The application for rehearing brings into question the correctness of this conclusion in the foregoing opinion [the original opinion]:
"It results from this conclusion that the persons entitled to this property — the trust having failed for the want of a beneficiary — were the *Page 599 heirs at law of Hannah J. Caldwell, deceased, other than Almena Caldwell, living at the time Almena Caldwell died, viz. March 3, 1918."
The criticism, in effect, of the decision of this court is that it excludes Almena Caldwell as an heir with respect to the property in question, and, in consequence, denies the competency of Almena Caldwell to dispose by will, which she executed, of her share, descending from the testatrix, of the subject of the trust that failed. The brief in support of the application for rehearing cites 1 Perry on Trusts (5th Ed.) §§ 159, 160; Gumbert's Appeal, 110 Pa. 496, 501, 1 A. 437; Bond v. Moore, 90 N.C. 239; 1 Rap. L. Law Dict. 598, defining, according to the general acceptation, the term "heir." The abstract soundness of the doctrine of Perry's text, above cited, is not doubted. Indeed, the quoted conclusion recognizes the principle upon which the author proceeds, viz. that upon the failure of the trust the donor or the donor's heirs at law take the property, or, more accurately, that a resulting trust therein inures to their benefit. The correctness of the deliverance made by this court in the only particular the decision is now questioned cannot, however, be determined by recourse to so simple a formula; this for the reasons that were indicated in the original opinion.
The two inquiries necessary to be answered were these: (a) When, at what point of time, was the failure of the trust, created by the will of the testatrix, finally ascertainable; and (b) at what point of time was it determinable who were the heirs at law of the testatrix to whom the property (the subject of the failing trust) passed? From the terms of the will itself it appears that the testatrix provided for the future creation of the beneficiary of the trust through the action of the trustees of Milton College in establishing a permanent theological department therein, failing which the beneficiary should be a like department in Cumberland University, and that the testatrix fixed no period in which the department should be established in Milton College. The only limitation possible, in view of the provision for the life of Almena Caldwell, must be found in the point of time when Almena's enjoyment of the property should cease by her death — an event that, itself, must have preceded the ascertainment of the failure of the trust for the want of a beneficiary — and thereby, inevitably, prevented Almena from being an heir at law of the testatrix with respect to the property testatrix impressed with the trust that could be afforded a beneficiary by action taken at an undefined time after testatrix's death, during the period Almena was enjoying the avails of the property. It is evident that the failure of the trust, as defined in this will, could not be referred to the death of the testatrix, since the trust was not invalid or illegal at that time, and since the creation of its primary beneficiary was to be provided by a future action without limitation as to time. The considerations stated led this court to the conclusion quoted; and the court remains satisfied with its correctness.
We have consulted the cases of Bond v. Moore, and Gumbert's Appeal, supra, cited on the application. Neither of these decisions is of any practical value in determining the question of the very different instrument presented for consideration by this appeal. In the former case the donor survived both the trustee, Huggins, and the donor's wife, and, besides, the deed establishing the trust made particular provision for the contingency that in fact later happened. In Gumbert's Appeal the questions decided arose out of the abandonment of property that had been conveyed for the use and purpose of a church, churchyard, and burying place. It was there held that, when the purpose failed, as it did, the land should revert to the heirs of the donor; but there was not in that instance, as there is in this, provisions governing the trust for the future creation of a beneficiary — a prospective provision that might have been employed to afford the beneficiary by action taken at any time during the life of Almena Caldwell. In that case there was no question with respect to the point of time when the failure of the trust should be determinable. *Page 600