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

instead OF near Keno. NE VII
reads:
"If within five years from the date
of nv death the said Independent
Order of Odd Fellows of the State
of Nevada does establish a home
| worthy of its name, for orphans and
foundlings near Reno, Nevada.
1t is the contention Of appellant
that it was the intention of the tes-
tator, as expressed in the will, that
a home for orphans and foundlings
should be established, not within the
corporate limits of the city of Reno,
but near the city of Reno, and that
the establishment OF the home with
in the city limits vas a failure to
comply with the terms Of the will,
and he;,ce that appellee had forfeit
ed all claim to the property of the
testator. On the other hand, it is
claimed by appellee that py the Ian
guage OF the will the testator did
not intend to designate the place
where the home should be estab-
Iished, but that he intended that
wherever the home should be estab-
iished it should be for orphans and
foundlings. near Reno
We would do violence to no rule
of construction we know Of if, after
d consideration of the language and
punctuation Of the clause in quesuon
We should adopt the idea suggested
by appellee; but we do not deem it
necessary to determine this point.
since, i'll the view we take, the judg-
ment must be affirmed. All of the
authorities hold that the word near
is a relative term but we are salts
fed that as a general rule the word
IS used to DESIGNATE a place slightly
removed from a given point. OF
course, there are exceptions to this
rule, a notable one being the use of
the word in diplomatic p%arlance as
near the Court of St. James" The
real question, OF course. is to ascer-
tain the intention of the testator;
and, as Mr.. Dwarris says:
"Where the intention of the tes-
tator is clear and obvious, It mas
been held that it will control the
legal operation even Of technical
words.' (Dwarris, p. 1867
1T is a familiar rule that the court
will vary the strict meaning Of
words when necessary to effect the
intention of the te5tator." (Old
Ladies' Home VS.. Hoffman, Ia, 80
y. w. 1869
The question is, what idea did the
testator desire to express by the
language used? AS one who had
been a member Of the Independent
Order OF Odd Fellows for years, he
no doubt knew that the jurisdiction
OF the Grand Lodge of the Independ-
ent Order OF Odd Fellows took in
the entire state Of Nevada. and he
knew that unless he indicated some
locality as the place where the home
should be established, appellee could
establish it at any place in the state,
no matter how remote from the CEN
ter of population; and with this idea
N mind, we are of the opinion that
by the language used he intended that
the home should be established in
the vicinity of Reno, which was his
place Of residence in his lifetime, the
seat of the State University, the
largest city in the state, and the CEN
ter Of population, rather han at some
place. The court, in the case
Of the Old Ladies' Home VS.. Hoff-
man, supra, had under consideration
a case similar to the one at bar, in
which the following language is
used:
1T may be conceded that a condi-
ton precedent to the taking of a be-
quest must be literally performed.
but the trouble in this case does not
arise yer the application of this rule.
The difficulty here is to determine
what the condition is; for, if the in
tent OF the testator was to require
her beneficiary to be located within
the corporate limits of Muscatine, the
defendants have no case. But was
that her intention? Her primary pur-
pose was to endow an orphans asy-
lum which should be connected with
existence at the end of five years
from her death, her bequest was then
to go to an old ladies' home located
there. Her thoughts were first Of all
for the fatherless and motherless
waits of the community, and they
were the primary objects of her boun-
ty. Can it be said that she intended
to deprive them of the great benefits
to- be derived therefrom simply be-
cause the home which should be pro-
vlded for them should be located just
across a geographical line, though in
tact recognized as one of the charit-
able institutions OF the city she nam
ed? We think not. To US it is quite
clear that she did not have in mind
strict geographical lines. and that her
sole purpose, as to locality. was to
cndow an institution which should be
SO clearly connected with her home
city as to be recognized as a part
thereof, and this is clearly the situa-
ton the defendant occupies"
We think that what was said in
that case is peculiarly applicable to
the case at bar, and we are satisfied
that it was not the intention of the
that those who selected the
site fer the home should search out
the boundaries Of the city of Reno
to be sure that the home might be al
least an inch outside of those bound
aries, or forfeit its claim to the prop
erty bequeathed. Had the appellee