The trial court properly upheld the probate court in its holding that the *Page 530 Salvation Army of Jackson, appellee herein, was entitled to the $10,000 to be used in the erection of a new building. Under the bequest, appellee was given an immediate vested interest in the sum of $10,000 to be used in the erection of such new building, the payment of which only could be withheld until the executor was satisfied that the building would be completed and paid for. There was no provision for the lapsing of the bequest nor could the executor arbitrarily or capriciously withhold satisfaction. Under the terms of the will, the appellee could erect a building costing only $10,000. The delay was not wholly caused by appellee; it raised $11,000 which it used to purchase and fully pay for a suitable lot. The depression came on and it was unable to raise further moneys for the time being. In its endeavor to meet the terms of the bequest, it secured $6,000 from the Salvation Army headquarters in Chicago, but this amount was returned. The executor had expended large amounts realized from the sale of marketable securities belonging to the estate in paying a number of other bequests. Only a parcel of real estate and an old mortgage of $11,000 were left. He offered to turn over to appellee this old mortgage which was on property of uncertain value, and against which past due tax liens amounting to over $2,000 had accrued. The appellee refused to accept this old mortgage.
We are not even called upon to invoke the doctrine of cy pres inasmuch as the legacy is plain and understandable and gave appellee an immediate vested interest. We suggest that if the appellee were to give the executor a bond with a responsible company insuring the erection of a building that could be used by appellee to carry on its work, and *Page 531 which would be free from all liens and cost at least $10,000, the executor should be satisfied. This is left for the probate court to work out.
The judgment of the circuit court, upholding the order of the probate court and remitting the case to the latter court for further proceedings, is affirmed with costs to defendant.
WIEST and BUSHNELL, JJ., concurred with BUTZEL, J. TOY, J., took no part in this decision.