As will be observed from a reading of the majority opinion, paragraph 6 of the will of Johan Johannesson is held to be void upon the theory that the provisions thereof are uncertain and indefinite as to the identity of the beneficiaries as a class, and as to the time and manner of the disposition of the trust. It will be conceded, as it is in the majority opinion, that the authorities are not in harmony, and that support may be found to sustain both appellants' and respondents' contention. Upon an examination of the authorities upon both sides of the question I am of the opinion that the authorities supporting respondents' contention are the more logical and better reasoned and are thus entitled to greater weight and should be followed. It is elementary law that every intendment is indulged to prevent failure of a testator's will, and that his intentions, if ascertainable from the contents of the *Page 255 will, should govern and the will upheld. A careful reading and analysis of the sixth paragraph of the will carries conviction, to my mind, that it was the intention and express desire of Johannesson that the residue of his estate should be, by his trustee, paid out for charitable or religious purposes, from time to time as his trustee should elect, negativing the payment of the residue of the estate to his heirs or for purposes other than charitable or religious. Among the authorities cited, and which forms the basis of my conclusions, is the case of Anderson v. Bethlehem Lutheran Church of RedOak, 150 Wash. 301, 272 P. 972, and cases therein cited, which case is practically parallel to the case at bar. For additional authorities supporting the validity of the will and the correctness of the verdict of the jury and the judgment of the trial court attention is called to the cases hereinafter cited announcing the rule that where a charitable purpose is expressed, however general, the bequest shall not fail on account of the uncertainty of the subject, and that this is particularly true where the will provides for the appointment of a trustee or trustees to carry out the purpose of the will in such a manner as in his or their best judgment shall promote the objects mentioned in the will. (Gossett v. Swinney, 53 Fed. (2d) 772; Saltonstall v. Sanders, 11 Allen, 446, (93 Mass.);Weber v. Bryant, 161 Mass. 400, 37 N.E. 203; Everett v.Carr, 59 Me. 325; Fox v. Gibbs, 86 Me. 87, 29 A. 940; Dunn v.Morse, 109 Me. 254, 83 A. 795; Stewart's Estate, 26 Wash. 32,66 P. 148, 67 P. 723; In re Kimberly's Estate, 249 Pa. 483,95 A. 86; Minot v. Baker, 147 Mass. 348, 17 N.E. 839, 9 Am. St. 713; Selleck v. Thompson, 28 Rawle I. 350, 67 A. 425;Welch v. Caldwell, 226 Ill. 488, 80 N.E. 1014; Perry on Trusts, pp. 694, 701, 732; National Board of Christian Women'setc. v. Fry, 293 Mo. 399, 239 S.W. 519; Irwin v. Swinney,44 Fed. (2d) 172; Harger v. Barrett, 319 Mo. 633,5 S.W. (2d) 1100; Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150; St.Louis Union Trust Co. v. Little, 320 Mo. 1058,10 S.W. (2d) 47; Powell v. Hatch, 100 Mo. 592, 14 S.W. 49; In re Durbrow'sEstate, 245 N.Y. 469, 157 N.E. 747.)
The trial court by special interrogatory submitted the following question to the jury: *Page 256
"At the time of the execution of the will herein questioned, August 23, 1934, was Johann Johannesson mentally competent to execute a will? ANSWER: Yes."
The mental competency of Johannesson to execute a will was a question of fact for determination by the jury under proper instructions. The jury unanimously found that Johannesson was mentally competent at the time he executed the will and there is an abundance of evidence in the record which supports this finding. Johannesson lived over a year thereafter and transacted business. However, my associates had unanimously reached the conclusion that the instruction set out in the majority opinion is prejudicially erroneous and likely to have misled the jury. While I am still of the opinion that the evidence is amply sufficient to support the legacies left to the various legatees, it may not be advisable to uphold the giving of the instruction referred to as it would be a precedent for future cases. I therefore concur in the conclusion reached by the majority in reversing the case,for the reason that the instruction was erroneous, and I also concur in the conclusion reached by Mr. Justice Ailshie in his specially concurring opinion, holding the instruction to be erroneous.