It is contended on behalf of contestant
that the entire evidence shows that the will is invalid because:
“(a) It was executed under and because of melancholia and insane delusions influencing the testator at the time.
“ (b) "Without containing words of disinheritance, it seeks to deprive the sole heir at law to whom testator owed the obligation of support, and who was dependent upon testator for support, of all property.
“ (c) The trust attempted to be created is void for uncertainty in terms, beneficiaries and purposes.
*153“(d) The surrounding circumstances conclusively show that the will as probated is not the will of the testator, and that it attempts to dispose of his property in a way other than his expressed desires.”
1,2. Whatever conclusion we arrive at as to the mental capacity of Michael Johnson, deceased, on August 31, 1918, to dispose of his property by will, it appéars to us from the record that as a matter of law and as a matter of fact the instrument probated as a will does not express the will of the decedent as to the disposition he desired to be made of his property. It is clear from the second clause of the will that he bequeathed the most of his estate to the Swedish Society Linnea in trust. It is stated that it is for the “Pearsons Fund,” and that the property is to be “delivered” under the care of the society. The document does not direct for what purpose the proceeds of the property should be disbursed, whether for charitable, benevolent, social, religious, or educational purposes. It is evident that he used the word “delivered” in the sense of disburse. The testimony does not in any way explain or describe the “Pear-sons Fund.” In his letter to the Swedish Society Linnea, he expressed his wish more fully and more clearly than he did in the testamentary instrument. In the letter he states that he has left what he had to Linnea “to be used for benevolent purposes,” and after expressing his wish as to his funeral and giving advice or proposing as to how the store should be disposed of, he remembers his mother, whom he did not mention to the scrivener who drew the will, and states, “I also wish you would take two hundred and fifty dollars from my savings bank book and send to my mother in Sweden,” giving her address. He also requests, as we understand the record, which is not *154plain as to this point, that a package containing Liberty Bonds, building bonds and $120 in gold be delivered to his brother, ‘ ‘ Gust Johnson. ’ ’ The letter appears to be a real expression of Mr. Johnson’s desire, but it was not witnessed or executed in accordance with the statutory requirements as to a will.
Section 10095, Or. L., provides thus:
“Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will, in the presence of the testator.”
The instrument in question was executed in accordance with this section. Section 803, Or. L., declares that a written will cannot be revoked or altered otherwise than by another written will, or another writing of the testator declaring such revocation or alteration, and executed with the same formality required by law for the will itself. There are exceptions which are not applicable to this case. Therefore we cannot consider the letter to the Swedish Society left by decedent as a part of his last will and testament. To do so would be to violate the statutory law and public policy of this state. The letter, however, does furnish practically conclusive evidence of the decedent’s wish which was not embodied or carried out in the execution of the instrument purporting to be his last will and testament. By the erasure made by drawing a heavy line through a portion of the typewritten second clause of the instrument, we discover by the use of a magnifying-glass, the words ‘ ‘ and my Furniture and my clothing and personal effects” were stricken out. The writing with pen and ink which appears to be in the handwriting of the decedent, requesting the send*155ing of packages, directs the disposition of valuable property, the amount of wbicb is not shown by the record. The change made by striking out a portion and the insertion of the written clause, neither of which were witnessed, are additional circumstances indicating that the purported will as executed did not express the desire of the testator. It appears that on Friday, Michael Johnson went to Vancouver, Washington, and purchased the revolver after he had failed to obtain one in Portland. On Saturday, August 31, 1918, he executed the instrument in question. The letters referred to were mostly dated on that day. On September 5th, of that year, he committed suicide. For about a week prior to his death he appears to have been determined to take his own life. The execution of the purported will and the writing of the letters referred to above were all a part of the preparations to commit suicide. These letters, coupled with the circumstances of the execution of the will and the mental condition of the testator, show that this document is not the will of the testator. Its provisions are the result of his obsessions and delusions, which overcame his free will, and prevented him from stating in the document what he wanted done with his property.
In Pettitt’s Exrs. v. Pettitt, 23 Tenn. (4 Humph.) 191, 194, the facts are quite similar, but not as strong, as those assailing the will at bar. The court said:
“A will prepared in view of suicide, and, of course, under the influence of the morbid and unhappy feelings leading to that catastrophe, must, where its validity is in question, be largely affected by that circumstance. ’ ’
3,4. In order for trusts to exist there must be an estate to vest in the trustee, and the property must *156be clearly and definitely pointed ont. The disposition to be made of the property must also be definitely stated. No trust that is uncertain is enforced by law, because the law would have to define it or create it before enforcing it. Accordingly in every instrument creating trusts there should be such certainty as will enable the court to carry them out. Where uncertainty exists, to such an extent that the court cannot see what object the creator had in view, or for what he intended to provide, the trust must fail: 26 E. C. L., p. 1183, § 20; Gardner on Wills, p. 533, § 140.
5, 6. The line of decisions is unbroKen establishing the rule that there must be found within the terms of a declaration of trust a cestm que trust, and if there are no certain and competent beneficiaries named who may come into a court of equity and claim and establish their right to the fund, and to the execution of the trust, it will be void for uncertainty. It is not necessary to name the beneficiary, but he must be so designated or described that he can be identified: 26 E. C. L., p. 1189, § 25; Pennoyer v. Wadhams, 20 Or. 274 (20 Pac. 720, 11 L. R. A. 210); Bryan v. Bigelow, 77 Conn. 604 (60 Atl. 266, 107 Am. St. Rep. 64); Doan v. Ascension Parish, 103 Md. 662 (64 Atl. 314, 115 Am. St. Rep. 379, and note, 7 L. R. A. (N. S.) 1119); Lane v. Eaton, 69 Minn. 141 (71 N. W. 1031, 65 Am. St. Rep. 559, 38 L. R. A. 669); People v. Powers, 147 N. Y. 104 (41 N. E. 432, 35 L. R. A. 502); Brown v. Caldwell, 23 W. Va. 187 (48 Am. Rep. 376); Festorazzi v. St. Joseph’s Catholic Church, 104 Ala. 327 (18 South. 394, 53 Am. St. Rep. 48, 25 L. R. A. 360); Dashiell v. Attorney General, 5 Har. & J. (Md.) 392 (9 Am. Dec. 572); Maught v. Getzendanner, 65 Md. 527 (5 Atl. 471, 57 Am. Rep. 352); Sheedy v. Roach, 124 Mass. 472 (26 Am. Rep. 680); Holland v. Alcock, *157108 N. Y. 312 (16 N. E. 305, 2 Am. St. Rep. 420); Tilden v. Green, 130 N. Y. 29 (28 N. E. 880, 27 Am. St. Rep. 487, 14 L. R. A. 33); St. James Parish v. Bagley, 138 N. C. 384 (50 S. E. 841, 70 L. R. A. 160); McHugh v. McCole, 97 Wis. 166 (72 N. W. 631, 65 Am. St. Rep. 106, 40 L. R. A. 724); notes, 31 Am. St. Rep. 38, 34 Am. St. Rep. 195, 61 Am. St. Rep. 725.
It is stated in 40 Cyc. 1727, tiras:
“In order that a trust may be created by will the testator must adequately indicate his intention to create a trust by using language sufficient to sever the legal from the equitable estate, and must, with sufficient certainty, identify the beneficiaries, and the property out of which the trust is to take effect. This proposition is steadily reiterated in the form that ‘three circumstances must concur; and a certain or ascertained object.’ ”
In order for a beneficiary to take under a will, he must be designated therein, either by name or by description, with such certainty that he can be readily identified or distinguished from any other person. Otherwise the devise or bequest is void for uncertainty.
7, 8. Such designation, however, may be ascertained, if possible, by inference from the whole will and extrinsic circumstances. The intention which controls in the construction of a will is that which is manifested either expressly or by necessary implication from the language of the will, as viewed, in case of ambiguity, in the light of the situation of the testator and the circumstances surrounding him at the time it was executed, although technical words are not used; or, as it is sometimes stated, the testator’s intention must be ascertained from the four corners of the will. A will cannot be construed by a mere conjecture as to the intention of the testator; but it is the intention *158which the testator expresses in his will that controls, and not that which he may have had in mind or which is manifested by some other paper not a part of the will: 40 Cyc. 1388b; Yates v. Shern, 85 Minn. 161 (86 N. W. 1004); Stewart v. Jones, 219 Mo. 614 (118 S. W. 1, 131 Am. St. Rep. 595); Turney v. Sparks, 88 Mo. App. 363; Provenchere’s Appeal, 67 Pa. 463.
9. It is true that a purely charitable trust will be sustained where no beneficiaries are named, and that it derives its strength from the fact that its benefits are to be distributed among unknown persons, yet every other trust is void unless the beneficiary is certain and can be ascertained from the instrument: 2 Underhill on Wills, p. 1217, § 821.
10. As heretofore noted the will does not contain the word “benevolent” nor the word “charity.” If we refer to the letter of Johnson it indicates that the fund is to be used for benevolent purposes. The purported trust is not defined, by the instrument probated, to be a charitable one. Benevolency is a much broader term than charity and embraces objects and purposes which are not charitable. The will cannot be sustained as creating a public charity: Pennoyer v. Wadhams, 20 Or. 274 (25 Pac. 720, 11 L. R. A. 210); Van Syckel v. Johnson, 80 N. J. Eq. 117 (70 Atl. 657); Chamberlain v. Stearns, 111 Mass. 267, 268; Adye v. Smith, 44 Conn. 60, 71 (26 Am. Rep. 424); Norris v. Thomson’s Exrs., 19 N. J. Eq. 307, 313.
The most that could be said of the record in this proceeding is that, taking the instrument executed and probated and the letters and directions of Michael Johnson, there would probably be sufficient data from which to construct a will; but the instrument executed for a will, when taken in connection with all the facts *159and circumstances, does not appear to express the will of the decedent.
11. The burden of proof was upon the proponent to establish the testamentary capacity of the decedent by the preponderance of the testimony. Since the early case of Hubbard v. Hubbard, 7 Or. 42, it has been the rule that where a will has been probated in common form, and its validity has been attacked by direct proceedings, it is incumbent upon the person pro-pending the will to re-probate the same by original proof in the same manner as if no probate thereof had been had. In such a proceeding the burden of proof to show testamentary capacity of the decedent and the formal execution of a valid instrument is upon the party propounding the will: In re Sturtevant’s Estate, 92 Or. 269, 276 (178 Pac. 192, 180 Pac. 595); Holman’s Will, 42 Or. 345, 357 (70 Pac. 908); King v. Tonsing, 87 Or. 236 (170 Pac. 319). In Ames’ Will, 40 Or. 495 (67 Pac. 737), it is stated:
“The rule is settled in this state that if a testator at the time he executes his will understands the business in which he is engaged, and has a knowledge of his property, and how he wishes to dispose of it among those entitled to his bounty, he possesses sufficient testamentary capacity, notwithstanding his old age, sickness, debility of body, or extreme distress.” (Citing authorities.)
The rule thus enunciated presupposes that a valid instrument has been executed by the testator expressing his will as to the disposition of his worldly goods, in order for it to be upheld.
12,13. The respondents, replying to appellant, suggest that the appellant “raises the question of the competency of the legatee, Swedish Society Linnea, to take bequests under said will.” As we have noted the Swedish Society Linnea is named as trustee. *160There is not so much importance attached to the naming of a trustee as to the naming of a beneficiary, as ordinarily the courts will not permit a trust to fail for want of a trustee but will appoint one. Evidently the proponents consider that, no beneficiary being named, the Swedish Society Linnea, the trustee, would take the property as a bequest to it. The rule is that if a trust fails by lapse, or be condemned as illegal, a devise or bequest to a person merely by way of trust is not to be construed into an absolute gift: Schouler on Wills, § 597.
14,15. It is urged by the respondents that the petition for the contest does not raise the question as to the want of a beneficiary. The petitioner “denies that said pretended will is or was the will of said Michael Johnson, deceased,” and in paragraph 7, above quoted, avers “that it is ambiguous and not the will of said deceased.” In their answer the respondents deny these allegations, which leads us to believe that, while the petition is couched in general terms, it was understood by the proponents of the will as challenging the validity thereof. Had it been desired that the petition should be more definite and certain, a motion to make the same so would have been the proper procedure. The language of the pleading in a proceeding attacking the validity of a will should be sufficiently broad and specific to call in question the legality of the instrument and the competency and sufficiency of the proof as to its execution. The petition may waive or admit necessary facts and formalities attending the probate (Mendenhall’s Will, 43 Or. 542, 548, 72 Pac. 318, 73 Pac. 1033); but it is doubtful if a petitioner could waive a patent defect inherent in the instrument itself. We conclude that the issue as to the beneficiaries was sufficiently presented by the *161petition, especially in view of the answer of the proponents: Mendenhall’s Will, 43 Or. 542, 548 (73 Pac. 1033), at page 549.
16. The testimony of Mr. MacMahon, who drew the will, indicated that Michael Johnson was, at the time of the execution of the instrument, under considerable excitement; that he did not mention his mother, whom the statute enjoined him to support if she were indigent, nor his brother, whom he desired to have some of. his property. No doubt the $250 mentioned in his letter, if the direction had been properly contained in an executed will, would have been of great benefit to his mother and perhaps would have served her needs in her old age. The proponents have not shown by the testimony in this proceeding that Michael Johnson on August 31, 1918, had sufficient mental capacity to execute a will, nor that he did execute a will expressing his wish as to whom he desired to give his property. It appears that at the time of the attempted execution of the will his mind was more intent upon committing suicide than upon the details of the disposition of his property.
The decree of the probate court is therefore reversed; and the probated will of Michael Johnson, deceased, declared invalid and held for naught. The executor and legatees therein named will be required to account for all of the property that has come into their hands under said will. The petitioner, Elin Johnson, is declared to be the sole heir at law of Michael Johnson, deceased. After his debts and the costs and disbursements of this proceeding, and the expenses of administration of the estate, have been paid, the whole of said estate will be awarded to petitioner. Reversed.
Burnett, C. J., and Johns and Brown, JJ., concur.*162Denied April 12, 1921.
On Petition to Tax Costs to Respondent.
(196 Pac. 1115.)
On petition to tax costs to respondent.
Petition Denied.
Mr. F. H. Whitfield and Mr. Isham N. Smith, for the petition.
Mr. Waldemar Seton, contra.
Department 2.
BEAN, J.As will be seen by the former opinion, this is a proceeding to contest the will of Michael Johnson, deceased, in which the contestant, Elin Johnson, prevailed. The court adjudged that the costs of administration, and of this proceeding, be paid by the estate of Michael Johnson, deceased. By a petition disclosing considerable care and labor, counsel for appellant ask that the costs of this case be taxed against the respondents. They suggest that the taxing of the costs of this case would be the same as in a court of. equity, and that the same rules should govern.
17,18. It is very common, in the proceedings for the contest of a will, especially where doubtful questions are settled, to provide for the costs to be paid from, the proceeds of the estate: See In re Sturtevant’s Estate, 92 Or. 269 (178 Pac. 192, 180 Pac. 595). In writing our former opinion we gave the matter careful consideration. It appears that at the time of the death of Michael Johnson he left a book, notions, and cigar-store, of the value of about $6,000, *163and other property. Proceeding under what was in good faith presumed to be his will, the executor, to whom letters testamentary were regularly issued by the probate court, husbanded the property. In so far as it appears to the court, all of the property is now intact and in good condition. Elin Johnson has never been in this country. She paid no attention to the property, as far as shown, and was not in a position to care for the same. It was to her interest that the estate be cared for as it was. The usual objection to paying costs from an estate in a proceeding to contest a will is where the contestant is unsuccessful, and such a provision might tend to promote litigation. Here the situation is different. The will was probated in common form, and it was to the interest of all concerned that the question be finally settled and adjudicated. Under all the circumstances, we think equity demands that the proceeds of the estate, which have been marshaled by the executor, should bear the expenses enumerated.
The petition is denied. Petition Denied.
Burnett, C. J., and Johns and Brown, JJ., concur.