The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1904-05-03

Sive examination of the mass of authori-
ties. but have had the benefit of the ex-
haustlve research and the able and elab-
crate arguments of counsel and feel pre-
pared to render a decision which l think is
right. Necessarily my opinion is the
barest outline, but think counsel will be
glad to know my conclusions on the de-
cisive questions.
The Shanahan case is decisive against
the validity of Fanny S. Wilder's gift for
charity, unless chapter 1872. Laws Of 1903,
be upheld as an executory devise to a
corporation not then in existence, but to
be thereafter formed
Law of 1903 Is Invalid.
Chapter 132, Laws of 1903, is uncon-
stitutiOnal because its subject is not ex-
pressed in the title
Can the gift be upheld as an executory
devise to a corporation to be thereafter
The following propositions of law appli-
cable to the case are, l think, clearly
settled:
corporation not yet in existence, but to
be thereafter formed with power to take
the gift and use it in furtherance of its
corporate objects, is good as an executory
devise.
2. A devise or bequest to a corporation
already in existence or to one to be or
ganized in the future. with directions by
the teStator to use the income for any
corporation was or may be organized is
not trust, but an absolute devise or
bequest to the corporation.
3. Indef1niteneSS or uncertainty in the
description by the teStator of the class
for whose benefit the corporation is to
use the income, does not render the de
wise or bequest invalid provided the cor
poration has the statutory power to take
the devise or bequeSt and use the income
for the benefit of the class named. Leg
islative authority to take the particular
fer
poration has authority to receive all do
aatioDs.
Such a devise or bequest, when the cor
poration Is not authorized by law to take
or to use for the purposes expressed by
the testator is trust, and is invalid un-
less it is such a trust as is expressly au-
thoriZed by the statutes of this state.
Did the teStatOr make an absolute gift
to a corporation to be thereafter or
ganized with powers sufficient to enable
it legally to take the gift and use the in
come for the purposes directed by the
testator?
To Relieve the AWorthy Poor"
The language of the twenty-sixth para
graph, in my opinion, indicates that the
primary intention of Mrs Wilder was to
''endoW" the corporation to be formed
with said fund and endowment and
that all property estate and fund should
be used by the corporation, through its
corporate powers, and in furtherance
thereof to furnish relief and charity for
the worthy poor of st. Paul.
As stated in Cone VS.. Void, IS Mimi,
500, 1T is legal for a donor to prescribe,
by way of limitation, that his gift shall
be kept and preserved so as to subserve
a purpose which donee corporation was
created to promote. To so prescribe is
nothing more than to declare that the
trust fund shall be devoted to the OBJ
jects which the legislature had in view
when providing for the existence Of the
corporation
Paragraph &c of the will indicates to
my mind that Mrs. Wilder intended no
more than to declare that the fund should
be devoted to the objects for which the
legislature had authorized the corporation
to be formed. 1t is true that other pro-
visions of the viii contain directions that
are inconsistent with the objects for
1t IS true that in other portions of the
will is indicated the purpose or at least
the desire of the testatOr to impose linn
1tationS on the use of the fund, to con-
troll the administration of the charity, in
ways that the law does not permit. But
why may we not give full effect to the
the fund is to vest in the corporate
free of prohibited trust feature" in case
the administration on the lines she had
heretofore named is prohibited by any
law thereto applicable?
May Make Conditional Devise.
I see no reason why a devise to B. may
not be made conditionally upon the in
validity of a prior devise to A. If so, a
teStator may provide that the fund is to
go to A. absolutely in case the trust she
has attempted to create is void, and the
absolute devise will be good.
Counsel claims that the words free OF
any prohibited trust feature" are so in
definite as to the particular trust fea-
lures" intended that the intention Of the
testator cannot be ascertained; that she
asks the court to make a will for her in
case hers is invalid.
I do not think this language is open