(concurring). I cannot well forego writing briefly concurring with the decision in this case. Added te In re Kavanaugh's Will, 143 Wis. 90, 126 N. W. 672, it. marts such an epoch in our judicial history, I wish to emphasize the event to the end that nothing may be left undone which I can do to so firmly entrench the beneficent principles of the law of charities in our system that all danger of their being hereafter obscured in judicial confusion or misconception, will be effectually guarded against. “ ’Tis strange, ’tis passing strange,” that any such guard should be thought of respecting a source of unwritten law. It would not occur as-á matter within reasonable probabilities were it not for the long regrettable history of the subject, particularly in New York,, commencing with the enunciation of correct principles in Williams v. Williams, 8 N. Y. 525, extending therefrom through the long judicial conflict which followed, and ending, with practical elimination from the law of that state of the choicest features thereof, evolved by the wisdom of the ages and grounded in the principles of Christianity; that feature which enables the possessor of wealth to freely devote the same in perpetuity to the betterment of human conditions.
The elimination here suggested was so effectual by the close of the half century of conflict intervening between Williams v. Williams, supra, and Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568, that in the latter, speaking of the wrecks which had been wrought and the irremediable loss to humanity which had occurred by its so construing the statute as to defeat the benevolent purposes of those who had desired to perpetuate *273their names by the good they might be instrumental in effecting to mankind after their own departure from earthly activities, the court said:
“No attempt to create an original charity has survived the test of an application by the court of the rules of law to the language employed by the testator.”
That conception of the wrong which had been judicially done moved the court with shadowy aid of new written law, which under ordinary circumstances would not have been appreciable, to grasp thereat as the drowning man seizes the merest appearance of assistance, and, as we ventured to say in Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258, “by an exhibition of heroics which has no parallel in the books,” turn backward to the starting point so unfortunately departed from, efface the half century of lamentable wandering, and rein-trench the principles of Williams v. Williams, supra.
Our own history challenges attention not much less efficiently to danger of impairment of the law of charities as handed down by the fathers; upon the false theory, as in New York, that the statutes were, in the beginning, framed in hostility thereto. Our lawgivers, at the start, were, in the main, well schooled in the written law of New York from which ours was largely modeled. They must be presumed to have been imbued with the judicial view then entertained in the parent state, significantly voiced by the learned chancellor in Shotwell v. Mott, 2 Sandf. Ch. 46, most emphatically repudiating the suggestion that the statute makers entertained even a suspicion that their work, either in letter or spirit, would be thought to have been done with the idea of displacing or affecting in any way the common law as to charities. Note the conception of the subject by the eminent chancellor:
“We inherited from our mother country the law of charitable uses, with the blessed spirit that gave rise to it. . . . Did the revised statutes intend to cut off gifts and devises to charitable uses for all time to come ? Eor if the article ‘Of Uses *274and Trusts’ applies to charitable uses, that must have been the intention in respect of all save devises to corporations directly for tbeir own use. The proposition is startling, and of vast importance. And I presume every one on first hearing it, will declare that it is impossible; that no legislature in the nineteenth century could have intended such a result.”
However, we must confess that some suggestions in the decisions of this court prior to Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, without decidedly committing the court thereto, were in line with the departure in New York from Williams v. Williams, supra. The revisers of the statutes by suggestion to the legislature, manifestly, endeavored to stem that trend of judicial thought and the legislature promptly acted upon such suggestion, as indicated in my opinion in Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258. The judicial leaning was not so firmly entrenched in our system but that in the learned opinion of Chief Justice RyaN in Dodge v. Williams, rendered soon after the revision of the statutes, it was brushed aside and the principles of Williams v. Williams clearly written into our judicial code.
The unfortunate allusions to the dominating spirit of the opinion in Dodge v. Williams and to its letter as well, coming little short of engrafting the lamentable departure in New York upon our system, are sufficiently referred to in detail in Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, and need not be repeated here. Effectually, it was thought, though not without some difficulty for want of unanimity, all seeming or real ■ departure from Dodge v. Williams was cured in the decision in the Harrington Oase, the earlier case being given its true dignity as condemning, at least as regards personalty, the idea that the common-law doctrine of charities had been, in any way or to any extent, displaced in this state; That was reinforced by Hood v. Dorer, 107 Wis. 149, 82 N. W. 546, and Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650.
Unfortunately, because of seeming interference as to real estate in Beurhaus v. Cole, 94 Wis. 617, 69 N. W. 986, when *275we came to Danforth v. Oshkosh, supra, the court, not only refused to extend tbe doctrine of Harrington v. Pier to realty, but beld in effect, if not in terms, that the common law as to charities respecting real estate had been wholly displaced by written law, and furthermore, created much confusion respecting what was really intended to be covered before.
So it will he seen the specter of the New York heresy, I can call it nothing else, which was buried out of sight in that state in Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568, and had menaced the situation here for some twenty-five years, at last, effectually, it was feared by the writer, took a place at cur judicial table, leading to the writing of my appeal, found in the report of the Danforth Case, to the blessed spirit that gave rise to the law of charities and to the logic of the history of the subject in New York and that in our own state as well, grounding hope upon the immutability of truth and the assurance of “the inspired apostle” that “charity never faileth,” to move the court some time to return to the lines of Dodge v. Williams and Harrington v. Pier; such lines as applying to realty as clearly in spirit as they do in letter to personalty; and that the lawmaking power might lend its aid to accomplish that end by expressly removing any supposed or real impediment to the consummation of that result. That the heart of the people was not misconceived in making the appeal for legislative aid bears evidence in the fact that, at the first opportunity, ch. 511, Laws of 1905, was spread on the statute books, removing any such impediment in the most explicit terms. Thus was obviated any necessity to again resort to anything in the nature of a judicial invention, as in the Dan-forth Case, in my judgment, to save, though fraught with infirmities, a designed charity, by treating it as a conveyance without trust features and upon condition subsequent; leaving it with the well known infirmities of a benevolence dependent upon the law of private trusts for its survival and administration. Such a speedy removal of the danger discussed in the *276opinion by the writer, concurred in by Mr. Justice Sie-beoker, in tbe Danforth Oase, was more than could well have been hoped for when such opinion was written. Such removal was soon judicially recognized here in In re Kavanaugh's Will, 143 Wis. 90, 126 N. W. 672, and is now again observed with the satisfaction of all and with added significance, because of similarity of conditions with those in the Danforth Oase.
This case marks then, as said in the beginning, an epoch, one of monumental character, in our jurisprudence because of the now more unmistakable restoration and firm entrenchment in our system than heretofore by In re Kavanaugh’s Will, supra, of one of the most valuable of our inheritances from the mother country, “placing our state,” without room for reasonable future controversy, “in the front rank of communities as regards favoring devises of privately accumulated wealth to charitable objects.” The question submitted in the Danforth Oase, “Shall we have incorporated into our system the thought so beautifully expressed, 'Charity in thought, speech, and deed challenges the admiration and affection of mankind. Christianity teaches it as its crowning grace and glory and the inspired apostle exhausts his powerful eloquence in setting forth its beauty and the nothingness of all things without it’ ?” has been answered affirmatively in much if not the same circumstances as those which gave rise to the submission.
This decision could not well have been otherwise than it is, regardless of Danforth v. Oshkosh, in view of the fact that the people, aroused by the discussion there, soon spoke with unmistakable meaning on the subject. I am content to have it as it is; have it upon the theory that there is efficient room, under the circumstances, for distinguishing between the two cases on the question of whether there is a trust feature characterizing the one and none characterizing the other. Doubtless, since the creation involved in the former case was wholly, *277in spirit, a charity, it was competent to read out of the instrument an intent sustaining it as a conveyance upon condition subsequent, if that could be done within the uttermost boundaries of reason, rather than that the benefaction should fail wholly. I think in the changed situation, wrought by the legislative declaration, the same rules of construction which conserved, to some extent, the efforts of the donor before, saving her creation as a conveyance on condition subsequent, would save a donation now, made in the same language, as a charitable trust with all the added advantages incident to such a trust.
So, from one viewpoint the opinion in this case overrules Danforth v. Oshkosh, so far as the court there limited the bequest to the lines of a conveyance upon condition, instead of giving it the effect intended, as I think. Whether I be right in that or not, the broader effect by construction, if need be, should, nevertheless, be given because of the change in the written law. The different result now from that before, doubtless has some support in the fact that the language of the will here, somewhat more emphatically than that in the instrument involved in the Danforth Case, gives character to the bequest, expressly, of a charitable trust, as said, in effect, in the able opinion written for the court by my brother BaeNes. The points of difference as to the particular vital feature and the dilemma in which the court found itself in the former case, after holding that the statute, respecting realty at least, had displaced the common law as to charities, are sufficiently portrayed in the court’s opinion now in harmony with my independent opinion in the former case. They show ample reason, in my judgment, for not following the latter as a precedent, or if it be one on its face for not following it at all, especially because of the legislative declaration.
It were better, perhaps under all the circumstances, that the bequest was sustained as it was in the Danforth Case than *278that it should have failed wholly. However, time has only strengthened my opinion then expressed, that the logic indulged in to support the bequest was a mere judicial, though perhaps from one viewpoint justifiable, invention, yet, on the whole, the result was to defeat the real intent of the donor. But if so the infirmity, may well be confined to that case. May the incident stand clothed only in its own peculiar characteristic, and so conditioned as not to endanger future efforts of the benevolently inclined to give of their fortunes to charitable objects, a consummation which this case may be regarded as having in great part accomplished.