Dissenting:
I cannot agree that either Section 270 of the Mississippi Constitution or Section 671 of the 1942 Mississippi Code has any application to this situation. It is admitted that Dr. May had the right and power to create a charitable trust for the benefit of scholarship students. But it is said the College is the real beneficiary, and that under said two sections the College had to divest itself of title within ten years. This will vested in the College only the powers of a trustee. The beneficiaries are students who qualify for scholarships. The will expressly states that “at the proper time” the land is to be “converted into cash and held as a perpetual trust fund or endowment” for those qualifying for scholarships. There are to be not less than four scholarships, each to receive not over $100 from the fund. The effect of this is just as if the scholarship students should walk up to the registrar with the money in their pockets and deliver it over as any other entrant to the College. The only possible benefit to the College would be that of having in its student body a few more scholarship students than it would have had if there had been no will. This would be a purely incidental benefit to the College if indeed any benefit at all. It is common knowledge that the colleges of Mississippi at this time are having great difficulty in supplying room for students in the crowded condition of the colleges. But this will did not give a dime to The Mississippi College. The provisions are all for a class of in*224dividuals. The time may come when there will be no member of this class qualified to receive the bounty, but as long as members of the benefited class exist the fund should be paid to them for scholarship purposes. If the time should come when there are no qualified beneficiaries, then an equity court must say what is to be done. But as long as the trust is active, then the duty and power of the trustee is to administer the trust as created by the will without profit to itself, except the incidential benefit, if any, which may come from having four or more additional students in the College.
The mortmain statutes do not prohibit a religious, educational or charitable corporation from holding title to land as trustee for others.
In American Church Law, Zollmann, Section 171, page 166, the rule is stated in this language: ‘ ‘ This limitation, however, refers only to land held permanently for their own use. "Where church corporations hold land in trust for others, such land is not their own but belongs to the beneficiary. They have only the legal title, which is rather a burden than a benefit. There can be no reason why they should not be allowed to assume this burden. Therefore, a devise to a church of land in excess of its power to acquire ‘to be applied to foreign missions’ is perfectly good and valid. ’ ’
In 76 C. J. S., p. 815, Section 51(c), dealing with restrictions imposed by statutes limiting the amount of land a religious organization may acquire or hold, it is said: “They apply to property acquired or held by a society for its own use, although the property was sold by the church after its acquisition, but not to property held by it in trust for charitable uses... ”
In Kinney v. Kinney’s Executor, 86 Ky. 610, 6 S. W. 593, 594, the testator owned one hundred acres of land. ITe died and left a will which provided: “ I do will and bequeath to the Methodist Episcopal Church, South, to be applied to foreign missions, all of my property, real *225and personal, after the payment of my just debts, . . . for their use and benefit exclusively. ’ ’ The statute prohibited a church from taking or holding title to more than fifty acres of land. Testator was never married and his collateral kin brought suit, claiming that the devise of the land had lapsed under that statute — the same situation we have in the case at bar. The Kentucky Court disposed of the contention in these words:
“It is evident that the purpose of the statute was to prevent the accumulation in the hands of the churches of large landed estates. It was dictated by the same idea as to public policy which prompted the English mortmain act of 9th George II. Such a result would not only tend to cripple the progress and industry of the country without furthering the cause of Christianity, but would furnish a means and be likely to create a disposition upon the part of the church to meddle and interfere in matters of State.
“Looking then to the purpose of the statutory restriction, it is evident that the devise now in question is not embraced by it, either in spirit or letter. It merely gives the property to the church in trust, to be applied by it to a charitable purpose. The restriction in the statute above cited was intended to prevent a church from taking or holding for its own use more than fifty acres of land.”
Dr. May’s will does no violence to either of the reasons prompting enactment of the mortmain statutes. One reason was the fear of excessive accumulation of lands by church and charitable organizations. Under Dr. May’s will, The Mississippi College does not own the land. It is the trustee for administering’ the land and the proceeds thereof in case of a sale. It cannot acquire title except as others might do so in case of failure of the trust. Nor does the will deprive those who, in the true spirit, are entitled as heirs to his bounty — the other reason underlying mortmain statutes. Dr. May, when he executed this will, had neither wife, child nor descendant of *226child. He devised his home in Port Gibson to three sisters and a nephew of his deceased wife; made provisions, small in money value, to some other collateral relatives. The wording of the will and the nature of the gifts indicate that none of the beneficiaries named under the will were in any manner dependent upon Dr. May’s bounty. Apparently from the will he felt his duty was to admonish rather than enrich those named by him in the will. He suggested that they be “true Christian citizens”, and he added: “My desire is that each one of you shall be a good servant of God and your fellowman. The real life is the life of service to God and man.” He certainly felt under no obligation to those who have brought this suit. It appears that the bill to contest this will was filed by some thirty-two named complainants, and, in addition, an uncertain number of unknown heirs of those named. It is not possible to state exactly how many have come forward from various and sundry places throughout the United States to claim an interest in the property of Dr. May. It would be a justifiable conclusion to say, from the pleadings and circumstances disclosed in this record, that Dr. May did not know many of those who are contesting his will and claiming his property. Distant relatives, yes; the right to claim Dr. May’s property and thwart his wishes, no, unless it is clear that they have the right to do so. I don’t think that they have that right under the circumstances of this case.
The learned majority opinion invokes support from the fact that Dr. May was a lawyer. The deduction is that he knew, or should have known, whether he was making a legal disposition of his property. The fact that he was a lawyer bears against the conclusion in the controlling opinion. Whatever weight is to be given the fact that he was a lawyer seems to me to weight more heavily in favor of the legality than the invalidity of his act. Dr. May certainly thought he was mailing a lawful disposition of his land, else he would not have devised it as he *227did. He thought, and he said in the will, he was creating “a memorial to Dr. and Mrs. May” — a living memorial, hy the way, in the hearts of men, more enduring than monuments of granite or stone.
The philosophy of the mortmain statutes is stated in Kinney v. Kinney’s Executor, supra. The prohibtion of Section 270 of the Constitution and Section 671, Code of 1942, Recompiled, is against a testator, who leaves a spouse or child, or descendant of a child, to the extent that he cannot bequeath more than one-third of his estate to the named institutions, to the exclusion of the named heirs-at-law. In other words, the law will not permit him to become generous to others before being just to his dependents.
Dr. May’s devise was not made in accordance with, nor in violation of, the terms of the above-numbered sections. He had neither a spouse nor a child nor a descendant of a child. Consequently, there was no prohibtion against a devise of his property even if he had made it unconditional. But he did not make such a bequest. He wished to create a memorial for himself and wife. This desire, as he purposed, would be effectuated by the creation of limited scholarships at Mississippi College. He did not make an unconditional devise to the College for its benefit. The beneficiaries of his bounty were to be students. He merely created a trust and provided for its administration by the College. As further evidence of his taking the devise out from under the condemnation of the mortmain statutes, he expressly provided that the taxes should be paid on this property.
The case of Bell v. Mississippi Orphans Home, 192 Miss. 205, 5 So. 2d 214, is not authority for a contrary view because (1) the devise in the present case is simply to the College for the execution of a trust, and (2) since the question before the Court in that case was entirely different, the language, so far as it might be applicable here, is obiter dictum.
*228McGehee, C. J., and Lee, J. join in this dissent.