Petition for A Writ of Certiorari — Zahn v. Security Pacific National Bank

tS

a 2394 | eaieds ERK |

Eid | IN THE

Supreme Court of the Cited States

October Term, 1971

No. 35977

_ESFATE-OF ESTHER ZAHN,

: ‘cele <

MARGARET ZAHN, PAUL ZAHN and ‘OTTO |

ZAHN,

' Plaintiffs and 5 ac aS

vs. '

SECURITY PACIFIC NATIONAL BANK, Ex-

ecutor, THE SALVATION ARMY, and “THE

- STATE OF CALIFORNIA,

Defendants and Respondents. oo ues

PETITION FOR CERTIORARI TO THE COURT

OF APPEAL, SECOND APPELLATE DISTRICT,

y DIVISION 4, STATE OF CAIaF ORNIA.

bibs Gee wey <

” :

| MORRIS LAVINE, . i

215 West Seventh Street

Suite 620

. Los Angeles, California 90014

(213) MA 7-3241. .

Attorney for Petitioners.

' WESTERN PRINTING COMPANY, WHITTIER—OXBOW 6-1722

TOPICAL INDEX —

Jurisdiction 00.0... Lavoie COS culpa eo

- Opinion Below I et 4 ~~

Order Denying Hearing | og . .

The Facts 0000. nee aa a

The Holographic Will ; <=. 8

| Questions Presented 9

) Reasons for Granting the. Writ a

_—

_ TABLE OF CASES AND. AUTHORITIES CITED

Atlanta Motel v. U.S., 379 U.S. 241 viii 10

Estate of Sullivan, 128 Cal. App. 2d 144, 274 P.

2d 946 uu... - 16

Evans v. Abney, 396 U.S. 435, 24 L.ed 2d -_. 13

Kramer v.- Kramer, 201 F. 248, 250 ...-.... | 16

Zechernig v. Miller, 389 U.S. 429, 19..L. ed: od 688... 7

Authorities —

Civil Code | oe

Section 53 .. re , 7 . 10, 11

Section 2279 : = ee 11

IN THE

fe ‘Supreme Court of the United States

October Term, 1971

No. 35977

ESTATE OF ESTHER ZAHN,

Deceased.

‘MARGARET ZAHN, PAUL. ZAHN and OTTO

ZAHN,

Plaintiffs and A ppellants,

VS.

SECURITY PACIFIC. NATIONAL BANK, ee

ecutor, THE SALVATION ARMY, and “THE

STATE OF CALIFORNIA, —

banat and Respondents, :

PETITION FOR CERTIORARI TO THE COURT |

OF APPEAL, SECOND APPELLATE DISTRICT,

"DIVISION 4, STATE OF CALIFORNIA.

To the Honorable Warren Bua ger, ‘Chief Justice, | |

and to the’ ‘Honorable Associate. Justices of the

; Supreme. Court of the United States:

Your petitioners, the heirs at law: of Margaret

Zahn, deceased, respectfully petition this court for. a

writ of certiorari, directed to the Court of Appeal,

7 . x

er

pee Appellate District, Division Four, State of.

California, to review and reverse a degree of distri-

bution which construes ‘the holographic will of the

. - decedent’ to provide for housing with - a restr ‘icted |

religious and racial covenant and a‘ covenant restrict-

ing occupancy ‘‘to women, ‘to native Californians

_and to Christian w ‘dmen and girls who have no rela-

‘tives, no smokers or drinkers, only deserving citi-

* zens who are native Californians. sa |

Although the will was asvcinetiitie on its face,

the California courts construed it as having a. gen-

eral charitable intent, rewrote the will as did the

Secretary of the Int erior in Tooahnippah, petitioner,

v. Walter 1. Hickel, secretary of the literior 25 (L...

ed) (2) 600, and gave the property to the Salvation °

Army, aniounting to about $700, 000, depriving the heirs

‘at law of it.

The courts below also ignored the challenges of the |

? heirs at law that the prov isions of the will requiring

the proposed housing to have restrictive. covenants

limiting their use te women and girls of the Christian ©

7 faith and to native Californians violated the com-

merce clause and fair housing laws guaranteed by the

United States Constitution, by the due process and

equal pr otections clauses of the Fourteenth Amend-

ment U.S. Constitution, and by Section. 53 of the

California Civil Code.

~The California courts ieadieathe held. that these .

- holdings were not against public’ policy, and that the

ee. ill, as thus construed and’ applied, did not violate

the fair housing ‘act of the United States, nor due

process of law or the equal protection of the laws

_ guaranteed‘ by the Fourteenth Amendment U.S. Con- »

stitution. It arbitrarily and capriciously téok the

property. ard ‘gave it to the Salvation Army, a prose-.-

os or ganization for the Christian ‘Teligion.

JURISDICTION :

Jurisdiction is conferred by Title 28, Section 1257,

U.S. ‘Codes, and the Rules of the — Const SPE

- . of the United Siates. .

The judgment of the Court of Appeal was ren-

dered.on March. 18, 1971. Thereafter a petition for

rehearing was duly and regularly filed in that court © .

and denied by. that court on April 7,-1971.

Ther eafter, a petition for hearing was filed in the :

- Supreme Court of California and the Supreme Court

extended the time: within which to rule en the peti-

tion to June 16, 1971. The Supreme Court actually :

‘denied the petition’for hearing-on Sey 26,1971,

This petition for writ of certiorari is being filed

herein within. 90 days ‘of the. ‘court’s order denying a

uel hearing.

OPINION BELOW

- The opinion of the Court of: Appeal, Sec ‘oud. Appel- \

late District, Division Four, State of California, is :

contained in Appendix A hereof and incorporated

herein by .reference. Also the petition for hearing in

the Supreme Court of California containing the chal-

lenges: to violations of federal Constitutional rights

which the. State denied..

A cer tified copy of the order of the Supreme on

of California is contained herein as follows:. — .

| Order Due

‘J une 16, 197]

oo DENYING. HEARING !

_ AFTER JUDGMENT BY THE ..

‘COURT OF APPEAL -

2nd District, Division 4, Civil No. 35977.

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

_ IN BANK > 7

& . on

ESTATE OF ZAHN, Deceased;

. SECURITY: PACIFIC NATIONAL BANK,

AS EXECUTOR, ETC. | :

-- epi iced Sh

@ ZAHN ET AL.

ef

Appellants ’ petition for hearing DENIED.

[Filed = 26, 1971, @ E. Bishel, Clerk, SF.

Deputy]. .

"4, &. E. BISHEL, Clerk of the Supreme ‘Court of

the State of California, do hereby, certify that the pre-

ceding is a true’ copy of an order of this Court as

_ shown by the records of my office. |

_. Witness my hand and the seal of the Clerk this

~.. 20th shag of August, A.D., 1971. |

; Clerk

By R. J OHNSON, Deputy Clerk.

. WRIGHT, Chief Justice

on

_ THE. FACTS

Esther Zahn, a single lady of astute: financial

ability, and perhaps with a religious prejudice against

non-Christians and men, amassed a‘ fortune of $622,-

. 823.13 consisting of cash, notes secured by trust deeds

-and real estate. This has Increased - since her death

to about $700,000 : poke

. She lived in a house at 3503 South Fidwer street,

Los Angeles, about a block from the. University of

‘Southern California. Her father and mother had

lived. there before her.

She wrote a boloxtaphic will in which she said 7

she wanted to have a rest home started on the prop-

erty foi women and girls ‘‘who were Chr istians” only

with no ‘relatives and who were native Californians.

The,sproposed housing had restrictive covenants ex-

cluding males, non-Christians, women and girls with

_ relatives, women who smoked or drank or wére not

native Californians.

Befope Miss Zahn died, one 3, 1967, the Hoover -

‘Redqvelopment project for the Univ ersity of South-

ern ee ak her property, along with .

others for their acquisition. Miss Zahn had. visited

the agency and‘apparently submitted some ‘prospectus

to rebuild on her property but never went forward

with her plans before she died. _ The: asad elopment

agency acquired her property. oi

On May 31, 1968 Mr. Mareus Muskat, attorney,

eS of the executor, filed a petition to. determine

‘*

—

a

interest in the estate (R.T. 48). The heirs at law

live in Germany. They filed-their statement of inter-

est and attorney H. A. Gebhardt, an expert on Ger-

man.law, gave his opinion that the heirs at low could

receive the property from the United Statés from —

California. (Zschernig v. Miller, 389 U.S. 429, 19

L.ed. 2d 688) (R.T. 59). Thereafter this issue did

not arise.

What did arise thereafter was sehetisde the will

contained provisions to, build housing only to be rented

‘and oceupied by women and girls, only of Christian |

* faith and religious restrictive covenants. Whether such

: provisions void the will as being in violaton of the

due process and equal protections clauses of the Four-

teenth Amendment and in violation of Section 53 of

the California Civil Code and further whether the -

will containing these provisions had a general char-

itable disposition and entitled the trial Judge to sub-

stitute his opinion for the specific provisions of the

The Salvation Krmy intervened and becamea party

in the action. They were not an heir nor was the

| Attorney General. On its face, the will contains no

charitable intent or disposition and only names a

bank as executor.

Under ‘the law of the State of California, when

property is taken for a public use Section 2279 of the

Civil Code extinguishes a brid by < ‘such object be-

coming impossible or unlawful.’ |

ges

Jhe issues involving the violation of U.S. con-:

stitutional rights of the petitioners were raised

throughout the trial and in the Court of Appeal and.

_the challenges of each were denied by the Couit of

Appeal and by the Supreme Court of California.

Esther Zahn’s holographic will of 1960 of two’

pages on May ‘12, 1960, in a firm handwriting. ‘This

holographic will reads as follows:

_ THE HOLOGRAPHIC WILL

ia Esther Zahn of 4701 Keniston Ave. Los An-

geles, California, “make ‘and oublish this is my last

will and Testament as follows:

I revoke all other wills and Codicils heretofore _

made by me and appoint the Farms Merchants Na-

tional Bank, corner 4th and Main St., Los Angeles, .

Cal. as Executor of this will.

I want to start 4 Rest Home at the corner 3503 So.

- Flower St. Los Angeles, California. for Christian women

and girls who have no relatives, no smokers or drinkers

_ only deserving citizens who are Native Californians. -

Perhaps the Salvation Army can recommend them. I

would like a new Modern ‘Building to be erected at the

corner of 3503 So. Flower St. Los Angeles, Cal to be

called “The Zahn Memorial.” This in memory of my

father and mother Paul and Louisa Zahn who came to

Los Angeles Cal in 1887. There are enough Ist Trust,”

Deeds and real Estate to sell and money to start a new

Building.

Se

My bein at 4701 Keniston Ave., Los pews Cal. *

not to be sold. I wish to will to the Salvation Army

to be used as a Music Home for Deser ving Christian

Students in my memory, |

Have relatives in Germany. Only Ist 2nd and 3rd

- Cousins. I will them Care Packages or $10 per month

.as long as they live, ut they need help. es

_—_—_——<_ August “Manson, my. caretaker at 4701 Keniston

Ave., Los Angeles, Cal. $5,000 cash. He takes care ~

of my 10 Birds and One Dog Misty Fox Terrier.

‘Executed at Los Angeles, California, this. 12th

‘Day of a 1960. ij

Rather. Zahn |

The petitioners incorporate ‘wy reference the mat-

~ ters and argument set forth in the petition for hear-

ing in the Supreme Court of California and also ;

arguments in the -apperigix in the Court of a. |

. .

QUESTIONS PRESENTED eee

1. Whether a-will leavirig money and praperty for

‘ housing to be built after death which contains re-

_strictive covenants as to the use of the housing, lim- — :

-iting such use solely to Christian’ women, who do not a |

smoke or drink and who are native Californians, is

void because the restrictive provisions are contrary |

to U.S. Constitutional provisions Article 1, Section .

8, Sub 3 of the Commerce Clause’ (Atlanta Motel vs.

U.S. 379 U.S. 241) and the due process -and equal

lo aa

pritection clauses: of the Fc Tou teenth Amendment. U. S.

- Constitution. ,

2. Whether the restrictive covenants set forth in

the will in the housing project or rest home desired:

by Miss Zahn to be built on her property was. State

action through the courts within the meaning of the

Fourteenth Amendment to the Constitution of the

United States and the Fair Housing provisions of the

Civil Rights Act of 1964 and therefore in violation of —

United States Constitution, Article I, Section 8, Sub-

division 3 of the Commerce Clause (Atlanta Motel v. —

-U.S., 379 U.S. 241, 13 Led. 2d 258) and renders the

will void in violation of the Constitution and Laws of

- the United States.

3. Whether the Court may rewrite such a will con-

‘taining restrictive covenants or whether such proceed-

ings takes property from the heirs at law without due

process of law and equal protection of the law con-

trary to the Fourteenth Amendment of the Constitu-

tion of.the United States.

‘4, Whether such a will limits ‘housing to Chris-

tian women and gitls is a restrictive. covenant barring

Jewish women, oriental ‘non-Christian women, non-

Christian American Indians, Hindus, and many others

non-Christians that could be listed, violate due

process. aan ees

5, Whether the provisions in the will to provide

- for commercial, non-charitable housing ¢ontaining

such restrictions. also violate Section 53 of the Civil .

Code of California and ther efore also violates the

Fourteenth Amendment to the Constitution of the

United States.

6. Whether the taking of the property ‘at 3503

South Flower Street by the Hoover Redevelopment

- Agency for the University of Southern’ California

and the zoning restrictions regarding 4701 Keniston

Avenue, Los’ Angeles, were governed by Section 2279

of the Civil Code of California, eliminating’ a trust,

_ if-one was intended by the will.

7. Whether the provisions of the will on its face

are non-charitable and therefore not subject to being

rewritten or taken by a trial Judge from the heirs

and given ‘to the Salvation Army.

8. Whether the provisions in the wil] are so lim-.

- ited to Christian women and native Californians ‘‘who

do not smoke or drink and ‘who are deserving citi-

zens’’ that it shows that no general charitable intent.

was intended and i is too limited to constitute a —

charity.

9. Whether carrying out or ignoring the terms of .

the will are state action within the meaning of the

Fourteenth Amendment to the Constitution of the

United States. | .

10. Whether the provisions of the will require

a structure to be built and restrictions are con- .

trary to. public policy and therefore in‘ violation of

the due process and equal protections clauses of the

_ Fourteenth Amendment to the Constitution of 0

* United ‘States. pe

rd : —$2--

The Hoov WA Redevelopment or der for the taking

of the property at 3503 South Flower Street occurred

in 1966 and Miss Zahn sought to program a building

vg the redevelopment of the same but did not,pursue .” ,

. The Flower Street house ° was sold for $47,500

ae the-proceeds added to the rest of the estate.- An- .

other property of hers located at 4701 Keniston Ave-

nue, Los Angels, was zoned ‘solely for residence (R.T.

- 95) and was no longer available as a music center or

school as designated by Miss Zahn. ‘The Salvation

Army offered to put up a plaque in one of its build-.

ings in Glendale acknowledging the donation from

‘Miss Zahn: for the sale of the property.

The heirs at law, through théir ecniniol: alao as-.

serted that since no charitable trust was “ereated”and

a bank was named as executor, and the restrictive cove-

nants voided the will, neither the Salvation Army nor

_ the Attorney General had standing or a right to inter-

vene.

y, iene \

REASONS FOR ‘GRANTING THE WRIT

This case raises important U.S. constitutional :

and statutory provisions of law in reference to the

making and the provisions of a will and its later con-

struction by the courts after the death of the testator. |

_ If a testator makes provisions in his will. which

fre in violation of the Constitution of the United

States or the statutes of the state or United States,

may the court rewrite the will to its own ideas or has _

the testator died intestate? .

a

- Here ‘the testatrix placed in sad will, covenants

which were plainly racially and religiously restrictive.

As such they are against public ‘policy and the Consti-

tution and statutes by provision regarding restrictive

covenant and voided the will. ‘The court below chose —

— to rewrite the will ignoring the invalidity which. these

covenants. rendered the will and instead substituted

' the Salvation Army, a. Christian réligion proselyting

organization in place of the heirs at law who would take

‘it under the California statutes of intestacy.

-The Court of Appeal of California seemed to dis-

tinguish the restrictive : ‘provisions of this lad¥’s ‘will.

from the restrictive provisions of the will of Senator

Bacon of Georgia (vans v. Abner Y; 396 U. S. 435, 24

_ Lied. 2d 634) wheré the Court held that the will of

Senator Bacon involved discrimination between ‘white

and black people. This case. involves racial and relig-

ious peer and limitations to Californa Cau- |

“casian nativity. Such distinctions make it look like

Tweedledee and Tweedledum. Each is a violation. of

_ the Constitution and laws of the United States. One

discriminates against color; the other agains religion.

In Evans v. Abney, 396 US 435, 443, 444, 2d Lied.

2d. 634, 643, the-‘Supreme Court said:

- , “No state law‘ or act: can prevail in the nen

- of contrary federal law, and the federal courts

must-search out the fact and truth of any pro-

ceeding or transaction to determine if the Consti-

4

tution has been violated. Presbyterian Church

-v. Hull Church, 393 US 440, 21 Led. 2d 658, 89

_ §. Ct. 601' (1969) ; New York Times Co, va SSutli-

van, 376 U.S. 254, 11 L.ed. 2d 636, 84 S.ct. 710,

95 ALR 2d 1412 (1964).’ ”

Also, in the.same.case the Court points out that

Georgia has a cy pres statute. (396: U. S. 435, 440, 441,

24 L.cd. 2d 634, 641) California has-no cy pres statute

as such. Section 2°79 of the Civil. Code governs

instead.

In the Evans case. the Supreme - Court said (396

US 435, 441, 442, : 24 Lied. 2d 634, 641, 642) :

“But. this underlyi ing logic of the cy pres

doctrine implies that there is a certain class of °

cases in which the doctrine cannot be applied.

Professor Scott in his treatise on trusts states this

limitation 6n the doctrine of cy pres which is com-

mon to many States is as follows: | 7

-**Tt is not true that a charitable trust hever

fails where it is impossible to carry out the par-

ticular purpose of the testator. In some Gases

. it appears that the accomplishment of the —

' particular purpose and only that purpose was de-

sired by the testator and that he had no more gen-’

eral charitable intent and that he would .presum- .

ably have preferred to have the whole trust fail if.

‘the particular purpose is impossible of accom- _

‘plishment. In such a case the cy pres doctrine is ~

~ not applicable.’ 4 A. Scott, Law of Trusts § 399, p.

3085 (3d ed 1967). i,

“In this case, Senator Bacon provided an un- —

the Georgia courts could determine the litnits of

his charitable purpose. Immediately after speci-

fying that the park should be for ‘the sole, per- ~

petual and unending, use, benefit and enjoyment

* . of the white women, white girls, white boys and

‘white children of the City of Macon.’ the Senator

stated that ‘the said property under no cireum-

stances ... (is) to be . ... at any time for any

reason devoted to any other purpose or use ex-

cepting so far as herein specifically authorized.’ ”’ ~

Likewise, in the case before.this Court it is clear

that there was a limited specific intent by Miss Zahn

to have a ‘rest home’? as a ‘memorial to her father

and mother and a place that she might. herself live in

a penthouse and that the residence of the place be

restricted to Christian’ women and girls who have no

relatives, no smokers or drinker s, only deserving citi-

zens who are native Californians. (Par. 3 of the

will. ) |

‘Like Senator Rice, Miss Zahn’s intent was ‘not.

chasttahis and not general, but extended only to the

establishment of a restricted residence for the benefit

solely of Christian women-and ‘girls, who have’ no

relatives, no smokers. or drinkers, only deserving citi-

_zens who are native Californians. Contrary to the

finding in the Georgia case, the California court

nevertheless wrote into the will a general charitable

intent so as to be able to rewrite the will and-donate

the property to the proselyting Christian Salvation

|

.

> me

e

.

’ usual amount of information in his will from which —

beng eats RS AE Fe SR

he.

*

Army and thus deprives Miss Zahn’s relatives of prop-

erty to-which they were entitled.

In addition, the house at 3503 South Flower Street

and the land were designated as the exclusive source

specific and- when the property was’.taken by. the

‘Hoover Redevelopment there was riothing left and the

property was adeemed. (state of Sullivan, 128 Cal.

App. 2d 144, 274 P. 2d 946). In the Sullivan case

the court said: ‘‘Where the proceeds of a partieu-

larly designated land are the actual subject of the

bequest or where certain lard is designated as the

exclusive source for the payment of a legacy, the gift

is specific. 57 Ant. Jur Wills, Sec. 1413.”

‘Ademption is one of the “ways a legacy lapses.

(Kramer v. Kramer, 201 F. 248, 250.)

Instead the Court rew rote the will and took the pr o-

ceeds and gave it to the Salvation Army, a Chr istian ‘

_ religious prosglyting organization. This violated due

process and equal protection forbidden under the 14th

Amendment U.S. Constitution and: the U. S. Civil

- Rights Act. of 1964.

WHEREFORE, petitioners pray that this rremnas

able Court grant certiorari and reverse the judgment.’

Reapecttal,

°°. MORRIS LAVINE |

j wR Attorney for Petitioners

of payment of the legacy, and. the gift. was therefore —