I concur in the reversal of this case, but would respect the statutory limitation on *Page 83 disposal of property by a will (Section 11848, Code of 1927), and would reverse with direction to the trial court to determine on the facts what particular old ladies' home, if any, is qualified to take the bequest, subject to the statutory limitation.
The trust created in the will of Charles C. Clifton is an ordinary trust, with the legal fee simple in the trustee named, and an equitable fee simple in Clarence, with the equitable fee simple subject to an executory gift over to an old ladies' home on a definite failure of issue (heirs of the body) of Clarence at the time of the death of Clarence. Had Clarence left issue, the trust would have terminated at his death, since there would have been nothing left for the trustee to do. When the trust came into being, it was an active trust, and upon the death of Clarence (had he had issue surviving), it would have become a dry trust, and executed as such under the Statute of Uses, which must be viewed as adopted in principle in this state as a part of our common law.
As a matter of legal nomenclature, the equitable fee in Clarence could be called a base or qualified equitable fee, although in a strict sense that term is applied to legal estates. However, the result is the same.
I would not refer the proviso in the will to the testator's death, as that would extend a rule of doubtful construction. In my opinion, the legal fee is in the trustee, and continued in him. This thought is supported by the language of the testator in his will:
"If my son Clarence dies without leaving any heirs, I then want the remaining part of my estate left in trust to some old ladies' home," etc.
The word "left" must be construed to mean "to be allowed to continue." This construction carries out the testator's intention, which is the quest in the instant case. *Page 84