Industrial “Pé reonne| Security ite.

“View and other agencies ® ae

Taylor ve Meklroy, No, S04, Oet. Tern, Has, COM

p. ZOSUS concerning Sante issue ¢ te

Duncan vv. WKehanamoke, aed) [uS. ob4: validity of

martial law in Terrgory of Hawaii:

Crrancille-Smith, Granville wtih, ra es -1: want.

, of jurisdiction in District Coutt of the Virein I s-

| lanky to grant a divorce under certain cofitions.

Retr Si. Hobby SAY COS OTs action by 4 ovalty Re-

“view Board Jn excess ut tuvindictive aaee kexecu-

tive Order and held to be “an unwarranted assump.”

: a tlon of pawer™ ,

; We Wee. Covert, od TS. Pe want of authority te supe

Pn oy Sport court tuartial trial of civilian dependents: ie-

; | COMPANY Ing members of the armed forcessoverseas

in tine of Peace ¢ | . i: .

we Harman}. Bruckner, 355 US. S79 want of authority

* : in Secretary of the Any to isstie “les: than honor

able tiseliarge based on-conduet prior to inddetion

inthe armed forces : | _ § |

Went v. Dulles, 357 VS unanith Wine dl action of

Secreti sot State in de MV Ine putssport because of

alleged communist affiliation and pais nembership

‘ so in (Yoimwrunist Party: c i

Dayton ‘sh Dull ree Ti UC" * 44s s SUNG issuer uvolying

“person having allege a, association With ime anhers oft

the Rosenhe re explonage ring: ; -

— Ee itarelly 4 Svaton. No, 11, et. Term, Mas. eH :

p. 1330: RETA order of discharge of: Interior

Department emplovee,

In Penusulvania v.. Nelson, 3501058, 4! IT, State action Was,

“set aside on jurisdictional grounds, it being held that Con

eres had preempted’ the field wo Smith Net casey thus

. .

* ‘ : : ©

‘ .

‘

ae a 20

depriving the States of authority. Sweesy ve New? Hany

shire, 34 U.S. 244, questioned, the authority of an in

vestigation alleged to have heen sponsored hy the Ney

Hampshire State Legislature, a fairanagins S Sheetgd

Tube Co., etal. v. Sawyer, 343 S. pe 9, the Legistitive:

Act of the © resident in ttn NOPATIRE of the ‘steel mills

was held unconstitutional.’ : .

The exercise of eta ee by the Judiciary i-

subject to the same prohibition and must on likes grounds

be held a denial of due process, This is the law at the

Federal andéalso at the State level. There ix NO power in,

the Judiciary to alter it in any respect.“ It follows that

the attempt to so legislate as to’ confer inheritance ‘@ rights

on Respondent. Stanford Waser Violation af the our

teenth Amendment. The re troactive feature of this judicial

legislation is, in itself, an-infringement-of basie rights. _

Constitutional Protection for Property Rights.

“A study ‘of the opinions rendered from Volume 346,

United: States Reports, to date, indicates that the follow

ing are the only Cases during that time dealing With pre >

2). ‘Breet Seizure Gases: Majority. opinien by Justice Black

“*The Constitution limits his (the President's) funetions in. thie:

lawmaking process to thesrecommending of laws he thinks wise ane

the vetoing of laws he thinks bad. And the @onstitution is neither

silent nor equivoeal about: who: shall make laws which the Presiden!

ix to execute.” 3430S. S87. Justice Frankfurter:*The Framers.

‘however, did not make the judiciary the overseer of our govern:

ment. They were familiar with the revisory functions entrtisted te

Judges in a few of the States and refused) to lodge sueh powers in

this Court.” 343 U.S. 594. Justice Dougtas: ‘SS The doctrine of the

separation of powers was adopted by the Convention of 1787. net

to promote efficiency but to preclude the exere “ise of shag ry

power.” Myess v. United States, 272 TUS eben 293.""(343 U.S. 629

22. Ullmann ve United States, 350 US, 422, 428: i Nakita new

van be put into the Gonstitution er through the amendatory

process, Nothing old ean be taken lout without fhe same process."

7) oe

tectron Of property-or property. rights under the Fifth or. -

Fourteenth Amendments :

_ Brown ev. Board of Sbivabiun, 347 U OS. $85, 495,

' involving fiiture earnings possible wath improved

;. . educational facilities ** 7

Bolling re Sharpe, 347 U.S. st —-ceme Issue in re-

spect to District of Columbia:

Barsky vo Board of Regents, 347 US, Hz right ‘to

practice medicine;

. : Schware v. Board of ‘Bar Examiners, 353 US. 232—

right to prac tice law: i

' Konigqshera tr. State Bar, 353 Us. 22 practice of

| —_ ¢ e epee ey ie ae

| Shelley vo Kraemer, 334 ©S. 1--right to own and

occupy real estate :

eh 2 Spriser re Randall, 55% US. 515—vetefans® right to

tax exemption: . }

First Unitarian Church v. Box Angeles, 397 ULS. 545

~—tax exemption rights of-a chureh:

— mr Mcklrow, No. ISO Oct. Term 1958, - June

. 1950 PCCH p. LS8d)— loss of increased earn-

ings available.but for denial of security clearance

in defense industry :

Taylor +. McElroy, No. aM Oet. Tern 195s, June 29, :

1959 (CCH p. 2089) -carnings lost] i in defense in-,

| for want of cles AANee %

: — Cole. Young, S01 US. 556 -emploxee of Federal

! De oad At of Health, Edue ‘ation, ahd Welfare:

° . Peters rv. Hobby. Yo US. 38 -earhings ef em-

plovee in Federal Security Ageney : |

Today fedneation) isa principal instriment in awakening

the ehild to cultural values. in preparing kim for Tater professional

training * *.*. In these days. it is doubtful that any child mas

«reasonably be expected to sueceed in fife if he-is denied the op pat.

tnity of an education.” "(347 US. 493)

) oe. ee ‘ ;

Vitarclli 7. Seaton, No. 1OL Oet. Term 1958, June a

1959 VCCH Ep. EAIQ)-searnings of Department of

“Interior employee: | Pe esti

Slochower @ Board of Education, 300 US. 901

earnines of ANKE LAY professor at’ Brooklyn Col ¥.

lege, Ingintained by “City of New! York:

Beilan v. Board of Education, 800 US. 399-—-teacher

in Philadelphia public schoolst.« ie

Lerner ve Casey, 357+ Ua. 468—subway conductor

employed, by New York City Transit Authority.

Memorandum opinions and orders to reverse or allirn are

not included in this analysis, there being no way to deter.

mine the basis for those rulings. The lack of Property

Rights decisions in other ateas indicates the necd for-an.

exercise of certiorari jur isdlic ‘tion in the pe nding matter,

Certiorari to Enforce Constitutional Rights. —.

Rule 19 wes not intended to cover or Indicate all types

of cases within the certiorari jur inclic ‘lon under 2S ULS.CLA.

Sections 1254 and 1257. The ‘re are many cases arising unde 7

- those jurisdictional provisions wliere the duty to enforces

Is clear, and writs have issued in the absence of unusual,

important or unsettled questions i. We cite the fol-

lowing ax examples: :

Dickinson vo United States, B46 US. 380 review of.

evidence on denial of exemption from military

sertice of person claiming status: as a ininister:

of the go-pel: a)

Leyra vy Denno, 347 US. 546-—-whether evidence

disclosed that a confession was obtained under

_ duress: a -

Wilhams «. Gedrqia, 349 US. 5705 > whether evidence

showed that a negro tad been validly deprived of

: pn

23 | Se ae

his right to object to. the composition of a jury

5 c a

panel ; -

Herman v. Claudy, 350 ULS, 16. -whether a plea of

guilty was obtained under duress: 9

likes.v. Alabama, 352-U.S. 191—!whether confessions

ofa negro were obtained under duress:

Delli Paoli ¢. United States, 362 U.S. 232—effect of

the introduction of testimony of certain saa

tors on the right of other defendants to a fair trial; Pf pkcae

Blackburn v. Adabama, 354 U.S. 39: 3—remand to

lower court with instructions to detérmine whether

confession Was obtained uhder duress 4,

Mallory ve United States, 354 U.S, *40hwdidite of

confession in view of length of time covered. by

detention:

“Rowoldt v.. Porte ite. gaa U.S. 115 —exaniination of

evidenc ‘e to determine ei ther “C ommunist Party

niembership of a deportee was *a “meaningful,

association” under Sec. 22 of the Internal Security

Act of 1950: Coa

Sherman v. Uvited States: 356 US. 369 —suflicieney

of evidence respecting an issue of entrapment, im

a narcotics case: sae a

Vasciale ve United States” 356 US. 386-—whether

issue af entrapment: was- properly subtiitted to

the jury: . ee

Payne ve Arkansas. 396 aE US. GO when ther eas re Was

ade ia of due process: in obtaining confession

froma negro:

Nowak v, United States, BAG US, G60 setting aside

- denaturalization order agains t former Communist |

Party member for want of “e lear and convincing

. evidence’: ' a nae °

4 Pi ; : i D4 = a4

Miller ov. United States, 357 VS. 301 sufficieney 6

evidence to sustain search, seizure and arrest it

‘a narcoties ease: eos

Ashdown +. E tah, BOT US. 426--Peviewing evidence?

In respect to a confession given by widow, ina

oo es Mnurderceiseatter déecOdent's Tineral: ;

Cropker v, Calrrornia, 307 VIS. 455- validity af cor

fexsion given hy a college student ina miurde t

“ASO | |

Cicenia ve. Lagaye 357 US. S04. -also involving ean

fession and a plea of duress :

Irwin v, Dowd, No, 05 Oct. Termy Ws, May 4, 1055

(CCH pp. 1125)—-review of evidence in a habeas

corpus proceeding to determine «due process isstie

: + inaNState prosecution,

Summary Relief on Certiorari. —

This Court has the power to issue’ a writ ak eran

SUMary relief thereunder, That procedure: hi as heen fel

lowed in nrany cases, ine duading the following: Tere

Nitchens ve United States, Misez Xo, BY, Oet. Tern:

1958; ge .% ee

= ted SAY. ca rel, Parusworth ny Marphi., ASDS

——— Met. Term 1958;

Sagamon Valley Teltviston el arp. t. Uvtted State

No, 235, Oct. Berni W958 ne ; :

WRT. Telovixiiur’ 7 orp. Ce nited State . re

Ovt: Term 1958: -*

Vew Orleans City Park Tm procenee wt. Assn,

/: Detiege, No, 285, Ot, Perm 1958:

WORZ, Tues. Federal Communications Comm. No.

349, Oct. Term: 19585 - ‘

County of AMeaheny: re Frank Macbide é'n.. eae ts

. 347, Oct. Term 1998; .

SO nee ene

_ United-states +. Halley, Noo 300, Oct. Terni 1058:

Smith vo United’ States, Mise. No. Wz, Oct... Term:

1958; ; PARE so:

Townsend v. Nain, Mise. No. 592, Oet.- Term 1958;

Hand ford v; Uwited States, No, 78. Oct. Term LOANS:

; EDITS a ion Local No, sia ¢, Seren-l p

Bottling ( ‘ulepiian of Of. e re Wittrtes—Noe 169, Oct.

Term 1958;

Duer ve. SEC. No. 67, or. Term LODS:

DeVries +, Baumaartna S Blectric Construction Co,

No, S54. Oct. Term 15s: |

Ohio. ea rel, Klapps t. Dayton Power a Light Co.,

No. SOL, Oct. Terni 15s. |

The record is clear, tt discloses re ve ‘rstble error on Fed:

era srounds: that a deeree should: he entered Instructing

the Superior Court of San Francisee: @ ounty te grant the

Amended Petition for P reluninary Distribution and [-

Ae Dae%e: ° . &

termination of Heirship. (Ree. Hem ee. 2. page SP) as

praved, Petitioners apply for sHnmatry relief, to that effect

purse te the certiorari power of this Court,

Denial of Due Process on Appeal.

The due process clause me plies fo the proceedings of the

appellate COLTS, Constitution ti Protection singe end

at the trial eourt level CShellow «, WN racmer: ae US. 1p:

The as cases ire awed on this interpre nee of the.

Fourteenth Amendment:

‘? Blachhiirn vr. dlabame. m4 TUS. S92: remand and

ye a requiring the “appellate court. fo Xervixe

Jurisdiction: IM Pespeet to ste ited Issles >

Chessman ce. Riche 4 Us Mi: false transe cript on

appeal:

Griffin. WMinois, SV US. Ve: duty to provide an

appeal transeript Without cost, to an mdigent -

defendant in-a criminal. case. ee es

It ix true that there is ne constitutional right te an ap

peal. Finality may be given tethe judgments of trial courts,

However, when the State does provide tor appellate review,

all litigants ‘are entitled te equal aecess to that remedy,

and to the benefit of die process in the Appellate Court

designated ly the State, Beequal protection requires that'the

review in@all cases be in aceortlinee with constitutions!

ic '

standards.

The Motion for Disqualification. = =

Respondent seeks to prejudice this Court ‘aeainst. Pet.

tioners by a reference to the: Inetion te disqualify, filed:

by Petitioner Naren M. Sargent, in respect to Assoeiate:

Justice Dooling. ‘Phe QetION I qitestion was taken in.good -

faith. Subsequent events indicate a lreasonable basis for

the motion, regardless of the outeome.,.

This Associate Justice sat as one-member of a panel ot

three, declining to vote either in. favor of or against the |

opinion and judgment of the Distriet Court of Appeal. Ihe

decelinedk te participate in the action ar that Court on Pets

tion’ for Rehearing, and by his inaction, Petitioners were

deprived of ‘the: benetit of a full consideration hy fire:

Appellate Uourt Justices. An effective dissent by one men:

ber of accompletely independent panel could well lave pre

vented the sequence of events we now Have. The situation

Lis quite sindlar te what would exist if a jury, entitled to

render a verdict by two-thirds vote, ineRided one or niere

persons under disqualification, are

It sis true that Article VA. Séetion da, of the State

( onstitution, nrovidtes IS THRGR ANNE Wstices shall constitute a

quorum, and permits eafry of a judgment onthe coneur-

aes

Bemnde tm

ee,

rence Of that number, However, when three Justices con. -

vene and actually funetion as a Court, die process requires

To. active participation of all of them-—by. either con:

curring in, or dissentin& from, the action. taken. Inaction

reabdieation of duty by any iember of the panel

denial, of hie process anid the equal protection of law con-

tentplated by. the Constitution of the United States. Peti- -

toners were deprived of the benefit of this sitfequard.

The ground of disqualification rehed on fhere was bias,:

prejudice and hostility necessaruy resulting fronfa contro-

versy involving the Associate Justice and Petitioner Aaron

M. Saryent. ‘This Petitioner Ix an atforney — has been

active for’ Hany vears Kn anti-coi;unist work. "He Was

present atia public ineeting where the Associate Justice

presided. He entered his objection to statements there madé

by the attorney for the Qonmunist Party of California— ~

a pefson invited toc be xtest spe ake, “The said Petitioner

Wits a Ine ibe ‘root the: soreanizs ition <ponsoring the mee ting.

The. re anarks Ivy nade were in his legal eapecity as a mem-

ber, He sought to prevent abuse of the facilities of the

organization for prépaucan ta purposes, Hix exercise of the

right to freedon of speceh ‘was directly concerned with

sich membership. The organization was the Commonwealth

Club-ef California. ‘ . bis aan

The guest speaker, an accredited representative of Com-

Inunists. Was then under a sentence of imprisonment for

‘ i

criminab-econtempt conunitted during the trial of the leaders

of the Communist Party of the United States, before Dis-:

yee Ye

24.) The Noties and Statement Respecting Disquatitication. and

supporting documents, Ree. Tt we. 7, confirms the status of Peti-

tioner Sargent as amcae active anti-Comniutist fawver. See also Sargent

test bnony befare Aone of Representatives Special Commitivte to?

Tivestigate TayExempt Foundations. H. Res. 217 «the Reece Com-

mittee), “Hearineys. Part Tip 188-409 (S3d Cone.. 2nd Ses.) soa

publieation, within the scope of indie ‘ial notices.

%@e

28°

trict Judge Medina .in ther case aft nite States v. Dewnis;

etal.’ pet

The conduct of the Associate us stice Was necessarily |

volved inthe action taken at this mee ting, and ne

(See Tee. Items 7,8, 11, F2). The motion Was- presented in

good: faith. In view of this Court’s decision in Oputt '?

United States, B48 U.S. 11, it should have heen granted.”

in réspect to the. proposed visit and the liospitality to be

extended to Nikita Khrushchev, as official re presentative of

the Soviet Union. The hostilities that arise under these

conditions show bias and prejudice as a matter of law, ‘

Equal Protection on Certiorari.

The question arises: What are. the rights of non-com-

‘munists and sei alu el Do they have the same rights

as the petitioners in. Schware v. Board of Bar ia raminers,

i ’ ‘ “a” ‘

4 TLS. 252 ‘and ay. re State Bar, B33 UN Bae?

From the realistic, as well as the legal, standpoint are the”

rights of persons without revolutionary, radical or other

Left Wi ing affiliation equally well see ‘ured?

25, The meeting was one of the Commonwealth Club of Cali.

fornia where Richard Gladstein, not a Club¢nember,.was invited to

appear as guest speaker, taking this opportunity. to denounce the

*Un-American “Activities Committee of the State Legislature; using

Club fagilities for that propaganda purpose. At that’ fime, Glad

stein had been held guilty’ of criminal contempt -for miseonduet on

the trial of the leaders of the Communist Party of the United

. States. be ‘fore District Judge Harold Me “ina in the « case of United

States v, Dennis, ct al. and the contempt citation was stistained hy

the Court of Appeals in the Second Cireuit, See United States °

Nacher, et al, 182 Fd 416, 430; also, concurring opinion of Cire uit

Judge Frank, 182 F.2d .453-454, holding the conduct of Gladstein

and Associates to 0 the equivale nt of ‘assaulting a pilot of an acro-

plane in flight. or turning out the lights during a surgical opera-

tien.” eae . ee cae

26. Code Cir, Proc. Section 170: Ginmetti ve. Etionne, 219 Cal.

687, 28 Pied 913: Evans ye. Superior Court, YOT Cal. App. 3722 352

: 29 ac 7

It is sometimes inte rred that the practical operation of

the Fourteenth Amendment is limited ‘to racial and, group

interests. The following: dictunr in Shelley vt. Kraemer,

$04 U.S. 1, 1 although a clear departure from the actual *

- text of He Amendinent, nay or may not have heen intended |

to lead to sue ‘han inte rpretation: f aa

“The Fourteenth Amendment declares “that all per-

sons, Whether colored or white, shall stand equal -before

the laws of the States, and, insregard. to the colored

race, for whose protection the amendment ‘wa pri-

‘tharily designed, that no discrimination shall be, made

against them by law because of their eolor.’

The Ariendhisent contains no such declaration; nor does

<i to persons either “colored” of “white.” No term

req@ires racial equality, This has been the result of judicial

interpretation, ‘The Amendment protects persons because ;

thes are persons; not because the v belong t to some partied:

lar-race; class, or ‘group,

“te only” Amen; line mts referring to slavery” or “Ye ace”

~~ are the Thirte enth,-cone ornming “involuntary ‘servitude’ >and

the Fifteenth, securing the “right to vote.” No racial interest

is required in/any proceeding under the Fourteenth’ Amend-

ment. : : eo é

Due process clause under the Frfth Ame ndinent includes:

equal protection (Ballina i: Sharpe. 347.08. 497). The

rule in Shelley a. Wracwer: 334 0 44, applies to the Fed-

eral as welbas the State judieiiry, T he exercise of certiorari .,

- IMnsdietion should he Subjeet to these constitutional: re-

quirements and a writ issted, of course, where due process

_is denied in a lower appellate court.

Additional Questions Presented for Review.

We cite the following and request that thes he srg led to

the Statement at paves 4-7 of the Petition:

. y s.

f ae ee

Kighi . —s

highth: Due process ‘in civil actions. ds there anyedi--.

: tinction he tween the requirements of due process anel equal’

protection in a eriminal proceeding and those standards ws

applied to a civil action- except in cases wie Te thie canducth

complained oftis not the ac ‘tot the State? + Fs ‘

“Is the ruledan Tomson ¢, Butler, 136 Fizd 4, 647, xul-

ject. to the qualitic ation that constitutional rights Must be

entoreed with full equality e xee pt where cae tion hy the Strate

x lacking? Re 7 caer. , i

Ninth: Refusal to enforces laws. Is in a denial of die”

proc ess and equal protection for the judiciary of a State

to.decline to enforce the established btw ina partic ‘lar case

Where it is evident that it has hee nthe prac thee to ree ognize

“and enforce that law .in other cases of the: same type? Is

“this a eons stitutional duty where the law in question ix pre

scribed by the onstifution or Statutes of the Statesand,

for that reason, Ve vond the controlof a judicial howdy?

Tenth: Judicial powers Dothe opinions in Youngstown

Sheet & Pool Co. rv. Sawyer, B40 S579, Groowe , wee

- Elron. No. TSO, Oct. Term IOs, CCH pe. 1983 » and similar

ustive power by the judiciary is unconstitutional to the same

extent as resort to such power by any others department

. ie . . °

other than the legislative branch? Does th®rule apply te

the judiciary of d State as it doés to the Federal judiciary !

Additional Redsons for Issuingthe Writs. == tt

The wrongful interpretation of decedent's trust has ere--

ated a situation ‘where Federal estate taxes estimated ate

“dnore than $1605.000.00 may not he recoverable—unless the

Federal authorities are at liberty to disregard State court

judgments based ena refnsal te enforce the. State law>

This situation is Mnportant from the tax evasion stand

point... .

31\ “aie oP ae: s

4 The view often expressed that the Fourtee nth Amend-

nent as now interpreted applies only to rac ial «or other spe-

cial inte rest ¢rajips should be corrected by a re-e xamination *

of the dictum in Shelle yr. Kraemer, 834 US. 1, 21, and by

a recdefinition’ of the broad Scope and pare of the

Amendment, &

‘It is. axiomatic that this Court: exercises an important

influence on State ‘courts at all levels, The abuses here

involved must. not be peginitted to go unchallenged if the

integrity of the judicial process ix to i maintained. i

Status of Petitioners. — ; :

The essential facts concerning -the status of Petitioners

are summarivedin Footnote 25, at page 28, of the Petition.

Decedent’ s trust is wholly void’as conteary to the public. :

policy y, Constitution, and Statutes of the. State. In conse-

quence, Rexponde nt-can derive no rights therefrom.

The situation is one where failure ofa particular party

to act cannot validete the trust, which is incapable of rati- 2”

Peation, The ¢ corseqnence of 3 a failure. of decedent's first

cousin, Edmund More, Ir. to claim property of the estate

‘has been that his. share devolves on others, 2.7

He was party to an agreement whereby Petitioner Aaron

MM. Sargent aequired an undivided one-half interest—which

“agreement was never cancelled. The ‘re Was a Waiver and.

relinquishment as to the remaining one-half, Although duly.

notified of all steps in these proceedings, Edunind More,

Jr. has entered mo appearance, did not participate in the

hea aring, failed to appeal, and failed to join in the {petition

for certiorari. The termimation of his richts are now res

adjudieata. Full details on this point will he found in the»

Appellants’ @pening Brief, pp. 56-60 (Pee, Item 3) +

er a Brief, pp. 101-106 (Ree. Item a).

32 . ,

‘ CONCLUSION -/ ead

It ix respec trully submitted. that “Fall relief should. |

vranted pursuant to 28 US.C.A. 1257; that writs oe

issue, as this Court aay determine, either to the trial court,

the appellate wourts, or both, : <

Dated: San Fyancisco, California, Septe mniber 14, Assn.

AaBox M. danude VIN

Attorne y for Pi tition rs

‘ (Appendix Follows)

e &

a °

Ms v:

ws * .

».

é Ld

. -

; ¥.

° .

‘>: ’

_ Appendix

True Legal lute rpretation of the Will.

This analysis of decedent's will is made for the purpose

of determining whether there has been compliange with, on

violation of, the rule of properts established by the Bishop

of: Durham éase and given statutory effeet by See tren 22.2

of the California Civil Code. The rule as there stated is the

follo ving: :

“The question is not,whether he (the trustee) may

not apply it (the fund) upen purposes strictly chari-

table, but whether he is bound xo to apply w?™

Estate of Hinekleu, 58 Cal. 457, at 509, confirmed the rule

with the following interpretation : ;

“Where a bequest is made for charitable purposes

and also for purposes of an indetinite character, whieh

are not charitable, the whole bequest will be void.”

And this interpretation was confirmed by the State Su-

~ preme Court in Estate of Sutrd, 15 Cal. 727, at po 734, with

the following statement: Le

“The fatal objection to the validity of the trast is

that it authorizes the funds to be devoted te PULP pases

other than charitable and ‘that it leaves the question

whether it is to be devoted to charitable purposes, or

to other uses not charitable, entirely in the discretion

of the « recutors, ore in case of thes ‘ir default, in the dis.

cre tion oft the Roard out Truster Fa

< are dealing with a perpetual trust. Its validity there,

ore depends on whether disere ‘tionary non-charitable

powers have been conferred, either direc tN by the words of

» the will, or necessarily implied therefrom.

The Te stame nlary Plan.

The will comsists of eight parts, logically arranged as to

‘subject matter, and appearing in the following’ Seq Hence |

; so

1. Mauris ra The Bishop at Durhaw Vi “ft A Ar it ports ' apeeee

2 Mls hnee es Appendix

—

Burial instructions:

2. The preamble, containing a statement of trust pur-

POSES | . .. ‘ “

3. A bequest to trustees acting for decedent, for these

stated purposes; |

é ‘

+. An implementing clause requiring establishment of

a foundation and its maintenance in perpetuity:

5. A grant of express powers-for administration of the

trust fund provided for maintenance:

6, Precatory terms concerning fle trust and indicating

decedent's motive in establishing it:

(. Provision for annuities:

8. Appointment of an executor and the naming of an

alternate.

"Fhe kev provisions ares:

The implementing clause, which requites the founda

tien to be established as a separate entity :

The: broad. statement of trust purposes in the pre

ainble, with implied power te carry them out, free of

restrictions : and. |

The provisions in the annuity’ clause showing: thie

trust to be mot necessarily connected with Stanford

and capable of being adiministered by persons in ne

Way connec ted with the [ niversity.

Separate Identity ot Fondation and Trust Find.

The establishment of decedent's foundation and its sub

sequent maintenance are covered by the following provision

of the wilkat Es Big ‘

2 All citations in this outline refer te the typewritten copies ‘of

the will filed with the Clerk for the convenience of the Justices

said copies being in conformity with the will as it appears at pages

3-9 of the ClerR’ssand Reporter's Transeripts (Ree. Item 2). Pas

‘and dine references correspond thereto,

“ Appendix ee

(a) Mev said Trustees shall slablish a Foundation

of World Relations, tor the aforesaid: purposes: and

fny said: Trustees shall Use and apply the net income

derived from said trust est: ite For the marke nance of

said foundation.” :

Uxe of the conjunctive “and” shows that’ two distinet aets

establishment and Indintenanee, are both required, The

word “establish” means “to found: to institutes to create:

“to setup in “business. lt indicates that the entity to be sef

“up gnust be a thing se parate frog the trust fund. ‘This

establishment of the foundation IS aun et, to be performed

after decedent's death.

"Power to Incorporate the Foundation.

NO ings

entity Ts 1

itis tohea se parate thing. In consequence, then is inaplied

MIC{LON is given as to the manner in whieh this

“establishe da" aside from clear evidence that

power to curploy any avilable means. Civik Code Seetion

593, in foree at the date of the W ill, pernutted the formation

of Lo nonprofit: corporation, with both charitable and non.

: ‘dusaid purposes! Corporations, Code, See, 9200, in hopes

at date of death, contained similar provisions.

These are the Gode seetions under whiel; Respondent

Incorporated Sti inPord Researeh dostitute. the ailiiate en.

mvared in condueting researeh for indust re: on actee contract

‘basis.

3. AM definitions hn rein are taken fron Webster's International

Dictionary -Unabridged,

4.) Civ. Code, See, 593: “A nonprofii corporation may be formed

by any Tumber of persons. not less than tree. for any lawful pir.

poses such as-religious, charitable, social, edicutional, reeveational,

eemetery, ar for rendering seriices, Which do not conte miplate the

dialog of gains, profits or dividends to the nembers. thereat, ,

and for which inidlivieliiails may daw foliy dssociate themselves * # #

The carrying on of sine NN at a pra, fit ine hlente i! to the neti peur

poses of the Corpor ation and the distrib uition ay assets to me nbers-

on dissolution shall net be deemed forbidden to nonprofit: corpora-

t ions,

4 ae Appendix

Charter purposes of I ‘oundations The implementing clause

" provides: |

(a) My said Trustees shall establish: ak onlin

Ks World Relations, for the a/tre said purposes; * * °°

0:2-3).

The purposes mentioned aré those set forth in the pre

amble (3:25-4:19). It:must have all of the purposes ind)

cated. These constitute the charte ‘yr purposes for which the,

Foundation:is to he established. The bequest shows thet

theré is a charter purpose for the correction of every con

dition mentioned.

“T have the ‘refore long cherished: the hepe that |

might be able to 4 something to help tew ard the cor

reation: of these conditions, and to that end [E herehy

give and bequeath * **-all.of my estate and property,

both real and personaland wheresoever the same mia

(4:19-28)

» y .

Use of the plur il form in the words “conditions” anid

“purposes” requires the interpretation that this.is to be a

multiple purpose Foundation. It cannot be construed as i

Foundation: for the so/e purpose of “providing education

for newspapermen” (Op. iv; 17-20),

Conditions Mentioned in the Preamble.

1. The failure of persons in opinign anolding vocations

to exercise their power.

“L helieve that these handicaps (of environment and

language) can be largely overcome, if the men and

women Whose vocation vests in them the power to mold

public opinion, make a conscious effort to that end.”

« .(4:3-6.) ; ;

2. "Phe lac k of an understand\ng of conditions by je PSOns

in these opinion molding employthents, .

foreign affair.

ent, Investment and reinvestment of the Prast Puned and”

“.

: Frpress Provisions Cove ring VManmageme al ot Prope rhe,

matic and political backgrounds. (426-10, )

Appendix “ — %

“However, their effort will ge fer naught. unless

hased on sound education on their own part, and ther

ough understanding of the ceonomies of the varions

countries of the world, as well as their historic, diple-

Mass ignorance: of the general public ‘in respect te

3 ; r

. bi s i e

wef 8 the attitude of our citizens toward anvthing

foreign, rests almost entirely with the ae 9

(4::12-15.)

The power of the press. ;

“The nrolding of public cpinie min the United States,

insofar hs conce rhs the attitude of our ertivens toward |

Anything foreign, rests altuost entireli with the press

C8 UETLIR) |. ,

Henorance of editors and foreign correspondents,

“Based iin past ¢ \perience, TL believe that it is fair te

say that there is a woeful lack of any real education

on their pare eee

Detailed instructions are given in tespect to the manage

disbursement of the income therefrom:

“Mu sand Trastees shall in their own diseretion,

determine from: time to time the uimnmer imowhieh said

net imeowie may behest expended * * "C68.

fi fa thier rhea, if they leery sireh Course Wise, prost

Sponge the éxpenditure of any suns for my said trust

purposes, until such time as the met Ineome available

therefor shall. inetheir opinion. be adequate % 6%"

(229-12.).. oi :

“Wy i i Trastes . durini tie existence of sard trust,

shall have Pull power ond authority teoimve =f pnd rem

vest said trust property teluded therem, and ane aid

every part thereof, in such securities, lands, uildines,

6 ae Appendiz

real estate mortgages and the like, as they in their sele

_ discretion max: deciato the best-interests,of said trust:

ited to ye

axe 28 the power and authority: hereby vonterred

upon my-said Trustees shall include both power and

authority to sell, assign and convey said frust property 4

and any and every. part thereof, or to! exe change ihe: :

same for any other property, whether real or/per-

sonal.” (5:21-25.) ee ets

td advies

ever it mas

osition Of ais

“In this behalf there is certain counsel ¢

which L offer to wy said: Trustecs for wha,

be worth, concerning the holding and dis

assets, VIZ:

“(1) In all probabilityy at the tifme of my death a

large portion, of ny assets will Consist of real estate

which is productive of little yf no income. However,

it is my opinion that this peal estate Will increase in

value in a short period of vears, and that the likeli

hood-of,such enhancement will justify my said Triste.

- in holding such feal ystate until such ‘time as the same

may be sold withoutKacrifice, even though steh course

nay postpone theeffectiveness of said) Foundation of

World Relations 2° (5:25.6:11.) . =

“If.at the/time of my death, preferred and/or com.

amon stock/of Bancroft-Whitney Company is included

_among Any assets, | belieye, since’ TL have great con

fidenyé in said corporation and the earning capacits: of

Pe stock, that my said Trustees would do well to hold

the same as part of the corpus of said trust.” (6:12-10.)

, / “The suggestions concernihg my assets hereimabove

lV ‘set forth, shall not be construed as restrictions on the

“absolute power and authority of wy said Trustees with

reference thereto,sor to- the sale or other disposition

thereof: for | realize full well that changes in con

ditions justify changes in poliey.” (6:19-24.)

"Implied Powers of Erecution.

In. contrast with these elaborate: provisions concerning

management of property, there are wo provisions indicating, |

a: Appendix i 7

lo, tiie charter Parposes of the I ‘oninglation are to be ear-

ie out. In. éonseqnenee, the Directors of the Foundation

will have unrestricted) power ‘to do or perforin any act or

thing likely to correct. or tend teeorrect, any of the con.

ditions mentioned, . Par i

The draftsman of this document was a lawyer: -a person

cohelusively prestuned to know the meaniig of legal ters.

Under State law, technical terms used ina will so prepared

Inust be t aken in thei ‘ir technical sense.

It follaws that the established rule in respeéet to implied

powers of trustees is the ieasure of the discretionary

power conferred, This. ryle ois expressed inthe following

authorities : ’ a ne

ihe 8, Restatement of the Law of Erunts, Sec. 186,

p. 489: | :

tt thee trustee van properly exercise such powers

and only such powers as (a) are conferred upon him

in xpecifie words by the terms of the trust, or Cb} are

nece NSU YO appro peat to carry out the PU poses of

. the frust and are not forbidden Gy the terms of the

trust.” ’

Bogert om Trusts and Trustees”, Vol. See. 391,

b.190: ae ; : en

“Trustees of charitable trusts have oe powe rs ax

are €xpresslt or impliedly siven them by the settlgr.

or are vested in them. by Statute.’

. Bogert on “Trusts and Trust es”? Vole 3, Part [. See.

aol, p. 4065 onan Neue eee ae

“Tmplied powers are those whieh are net clearly and

directly given by the settlor or a court, bat) whieh

equity believes the founder of dhe trust or a court

so)

5. Probate Code, See. ‘106. Estate of Bourn, 25 Cal, App. 2 5905"

ape 73 P.2d 193. 196; Estate af Northeutt, 16 Cal 2d 683. 688, 107

24, 607, 610. ster Oa ate

_ acne Appendiz ae \

, J ok

granting’ express powers intended secialik exist. They \

are iiuplied or inferred from the terms and purposes

of the trust. If a-settlor has directed the trustee to

reach a certain end, he must be deemed ‘to have. in-

tended that the trustee use thie ordinary and: natural

means for obtaining that result. The court*reads sucli

a desire into the trust mstrument, not because. the

court is adding something. to. the trustee's authority

for the sake of bringing about avresalt which it thinks

— would be just, but for the reason that chancery believes

that the settlor actually wished the trustee to have

+ «such power, although he did not in so many words grant

the authority.”

— »

#. Seott on “Trusts”, Vol. IF (Second Edition), See. 186,

p. 1370: | ae i ds |

“Eavtent of the trustee's powe Ws. A trustee has-such

powers as are specifically conferred by the terms of:

the trust and such pow ers as are necessary -or appro-

pr iate for the carrying out of the purposes of the trust

aL) ‘ot forbidden by the tertns of the trust. The

expression ‘terms of the trust’ is here used in the broad

sense in which-it_is used in the Restatement of Trusts

and throughout this treatise; it is net intended to ex

press provisions ofthe trust instrument, but includes

whatever may be gathered as to_the intention of the

settlor from the trust instrument as interpret ted i in the

“light of all the cire umstanees, and any other: indication ,

of the intention of the settlor which is admissible in

ae evidence. | ,

This rule as to implied power was part of the law at date

of execution of the will and also at date of death; it isthere-

fore,one of the ferms of the trust, whieh must be canstr ued

in accordanee therewith.

Absence.of Restrictions on Implied Power. r

The sentence at 4:19, et seq., containing the bequest in

trust, includes -the following broad grant of general au

thority: :

expressly permitted. .-

“T have therefore lowg cherished the -hope that I

might: he able lo do something to help toward the cor-

2 rection of these conditions: and to that end | hereby.

» give and iit "Naina

The word “e fu writ able" does. not appear in iis will.

No clause dinits the Pruste es to the use of those activities

and means whic hthe law deems char itable,

Thiyy are not required. to avoid ope rations conducted for

profit. S ,

There ve ho clause requiring use of ‘edue ational neans,

eithé@r in, whole orin part.

The legs ul conse’ Uenc eof these omissions: ix that all activi.

ties and me ans both charitable atid ban-char itable :-equea .

Appendix — * ; | —-

tional and non- luce tional -are not only, authorized, but

Nou-Charitable aud Nbw-BRducational Possibilities.’

The conditions here mentioned are capable of being cor

rected ina variety of wayssineluding the following:

The failure of the opinion Inolders to exercise their power

may be corrected by: the I ‘oundation engaging in the busi-

ness of television or radio broade: isting, avith commereial '

sponsorship, a for the benefit of tommercial inte rests;

The saine objective may be realized by acquiring control

over a broadcasting outlet and ope rating it on a busjness

basis. ; .

“he lack of understanding of international conditions

“nay be corrected by the Commercial production, sale and

distribution of edue cational anmatertals.

Ae similar result may be achieved by the public Ttion and

distribution of a news bulle ‘tin toa list of paid subscribers,

The. know lode, of wditors and fore ign cor responde nts

may be meres sed by the connmergial publication, sate-and

10 | Appendiz

distribution of educational amaterial specially adapted to

their needs.

There is no stated purpose set forth in the preamble re

quiring that anything necessarily he done on the campus

of a University, or that Stanford University, as such, be

connected therew ith.

A sakes of a Bequest to Respondent.

The technical meaning of the term designating (he trus

tees Is thet the persons appointed function as trustees 0!

the decedent and not in any capac ity as trustees for the use.

or benefit of Stanford University or any Univetsity Depart.

ment. Throughout the-will, decedent ‘refers to the trustees

as “my said Trustees”—there ‘being a total of teelre such

provisions. In the clause at 8210-17, she refers to the possi

bility that neither the Trustees:nor the University may de

cept, indicating that a substitute or successor trustee may

be required. There ix no provision containing any bequest

to Respondent, as the governing body of the University.

Even if the bequest were in that form, Respondent has the

power te engage in non- charitable activity, and has done

SO on many ve casions. ce . 7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.