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In Re Hartung

December 31, 1916

IN THE MATTER OF THE ESTATE OF OTTO HARTUNG, DECEASED.


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

Geo. B. Thatcher, Attorney-General, and Hoyt, Gibbons & French, for Appellants.

Thomas E. Kepner and C. E. Mack, for Respondent.

By the Court, Coleman, J.:

This is an appeal by the board of regents of the University of Nevada from an order denying its motion for a new trial and from a final decree of distribution in the matter of the estate of Otto Hartung, deceased. This is the second appeal growing out of the construction of the will of Mr. Hartung, the former decision being reported in 39 Nev. 200, 155 Pac. 353.

The portions of the will necessary to an understanding of the questions involved read:

“Tenth, I give, devise and bequeath all the residue of my estate, both real and personal, as follows:

“(A) To the Independent Order of Odd Fellows of the State of Nevada the income from my estate to be paid over to them by my executors and trustees annually, if

[40 Nev. 262, Page 269]

within five years from the date of my death the said Independent Order of Odd Fellows of the State of Nevada, does establish a home worthy of its name, for orphans and foundlings near Reno, Nevada, and to be known by the name of the ‘Royal D. Hartung Home for Orphans and Foundlings,' but if the Independent Order of Odd Fellows of Nevada does not accept the provision of this bequest, within the time herein mentioned, then * * *

“(C) I give and bequeath all my estate, both real and personal not otherwise herein devised, to the board of regents of the State University of Nevada. * * *”

The lower court found that the Independent Order of Odd Fellows had established the home as contemplated by the terms of the will.

Appellant urges on this appeal: (1) That the Independent Order of Odd Fellows (hereinafter referred to as appellee) did not establish a home “worthy of its name”; (2) that the home, having been established within the corporate limits of Reno, was not a compliance with the terms of the will, which provided that it should be established “near” Reno; (3) that the devise and bequest to appellee offends against the common-law rule against perpetuities; and (4) that the bequest is void because no imperative duty is imposed upon appellee to devote the bequest to a charitable use. We will consider these questions in the order mentioned.

1. It is strenuously contended by counsel for appellant that the home established by appellee is not worthy of its name. It is urged that since the testator, by paragraph B of his will, required that the Reno school district erect a building to cost not less than $25,000, in case it should acquire the property of testator, that it must be concluded that the testator had in mind that appellee should erect a home to cost equally as much. We are unable to adopt this view. It is to us evident at a glance that the testator did not have in mind that the home to be erected by appellee should cost $25,000, for if so he would have specified the amount, as he did in

[40 Nev. 262, Page 270]

paragraph B of his will. Having thought of requiring the school board to erect a building to cost $25,000, it would have been the most natural thing in the world for the testator to have designated that amount as the cost price of the home had he had such an idea in his mind. The very words “worthy of its name” convince us that he had no such idea, for the reason that, having decided upon $25,000 as the cost price of the school, and the ease with which he could have fixed as similar figure as the cost of the home had he so contemplated, he sought to express an entirely different idea, and used an expression which was evidently the result of mature reflection.

It is obvious that the testator meant to convey a distinct idea by the words which he used, and it is equally obvious that he intended that the appellee should be the judge as to whether or not the home established was “worthy of its name,” subject to the right of the courts to finally determine the question. Taking this view, we must determine whether the home established by appellee is one worthy of its name.

2. Since the standard of everything is established by a comparison of it with other things, we must necessarily compare the home established with other similar homes; and we think, too, that it is only right in so doing to take into consideration the strength of appellee in Nevada, the population of the state, and the general conditions existing therein. Only one witness gave testimony relative to similar institutions in other states, and from his testimony the home in Reno, everything considered, compares very favorably with similar institutions elsewhere; and, in considering this testimony in connection with other testimony and the population of the state, we cannot say that the lower court was not justified in holding that the home in question is worthy of its name.

3. The next point urged is that appellee failed to comply with the terms of the will, in that the home

[40 Nev. 262, Page 271]

which was established is “in” Reno, instead of “near” Reno. The will reads:

“If within five years from the date of my death the said Independent Order of Odd Fellows of the State of Nevada does establish a home worthy of its name, for orphans and foundlings near Reno, Nevada. * * *”

It is the contention of appellant that it was the intention of the testator, as expressed in the will, that a home for orphans and foundlings should be established, not within the corporate limits of the city of Reno, but “near” the city of Reno, and that the establishment of the home within the city limits was a failure to comply with the terms of the will, and hence that appellee had forfeited all claim to the property of the testator. On the other hand, it is claimed by appellee that by the language of the will the testator did not intend to designate the place where the home should be established, but that he intended that wherever the home should be established it should be for “orphans and foundlings near Reno.”

We would do violence to no rule of construction we know of if, after a consideration of the language and punctuation of the clause in question, we should adopt the idea suggested by appellee; but we do not deem it necessary to determine this point, since, in the view we take, the judgment must be affirmed. All of the authorities hold that the word “near” is a relative term, but we are satisfied that as a general rule the word is used to designate a place slightly removed from a given point. Of course, there are exceptions to this rule; a notable one being the use of the word in ...


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