On Appellants’ Motion for Rehearing,
Careful and painstaking consideration.has been given appellants’ motion for a rehearing. In the motion is a request that this case be set again to be argued orally.' This request is denied on the ground that it will delay the speedy disposition of the appeal.
There is one matter that we shall briefly discuss in passing on this motion for rehearing. Appellants state in their brief:
“ * * * and we challenge this hon-ora'ble court to point out to us wherein this case differs from the holding in Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, 228.”
We did not comment or discuss this case because in our opinion it in reality had no bearing here. The following appears in the course of the opinion, which wé take it is relied on to sustain the statement as to the holding or decision in the case:
“When a fund or property is so given that it may or may not be used for charity, or may or may not be used for a charitable object of a public character, without violating, the directions of ¡the *178will, the case is not one for enforcing' the gift as a charity in a suit by the Attorney General.”
Item 4 of the will that was before the Supreme Court in that case was as follows:
“I devise and direct that all the net proceeds from the sale of my estate as herein provided shall under the direction of my executor, with the advice of my said sister Gertrude Farmer, be divided and distributed and given to such charities and worthy objects as they, my executor, and my sister, shall determine * *
Item 9:
“I further direct that should my executor, with the advice of my said sister, Gertrude Farmer, decide that they should give away any of my property in kind to any charity or for any purpose they may consider worthy (emphasis ours) then they shall have the right to do so, and such property shall not be sold by my executor as herein directed.”
The court had before it a will which was specific in authorizing the devotion of the property to other than charitable purposes.
In this case the residuary clause of the will certainly does not specifically confer authority to devote the property to other than charitable purposes, in fact, under our construction of the clause it restricts the use of the property to a public charitable purpose, not in so many words, but in our opinion it admits of no other construction. The testatrix hardly had in mind the naming of the foundation provided for in honor of her deceased husband if it was to support a commercial enterprise. In our opinion the residuary clause of the will discloses a noble intent to’ establish a public charitable trust for the benefit of humanity in memory of her deceased husband. It, in our opinion, is an expression of a charitable intent rather than an adumbration thereof.
Referring again to the case of Allred v. Beggs, we are under the impression that counsel in its statement as to the decision in Allred v. Beggs, supra, has failed to distinguish between dictum and decision. However, according the statement the respectful consideration it is due as dictum appearing in an opinion of the Supreme Court, we do not think that our holding conflicts therewith. The instant residuary clause in our opinion does not permit the use of the property for anything but a public charitable purpose.
Again referring to the case of Allred v. Beggs, in the course of the opinion of the Supreme Court in the case of Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 499, loc. cit. 505-506, 168 A.L.R. 1326, it is said:
“Petitioners rely on Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, in support of many of their contentions. What that case determined was that the Attorney General could not sue to remove an executor for a claimed abuse of discretion when the will empowered the latter to devote the decedent’s estate to ‘such charities and worthy objects’ as the executor and the decedent’s sister might select. Since the will expressly allowed the executor to deliver the estate to ‘worthy objects’ which might not be charitable at all, it was held that the trust was not an exclusively charitable one and the Attorney General could not under these circumstances intervene to inquire into the exercise of the executor’s discretion. The general language in that opinion, upon which petitioners chiefly rely, does not, when rightly understood, announce principles contrary to our disposition of this case.”
Under the provisions in the will before the court in the case of Allred v. Beggs, the doctrine expressio- unius est exclusio alteri-us does not apply. It is expressly excluded therefrom. In the instant case the provision of the will under construction does not exclude the application of the doctrine, but calls for the application thereof.
The motion further complains that our opinion conflicts with various decisions of Courts of Civil Appeals, including City of Haskell v. Ferguson, Tex.Civ.App., 66 S.W.2d 491; Powers v. First National Bank, Tex.Civ.App., 137 S.W.2d 839; also with various decisions of the Supreme Court including Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223; Boyd v. Frost National Bank, *179145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326, and Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273. The motion fails to disclose wherein we so conflict. Each of the cases above enumerated has been carefully considered and in our opinion what we said in our decision in no way conflicts.
It is ordered that appellants’ motion for rehearing be in all things overruled.