I dissent. A statute is unconstitutionally discriminatory when it permits one testator to leave property to a social group (such as an unincorporated fraternal association) and denies another the power to bequeath property to some other kind of association; such a statute unconstitutionally discriminates not only among testators, but also among the affected organizations and their members.1
Probate Code section 27 permits testamentary dispositions to “unincorporated religious, benevolent or fraternal societies or associations or lodges or branches thereof . . . .” Corporations Code section 21200 permits “[a]ny unincorporated benevolent or fraternal society or association, and every lodge or branch of any such society or association, and any labor organization” to take by will.
It is difficult to accept the proposition, advanced in Estate of Holtermann, 206 Cal.App.2d 460, 466-469 [23 Cal.Rptr. 685], that these statutes bespeak a legislative intent to permit all unincorporated associations to take by will. That appraisal of legislative intent transforms the specific statutory descriptions into surplusage. The language of these statutes simply does not justify that appraisal. I would reach the conclusion stated by Holtermann but by a different route—construing the statute to avoid un*486constitutionality. Constitutional limitations must be read into a statute which would be otherwise unconstitutional. (County of Los Angeles v. Riley, 6 Cal.2d 625, 627 [59 P.2d 139, 106 A.L.R. 903].)
According to established California doctrine, the right to bequeath property by will is not an inherent individual right; the Legislature may withhold the right or impose conditions or limitations of its own choice; the Legislature has exclusive power to designate those to whom a testator may leave property.2 The doctrine does not permit disregard of constitutional prohibitions against discriminatory legislation.
American courts have largely abandoned the sterile notion that discrimination in the grant of a privilege is not a denial of equal protection. (See Bagley v. Washington Township Hosp. Dist., 65 Cal.2d 499, 503-504 [55 Cal.Rptr. 401, 421 P.2d 409].) Equal protection of the laws “is a pledge of the protection of equal laws.” (Yick Wo v. Hopkins, 118 U.S. 356, 369 [30 L.Ed. 220, 226, 6 S.Ct. 1064].) State law cannot grant privileges or benefits to some and arbitrarily withhold them from others. (Blumenthal v. Medical Examiners, 57 Cal.2d 228, 233 [18 Cal.Rptr. 501, 368 P.2d 101]; Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 545 [171 P.2d 885]; Watson v. Division of Motor Vehicles, 212 Cal. 279, 284 [298 P. 481].)
A statutory differential in treatment is proper, of course, when it is revelant to a legitimate governmental objective; if it does not involve surrender of a constitutionally protected right, it is presumptively valid. (Whittaker v. Superior Court, 68 Cal.2d 357, 367-368 [66 Cal.Rptr. 710, 438 P.2d 358].) The Attorney General argues that a bequest to a political party cannot be sustained as a charitable or educational trust, a proposition supported by respectable authority. He suggests no consideration of public need, interest or policy which justifies this grant of privilege to a fraternal association serving nothing but its members’ pleasure and denies it to an association seeking to disseminate a political ideology. No such considerations exist. Outside the statutory categories of religious, benevolent, fraternal or labor organizations, many unincorporated associations serve useful, even noble, social objectives. One thinks of private organizations engaged in community planning, intergroup amity, conservation and land use and dissemination of various political and social philosophies. A statute which denies one testator the right to bequeath property to such groups and permits another to leave his money to a *487group in the vague category of “fraternal” associations reaches the apogee of arbitrariness.
Since the Legislature intended that some unincorporated associations be eligible to take by will, the entire listing need not be nullified, but only the restriction which confines eligibility to fraternal associations (in addition to those of the benevolent and religious varieties). (Accounting Corp. of America v. State Board of Accountancy, 34 Cal.2d 186, 192 [208 P.2d 984].)
I would reverse the judgment.
Appellant’s petition for a hearing by the Supreme Court was denied September 3, 1970. Peters, J., was of the opinion that the petition should be granted.
The offended constitutional principles are those embodied in the equal protection clause of the Fourteenth Amendment to the United States Constitution; the state constitutional demand for uniform operation of general laws (Cal. Const., art. I, § 11); the prohibition against unequal grants of privileges or immunities (Cal. Const., art. I, § 21); the inhibition against special laws when a general statute can be made applicable (Cal. Const., art. IV, § 16).
See, for example, Estate of Burnison, 33 Cal.2d 638, 639-640 [204 P.2d 330], The doctrine was followed by this court in Estate of Nicely, 235 Cal.App.2d 174 [44 Cal.Rptr. 804], The writer concurred in the Nicely opinion but no longer accepts its declaration that the “testamentary act is not protected by any constitutional provisions . . . .” (235 Cal.App.2d at p. 184.)