(dissenting). — I respectfully dissent.
Section 633.3, Code of Iowa, referred to as the Mortmain statute, is simply a statement of public policy in which the financial need of the survivor is not involved, although the majority opinion places great stress thereon. Decker v. American University, 236 Iowa 895, 20 N.W.2d 466.
The statute is as follows: “No devise or bequest to a corporation organized under the chapter relating to corporations not for profit or to a foreign corporation of a similar character, or to a trustee for the use or benefit of any such corporation, shall be valid in excess of one-fourth of the testator’s estate after the payment of debts, if a spouse, child, child of a deceased child, or parent survive the testator.” It is conceded by all parties that a child does survive and that by the terms of the will the entire estate goes to charity. The question is not whether the bequest is void but whether more than one fourth of the estate shall pass thereunder. In my judgment, the lengthy and learned discussion, in the majority opinion, upon the question of approval of charitable trusts by the courts, is in no way pertinent to the question here to be decided.
It should be noted that section 633.3, states “bequest to a corporation organized under the chapter relating to corporations not for profit”. The majority opinion has this to say as to that statement: “The simple answer is that the statute does not limit gifts to trustees for charitable purposes when there is *1196no nonprofit corporation to be benefited m being but only a plan to be consummated in tbe future as an administrative detail.” (Italics added.) It further states: “We are in accord with the authorities holding that our mortmain statute has no application to a trust or trustees for charitable purposes where the nonprofit corporation to be formed post-mortem is a mere administrative tool.” Not one authority is cited upon this proposition and I have been unable to find any that will support such a statement.
Nowhere in the statute is there a word tending to restrict the corporation to one that is already in existence, which seems to be the interpretation placed thereon by the majority opinion. The will in question specifically directs that the trustees cause such a nonprofit corporation to be organized. Testator recognizes that such a charity as he proposes to create is not in existence. It may be, as the majority opinion indicates and as counsel and testator thought in the drafting of the will, that the mortmain statute should apply only to existing nonprofit corporations but certain it is that it does not say so, and as the court so frequently says “It would have been so very easy for the legislature to so say, if that is what it meant.”
What does the will provide?
It gives the entire estate to named trustees for stated uses and purposes:
(1) Directs the trustees as soon as possible to organize an Iowa nonprofit corporation.
(2) Directs the trustees to convey all trust assets to the corporation thus formed.
(3) Directs trustees in the organizing of the corporation to include in its articles and bylaws such authority and provisions as, in their judgment (the organizers), will be in the best interests of the public and for the advancement of the chiropractic philosophy, science and art.
(4) Gives the trustees (as organizers) the right to create a corporation, as in their judgment, would comply with and meet the desires of the testator. There is nothing therein that bestows upon the trustees more power than any group causing a corpo*1197ration to be formed exercises, except that as trustees the judgment they exercise in such organization is, in effect, that of testator as they believe it to be instead of their own.
(5) It gives the trustees absolute right and power to handle the investment of the trust assets as they see fit but it is significant that nowhere in the will are they given power to make any expenditures out of the trust funds, other than costs of preserving the assets and the cost of causing the corporation to be organized. Their right to handle and preserve the assets must of necessity terminate upon the establishment of the corporation at which time they must be given to it. The power of the trustees, as such,.relative to such trust will then be at an end.
I am unable to follow the reasoning of the majority that this corporation, when formed, will be merely “an administrative tool”. Under section 504.1, Code of Iowa, and also under paragraph (b) of Article X of decedent’s last will, the trustees are authorized to name themselves as initial directors, trustees or officers of said corporation. Under section 504.2, upon complying with the statute, the group so incorporating becomes a body corporate, while by section 504.14 the affairs of the corporation are run by the directors and officers. Thus, the trustees, so named, may in effect ‘dictate and manage the corporate affairs, but they do so as officers of a corporate body and not as trustees under the will. The idea espoused by the majority opinion, i.e., the corporation is an administrative tool, is to east aside the legal attributes of a corporation and to continue the trustees as the managing power with the right to handle, as trustees, the funds conveyed to the corporation under the terms of the will. Under the majority opinion the corporation is to be merely a “dupe” even though it and it alone will have the control and ownership of the trust funds. Such a view is not in my judgment a legal or sound interpretation to place upon the will. If the trust estate was to be administered by the trustees, why the provision for the creating of the corporation?
Article X of the will, paragraph (a), says “to effectuate my aim and purpose I direct the Trustees, as soon as possible *1198after my decease, to cause a nonprofit corporation to be organized * * *, and upon the organization thereof, to transfer * * * the Trust Estate * * * to said corporation.” (Italics added.) This clearly is as much of a trust for the use of the corporation i.e., the Museum, as if it were to go to the Red Cross or the American Legion. The trustees held it for such a beneficiary, i.e., “The B. J. and Mabel H. Palmer Memorial” even though the duration of the trust would be short, i.e., until the Memorial could be organized under chapter 504 of the Code. Such a trust would be valid even though the beneficiary was not in being at the time of the creation thereof. 54 Am. Jur., Trusts, section 139. Such would certainly be a trust for the use of the “Memorial” although it might be argued that the benefits would be fcir the public.
The opinion cites Hipp v. Hibbs, 215 Iowa 253, 245 N.W. 247. The court there said a bequest to trustees for perpetual care of a cemetery lot did not violate the mortmain statute even though the lot was located in a cemetery owned by a nonpecuniary corporation. The cemetery was owned by a church society. The will gave a sum direct to trustees who were to hold and control it and pay for the care of the cemetery lot. That is a far different situation from here, where by the terms of the will the entire trust estate goes to the corporation to be by them used in the carrying out of the “Memorial”. The contrast between the cited ease and the instant is to say the least enlightening. See Hastings v. Rathbone, 194 Iowa 177, 188 N.W. 960, 23 A. L. R. 392.
In my opinion the mortmain statute, section 633.3, is applicable here as to the balance of the estate in excess of one fourth and I would affirm the ruling of the trial court.