The particular portion of the will in question is the hotel provision reading: "I direct my executor to reduce sufficient of my estate to cash, such cash to be utilized for the erection and maintenance of a modern hotel at Virginia City, Montana, where no intoxicating liquors are to be sold at any time, said hotel to be maintained as a memorial to me, and I direct my executor to cause the formation of a corporation to be known as the Mary Swayze Memorial Hotel Company, to which corporation said hotel is to be conveyed and by which it is to be maintained and operated."
At the hearing appellant made the following offer to prove by the witness on the stand and other succeeding witnesses that since 1937 Virginia City has been without hotel facilities; that it is a county seat town and the district court of the Fifth Judicial District of the State of Montana holds terms of court there in law and equity; that the city of Virginia City and the immediate surrounding territory has from early days been of great historical interest and is annually visited *Page 561 by large numbers of tourists; that the local hotel burned down in 1937 and that for some years previously the same had been operated to capacity. The said hotel was a twenty-five room structure and usually well filled and that the deceased was well acquainted with the foregoing; that to build a modern hotel of the size of the burned down hotel would cost more than the inventory value of the Swayze estate, but that a structure of about twenty or a twenty room modern hotel could be built and equipped for a sum within the inventory value of the estate."
The offered evidence was excluded. I think it was error to exclude this evidence. The offered evidence would have shown the type and size of hotel which testatrix had in mind at the time of making her will, because she evidently was referring to one suitable for a town the size of Virginia City and one that would adequately serve the community, based upon past experience, and would have shown the extent of the public interest in a hotel at Virginia City and in my opinion would have shown a sufficient interest to constitute the devise a charitable one.
A will is to be construed according to the intention of the testator. Sec. 7016. And "in cases of uncertainty arising upon the face of a will, * * * the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations." Sec. 7017, Rev. Codes. Extrinsic evidence of the circumstances and conditions within the knowledge of testatrix at the time of executing the will is admissible to show the intent of testatrix. See note in 94 A.L.R., page 170; In re Clippinger's Estate, 75 Cal. App. 2d 426, 171 P.2d 567; Richards v. Wilson, 185 Ind. 335, 112 N.E. 780. And that interpretation is to be adopted if possible which will prevent a partial intestacy. In re Spriggs' Estate, 70 Mont. 272, 225 P. 617.
It is not every uncertainty that invalidates a charitable trust. "According to the later, more modern, and better view, *Page 562 testamentary gifts to charities may be good although they involve uncertainties which would render a gift to an individual void." 10 Am. Jur., "Charities," sec. 82; and see In re Estate of Funk,353 Pa. 321, 45 A.2d 67, 163 A.L.R. 780; 14 C.J.S., Charities, sec. 46.
"A gift by will to a charity of an unnamed amount of money or one which furnishes no means of ascertaining the amount of money or property to be devoted to that object is void for uncertainty. So long, however, as the amount that is to be devoted to charity is capable of definite ascertainment, although the exact amount is not fixed by the instrument creating the trust, there is no uncertainty in the subject matter." 10 Am. Jur., "Charities," sec. 86.
Charitable trusts are viewed with peculiar favor by the courts. Thomas v. Bryant, 185 Va. 845, 40 S.E.2d 487, 169 A.L.R. 257. In that case a devise of the residuary estate to the trustees for the purpose of creating and maintaining a home for indigent aged of the county was not invalid for indefiniteness. In that case the will expressly provided that the kind, size and plan of the home was left to the discretion and judgment of the trustees.
In the case of Souhegan National Bank v. Kenison, 92 N.N.H. 117, 26 A.2d 26, 28, a will directed the residue of the estate to be held "as a fund to be distributed both as to principal and interest for religious, charitable and relief purposes in any part of the world, in accordance with a suggestive memorandum which I have prepared and hereby make a part of this will." No such memorandum had been prepared. It was contended that the trust was void for indefiniteness but the court held otherwise.
In McCartney v. Jacobs, 288 Ill. 568, 123 N.E. 557, 4 A.L.R. 1120, it was held that a direction in a will that the executor procure markers for the burial lots of testatrix and her brother "at a cost of not less than $75 for each marker" was not indefinite and uncertain as leaving to the executor the uncontrolled power to dissipate the funds of the estate but *Page 563 that the probate court had the power to control the amount of money expended for the markers.
In Field v. Drew Theological Seminary, C.C., 41 F. 371, 372, the court had before it a will in which the testator directed that the executors provide "a sum of money sufficient to educate in the Drew Theological College, in Madison, New Jersey, two young men for the ministry" and that "this is to be continued perpetually" was not too indefinite as to the amount of money needed to constitute a valid charitable trust. Likewise in that case as here the corporation to administer the trust was not in existence at the time of the testator's death but was thereafter created pursuant to the testator's direction.
In 14 L.R.A., N.S., 149, the author refers to Dundee v. Morris, 3 Macq. H.L. Cas. 134, Scott's Revised Rpts., Vol. 10, H.L., page 55, where it was held that a bequest for the establishment, in a named place, of a hospital for 100 boys, was not invalid because the testator did not specify any certain sum, or furnish any means of rendering certain how it was to be applied to the establishment of the hospital, since the number of boys being given, the size of the hospital required could be easily ascertained and its cost estimated. That the choice of the site and details of the work were not specified does not render the trust invalid for uncertainty. Lawrence v. Prosser, 89 N.J. Eq. 248,104 A. 772.
There are cases supporting the view that a charitable gift of an unnamed amount of money is void for uncertainty if no means is furnished for ascertaining the amount of money or property intended to be devoted to that object. See note in 14 L.R.A., N.S., 147. Here the circumstances offered to be proven would have afforded some basis for determining the size of the hotel desired and hence the approximate cost thereof.
In Crerar v. Williams, 145 Ill. 625, 34 N.E. 467, 21 L.R.A. 454, the testator directed the executors to set aside so much of his estate as in their judgment was necessary and to pay from the income thereof all costs, charges and expenses of administration *Page 564 of the will and its trusts of which there were many, and gave the residue of his estate for the erection, creation, maintenance and endowment of a free public library. The court held that the charitable trust was not invalid for uncertainty. In that case too a corporation was directed to be thereafter formed to administer the trust. To the same effect is Franklin v. Hastings,253 Ill. 46, 97 N.E. 265, Ann. Cas. 1913A, 135, and see 14 C.J.S., Charities, sec. 32; 10 Am. Jur., section 44, page 615.
Was the trust a charitable one? I think it was if we assume the existence of the facts offered to be proven. A charitable trust is created if it includes a purpose "the accomplishment of which is beneficial to the community." Restatement, Trusts, sec. 368.
The test is whether "at the time when the question arises and in the State in which it arises the purpose is one the accomplishment of which might reasonably be held to be for the social interest of the community." Restatement, Trusts, sec. 374, comment a.
"A trust to promote the happiness or well being of the members of the community is charitable. Thus, a trust to beautify a city, or to preserve the beauties of nature, or otherwise to add to the aesthetic enjoyment of the community, is charitable. So also, a trust to provide for public concerts or for community singing is a charitable trust. So too, a trust to provide fishing facilities for the inhabitants of a town is a charitable trust. A trust to provide public facilities for swimming and other sports is charitable. Some of these trusts can be supported on the ground that they tend to promote the health of the community (see sec. 372), or involve a form of education (see sec. 370); but it is sufficient that they promote the general happiness of the community." Comment f, Restatement, sec. 374, p. 1156.
In Scott on Trusts, section 374.10, it is said: "The promotion of the happiness and enjoyment of the members of a community is a charitable purpose. It is not material that the benefits are not limited to the poor. In the well-known case of Goodman v. Mayor of Saltash the House of Lords upheld a *Page 565 prescriptive right in the free inhabitants of a borough to dredge for oysters during a certain season of the year. The court said that if there had been a grant trust to permit the inhabitants or a particular class of the inhabitants to dig oysters it would be a charitable trust which would not be invalid as a perpetuity.
"So also the erection or maintenance of a community building in a village to be used for the benefit of the inhabitants is a charitable purpose. A trust for the encouraging of choruses by the residents of a certain town is charitable.
"A trust is charitable where the purpose is to contribute to the aesthetic enjoyment of the community. Thus the courts have upheld a trust for the development of the Palisades along the Hudson river; a trust for promoting the permanent preservation of lands of beauty or historic interest; a trust to beautify a city by the planting and maintaining of shade trees; a trust to preserve a forest and wild lands intact as a park to which visitors shall be allowed access."
In Nixon v. Brown, 46 Nev. 439, 214 P. 524, 531, a deed of trust conveying a theatre building and lots upon which it was situated to trustees to hold and operate for the citizens of the town of Winnemucca, the income from which was to be used for maintenance and repairs, was a charitable trust. The court in that case pointed out that charitable trusts are the favorites in equity and then said:
"Viewed in the light of these decisions, and of many others, the purposes for which the trust was created must be held to be a public or charitable one. The theater, which was the subject of the gift, as appears from the record, was rather an elaborate one for a city whose population is small. It undoubtedly enabled the people of Winnemucca to attend many public occasions and public functions they otherwise could not. Again, it furnishes a means which the people of Winnemucca otherwise would not have had for attending plays, concerts, and other functions, thereby increasing to some extent their happiness and social welfare. If the trust is in other respects valid, *Page 566 as required by law, we think the purpose for which it was created is and must be considered a public or charitable one."
A trust to establish a community building is a charitable trust. New Jersey Title Guarantee Trust Co. v. Smith, 90 N.J. Eq. 386,108 A. 16; Shannonhouse v. Wolfe, 191 N.C. 769,133 S.E. 93; Klein v. City of Bridgeport, 125 Conn. 129, 3 A.2d 675.
It has been held that a trust for the establishment and operation of a gas plant for the purpose of supplying light, heat and power to a municipality and its inhabitants constitutes a public charitable trust. This was so held in Todd v. Citizens' Gas Co. of Indianapolis, 7 Cir., 46 F.2d 855, 865. In that case the court said:
"It is also the claim of appellants that the establishment of a gas plant for the purpose of supplying light, heat, and power to the city and its inhabitants is not for a use recognized in law as proper for a public charitable trust. The definition given by Mr. Justice Gray in Jackson v. Phillips, 14 Allen, Mass. 539, 556, has been repeatedly quoted and applied:
"`A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature.'
"It is easily seen that it is impossible to specify the innumerable objects or purposes for which a charitable trust may be created. The enforcement of charitable uses cannot be limited to any narrow and stated formula. It must expand with the advancement of civilization and the daily increasing needs of man. New discoveries in science, new fields and opportunities for human action, the differing condition, character, and wants *Page 567 of communities change and enlarge the scope of charity. Indeed, it has been stated generally that `a charitable use, where neither law nor public policy forbids, may be applied to almost any thing that tends to promote the well-doing and well-being of social man.' Ould v. Washington Hospital, 95 U.S. 303, 311,24 L. Ed. 450." To the same general effect is in re Funk's Estate, supra, and the cases cited in the exhaustive note; Mills v. Montclair Trust Co., 139 N.J. Eq. 56, 49 A.2d 889.
And "a trust to maintain a Young Men's or Young Women's Christian Association, maintaining a building offering to young people facilities for reading, exercise, social meetings, board and lodging at reasonable rates, is charitable." Sec. 374, Comment g, p. 1157, Restatement on Trusts. And a trust to provide an award to aid college students who made the lowest golf score is a charitable trust "beneficial to the community." In re Fleming's Estate, Cal.App., 183 P.2d 295, 297. And a charitable trust does not cease to be such because its operation results in profits. Restatement, Trusts, sec. 376, comment d.
An added circumstance to be considered in determining whether a charitable trust was created is the fact that the hotel is to stand as a memorial to the deceased. There are cases holding that a gift for the erection of a monument to the memory of a prominent citizen constitutes a charitable trust. Lawrence v. Prosser, supra; Eliot v. Attwill, 232 Mass. 517, 122 N.E. 648.
In 10 Am. Jur., page 624, it is said: "Although the founding of a public charity to perpetuate one's name may not come up to the abstract idea of a Christian charity, it is uniformly treated as a charity by courts of justice."
It is generally held that a gift for the benefit of animals is a charity. 10 Am. Jur., Charities, sec. 76, p. 638. It seems to me that if providing a home for animals is a charity, then under some circumstances the same should be said of the construction and maintenance of a hotel which furnishes the comforts and conveniences of a home to human beings. I do not mean to say that a gift for the building and maintenance of a hotel in every city or town in the state would be a charitable trust. It is only *Page 568 owing to the peculiar conditions in Virginia City at the time the will was made as attempted to be shown in the offer of proof that makes this a charitable trust and one peculiarly beneficial to the community in and around Virginia City.
My associates say that a hotel is a private business and that it is not a charity to aid a business enterprise. I think my associates lose sight of the fact that because of the conditions in Virginia City the hotel business (because of a total lack of hotel facilities) became and was affected with a public interest.
Also my associates fear the consequences of turning a charitable tax-free corporation loose to compete with a private corporation. There is here no element of competition presented. It was because there was no hotel in Virginia City for many years that caused the decedent to make the provision in the will which she did. The conditions existing when the will was drawn must be considered in construing the will and in determining whether they created a charitable trust.
A charitable trust is not subject to the rule against perpetuities. Art. XIX, sec. 5 of the Montana Constitution, and see Quinn v. Peoples Trust Sav. Co., 223 Ind. 317,60 N.E.2d 281, 157 A.L.R. 885.
I think the judgment should be reversed.
Rehearing denied March 31, 1948.