(dissenting).
I am unable quite to agre.e with the result reached. The trust created by the will provided for an accumulation of rents and profits of land. At the expiration of 20 years after the death of the testator’s wife and his daughter and her husband and their three children, there was to be a distribution of the proceeds among the testator’s three grandchildren and the children of any deceased grandchild by right of representation, and if it so happened that there was no living descendant of the testator’s daughter at the expiration of the trust period, the proceeds were to be distributed among the collateral blood relatives of the testator and his wife. This was the clearly stated purpose of the testator. Its consummation was happily prevented by G. S. 1913, §§ >6687, 6688. The will was probated without opposition, the trust company was nominated executor by the will and was appointed by the court and discharged its duties as such. It was also the trustee in the trust created by the devise. In its effort to uphold the trust it sought to bring about the result which the testator wished. The trust provision could not be disregarded. The daughter could not safely take her portion as heir, even if she were allowed to have it, without an adjudication of a competent court that the trust was invalid. The ultimate and uncertain beneficiaries, contemplated by the trust, not iborn at the time of the death of the testator, could not participate or be represented in the determination of its validity. Still *249the testator wished, if there should be -beneficiaries within the class defined by him, that they take.. His purpose could not be given effect, nor the interests of the possible beneficiaries guarded, unless the executor undertook to maintain the will, for the. others were opposed. Its undertaking was in good faith. Under the circumstances it seems to me that it was authorized to take, at the expense of the estate, the opinion of the highest court of the state upon the validity of the trust. The rule stated in Kelly v. Kennedy, 133 Minn. 278, 158 N. W. 395, L.R.A. 1917A, 448, Ann. Cas. 1918D, 164, was advisedly adopted as one likely to work well and it is to be followed. It does not seem to me that allowing the executor fees under the circumstances of this case is opposed to it.
The trust company, in its capacity as executor or trustee, cannot disassociate itself from itself as a private corporation. Whether the fact that the upholding of the trust would result in profit to itself through the long years of administration should affect the amount of the allowance, is not for discussion in this dissent.