Hagen v. Sacrison

123 N.W. 518 | N.D. | 1909

Fisk, J.

(after stating the facts as above.) The motion for a dismissal of the appeal should, we think, be denied; but, in view of our decision upon the merits, we deem it useless to state our reasons for denying such motion or to further notice the same.

The assignments of error are nine in number; -but they all relate to the correctness of the conclusions of law numbered 1, 2, 3, 4, 5 and 7, and such conclusions merely involve the question of the validity of item 6 of such will. Generally speaking, the facts in this case call for the application of certain well-recognized rules of construction and interpretation of charitable trusts, as follows: “Charitable trusts are highly favored, and a liberal construction will be adopted in order to render them effectual.” 5 Am. & Eng. Enc. Law, 897, and cases cited. See, also: Duggan v. Duggan, 63 U. S. App. 149, 92 Fed. 806, 34 C. C. A. 676; In re Upham’s Estate, 127 Cal. 90, 59 Pac. 315; In re Willey’s Will, 128 Cal. 1, 60 Pac. 471; Fay v. Howe, 136 Cal. 599, 69 Pac. 423; Strong’s Appeal, 68 Conn. 527, 37 Atl. 395; Ingraham v. Ingraham, 169 Ill. 432, 48 N. E. 561, 49 N. E. 320; St. James Orphan Asylum v. Shelby, 60 Neb. 796, 84 N. W. 273, 83 Am. St. Rep. 553; In re John’s Will, 30 Or. 494, 47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242; Harrington v. Pier 105 Wis. 485, 82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924; 7 Cur. Law, 629. Such Lusts are not within the rule against perpetuities, nor are they affected by or within the scope of statutory or constitutional provisions against perpetuities in general. 5 Am. & Eng. Enc. Law, 902. See, also, recent cases cited in 1 Supp. to Am. & Eng. Enc. Law, page 955. Such trusts are distinguished from' an ordinary trust by the uncertainty of their beneficiaries. Such uncertainty does not cause a charitable trust to fail. In addition to the authorities above cited, see: Grant v. Saunders, 121 Iowa, 80, 95 N. W. 411, 100 Am. St. Rep. 310; Gidley v. Lovenberg, 35 Tex. Civ. App. 203, 79 S. W. 831. The names of the beneficiaries need not be mentioned in the will creating the trust. If the language used indicates with reasonable certainty the objects of the testator’s bounty, it is-sufficient. Watkins v. Bigelow, 93 Minn. 210, 100 N. W. 1104; 5 Am. & Eng. Enc. Law, 917. Charitable trusts do not fail for want of trustees. The legal estate, in such a case, is regarded in abeyance, or as vested in the heirs or executors of the donor for the use of the beneficiaries, or the court will appoint a trustee to carry out the charitable purposes of the testator. 5 Am. & Eng. Enc. Law, 920, and volume 1, Supplement thereto, 959, and cases cited. See generally upon the subject of charitable trusts the exhaustive note in 14 L. R. A. (N. S.) 49-155.

It is appellant’s contention in the case at bar: That the charitable trust sought to be established is void because it suspends the power of alienation of the property therein described for a period prohibited by the laws of this state; that it-is too indefinite and uncertain; that there is no trustee named in the will to take and hold the property and administer the trust; that item 6 of the will is too indefinite and uncertain as to the ultimate beneficiaries; and that there is no method pointed out by which such beneficiaries can be-definitely ascertained. If the trust attempted to be established is valid and enforceable, it is conceded that the directions to the executor to sell the real property operated to effect an equitable conversion of such land into lhoney. That such equitable conversion of the real estate into personalty would be effected as of the date of the testator’s death is well established. Penfield v. Tower, 1 N. D. 216, 46 N. W. 413, and cases cited.

But it is contended by appellant’s counsel that item 6 of the will is void because, as claimed, it suspends the power of alienation of the property therein described for a period which is prohibited by the laws of this state, and we are referred by counsel in support of their contention, to sections 4744 and 4745, Rev. Codes 1905. By these sections the absolute power of alienation -cannot be suspended for a longer period than during the continuance of the lives of persons in being, with a certain exception not here material. If counsel’s premise be true, their conclusion, no doubt, would be sound; but, as we construe item 6 of the will, the power of alienation of the lands described therein is not suspended at all; nor was such result contemplated by the testator. The • executor is ■ vested with an absolute and unconditional power to sell and convert the real estate into money and to devote such fund to the charitable use therein mentioned. When thus applied in accordance with the instructions of the testator, the rules of law against perpetuities have no application. In Addition to the foregoing authorities, see In re John’s Estate, 30 Or. 494, 47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242, and Ould v. Hospital Co., 95 U. S. 303, 24 L. Ed. 450. Appellant bases his contention that the rule against perpetuities is violated upon tl\e ground that the limit of time in which the executor may sell and convert the lands into money is fixed at five years, but that such period may be indefinitely extended by order of the county court. Counsel are clearly in error in such contention. The above language of the will in no manner suspends the power of alienation. Such power of alienation was not suspended for an instant, as the executor had the right to exercise such power immediately after the death of the testator. As stated in 22 Am. & Eng. Enc. Law, 720: “The statute applies to power of alienation and not to its exercise. * * * The statute is directed against the suspension of the power of alienation, and does not concern itself with the actual exercise of the power. Hence a direction in a will giving the exe’cutor discretion as to when he shall sell the land and distribute the proceeds is valid, since the power of alienation is not suspended, though it may not be exercised during the period; and the fact that the testator limited the time within which the sale should take pláce, ór desired the postponement of the sale for a certain time, or suggested a time when it should be made, will not work a suspension of the power if the direction is advisory and does not create a trust for a time certain” — citing Robert v. Corning, 89 N. Y. 226; Fitzgerald v. Big Rapids, 123 Mich. 281, 82 N. W. 56; Hope v. Brewer, 136 N. Y. 126, 32 N. E. 558, 18 L. R. A. 458; Atwater v. Russell, 49 Minn. 59, 51 N. W. 629, 52 N. W. 26; Deegan v. Wade, 144 N. Y. 573, 39 N. E. 692; Chanler v. New York, etc., Co., 34 App. Div. 305, 54 N. Y. Supp. 341; Deegan v. Von Glahn, 75 Hun. 39, 26 N. Y. Supp. 989; Kirk v. Kirk. (Sup.) 12 N. Y. Supp. 326; Rausch v. Rausch (Sup.) 31 N. Y. Supp. 786.

In Robert v. Corning, supra, Andrews C. J., among other things, said: “But the mere creation of a trust does not, ipso facto, suspend the power of alienation. It is only suspended by such a trust, where a trust term is created, either expressly or by implication, during the existence of which a sale by the trustee would be in contravention of the trust. Where the trustee is empowered to sell the land, without restriction as to time, the power of alienation is not suspended, although the alienation in fact may be postponed by the nonaction of the trustee, or in consequence of a discretion reposed in him by the creator of the trust. The statute of perpetuities is pointed only to the suspension of the power of alienation, and not at all to the time of its actual exercise. * * *” In that case it was strenuously insisted by respondent’s counsel that the testator intended the .will to vest the legal title to his real estate in the executors, and that this is the legal effect of the power of sale. The court does not determine the correctness of such contention; the court saying: “But it is unnecessary to determine whether the executors took, under the will in question, the legal title to the real estate, for, in the view we take of the will, there was no suspension of the power of alienation, whether the executors took a trust estate, or were simply donees of a trust power. In either character, whether as trustees or as executors only, they could at any time, from the moment of the testator’s death, have conveyed an absolute fee in possession. The suspension of the power of alienation of the real estate is supposed to result from the direction of the fourth section of the will, that the sale of the testator’s real estate, situate in the state of New York, should be made by the executor at public sale in the city of New York, after three weeks’ notice by publication in four daily newspapers of the city, and also from the provision in the eighth section that, ‘in view of the present great depression in real estate,’ the executors might exercise a discretion as to the time of sale not longer than three years after the testator’s death. * * * The statute of perpetuities is not violated by directions which might involve some nelay in the actual conversion or division of property, arising from the necessity of giving notice, or doing other preliminary acts. Such delays are not within the reason or policy of the statute. The statute was aimed against the creation of inalienable trust estates or contingent limitations, postponing the vesting of titles beyond the prescribed period. * * * We are also of the opinion that the discretion vested in the executors to delay the sale of the real estate not exceeding three years did not create a trust term for any period of time and involved no suspension of the power of alienation. * * * The power of sale was not fettered by the discretion given by the will. The executors could sell and convey the land at any time by a perfect title.”

By the power of sale the executor was expressly empowered to sell and convey such legal title for the purpose of carrying out the trust which he was required to do within five years after the testator’s death. By operation of the will, at the death of the testator the property at once became dedicated to a perpetual charity. Such gift to charity took effect in prjesenti, and, as stated in Re John’s Estate, supra: “The only thing which is postponed or made dependent for its execution upon future and uncertain events is the particular form or mode which the donor would have applied to the execution of the charity.” As stated elsewhere in said opinion: “The property is taken out of commerce and goes instantly into perpetual servitude to charity. While the form of charity may vary, and a succeeding form become effective, contrary to the rule, the primary object, that of charity, continues and is allowable, through the law’s regard for charitable uses, and in consideration of the beneficial result flowing therefrom. Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 Atl. 141. * * * A gift may be made in trust for a charity not in esse, but to come into being at a time uncertain in the future, or which is to take effect upon some contingency that may possibly not happen within a life or lives in being and 21 years and 9 months afterwards, and which does not contravene the rule, provided there is no gift, in the meanwhile, to or for the benefit of any private corporation or person. The doctrine finds support upon the ground that the intention in favor of charity is absolute; the gift and the constitution of the trust is immediate — takes effect in pnesenti. * * *”

Appellant’s contention that, conceding there is a trustee in whom the title rests in trust, still the rule against perpetuities obtains because the duration of such trust is not limited and might exceed the legal limit of time, and the title could not be alienated by the trustee except pursuant to the terms of such trust, is without merit. As before stated, the power of alienation is not suspended for an instant, and it is immaterial whether it be held that the title to the real estate descended to the heir by operation of law for the want of a testamentary trustee, or whether it was left by the will to a trustee. In any event, and by whomsoever held, the title is thus held in trust for this charitable purpose, and the executor is clothed with the undoubted power to at once sell and convey such title for the purpose of carrying into effect such charitable gift. The contention of appellant is, we think, fully answered by the Court of Appeals of New York in Hope v. Brewer, 136 N. Y. 126, 32 N. E. 558, 18 L. R. A. 458, and cases cited; also, by the Minnesota court in Atwater v. Russell, 49 Minn. 57, 51 N. W. 629, 52 N. W. 26 and Watkins v. Bigelow, 93 Minn. 210, 100 N. W. 1104.

Item 6 of the will contains, among other things, the following provisions: “It is my desire that my executor arrange with the proper authorities of said Taskog Sogn that, in the establishment of said children’s home said Taskog Sogn shall contribute a sum of money equal to one-half the necessary cost of such establishment and that my executor contribute from said fund the other half of such cost, and that, if possible, my said executor arrange with such authorities that, for the maintenance of such children’s home they will provide a permanent fund or income, sufficient to properly maintain' the same, with the income from the balance of the fund hereby created and to be devoted to such purpose. -It is also my desire that my said executor so arrange with such authorities and officers that their services in and about the control and management of such children’s home shall forever be free of charge, as far as the fund hereby created may be concerned.” It is urged by appellant’s counsel that the foregoing provisions áre conditions precedent, and, being uncertain of fulfillment, the attempted gift to charity must fail, as the time when the title would vest in the beneficiaries is left indefinite and uncertain. Such contention is devoid of merit. The provisions above quoted are not conditions precedent, but are mere recommendations or expressions of a desire on the part of the testator. The language of the will clearly shows this to be true, as the following sentence demonstrates: “I desire that, in case any of the matters of detail herein set forth cannot * * * be carried out as herein expressed, it shall be understood that my directions herein are merely recommendations and that the same shall not stand in the way of the accomplishment of the main object of this bequest, to-wit, the amelioration of the condition of the poor children in Taskog Sogn aforesaid,” Such provisions being merely recommendations, the validity of the bequest is not dependent upon whether or not the officers of the municipality of Torrskog socken may be compelled or permitted to administer the-trust, or whether, if they do so, it shall be done in their official capacities, or under the jurisdiction and supervision of the proper court. Skinner v. Harrison Township, 116 Ind. 139, 18 N. E. 529, 2 L. R. A. 137.

It is next contended that item 6 of the will is too vague, indefinite and uncertain to be legally enforceable; the particular grounds of objection being: First, that the testator has left to the executor too wide a latitude in carrying out the charitable bequest; and, second, that the provisions wherein the executor is requested to arrange with the authorities of Torrskog socken for the contribution by the socken of one-half the cost of establishing the child’s home, and directing him, if possible, to arrange with such authorities for the maintenance of the home, is too uncertain of accomplishment. It is a noticeable fact that counsel fail to cite any authority in support of the first ground mentioned, and we believe none exists. On the contrary, ample authority exists in support of the right of the testator to vest in his executor the widest possible latitude to exercise his own best judgment in carrying out such a bequest, and we entertain no doubt that the will is valid in so far as this feature of the same is concerned. In many of the cases above cited, the executor or trustees were vested with a discretion fully as broad, if not broader, than was done by the testator in the case at bar. In addition to the foregoing authorities, see: Haynes v. Carr, 70 N. H. 463, 49 Atl. 638; Power v. Cassidy, 79 N. Y. 602, 35 Am. Rep. 550; In re Dulles, 218 Pa. 162, 67 Atl. 49, 12 L. R. A. (N. S.) 1177, and numerous cases cited in note. In the latter case, among other things, it was said: “The fundamental law of Pennsylvania in regard to property, which ought not to require restatement as often as it does, is that the owner may do as he pleases with it, provided the disposition be not to unlawful purposes; and what he may do himself he may do 'by agent while living, or by executor after death. This principle disposes of this case. Miss Dulles, living, could have taken her securities out of her strong box, and handed them to the appellants with directions, even verbal, to distribute them, in their discretion, among religious, charitable and benevolent objects or institutions. That disposition would have been valid and unassailable. There is no good reason why Miss Dulles, dead, could not make the same disposition of her property by testament. * * * The discretion which was hers to exercise, she chose to delegate to her executors. It was her right to do so, and, so long as their discretion is not legally abused, its exercise is as valid as if it was expressly her own.”

Regarding the second ground of objection, the same has, we think, been sufficiently disposed of by what we have heretofore said, to the effect that the provisions which it is claimed render item 6 uncertain are not conditions precedent at all, but are merely recommendations of the testator; and, furthermore, it appears that the municipality known as Torrskog socken is ready and willing to accept and carry out the terms of the trust; and, in any event, as held by the Indiana court in Skinner v. Harrison Township, supra, these are questions which do not affect the validity of the bequest. See, also, Kurzman v. Lowy, 23 Misc. Rep. 380, 52 N. Y. Supp. 83.

It is next contended that no trustee is designated in the will who is to hold the fund in trust; that from the will itself no one can tell in whom the title to the property is to rest. It is, of course, true that the title to this fund must rest some place. It is equally true that the will fails to expressly designate a trustee by name to hold such fund and to administer the trust; but it by no means follows from this that such trust must necessarily- fail, if by the most liberal construction of the language of' the will, aided by extrinsic evidence for the purposes of identification, it can be determined that the testator intended that a certain entity, competent to take and administer the trust, should thus act. ■ Such rule of construction should be invoked in the light of the well-recognized pre'sumption in favor of the validity of such bequests, and the fundamental maxim: “That is certain, which is capable of being made certain.” Also: “A will is to be construed according to the intention of the testator. When his intention cannot have effect to its fullest extent, it must have effect as far as possible.” Rev. Codes, section 5140.

The testator clearly intended that the fund arising from the sale of these lands should be devoted to a worthy and perpetual charity, to-wit, “the amelioration of the condition of the poor children in Torrskog socken aforesaid.” In order to give effect to such intention, there must be a trustee capable of taking and administering a trust of this character. As the bequest is one creating a perpetual charity, no individual could act as such trustee. Is it possible, -from the provisions of the will, aided by extrinsic evidence as to identification, to determine with reasonable certainty whom the testator intended to designate as such trustee? If so, whom did he intend should take title to this fund and administer such perpetual charity? From the record in this case the answers to these questions are not difficult. By item 6 of the will the testator directs that such children’s home, when established, “shall be under the charge and custody of the proper officers of such district or sogn having the proper supervision of the poor, but whose official designation is not known to me at this time, the selection of such officers being left to my executor to be selected and designated in accordance with the laws of the Kingdom of Sweden.” This language furnishes unmistakable proof that the testator intended to vest title to such fund in such officers and their successors in office as have under the laws of Sweden, supervision of the poor in such socken, in trust for the purpose aforesaid. The fact that the testator could not designate them by their proper official title is not at all material, as they were designated with sufficient particularity to enable the executor, or any one else, by the ■aid of extrinsic facts, to determine to an absolute certainty the trustees intended. Whether, as 'intimated by respondent’s counsel, the effect of designating such officials, and by necessary implication their successors in office, necessarily operated as a designation of the municipality of Torrskog socken as such trustee, we need not determine; nor is it material, for appellant’s contention that no trustee was sufficiently designated is fully answered by holding that either such officers and their successors in office, or such municipality, were designated and are capable of acting. “Where a charitable bequest is made to a trustee in a foreign country, the court will not assume that, should the trustee refuse to act, a foreign court will permit the trust to fail, but will assume that it will appoint a trustee.” Kurzman v. Lowy, 23 Misc. Rep. 380, 52 N. Y. Supp. 83. See, generally, upon the question of certainty as to trustees, the. many authorities cited in the exhaustive note in 14 L. R. A. (N. S.) 104-116. See, also, the very recent case of Grant v. Saunders, 121 Iowa, 80, 95 N. W. 411, 100 Am. St. Rep. 310, involving a charitable bequest in which many of the questions involved in the .case at bar, including the question here under consideration, were disposed of adversely to appellant’s contention. In that case the testator designated one Barber R. Fouche as trustee to administer such perpetual charity without providing a successor to such trustee at her death. The court said: “The contention that the trust must fail because the court cannot appoint trustees to act in the place of the one named in the will is not sound, in our judgment. Such a contingency has not yet arisen, nor may it ever arise; and why should we anticipate imaginary difficulties for the purpose of defeating that sweet charity, which ‘in thought, speech and deed challenges the admiration and affection of mankind.’ Christianity teaches it as its crowning grace and glory. Chief Justice Ryan in Dodge v. Williams, 46 Wis. 91, 1 N. W. 92, 50 N. W. 1104. The will provides that the entire fund shall be used as directed, without limit as to time, and we may presume that it will be so expended during the life of the present trustee. Quinn v. Shields, supra. Moreover, the general rule is that a trust shall never fail for the want of a trustee. 1 Perry, section 38; Seda v. Huble, 75 Iowa, 429, 39 N. W. 685, 9 Am. St. Rep. 495. And if it should ever become necessary for the court to appoint another trustee, we see no insurmountable obstacle in the way of its so doing. True, whatever remained of the fund would necessarily have to be distributed as the judgment of the appointed trustee might dictate; but the worthy poor ‘we have always with us,’ and they', as a class-, were the objects of the testator’s charity. The selection of the individuals from among their number' must necessarily be left to the judgment of some one. To Miss Fouche is given the right to first execute the charitable purpose, and, although the testator does not expressly provide fur the appointment of others by whom the objects shall be selected and the fund distributed when she shall decease, or for any other reason be incapable of acting, it cannot be that he intended his gift to fail. He created it for a specific charitable purpose, and he might well suppose, if his attention were called to the matter, that proper means of executing his purpose could be provided through the medium of the courts, if in any matter of detail his provision therefor was insufficient.”

Another very recent case is that of Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256, 122 Am. St. Rep. 169. In that case no, trustee was designated; but the testator’s widow was named as executrix, “with full power to execute” the will, and duties were imposed upon her by the will which belong only to a trustee, and it was held that the trust does not fail for want of a trustee, since the widow, though named only as executrix, may carry into-effect the provisions of the trust, and if she fails to act a court of equity will appoint a trustee. The court said: “In creating a trust the testator need not employ the words ‘trust’ or ‘trustee.’ If he has named a person in his will, and has directed him to carry out all or a portion of the provisions which have been made for the benefit of others therein, the person thus named will be held to be a trustee, and, if he cannot carry out the provisions of the will except the legal title to the property to be held to be in him as trustee, then he will be held, by implication, to hold the legal title to the property which he is directed to convey. 2 Underhill on Wills, section 781; 1 Perry on Trusts, section 262; 2 Pomeroy’s Eq. Jur. (2d Ed.) section 1011; Hale v. Hale, 125 Ill. 399, 17 N. E. 470; Olcott v. Tope, 213 Ill. 124, 72 N. E. 751.”

Such also seems to be the statutory rule in this state. Section 5750, Revised Codes 1905, provides: “When a trust exists without any appointed trustee, or when all the trustees announced die or are discharged, the district court of the-county or judicial subdivision where the trust property, or some portion thereof, is situated, must appoint another trustee and direct the execution of the trust. * * *”

But appellant’s counsel ask: “In whom does the title to the property in question now vest?” Under the doctrine announced by the Supreme Court of Illinois in Kemmerer v. Kemmerer, supra, it vests in the executor as trustee; but whether such is the fact or whether it vests in the heir by operation of law for want of the designation of a trustee thereof in the will, we are not required to determine. It certainly vests in the one or the other. If in the latter, it is not by virtue of the will, but by operation of law on account of the failure of the testator to designate by will such trustee, and the heir may be required, if necessary, to execute the trust. In any event, the will confers upon fhe executor a power in trust to sell and convert such real property into money, and such power may be executed without any act on the part of the heir, even though he be held to be, by operation of law, the holder in trust of the legal title to these lands. This sufficiently disposes of Appellant’s fourth contention.

It is next contended that the will is void for uncertainties in the beneficiaries. In this we are also unable to agree with appellant’s counsel. Much of appellant’s argument on this phase of the case is predicated upon an erroneous construction of the language of the will. We quote from counsel’s brief: “Under the terms of the will it is the testator’s intention that the property involved is to be used for the care, nurture, succor, and support of the' destitute children of the vicinity of Torrskog socken, and therefore it was -not contemplated by the testator that the beneficiaries of the will should be confined exclusively to that socken, but rather those residing in that socken and the vicinity thereof.” We do not thus construe the will. When item G is considered as a whole, the intention of the testator is manifest to restrict such charity to the ’poor and destitute children ip Torrskog socken. The words “of that vicinity” must be held to relate to the territory included within such socken. Such construction is made necessary by the subsequent language in item 6, wherein the testator directs that such children’s home “shall be under the charge and custody of the proper officers of such distinct or Sogn having the proper supervision of the poor. * * by his expression of a desire that the executor arrange with such authorities to contribute one-half the cost of establishing such home, and, if possible, arrange with such authorities to provide a permanent fund or income sufficient to properly maintain the same. But what places such construction' beyond the realm of debate is the language in the latter 'portion of the item, wherein the testator declares, that the main object of the bequest is “the amelioration of the condition of the poor children in Taskog Sogn aforesaid.” But, even under the construction contended for by appellant’s counsel, authorities are numerous sustaining bequests of this character as against similar assaults. See: Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256, 122 Am. St. Rep. 169; St. James Orphan Asylum, et al. v. Shelby, 60 Neb. 796, 84 N. W. 273, 83 Am. St. Rep. 553; In re Nilson’s Estate, 81 Neb. 809, 116 N. W. 971; Hope v. Brewer, 136 N. Y. 126, 32 N. E. 558, 18 L. R. A. 458; Watkins v. Bigelow, 93 Minn. 210, 100 N. W. 1104; Re John’s Estate, 30 Or. 494, 47 Pac. 341, 50 Pac. 226, 36 L. R. A. 242; Thompson’s Ex’r v. Brown, 116 Ky: 102, 75 S. W. 210, 62 L. R. A. 398, 105 Am. St. Rep. 194; Sherman v. Congregational Home Missionary Society, 176 Mass. 349, 57 N. E. 702.

But it is strenuously contended that the bequest is void for uncertainty because the testator has not designated with sufficient particularity the chidlren whom he intended as the objects of his bounty. The designation is “the destitute children,” and, in another place, “the poor children in Taskog Sogn aforesaid.”' Whether the testator had in mind any particular class of the poor and destitute children in such socken we cannot determine. He designated a general class, which may or may not include the pauper poor, and he directed that such children’s home, when thus established, shall be under the charge and custody of certain officials of the socken. We think it may be fairly implied therefrom, in the absence of anything to the contrary, that he intended to vest in such officials the incidental powers to select the individuals within the general class thus designated who are to partake of his bounty.' In this we find ample support in the authorities, a few of which we cit.e: Hunt v. Fowler, 121 Ill. 269, 12 N. E. 331, 17 N. E. 491; Woodruff v. Marsh, 63 Conn. 125, 26 Atl. 846, 38 Am. St. Rep. 346. And see, generally, cases cited in note 14 L. R. A. (N. S.) 133-139.

In Woodruff v. Marsh, supra, the bequest was “for the purpose of maintaining and supporting a home for destitute and friendless children, permanently, * * * to be known as the William L. Gilbert Home; the same to be under the care and control of the above-named persons as trustees.” It was contended that this bequest was void for indefiniteness, uncertainty, and the absence of any grant of power to select the beneficiaries. In overruling such contention, the court said: “In devises and bequests of this nature, our law requires either certainty in the particular persons to be benefited, or certainty as to the class of persons to be benefited, with an ascertained mode of selecting them out of such class. The testator, in the present case, describes the persons whom he intends to benefit as ‘destitute and friendless children;’ the mode of benefit to be ‘maintaining and supporting a home’ for them, ‘permanently,’ at a place particularly specified, to be known .as the ‘William L. Gilbert Home,’ the same to be under the care and control of the trustees whom he has selected, and their successors in the trust. * * * We think that the trustees who are to maintain and support this home, and under whose care and control it is expressly placed, are thereby invested with ample power to select for its inmates from time, to time, subject only to. the limitations imposed in the concluding portion of the will, such individuals of the class of destitute and friendless children as they, or a majority of them, may think proper, or to commit the power of selection to suitable officers or agents under their supervision. This power to admit includes power .to exclude, and to remove after admission. All such acts are naturally incident to the control of the institution.” The foregoing reasoning impresses us as sound, and is strikingly applicable to the case at bar, and furnishes a sufficient answer to appellant’s contention.

In arriving at this conclusion, we are not unmindful of the express concession in respondent’s brief to the effect that such bequest is not sufficiently definite as to the beneficiaries if the will is construed to apply solely to children other than those maintained at public expense. While there are authorities in support of the construction contended for by respondent’s counsel, we are convinced that the adoption of such construction would operate to thwart, in some degree at least, the apparent intention of the testator. The length of this opinion forbids a review of the many cases cited by counsel upon this interesting question. Suffice it to say that an examination of them, and many others, has served to satisfy us that the rule above announced will more nearly effectuate the evident purpose sought to be accomplished 'by the testator, and this is and should be the constant aim in view by the court.

The lower court, by its conclusion of law numbered 7^2, held, in effect, that under the laws of Sweden but one-half of the estate can be devoted to such charity, and hence thát, to the extent that the will attempts to leave more than this for such purpose, it cannot be carried out. In view of the language of such foreign law, as disclosed by the findings, it is doubtful if such conclusion is correct. Such law purports to operate upon the testamentary powers of citizens of Sweden only; but, in any event, it is at least a debatable question whether the' validity of such bequest, in so far as this feature thereof is concerned, should not be determined by the courts of Sweden, where the charity is, by the will, to be administered. But we do not understand that this question is before us, as the correctness of such conclusion is not challenged, by respondent, either by appeal or otherwise.

(123 N. W. 518.)

It follows that the portions of the judgment appealed from are correct, and the judgment must be, accordingly, affirmed. All concur.