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

case OF Troutman VS.. Home, &c Kan.
|, II Pac. 2S6, to sustain its conten-
ton, instead of sustaining appellants
contention, we think the case is
authority to the contrary. In that case
the testator bequeathed her property
to orphans Of deceased Odd Eel
lows while the testator in the c,se at
bar lett his property for "orphans and
to~undllngs," without limitation to anv
particular orphans and foundIinps
In that case the court quotes from a
pennsylvania case which clearly
shows the distinction between the
case at bar and the Kansas case. The
language quoted reads as follows:
"A public use, whether for all men
or a class, is not one confined TO priv
LEGGED persons. The smallest street
is public, for all men have an equal
right to travel on it; but a wav used
by thousands, which may be shut
against a stranger, is private. Would
Oirard College be a public charity if
the male children entitled to admis-
sion were limited to sons of deceas-
I'd Masons or Odd Fellows? If
Pennsylvania Hospital closed its
gates to all but Methodists or Bap-
lists having recent injuries. the pco-
pc would not believe it a purely pub
lie charity, in the intendment of their
constitution. A charity for the poor
of the parish Or township IS public,
but not if confined to poor Presby-
terians in the municipality. Public
charities may be restricted to a class
OF the people of the state or of a
municipal division. At the same time,
they must be general for all OF the
class within the particular municipal
1ty. Thu a blind asylum is only tor
the blind in the community. If it be
completely public, all the blind in
that community are on an equal foot
ing: and, should its capacity be in
sufficient for all, there is no mistak-
ing justice in the order of admission.
10 open its doors only to the blind
OF a particular religious denomina-
ton, or Of a beneficial association. or
OF a political party, shuts them
against the public. A known and rec
ognlzed class, though not generally
poor or diseased or decrepit, may be
the subject of a public charity. as
sailors: yet. If the endowment were
limited in its benefits to sailors who
are members OF a designated sect.
there could hardly be two opinions of
its character"
The point is SO clearly distinguish
ed that we do not deem it necessary .
to elaborate.
1t is also urged that the bequest is
void because no imperative duty is
imposed upon appellee to devote the
money to a charitable use. We an
accede to this construction of the
will: Upon our former consideration
of this will Qn re Hartung's Estate.
supra) we held that the proceeds Of
the residue of the estate should go
to appellee so long as it maintained
the home" We interpreted the will
then to mean that such proceeds
should be used in the maintenance OF
the home. From a reading Of the will
we can arrive at no other conclusion.
If such had not been the intention,
the testator would have bcqueathed
the property directly to appellee, in
stead OF creating an active trust and
directing that the proceeds be paid
annually to appellee.
Perceiving nc error in the record
in this case, it is ordered that the
be affirmed.
COLEMAN J.
\No corc,r.