Estate of Peabody

MARKS, J.

—This is an appeal from an order of the probate court determining heirship in the estate of Emma J. Gehrkins Peabody, deceased. During the pendency of the appeal H. H. Van Dieken was appointed administrator with the will annexed of the estate in the place of John N. Haskell, executor, and has been substituted here.

Emma J. Gehrkins Peabody died testate and her will was admitted to probate. After setting forth several specific bequests it disposed of the residue of the estate as follows:

“7th. The balance of the estate to be liquidated then to go to an institution for old people in memory of my beloved Mother and Father, Mr. J. Haskell is to make the choice of the institution.”

Agnes Colvin, sister of deceased and her sole surviving heir at law, filed her petition to determine heirship. The probate court found the trust provision, which we have quoted, void and that Agnes Colvin was entitled to the residue of the estate. The sole question presented here is the validity of paragraph seven of the will in its attempt to create a trust.

Appellants maintain that (1) paragraph seven is valid because it can be construed to create a lawful private trust, and, (2) that it is valid because it can be construed to create a charitable trust. Each of these arguments refutes the other, because, generally, if the provisions of a will which attempt to create a trust are so uncertain that they may be construed to create either a private or a charitable trust it has been usually held that the purported trust failed because of uncertainty in the instrument which attempted to create it. In

Estate of Hinckley,

58 Cal. 457, at 509, it is said:

“ ‘Where a bequest is made for charitable purposes and also for purposes of an indefinite character, which are not charitable, the whole bequest will be void. If, for instance, a bequest is made for such charitable,

or other

purposes, as the trustee should think fit, the whole bequest will be void

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