(dissenting)—I agree with the majority that the present trustees were not operating, on January 1, 1950, such a home as Charles Schalkenbach envisioned; it was *131merely an adjunct of our child welfare program—useful, perhaps, but not what was intended.
As we said in Townsend v. Schalkenbach Home for Boys, 33 Wn. (2d) 255, 205 P. (2d) 345, if the trustees refuse or fail to carry out the intention of the settlor of a trust, it is the duty of the court of equity to require them to act or to appoint other trustees in their stead. I am, however, of the view that we went too far in that opinion when we announced that the trust should be terminated unless the trustees were, by January 1,1950, operating such a home as Mr. Schalkenbach had created the trust to establish. We should have confined ourselves to a statement that, unless the trustees did have such a home in operation by that time, the superior court should appoint new trustees.
It is the impossibility of performance of a trust, not the failure of the trustees to carry out its terms by a certain date, that warrants its termination. I do not believe that this trust should be terminated unless and until we are prepared to say that it is contrary to the public policy of this state for orphaned or abandoned boys between the ages of twelve and sixteen to endeavor to make their own living. It may be that the Horatio Alger, Jr., type is obsolete and that his very existence is contrary to now-prevailing public policy; appellant so argues quite frankly. If so, we should hold that the trust should be terminated for that reason, not because the trustees did not meet a deadline which we had fixed.
I am not prepared as yet to withdraw from the position we took in Townsend v. Schalkenbach, supra, that such a trust is not against the public policy of the state. I would not terminate the trust; but the trustees, having failed to meet our deadline, should be changed. I do not think the trustees looked in the right places for boys of the type Mr. Schalkenbach desired to help.
I dissent.
Olson, J., concurs with Hill, J.