# Petitioners Reply Brief — Estate of Peck v. Board of Trustees of Leland Stanford Junior University > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438641_1023%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1959 - **Citation:** 361 U.S. 826 ## Text 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. a A Aaron M. Sarcent 1115 Hobart Building . San Francisco 4, California Attorney for Petitioners a 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 cS ‘ k ° ° ~ ; 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, ; = ¢ 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 rs 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 . , dl ¢ “ 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 s 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 : > © (5). Unconstitutional administration of such laws; (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 * 4 * 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. 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, on - “. ¥ 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 iP . Seventh: 10 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: a 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 we 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 11 2 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.” —. 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. aA 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. tt ‘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 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. ak 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 x . a : pn Sg 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 25 _ 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 « v 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 ' ° I. 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- es Pd aes mf 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 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: oe \ . 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 Casery © stablish the proposition that an exercise of legisia ustive power by the judiciary is unconstitutional to the same . 7 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» ‘follow ing Diets filed in the State Appellate @ ouUrts © 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, : a ° & Ms v: s ° . ws * . 8 ». é Ld 1 . . - ; ¥. + ° . ‘>: ’ _ 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 _ be sitrate, in trust, for the foregoing purposes, © 2 2" (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” t. “. t : 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: : + r & 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 ae 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 — * ; | —- e 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438641_1023%3A6. Public record. Not legal advice.