(dissenting).
September 15,1947, Elizabeth C. Quinlan, then a resident oí Minneapolis, died leaving a will by which she devised and bequeathed her “residence located at 1711 Emerson Avenue South, in the City of Minneapolis, * * * with all of its contents, * * * to The Elizabeth C. Quinlan Foundation, Inc., * * * for any purpose within the general purposes of said Foundation.”9
The preamble to the articles of incorporation of The Elizabeth C. Quinlan Foundation, Inc., recited that the incorporators had organized the Foundation “for the purpose of organizing a charitable corporation pursuant to Section 3102, Revised Laws of 1905” (now M. S. A. 309.01). The articles of incorporation, however, provided:
“The general purposes of this corporation shall be as follows:
“1. To render financial assistance to worthy religious, educational, scientific, medical, surgical, social or charitable organizations operating within the State of Minnesota.
“2. To render financial assistance to needy individuals residing within the State of Minnesota for their advancement and assistance in religious, educational, scientific, medical, surgical, social or charitable work or study.
“3. To promote and carry out under its own name projects or enterprises of a religious, educational, scientific, medical, surgical, *46social or charitable nature such projects or enterprises to be carried on within the State of Minnesota.”
Section 291.05 provides an exemption from the inheritance tax for gifts, devises, bequests, or transfers to any foundation, * * * operated within this state for religious, charitable, scientific, literary, education or public cemetery purposes exclusively, * * Since the gift from Miss Quinlan to the Foundation conferred upon its trustees “absolute power, * * * to use or dispose of said premises at any time as in their judgment and discretion they shall so decide, for any purpose within the general purposes of said Foundation,” the record squarely presents the question whether the gift falls within the exemption provided by § 291.05.
It will be noted that all the purposes for which an organization may be incorporated under § 309.01 are not included in the exemptions provided in § 291.05 (exemption statute). The latter confines such exemptions to those foundations organized and operated “within this state for religious, charitable, scientific, literary, education or public cemetery purposes exclusively,” whereas a corporation may be organized under § 309.01 for “any one or more of the following purposes: religious, social, moral, educational, scientific, medical, surgical, benevolent, charitable, fraternal, or reformatory, including care of the sick, aged, and disabled, and administering to the heeds of the poor; * * Therefore, the medical, surgical, and social purposes included in the general purposes of the Foundation are not specified as purposes entitling the Foundation to inheritance tax exemption under § 291.05. Consequently, if any part of the funds or property given to the Foundation by Miss Quinlan can be used for medical, surgical, or social purposes, the entire gift is subject to the tax, because the entire gift might, within the powers of the trustees of the corporation, be devoted entirely to those nonexempt purposes.
It can readily be seen that the Foundation might give financial assistance to a school or hospital operated wholly for profit. The Foundation’s articles also authorize it to render financial assistance to worthy educational and medical organizations. There is no *47provision that they must be nonprofit. Again, it would hardly be contended that devises made to proprietary organizations should be exempt from our inheritance tax, since such organizations are not operated exclusively for the purpose named, but rather are operated for profit. Although the gift here is to the Foundation, a nonprofit organization, it will be a convenient tax dodge if a tax-free devise can be made to an organization whose articles permit it to serve as a mere conduit for transferring property to organizations which otherwise could not receive it tax-free. To say that a charitable corporation can be prevented from using its funds in the manner described above is to assume the very point in issue, namely, whether this Foundation is a charitable organization.
"We come now to the word “social,” included in the general purposes of the Foundation. It will be noted that the single word “social,” not the phrase “social welfare,” is used. Many social clubs have been organized under § 309.01 as corporations, not for pecuniary profit, but obviously such clubs as the Duluth Club, the Lafayette Club, the Minnetonka Country Club, the Minneapolis Automobile Trade Association, Hennepin County Bar Association,10 and others would not be tax-exempt, and yet assistance to such clubs falls clearly within the powers of the trustees according to the articles of incorporation of the Foundation here. From the foregoing, it is clear that the Quinlan Foundation has been given power in its articles to engage in purposes which take it out of the express terms of the exemption statute.
That the purposes stated in the Foundation’s articles are not within the express terms of the exemption statute is particularly fatal to appellants’ claim of exemption in this state, where a rule of strict construction is applied to tax-exemption statutes. “The *48general rule is that laws and constitutional provisions exempting property from taxation are to he strictly construed.” State v. Union Congregational Church, 173 Minn. 40, 45, 216 N. W. 326, 328; State v. Carleton College, 154 Minn. 280, 191 N. W. 400; Christian Business Men’s Committee v. State, 228 Minn. 549, 38 N. W. (2d) 803. In State v. Bishop Seabury Mission, 90 Minn. 92, 96, 95 N. W. 882, 883, we said:
“* * * The question whether defendant’s endowment fund is exempt from taxation must be determined, therefore, solely from the construction to be placed upon the constitutional provision just quoted. It is to be construed strictly within the rules of law applicable to the subject, for immunity from taxation is never recog-nised, except where granted by the lawmaking power in terms too plain to be misunderstood; and judicial construction cannot make statutes providing therefor embrace other property than what is plainly expressed in the law.” (Italics supplied.)
In Ramaley v. City of St. Paul, 226 Minn. 406, 412, 33 N. W. (2d) 19, 23, this court stated:
“* * * Exemptions from taxation will not be presumed, but most be established by clear and express language, and all presumptions are against an exemption. St. Peter’s Church v. County of Scott, 12 Minn. 280 (395); State ex rel. Wisconsin C. R. & I. Bureau v. City of Milwaukee, 249 Wis. 71, 23 N. W. (2d) 501; North Platte Lodge v. Board of Equalization, 125 Neb. 841, 252 N. W. 313, 92 A. L. R. 658. An exemption from taxation is a privilege of such high order and is so rarely granted that it can be established or extended only by, and according to the reasonable and natural import of, clear and explicit language and not by implication or presumption.” (Citing cases.) (Italics supplied.)
I am not unmindful of a countervailing contention made by appellants to the effect that the rule of strict construction, being a matter of public policy, will yield to the dictates of a higher public policy. Union & New Haven Trust Co. v. Eaton (D. C.) 20 F. (2d) 419. Appellants have urged that the encouragement of charitable *49gifts is a public policy such as will override the rule of strict construction of tax-exemption statutes. It is the function of the legislature, and not of this court, to weigh these considerations of public policy and to give one or the other priority. This court is bound by precedents to employ a strict construction of tax-exemption statutes until it receives a contrary legislative mandate.
Since the preamble to the Foundation’s articles of incorporation states that the purpose of the incorporators was to form a “charitable corporation,” appellants contend that the ensuing articles which set forth the general purposes of the Foundation are limited accordingly. This court, however, has ruled in at least two cases that the label of the corporation in the preamble yields to purposes announced in the articles. In State ex rel. Clapp v. Minnesota Thresher Mfg. Co. 40 Minn. 218, 222, 41 N. W. 1020, 1023, 3 L. R. A. 510, the following statement was made with reference to this matter:
“The articles of association state that the corporation was formed under the act of 1873 relating to manufacturing corporations, but this does not make it so. To determine its actual character, we must loolo to the objects of its formation, and the nature of its business, as stated in the articles themselves. It cannot be made one kind of corporation merely by labelling it such, if its declared objects and purposes show it to be something else.” (Italics supplied.)
Again, in International Boom Co. v. Rainy Lake R. B. Corp. 97 Minn. 513, 519, 107 N. W. 735, 737, where plaintiff contended that defendant was bound as to its character and purposes by a recital in the preamble to its articles, this court said:
“* * * In determining the real character of a corporation reference must be had to that portion of the articles of association expressing the general nature of its business. It cannot be made one kind of corporation merely by being labeled as such, if its declared objects show it to be something else.”
*50Therefore, we must be guided by the articles of incorporation as to the character and scope of the corporate powers and purposes, not by any recital in the preamble.
Appellants’ second contention is that the word “charitable,” being the last one added to the purposes for which a corporation could be organized under § 309.01, is a generic term, comprehending and including all the purposes theretofore included in the statute, and that any corporation organized under § 309.01 is a charitable corporation under § 291.05. It is a sufficient answer to this contention that numerous admittedly noncharitable corporations have been organized under § 309.01 for purposes stated therein. (See cases in footnote 10.) It is obvious that the word “charitable” is not used generically in § 309.01 to include any or all of the other enumerated purposes for which incorporation is allowed, and we should so hold.
Appellants follow a similar course in their third contention by urging that the words “charitable” and “scientific” in the exemption statute are generic terms intended to embrace the words “social,” “medical,” and “surgical” as used in the articles of incorporation. This court has had occasion to consider this general problem in two previous cases. In Christgau v. Woodlawn Cemetery Assn. 208 Minn. 263, 293 N. W. 619, this court had before it the question whether the Woodlawn Cemetery Association of Winona came within the Minnesota unemployment compensation law and whether, as an employer of labor, unemployment compensation contributions were due from the cemetery association. The claim was made that it was organized and operated exclusively for charitable purposes and exempt from the compensation law. In discussing the problem thereby presented, this court said (208 Minn. 267, 293 N. W. 621):
“* * * Defendant relies on the rules obtaining in equity for defining a charitable use within the purview of 43 Eliz. c. 4, under which a charitable purpose embraces the improvement and promotion of the general welfare. But that rule has no application *51where, as here, there are constitutional amd statutory provisions indicating that the word ‘charitable? is used in a restricted sense not comprehending other enumerated subjects. The enumeration in our constitution and statutes of public charities, cemeteries, institutions of learning, and other subjects indicates that each of the subjects enumerated is distinct from the others. Distinction rests on difference. The meaning of the word ‘charitable' will be so restricted as to exclude subjects that might otherwise be included in the word in order to observe the differences between the subjects enumerated. These principles are settled in accordance with the weight of reason and authority by our decision in State v. Bishop Seabury Mission, 90 Minn. 92, 95 N. W. 882, 883, where an institution of learning claimed that its endowments were exempt from taxation on the grounds that it was both a. charitable institution and a college or seminary of learning. We held that, wMle the purposes of the institution were charitable under 1$ Elis. c. Jj, and the rules governing charitable gifts and uses in equity, those rules were not applicable and that the question was one of constitutional construction. * * * Our reasoning was to the effect that each subject enumerated was to be differentiated from the others to give meaning and effect to the words used; that enumeration involves classification based on differ■* enees between the subjects enumerated; that the process places each subject in its own class amd gives it a meaning of its own; that by the same token it excludes each subject from the classes to which others are assigned; and that, where the law, constitutional or statutory, indicates that there is a difference in subjects enumerated, the distinction should be observed.” (Italics supplied.)
The foregoing authorities adequately foreclose the contention of appellants that the word “charitable” or, for that matter, the .word “scientific” should be construed as generic terms embracing the words “medical,” “surgical,” and “social” purposes recited in the Quinlan Foundation’s articles of incorporation. The Christ-*52gau case confirms our previous holding in State v. Bishop Seabury Mission, 90 Minn. 92, 95 N. W. 882, which eliminates the old equity rule of 43 Eliz. c. 4, in situations where the constitution or a statute enumerates the subjects of tax exemption. Those cases clearly hold that enumerations in our statutes rest upon distinctions, and it thus follows that the terms “social,” “medical,” and “surgical” purposes enumerated in § 309.01 and used in the articles of incorporation should not be read into the terms “charitable” and “scientific” purposes enumerated in § 291.05. We should refuse to employ that Procrustean method of construction wherein the subject matter is hewed to fit the exemption statute or the exemption statute is stretched to fit the subject matter.
This case has thus far been discussed upon the assumption that the devise11 in question is an outright devise of property to a nonprofit corporation for the purposes stated in the corporation’s articles of incorporation. For the reasons already stated, it clearly appears that such a devise is not exempt from the state inheritance tax under the provisions of § 291.05. In brief, the devise is not exempt, since the property devised may be devoted to purposes other than those specified in the exemption statute. Although the theory upon which this case has been decided was not presented below and although it has not been briefed or argued on this appeal, the majority of the court has decided that the devise made in Article II of decedent’s will should be construed ■as a devise in trust for exclusively charitable purposes rather than an outright devise to the Foundation for its general purposes. The majority has developed this theory in order to hold that the devise to the Foundation is tax-exempt under the provisions of § 291.05, which exempts a devise in trust for religious, charitable, scientific, literary, educational, or public cemetery purposes exclusively. This approach eliminates all questions concerning the purposes of the Foundation, because it is immaterial *53whether the designated trustee of a charitable trust is a charitable corporation or a business corporation when the trust res is clearly earmarked for a purely charitable use. Matter of Frasch, 245 N. Y. 174, 156 N. E. 656.
The distinction between a devise in trust and an outright devise for specified purposes is narrow at best.12 The purpose in using either of these methods of disposing of property is often the same; but, when one of these methods runs afoul of some legal or equitable rule, this court has been prone to find that the other method was intended.13 In Minnesota, prior to 1927 charitable trusts were invalid,14 while outright grants to charitable corporations for charitable purposes were valid.15 It is not surprising that during this period numerous grants in trust were construed as being legal grants for specified charitable purposes in order to uphold the grant.16 Since 1927, this type of legal legerdemain has not been necessary in the field of charitable gifts. A charitable trust and a legal grant for charitable or other purposes are both valid under Minnesota law,17 and one need not be turned into the other by a wave of the judicial wand. This court *54should therefore call a spade a spade and construe the will of the testatrix according to its terms without distortion of its natural meaning. Merely because this court prior to 1927 was constrained to read language of trust as language of outright legal grant in order to save the disposition from invalidity is scant authority for now reading language of outright devise as language of trust in order to create a tax exemption for a particular disposition.
Although no case in this state has been found which involves the exact problem presented in the case at bar, it is long-established and presently prevailing law that courts will not impute a trust where a trust was not in fact the thing contemplated.18 In a long line of cases, analogous in principle to the present case, courts have uniformly held that an imperfect gift cannot be converted into a declaration of trust.19 In the light of these settled rules, I do not think that the authority given the courts by § 501.12, subd. 3, to liberally construe trusts so that the intention of the donor shall be carried out, is authority to create trusts out of whole cloth or that it is authority to tailor a trust out of the materials of an outright devise in order to make it tax-exempt. Section 501.12 seeks to establish the doctrine of judicial cy pres and to invoke rules of liberal construction to the end that ex*55press trusts will be salvaged where they are imperfect in form,20 but it does not, either by express words or by reasonable implication, call upon this court to find a trust where none was intended. The case of In re Estate of Peterson, 202 Minn. 31, 277 N. W. 529, holds that a charitable trust may arise in the absence of express words of trust and notwithstanding words of outright devise where an intention to create a trust is otherwise disclosed. With reference to the Peterson case, however, it is important to note that an intention to create a trust was presumed from the fact that the gift was made to a strictly charitable organization for charitable purposes. This holding was contrary to the rule stated in Restatement, Trusts, c. 11, Introductory Note, p. 1093, which reads as follows:
“Property may be devoted to charitable purposes not only by transferring it to trustees for such purposes, but also by transferring it to a charitable corporation for any of the purposes for which the corporation is organized or for a particular one of its purposes. Where property is given to a charitable corporation, a charitable trust is not created, even though by the terms of the gift the corporation is directed to hold the principal forever and to devote the income only to the accomplishment of the purposes of the corporation, and even though by the terms of the gift the corporation is directed to use the property only for a particular one of its purposes.” See, also, 3 Scott, Trusts, § 348.1.
It might also be well to note that the decision in the Peterson case concerned a devise which would have been invalid had it pot been held to create a trust. The court obviously employed a strained construction to save the devise from invalidity; but, whatever the court’s decision might now be on facts similar to those in the Peterson case, it should not be called upon to reconsider that decision in the case at bar, because the Quinlan Foundation is not a strictly charitable corporation. If, then, *56an intention to create a charitable trust cannot be presumed from the nature of the organization to which the devise is made, such an intention, if any, must be otherwise disclosed. In seeking the intention of the testatrix, it is well settled that we must look to the language of the will taken as a whole and read it in the •light of surrounding circumstances.21 In determining her intentions, we should look first to those provisions bearing directly on the devise here in question.
By Article II of her will, testatrix devised certain property to the Foundation with absolute power in the board of trustees of the Foundation to use or dispose of the property for any purpose within the general purposes of the Foundation. By Article Y, Section 8, of her will, testatrix further provided that all such part of her estate as might be devised or bequeathed to the Foundation should be devoted by it to the furtherance of its general objects and purposes. The board of trustees of the Foundation was given unrestricted power to dispose of all or any part of the property so devised for the promotion of any religious, educational, scientific, medical, surgical, social, or charitable activity or activities within the powers and purposes of the Foundation. In addition, Article V, Section 8, provided:
“If at any time the Board of Trustees shall come to the conclusion that the general objects and purposes for which said Foundation is organized, and for which the devises and bequests herein given to said corporation are made, may be more practically and effectively achieved through some other agency or agencies (of similar charitable nature), said Board may transfer all such assets as may then remain to any such other agency or agencies * *
The view expressed in the majority opinion that the phrase “of *57similar charitable nature” may be seized upon as indicating that testatrix intended to create a trust for exclusively charitable purposes seems to me untenable, not only because this language fails to show an intention to create a trust, but also because the trust, if any, is for other than charitable purposes. Such an interpretation would do great violence to accepted rules of construction.
“* * * it is a principle of interpretation that an absolute interest given in one part of a will in clear and decisive terms cannot be cut down or limited by subsequent provisions of the will unless the part providing for the lesser interest is expressed in as clear and decisive language as is the part giving the larger interest.” Downs v. Casperson, 20 Del. Ch. 119, 122, 171 A. 753, 755. See, also, Lewis v. Novello, 22 Del. Ch. 134, 194 A. 29; James v. James, 16 Del. Ch. 34, 139 A. 787.
To construe the parenthetical phrase “of similar charitable nature” as limiting the absolute interest granted in Article II of the will and as imposing a trust upon that interest is to abandon the well-considered principle of interpretation stated in the Downs case for a rule that language of outright grant employed throughout an instrument may be pared down by the slightest parenthetical remark. If the majority of the court allows this phrase to override the clear provisions of absolute power in Article II of the will and allows it also to curtail the broad powers of disposition clearly and expressly granted in both Articles II and V, Section 8, of the will, they are allowing the tail to wag the dog. A mandate to read the will as a whole and give it a liberal construction does not require or license this court to engage in that com struction of documents which allows the ambiguous and equivocal provisions to govern those provisions which are clearly expressed.22
I look now to the will as a whole and to the context in which *58the disputed devise is found. By Article Y of testatrix’s will, a trust is created in express terms with numerous provisions set forth for its administration. It is thus apparent from the face of the will that it was drafted by one who knew how to create a trust where one was intended. That Article II of the will was not cast in terms of trust but instead in language of outright legal grant obviously was not a mistake of lay draftsmanship. Although words of art, normally used in the creation of a trust, are not necessary to create a trust in all cases,23 the lack of such words in Article II of this particular will should be taken as a strong indication that no trust was intended.24 Even discounting the fact that this will was witnessed and probably drafted by one of the ablest lawyers in the trust field, it seems amply clear from the foregoing examination that the words of outright grant far overshadow and control any indication of grant in trust. We have every indication that words of outright grant were used advisedly and not in ignorance of how a trust could be created. These reasons alone seem conclusive against our holding a trust to exist.
Even if the court holds that a trust is created by Article II of the will, there is great difficulty in further holding that such a trust was created exclusively for charitable purposes. To find a trust for exclusively charitable purposes, it is necessary to construe the phrase “of similar charitable nature,” found in Article V, Section 8, of the will, as imposing upon the trustee Foundation a duty of using the trust property exclusively for charitable pur*59poses. I cannot agree that this casual parenthetical phrase expresses such a duty or that it was intended to express such a duty. The important thing to note about the phrase is that it describes the agency or agencies to which the Foundation’s board of trustees may transfer property. By reference, the phrase also purports to describe the Foundation as an agency of a charitable nature. Since the preamble to the Foundation’s articles of incorporation recites that the incorporators acted for the purpose of organizing a charitable corporation, it is understandable that the will referred to the Foundation — and agencies similar to it— as being charitable in nature; but labeling the Foundation as charitable does not make it so if its purposes as stated in its articles are other than charitable.25 By the same token and upon the same authority, labeling a trust as charitable does not make it so where the powers given the trustees are other than charitable. The phrase “of similar charitable nature” does not expressly limit the broad powers given elsewhere in the will. To imply a limitation from this phrase, as I have already stated, is to allow the ambiguous and equivocal to govern that which is clearly expressed. For these reasons, the testatrix’s will should not be construed as creating a trust for exclusively charitable purposes.
The matters remaining for consideration relate primarily to matters of evidence and can be discussed briefly.
Appellants contend that our inheritance tax exemption statute (§ 291.05) is copied from the federal internal revenue code, 26 USCA, § 812(d), and should be given the same construction (doubtless referring to the opinion of the deputy commissioner of internal revenue, exhibit 2, hereinafter considered, which acquits the Foundation of federal income and estate tax liability). This court seems to have credited New York with furnishing the pattern for our inheritance tax statutes. In re Estate of Bigelow, 199 Minn. 289, 271 N. W. 459; State v. Brooks, 181 Minn. 262, *60232 N. W. 331; State ex rel. Smith v. Probate Court, 136 Minn. 392, 395, 162 N. W. 459, 460. It seems more likely that the federal statute followed the course charted by preceding state, statutes. 1 Griswold, Federal Taxation (2 ed.) 285. However that may be, the board of tax appeals, now the tax court, and such federal courts as have construed the federal tax measures which contain exemption clauses for charitable organizations, have held that the purpose of the organization must be determined from the purpose declared in the instrument creating it, and that its purposes must be exclusively within the exemption. Appeal of Fales, 9 B. T. A. 828; First Nat. Bank, Admr., v. Commr. of Int. Rev. 25 B. T. A. 252; Round Table Club v. Fontenot (5 Cir.) 143 F. (2d) 196; N. W. Municipal Assn. Inc. v. United States (8 Cir.) 99 F. (2d) 460. U. S. Treasury Regulation 105, § 81.45 (3 Federal Tax Service, § 24,168), provides specifically that the corporation must be organized and operated exclusively for one or more of the exempt purposes.
Exhibits 1 and 2 are respectively a questionnaire with answers and a letter from a deputy commissioner of the department of internal revenue giving an opinion that the Foundation is exempt from federal income and estate taxes under the internal revenue code. The trial court excluded these exhibits when offered in evidence. It was right for several reasons. The opinion (exhibit 2) was based on the false assumption that the Foundation was organized and operated exclusively for religious, scientific, and charitable purposes. In the answers to the questionnaire submitted to the commissioner, the officer of the Foundation stated that the Foundation was organized “for the purpose of rendering financial assistance to any worthwhile cause, be it of a religious, scientific, charitable or social nature, which would benefit mankind. This corporation was formed, with this as its sole purpose, at the instigation of Miss Quinlan.” Obviously, this statement was made in an effort to bring the purposes within the equity rule of 43 Eliz. c. 4, a rule rejected by this court in Christgau v. Woodlawn Cemetery Assn. 208 Minn. 263, 293 N. W. 619, and State v. Bishop *61Seabury Mission, 80 Minn. 92, 95 N. W. 882. There is nothing in the record to show that a copy of the Foundation’s articles of incorporation was furnished the commissioner, as requested in the questionnaire. Even if the articles of incorporation had been so furnished, the opinion of a federal administrative officer that the Foundation was not taxable by the United States under the federal exemption, rendered long after the enactment of § 291.05, was not relevant as evidence, nor was it persuasive argument in a case involving the Minnesota inheritance tax. If, in fact, § 291.05 had been copied from the federal statute and that statute had been interpreted by a federal court of last resort prior to the enactment of § 291.05, a different question would be presented.
Exhibit 3 was the report of a firm of accountants on receipts and disbursements of the Foundation, evidently offered for the purpose of showing that the funds of the Foundation were disbursed for charitable purposes. This evidence would be irrelevant if the articles of incorporation included nonexempt activities in the general purposes of the Foundation, as the trial court concluded. The articles are the measure of its operations and possible operations. If the trustees might, under the articles, use any part of the gift for other than exempt purposes, the fact that up to the time of trial they had not done so would not avail them.
Appellants contend that it was the purpose of Miss Quinlan to organize a Foundation which should be exempt from the inheritance tax. I find no support for that statement in the record. The logical inferences are all to the contrary. Miss Quinlan was an intelligent, successful businesswoman, who had accumulated a large fortune in the commercial world. We may assume that her lawyers would call her attention to the provisions of § 291.05 and that she understood the English language. Such being the case, she would immediately realize that the general purposes of the articles which she signed did not fall within the exclusive requirements of the inheritance tax exemption statute. The only justifiable inference from these facts is that she desired to include purposes outside the exemptions. It is only natural that *62as a public-spirited citizen she was above any desire to avoid the payment of the inheritance tax to the state in which she had prospered so abundantly and to which she, no doubt, felt becoming gratitude. Indeed, compared with the fortune which she had accumulated, the tax was, no doubt, insignificant in her estimation as compared with the desirability of endowing the Foundation with the comprehensive powers and purposes which she, as an incorporator, desired the Foundation to have.
In my opinion, the order denying a new trial should be affirmed.
Mr; Justice Christianson, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.The will left a life estate in the residence to her sister, hut the sister predeceased Miss Quinlan. The will also provided for the residence to be occupied as a retreat for Catholic young women for so long as the Senecal Sisters of Chicago should desire to operate the residence as such a retreat. However, the will also provided: “The Board of Trustees of said Foundation shall, however, in spite of any provision of this paragraph, have absolute power, after the death of my said sister, to use or dispose of said premises at any time as in their judgment and discretion they shall so decide, for any purpose within the general purposes of said Foundation.” (Italics supplied.)
See, Duluth Club v. MacDonald, 74 Minn. 254, 76 N. W. 1128; Lafayette Club v. Roberts, 196 Minn. 605, 265 N. W. 802; Jackson v. Minnetonka Country Club, 166 Minn. 323, 207 N. W. 632; Strong v. Minneapolis Auto. Trade Assn. 151 Minn. 406, 186 N. W. 800; LaBelle v. Hennepin County Bar Assn. 206 Minn. 290, 288 N. W. 788, 125 A. L. R. 1023; Anderson v. Amidon, 114 Minn. 202, 130 N. W. 1002, 34 L.R.A.(N.S.) 647 (Wheaton Commercial Club).
The term “devise” is used herein to include both “devise” and “bequest.”
See, 3 Scott, Trusts, § 348.1.
See, Thurston, Charitable Gifts and the Minnesota Statute of Uses and Trusts, 1 Minn. L. Rev. 200, 229; Dwan, Minnesota’s Statute of Charitable Trusts, 14 Minn. L. Rev. 587, 589.
By R. S. 1851, c. 44, § 1 (M. S. A. 501.01), all uses and trusts except for certain specified classes of private trusts were abolished. Until the enactment of L. 1927, c. 180 (M. S. A. 501.12), expressly authorizing charitable trusts, the consistent holding of this court was that such a trust could not be created either as to real (Little v. Willford, 31 Minn. 173, 17 N. W. 282) or personal property (Shanahan v. Kelly, 88 Minn. 202, 92 N. W. 948; In re Estate of Ford, 144 Minn. 454, 175 N. W. 913).
Lane v. Eaton, 69 Minn. 141, 71 N. W. 1031, 38 L. R. A. 669; Watkins v. Bigelow, 93 Minn. 210, 100 N. W. 1104; Young Men’s Christian Assn. v. Horn, 120 Minn. 404, 139 N. W. 805; In re Estate of Little, 143 Minn. 298, 173 N. W. 659.
See cases cited in footnote 15, supra.
In re Estate of Lundquist, 193 Minn. 474, 259 N. W. 9; Longcor v. City of Red Wing, 206 Minn. 627, 289 N. W. 570.
The federal district court sitting in Minnesota stated the correct rule in this respect when it said:
“In order to constitute a trust, the language used in creating the same must be explicit, definite and certain, or the surrounding circumstances must show with reasonable certainty that a trust was intended to be created.” Bingen v. First Trust Co. (D. C.) 23 F. Supp. 958, 961. See, also, Young v. Young, 80 N. Y. 422, 36 Am. R. 634; Eschen v. Steers (8 Cir.) 10 F. (2d) 739; In re Estate of Skuse, 165 Misc. 554, 1 N. Y. S. (2d) 202; Shea v. Crofut, 203 App. Div. 210, 196 N. Y. S. 850; Restatement, Trusts, § 23.
Bingen v. First Trust Co. (D. C.) 23 F. Supp. 958; Allshouse’s Estate, 304 Pa. 481, 156 A. 69, 96 A. L. R. 379; Eschen v. Steers (8 Cir.) 10 F. (2d) 739; Young v. Young, 80 N. Y. 422, 36 Am. R. 634; Shea v. Crofut, 203 App. Div. 210, 196 N. Y. S. 850; 1 Scott, Trusts, § 31.
In re Estate of Lundquist, 193 Minn. 474, 259 N. W. 9; In re Estate of Peterson, 202 Minn. 31, 277 N. W. 529.
In re Estate of Anderson, 148 Minn. 44, 180 N. W. 1019; In re Estate of Kelly, 177 Minn. 311, 225 N. W. 156, 67 A. L. R. 1268; 6 Dunnell, Dig. & Supp. § 10257; 57 Am. Jur., Wills, § 1094; see, Restatement, Trusts, § 358, comment c.
In re Thomas’ Estate, 17 Wash. (2d) 674, 136 P. (2d) 1017, 147 A. L. R. 598; 2 Page, Wills (3 ed.) § 932; 2 Schouler, Wills, Executors and Administrators (6 ed.) § 900; 69 C. J., Wills, § 1158.
In re Estate of Anderson, 148 Minn. 44, 180 N. W. 1019; 3 Scott, Trusts, § 351; 2 Bogert, Trusts and Trustees, § 369.
The fact that a given instrument is drafted by a lawyer or other person competent to do' legal drafting and observe legal distinctions is frequently given weight in construing the instrument. In re Estate of Boutelle, 218 Minn. 158, 15 N. W. (2d) 506, 154 A. L. R. 966; In re Trust Under Will of Davidson, 223 Minn. 268, 26 N. W. (2d) 223, 170 A. L. R. 215. Cf. In re Trust Estate of Thompson, 202 Minn. 648, 279 N. W. 574; Goodrich v. City Nat. Bank & Trust Co. 270 Mich. 222, 258 N. W. 253; see, 1 Scott, Trusts, § 23.
Accord, State ex rel. Clapp v. Minnesota Thresher Mfg. Co. 40 Minn 213, 41 N. W. 1020, 3 L. R. A. 510; International Boom Co. v. Rainy Lake R. B. Corp. 97 Minn. 513, 107 N. W. 735.