dissenting.
I am unable to concur in the majority opinion, for the reason that I do not think any of the parties are entitled to a review by this court of the judgment entered in the district court.
When the unnamed heirs filed their petition in the county court, for a construction of the will, that court entered an order requiring the parties named in the petition “and any and all other person or persons having or claiming to have any right, title or interest, actual or contingent,” in the estate or in the assets of the estate, either as heir, legatee, beneficiary, trustee, or otherwise, to answer and show cause on or before the 28th day of October, 1907, why the prayer of said petition should not be granted; providing that in default of such answer “said parties, and each of them, and all other person or persons shall be forever barred from any and all right, title, interest,” etc., and that notice of the order be pub*666lished for three consecutive weeks in the “Examiner,” a weekly newspaper published in and for Douglas county, Nebraska. October 19, 1907, due proof of publication of the above order was made. February 17, 1908, a decree was entered in the county court construing the will and holding the tenth clause to be void and incapable of execution. March 12, 1908, the executors filed in the district court a transcript on appeal. May 29, 1909, the unnamed heirs filed in the district court their petition praying for a construction of clauses 10 and 13 of the will. June 14, 1909, the executors filed a motion to strike the petition of the unnamed heirs, on the ground that it raised other and different issues from those tendered and determined in the county court. This motion stood undisposed of until November 27, 1909, wl -n leave was given the executors to withdraw their motion to strike and to plead by December 6, 1909. During the interim between the filing of this motion and the withdrawal of the same, and on October 25, 1909, a petition of intervention in the name of the attorney general was filed, as stated in the majority opinion. On March 27, 1909, a motion was filed by the unnamed heirs to strike the petition of the attorney general from the files., for the reason that neither he nor the state nor the relators were parties to the suit and had no rights or interest entitling them to intervene, and that the case was. now pending in that court on appeal from the county court. November • 3, 1909, an amended petition of intervention was filed in the name of the attorney general, as stated in the opinion. On July 15,1910, an appeal bond was filed in the name of the attorney general. On July 21, 1910, an appeal in the name of the attorney general was filed in this court. December 17, 1910, the unnamed heirs filed a cross-appeal, and on December 21, 1910, the executors filed their cross-appeal. After the appeal had been lodged in this court, appellees (the unnamed heirs) moved to dismiss the appeal upon several grounds, which motion was disposed of as stated in the majority opinion.
*667In their brief and in their oral argument at the bar, appellees renew their contention that the district court for Douglas county erred in overruling their motion to strike the petition of intervention of the attorney general, and in allowing him to intervene in said cause in the district court; that the district court erred in overruling their demurrer to the petition of intervention of the attorney general; and insist that the attorney general, “sole appellant herein, has no interest, direct or indirect, of a beneficial or pecuniary character in the subject matter in litigation herein, and therefore is not, and cannot, be prejudiced by any decree or judgment entered herein in the district court for Douglas county, Nebraska, and hence possesses no right of appeal therefrom to this court.”
This contention, which meets us at the very threshold of the case, is sound and should be sustained. It is contended by the appellees that neither the state nor the people of the state nor the attorney general in his official capacity had any such interest in the charity, sought to be established by the tenth paragraph of the will, as would have entitled the attorney general to appear at any stage of the proceedings; and, further, that, even if he might properly have appeared before trial in the county court, he could not do so after there had been a full and complete trial in that court and the case taken to the district court on appeal. Section 9489, Ann. St. 1911, provides : “The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when requested by the governor, or either branch of the legislature, appear for the state and prosecute and defend in any other court, or before any officer, any cause or matter, civil or criminal, in which the state may be a party, or interested.” Section 4778 provides: “It shall be the duty of the attorney general to appear and defend actions or claims against the state. He may *668require tlie assistance of tbe district or prosecuting attorney of tlie district or county wherein tbe action is brought, and in any case of importance or difficulty tbe governor or chief officer of tbe department or institution to which it relates may retain and employ a competent attorney to appear on behalf of the state.” It is thus made the duty of the attorney general to himself appear in all of the matters included within the sections above quoted. No power is given him anywhere in the statute to delegate his duties to private counsel. If that necessity ever arises, section 4778 prescribes who may retain such counsel. Moreover, in the present case, so far as. the record before us discloses,' the attorney general himself never actually appeared at any stage of the proceedings. He did not sign or verify either the original or amended petition of intervention. He did not sign the motion for a new trial, nor the appeal bond, nor the briefs filed in this court, nor did he appear upon the oral argument at the bar to argue the case. All of these things were done in his name by the private counsel who appeared for the interveners, McCarthy, Brown and St, Onge. It is apparent that counsel were in doubt as to their ability to establish the right of the three ladies named to file a petition of intervention, and that the name of the attorney general was borrowed by them with the thought that, if they failed to establish the right of their private clients, they might succeed under the protecting name of the attorney general. This the statute does not authorize.
After a careful examination and consideration of the will and the record of the case as it then stood, together with the amended petition of intervention, upon which the case went to trial in the court below, it seems, clear to me that there was nothing to justify the appearance of the attorney general in that controversy. Upon this point I think:
1. That, under the tenth clause of the will set out. it cannot be held that the charity thereby sought to be *669established was clearly a public charity. Treating that clause as valid, as contended for by the intervener, there is nothing in the wording of it to indicate that it was the intention of the testator to make it a public charity. The bequest was to his executors in trust, and the direction was that, Avith the fund thus bequeatiled to them, they Avere to purchase a site and build thereon a home for poor, working girls, expending not more than one-half of the bequest for the purchase of the site and erection of the building, and to invest the balance in interest-bearing securities, and to apply the interest derived therefrom to the support of said charity. Were the working girls to be received in this home free of all charge, or should they be required to pay a modest consideration for the use of the home? Could any poor, Avorking girl, whether Avortliy or not, demand admission to the home? Were their qualifications for admission to be passed upon by some public official, or by the trustees named in the will? Was the home thereafter to depend upon public taxes for support, or was it the intention of the testator, Avith the aid of the interest upon one-half of the bequest, and the receipts of the home from those avIio might be admitted, to make the home self-supporting? In short, I think the charity thus attempted to be created was in every essential a private, and in no respect a public, charity. I do not think the attorney general had any more right to intervene in behalf of that charity than he would have had to intervene for the Creighton College, which received $500,000, or the St. Joseph Hospital, which Avas to be the beneficiary of $200,000. In Attorney General v. Soule, 28 Mich. 153, it is held: “The state is not authorized, through its laAV officer, to bring a suit in equity, adverse to all private parties and interests, to enforce a gift by Avill to charitable uses, unless • the gift be definitely to a charity such as equity recognizes, and definitely to a public charity. The state,* no less than other prosecutors, must appear on the face of the record to be entitled to prosecute, or the proceeding *670must fail in consequence of the irrelation of the plaintiff to the subject of the action.” “The question is, not,” says Sir William Grant, in Morice v. Bishop of Durham, 9 Ves. Jr. (Eng.) *399, “whether the trustee may not apply it upon purposes strictly charitable, but whether he is hound so to apply it.” And in James v. Allen, 3 Mer. (Eng.) 17, he says, further: “If the property might, consistently with the will, be applied to oilier than strictly charitable purposes, the trust is too indefinite for the court to execute.” As said by the Michigan court: “If the ambiguity involves the quality of the charity as public or private, the same reasons and principles must apply, where the right to maintain the suit depends upon its being public, and if the fund may consistently with the will be applied to a purpose not public, the attorney general cannot interpose to compel a public application.”
Mr. Creighton was known as a devout Catholic. It is a matter of public notoriety that his benefactions to the institutions of that denomination had been so great, that he had been invested with a title by the Pope. The two gentlemen named as trustees are also well known to be prominent members of that church. His confidence in them Avas such that he named them executors Avithout bond. He imposed only two restrictions upon them as trustees — one that the site and building should not cost more than half of the bequest, and the other that the remainder should be invested for the support of the homo to be established by them. EAreryfhing else in connection AAdth the scheme he had in mind, as to the establishment, and the management of the home Avhen established, Avas left in the hands, and consequently to the judgment, of the trustees. If they, knoAving the testator’s love for his own denomination, and in view of the fact that all of the other charities made beneficiaries by the will AA'ere under the control of various Catholic organizations, saw fit to admit to that home none but poor, working girls of the Catholic church, they clearly would be* within the clause' *671of the will under consideration. Would such a home be considered a public charity, such as would warrant intervention by the state? Clearly not. If, then, the fund bequeathed might consistently with the will be applied to such a home, it cannot be held that the trust created was for a “definitely” public charity, and, hence, it is too indefinite to warrant intervention by the state.
2. If the attorney general had a- right to intervene in this controversy, could he wait until the case had been fully tried and decided in the county court, and until the executors had prosecuted their appeal to the district court, and then intervene in that court? Section 50» of the code provides: “Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the .state of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plain!iff and defendant, either before or after issue lias been joined in the action, and before the trial commences.” In Reisohiclc v. Rieger, 68 Neb. 348, we held that the county court has exclusive original jurisdiction of all probate matters, that the construction of a will is a probate matter, and that in such matters the district court has no original jurisdiction. In the light of this holding, the soundness of which cannot be questioned, the district court, in a case of the kind under consideration, is an appellate court; and I do not think the fact that upon such appeal it tries the case de novo in any manner changes the situation. The case in that court must be tried upon the same issues presented and between the same parties who appeared in the court of original jurisdiction — the county court. The attorney ■general, like all others claiming any interest in the construction of the will under consideration, was bound to *672know of the pendency of tlie proceeding in the county court. He was chargeable with the notice given by the county couxh, to appear aiid assert his contention on or before the date named in such notice. He failed to do so, but waited, not simply until the trial commenced, but until the case was finally determined in that court, and until an appeal had been prosecuted therefrom to the district court, before attempting to intervene. In Blatchford v. Newberry, 300 Ill. 484, in the fourth paragraph of the syllabus, it is held: “In a cause brought to this court by appeal, none save such as are parties to the record in this court have a right to be heard. If there are interests such as would make it proper for other parties to intervene in-the cause, such intervention must begin in the court of original jurisdiction, and cannot be allowed in this court.” In the opinion, beginning on page 492, it is said: “The attorney general asks leave to join in this application, and insists that the public have interests involved in this cause, and he urges a rehearing that he may have an opportunity to assert, support and vindicate the same. We are of opinion that in a cause, brought here by appeal, none save such as are parties to the record in this court have a right'to be heard. If the interests of the public be such that the attorney general may properly intervene in this ligitation, we think such intervention must begin in the court of original jurisdiction, and cannot be allowed here.” The fact that in that case the circuit court was the court of original jurisdiction, and that the attempted intervention was in the supreme court, does not make the case different in principle from the case at bar. I think that in this case the attorney general had no more right to intervene in the district court, after the case had been adjudicated in the court of original jurisdiction and appealed to that court, than he would have to intervene in this court, had he waited until the appearance of the case here. In Cowan, McClung & Co. v. Lowry, 75 Tenn. 620, in the first paragraph of the syllabus, it is held: “Where a garnishee *673appeals from a justice’s judgment against him, it is error in the circuit court to allow the judgment debtor to intervene, on his motion, as a defendant in the garnishment proceedings. His remedy was to appeal from the judgment.” In Henry, Lee & Co. v. Cass County Mill & Elevator Co., 42 Ia. 33, it is said: “The right to intervene is purely a statutory right, and it must be exercised at the time, and in the manner, the statute prescribes.” In Chase v. Evoy, 58 Cal. 348, 355, it is said: “The right to intervene is purely statutory, and the statute prescribes the mode of exercising it.” In Fischer v. Hanna, 8 Colo. App. 471, 485, the above extract from Chase v. Evoy is quoted with approval. I think the attempted intervention was too late.
3. In addition to what has been said upon this question, I think it clearly appears from the record that there was no necessity for intervention either by or in the name of the attorney general at the time such intervention was made. At every stage of this case, since the will was filed for probate, the executors have been represented by able counsel, who appears to have at all times honestly and ably attempted to have every provision in the will of Mr. Creighton sustained and his large estate distributed as therein directed. It further appears that at all times the executors have followed his advice and acted under his directions. If the executors had been consulting their own financial interests, they would not have appealed from the judgment of the county court, as the decree of that court would have afforded them ample protection in distributing the fund covered by the tenth paragraph of the will. The fact that, after they had appealed, they submitted to the county court a proposition of compromise which had been made to them by the unnamed heirs is no evidence of any intention on their part to further their own private interests at the expense of the trust fund. To my mind, it is the very reverse of that. The questions contended for were far from being clear either way, and the executors would have as much reason *674to expect that the judgment of the county court would be affirmed on appeal as they would have to believe that it would be reversed, and, if affirmed, they would participate in the distribution of the entire fund. Instead of refusing the offer of compromise upon their own responsibility, they did just what any honorable executors would have done under like circumstances, viz., submitted it to tiie county court for its instruction. While this was pending, they did not fail to protect their rights in the district court. In the amended petition of intervention, it is said that the executors had “failed to demur to or answer said petition.” The record shows, however, that, while this statement may be technically true, in the sense that they had not filed any paper denominated a “demurrer” or “answer,” they had, as a matter of fact, filed a motion to strike the petition upon grounds which were in no manner frivolous. This motion, until disposed of, would stay all proceedings under the petition as effectually as a demurrer. The motion was filed within less than three weeks after the filing of the petition. The date of the filing is June 14, 1909, just on the eve of the summer vacation, which is taken annually by that court. The motion filed by them had not been passed upon when the court adjourned for that term. When the first peti tion of intervention was filed, the October term of the district court had been in session less than one month. The executors’ motion to strike had not yet been passed upon. The petition of intervention does not disclose any facts indicating that, from the time of the filing of their motion to strike, on June 14, to the time the petition of intervention was filed, on October 25, the executors or their attorney had been guilty of any negligence, or that the delay in acting upon the motion was due to either their intentional neglect or indifference. After the attorney general filed his petition of intervention, thereby joining issue with the petitioners, and thus waiving the right, so far as intervener was concerned, to insist upon the motion to strike, counsel for the executors obtained *675leave to withdraw the motion and to plead within ten days thereafter, within which time an answer was filed vigorously assailing the petition of the unnamed heirs on every point. It therefore appears that the executors, from the time their appeal was lodged in the district court until the final hearing, were never in default of a pleading for a single moment of time, but were following up their appeal with all reasonable diligence. The record upon its face shows an entire absence of any necessity for intervention by or for the attorney general. Viewed from any standpoint, I am unable to' discover any right or justification for this intervention.
4. The attempted appeal of the attorney general Avas in his name alone, and did not purport to be for the relators McCarthy, Brown and St. Onge. Had it done so, it could not have availed them anything, for the reason that more than six months had elapsed from the entry of the judgment dismissing their intervention and the filing of the appeal in this court. Hence, they could not, under any circumstances, have any standing here. Harman v. Barhydt, 20 Neb. 625; Shold v. Van Treeck, 82 Neb. 99.
5. The cross-appeal filed by the unnamed heirs and the like appeal filed by the executors were both filed more than six months after the entry of the judgment in the district court, and hence have no standing in this court as independent appeals. The only standing either of them ever had was as a cross-appeal. They therefore relied for life and standing in this court upon the original appeal. With that prop removed, eliminated from the case, the cross-appeals have nothing to attach to or rest upon. As. they followed the original appeal into court, they should follow it out of court. The only right of appeal from a judgment of the district court to this court is to be found in section 675 of the code, which provides that a transcript shall be filed in this court within six months after the rendition of the judgment or decree, or AA’ithin six months from the OArerruling of a motion for a neAV trial. In Farrar v. Churchill, 135 U. S. 609, the *676court say: “Cross-appeals in equity must be prosecuted like other appeals; and although they may be taken and allowed after removal of the cause, on appeal, to this court, yet that cannot be done after the lapse of two years from the date of the decree.” It would seem to be elementary that we cannot permit a litigant to file in this court an appeal from a judgment of the district court, by whatever name it may be called, after the expiration of six. months as provided in section 675 of the code. A cross-appeal is incident to the main appeal, and hence is dependent thereon for standing in the appellate court. If there is no appeal here, then a so-called cross-appeal is not a cross-appeal at all, and would have to stand or fall as an independent appeal. There appears to be serious doubt whether, even in a case where a cross-appeal is filed within the six months, it could have any standing when the appeal is dismissed. Such is clearly the holding in Crawford’s Adm’r v. Bashford, 16 B. Mon. (Ky.) 3. The opinion in that case says: “It is the opinion of the court that when the appellant or plaintiff in error, in this court, shall have his appeal or writ of error dismissed, whether upon his own motion or for other cause, in such case it follows, as matter of course, that the whole case is out of court, including the cross-errors, should any have been filed by the appellee or defendant in error, whether in the clerk’s office or with leave of the court.” In concluding the opinion, it is said: “Wherefore, if the appeal or writ of error be dismissed by the court, upon the motion of the appellant or plaintiff in error, or for other sufficient cause, then, of course, the cross-errors are coram non judice.” It may bé that the Kentucky court went too far in that holding, but, whether so or not, it is clear that, when an appeal has been dismissed, a cross-appeal, filed long after the expiration of six months, falls to the ground and cannot be considered for any purpose, this court being entirely without jurisdiction in such a case. Any party to a judgment in the district court may prosecute appeal to this court, pro*677vided lie avails himself of that right within the statutory-six monthsbut I do not think we have any right to say that he may stand idly by, permit the six months to elapse, and then come into this court by cross-appeal and say that he too has a grievance in that case upon which he desires the affirmative action of this court; and this is peculiarly so in a case like the one at bar where the appellant was an interloper in the court below, • whose intervention the cross-appellants had been strenuously objecting to in that court, and are still objecting to in this court. That this court has a right to dismiss an appeal by one who was not entitled to be made a party in the district court, and who has no rights to be affected by the proceedings had in that court, is clear. Auvil v. Iaeger, 24 W. Va. 583; McClure v. Maitland, 24 W. Va. 561, 580; McMurray v. State Bank, 74 Mo. App. 394; Cowherd v. Kitchen, 57 Neb. 426, 436, where we said: “But these appellants were- not prejudiced by the order of discharge, and it is elementary that one cannot appeal from a decision, however erroneous, which does not affect his substantial rights;” and Sturtevant Co. v. Bohn Sash & Door Co., 59 Neb. 82, where we said: “One not prejudiced by a judgment cannot obtain a review thereof.” The attorney general had no right to intervene in the court below; consequently he was not prejudiced by the judgment in that court, and hence cannot obtain a review in this court. This being true, the motion to dismiss his appeal should be sustained. That being done, there is no case left, in which an appeal has been filed by any one in this court within six months from the rendition of the judgment below. The fact that section 675 of the code declares that “the filing of such transcript shall-confer jurisdiction in such case Upon the supreme court” does not mean that the filing of a transcript by one who has no right to appeal will give the court jurisdiction, after he has been dismissed with his appeal, to consider and determine questions raised by another upon a cross-appeal filed after the time permitted by statute. *678The only case we have found, which is at all adverse to the views above set out, is Feder v. Field, 117 Ind. 386, where it is held: “The dismissal of an appeal by the appellant does not carry the case so far as it is affected by an assignment of cross-errors. The code makes no provision for the assignment of cross-errors by the appellee, but the practice has been so long recognized that it has become one of the unwritten rules of procedure.” In that case the question as to whether the cross-errors were filed before or after the • expiration of the time allowed by statute' for appeal was not raised, and hence the case cannot be considered as an authority upon that point. If it had been made to appear that the cross-errors were assigned after the time within which appellees could affirmatively have obtained a standing in court, it seems to me the Indiana court would have been compelled to hold as was held by the United States supreme court in Farrar v. Churchill, supra.
The motion of appellees to dismiss the appeal prosecuted in the name of the attorney general should be sustained and the appeal dismissed. The cross-appeals of the executors and of the appellees should likewise be dismissed.
Barnes, J., concurs in the above dissent.