Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-29
OPINION

11N4OI
By the Court, Coleman, J.:
1hls is an appeal by the Board OF
Regents Of the University OF Nevada
from an order denying its motion for
a new trial and from a final decree
of distribution in the matter Of the
estate of Otto Hartung, deceased.
This is the second appeal growing
out of the construction OF the will OF
Mr.. Hartung, the former decision be-
ing reported in 80 New. 200, 155 Pac.
353.
The portions Of the will necessary
to an understanding of the questions
involved read:
"Tenth, give, devise and bequeath
all the residue Of my estate. both
real and personal, as follows:
"(a) To the Independent Order
of Odd Fellows of the State Of Ne
vada the income from my estate to
be paid over to them by my executors
and trustees annually. if within five
years from the date of my death the
said Independent Order of Odd Eel
lows Of the State of Nevada. does es-
tablish a home worthy of its name,
for orphans and loundIings near
Reno, Nevada, and to be known by
the name Of the Royal D. Hartuns
Home for Orphans and ~Foundlings'
but if the Independent Order of Odo
Fellows Of Nevada does not accept
the provision of this bequest, withiE
the time herein mentioned, then >
"(c) | give and bequeath all my es-
tate, both real and personal not 9th
erwise herein devised, to the board
of regents of the State University Of
Nevada, x ~
The lower court found that the In,
dependent Order of Odd Fellows had
established the home as contemplat
ed by the terms Of the will.
Appellant urges on this appeal CD
that the Independent Order OF Ode
Fellows Hereinafter referred to as
appellee) did not establish a home
worthy OF its name" (2) that me
home. having been established within
the corporate limits of the city OF
Reno, was not a compliance with the
terms of tine ~il1, which provided
that it should be established near
Reno; GO that the devise and be.
quest to appellee offends against the
common law Rule against Perpetui.
ties: and (4) that the bequest is void
because no imperative duty is i'm.
posed upon appellee to devote ths
bequest t o a charitable use. We will
consider these. questions in the order
mentioned.
1t is strenuously contended by
counsel for appellant that the home
established by appellee is not worthy
of its name. 1t IS urged that since
the testator,~ by paragraph "B" of his
| will, required that the Reno Schoo'
District erect a building to cost less
than $4,000, in case it should acquire
the property Of testator, that it must
be concluded that the testator had
in mind that appellee should erect a
home to cost equally as much. We
are unable to adopt this view. 1t is
to us evident at a glance that the
testator did not have in mind that
the home to be erected by appellee
! should cost $4,000, for if SO he
would have specified the amount, as
he did in paragraph B Of his will.
Having thought of requiring the
school board to erect a building to
cost $4,000, it would have been the
most natural thing in the world for
the testator to have designated that
amount as the cost price of the home
had he had such an idea in his mind.
The very words "worthy of its name"
convince us that he had no such idea:
for the reason that having decided
upon $4,000 as the cost price OF the
school. and the ease with which he
could have fixed a similar figure as
the cost of the home had he so con-
templated, he sought to express an
entirely different idea, and used an
expression which was evidently the
result of mature reflection.
1t is obvious that the testator
meant to convey a distinct idea by
the words which he used, and it is
lequally obvious that he intended that
| the appellee should be the Judge AS
to whether or not the home estab-
lished was worthy OF its name" sub
ject to the right of the courts to fin
ally determine the question. Taking
this view, We must determine wheth-
er the home established by appellee
is one worthy Of its name.
Since the standard of everything
is established by a comparison of it
! with other things, we must .necessar-
lily compare the home established
with ether similar homes; and we
think, too, that it is only right in SO
doing to take into consideration the
strength of appellee in Nevada, the
population of the state, and the gen
eral conditions existing therein. Only
one witness gave testimony relative
to similar institutions in other states.
and from his testimony the home in
Reno. everything considered, COM
pares very favorably with similar in
stitutions elsewhere; and, in consid-
ering this testimony in connection
with other testimony and the popula-
ton of the state, we can not say that
the lower court was not justified in
holding that the home in question is
worthy of its name.
The next point urged is that ap-
pellee failed to comply with the