it is the heirs and legatees in existence at the time of the distribution who are to participate, and not those who were in existence at the time of the death. (Kennedy V. Kingston, 2 Jacob & W. 431; Mahon v. Savage, 1 Schoales & L. 111.) The court cannot act as an excutor or trustee in a case pending for trial before it. (People v. Sanderson, 30 Cal. 160.) Even if the testator intended that the probate judge should "select some" of the many bona fide orphan asylums, still, under the law, he was bound to select all of them without exception. (Lippincott v. Ridgway, 11 N. J. Eq. 526; 10 N. J. Eq. 164; 1 Jarman on Wills, 254, 255, 256; 2 Eq. Cas. Abr. 195; Longmore v. Broom, 7 Ves. 124; McNeilledge v. Galbraith, 8 Serg. & R. 43; 11 Am. Dec. 572; Withers v. Yeadon, 1 Rich. Eq. 324.) The Girls' Directory Orphan Asylum was always an orphan asylum.

M. C. Hassett, for Appellant Roman Catholic Orphan Asylum.

The court did not err in designating the St. Vincent Roman Catholic Orphan Asylum as one of the benifi ciaries. (St. Luke's Home v. Association for Indigent Females, 52 N. Y. 191; 11 Am. Rep. 697; New Orleans v. Hardie, 43 La. Ann. 251; Fink v. Fink, 12 La. Ann. 306; Hazeltine v. Vose, 80 Me. 374; Prichard v. Thompson, 95 N. Y. 76; 47 Am. Rep. 9.) The words in the will "of the city and county of San Francisco" do not preclude it from taking under the bequest. (American Bible Soc. v. Colonization Soc., 2 N. Y. Supp. 774.)

T. C. Coogan, for Appellant Boys and Girls' Aid Society of San Francisco.

The Boys and Girls' Aid Society was, and is, an orphan asylum of the city and county of San Francisco, and its articles of incorporation contained the purpose for which it was formed, as required by section 290 of the Civil Code. (Black's, Anderson's, and Webster's Dictionaries, tits. "Orphan," "Asylum.")

J. E. Foulds, for Appellant Bishop Armitage Church Orphanage of California.

Appellant is an orphan asylum of the city and county of San Francisco. (Century Dictionary, tit. "Asylum.") The language of the bequest shows that it was made to a class, and the provision that the members of the class should be designated by the judge of the probate court cannot be held to confer upon him any arbitrary power of selection. (1 Jarman on Wills, 269; Druid Park Heights Co. v. Oettinger, 53 Md. 63; 1 Perry on Trusts, 255, 266; Burrough v. Philcox, 5 Mylne & C. 72; People v. Sanderson, 30 Cal. 160.) The mere location of the building can by no possibility affect the status of the appellant as a San Francisco orphan asylum.

Joseph Hutchinson, for Appellant San Francisco Ladies' Protection and Relief Society.

The language used by the will cannot be construed to create an absolute discretionary power of appointment, selection, and exclusion. (Marlborough v. Godolphin, 2 Ves. 61; Washburn v. Alden, 5 Cal. 465; Billings v. Morrow, 7 Cal. 175; Taylor v. Robinson, 14 Cal. 396; Civ. Code, sec. 2321; 1 Sugden on Powers, 3d Am. ed., 573, 576; Pocklington v. Bayne, 1 Bro. C. C. 450; Malim v. Keighley, 2 Ves. Jr. 333; Maddison v. Andrew, 1 Ves. Sr. 57; Baker v. Barrett, 2 Freem. 199; Alexander v. Alexander, 2 Ves. Sr. 640; Kemp v. Kemp, 5 Ves. Jr. 849; Garthwaite v. Robinson, 2 Sim. 43.) If it attempted to create such power, it would be invalid. (People v. Sanderson, 30 Cal. 160; Erskine v. Whitehead, 84 Ind. 364; Beekman v. Bonsor, 23 N. Y. 298; 80 Am. Dec. 269; Druid Heights Co. v. Oettinger, 53 Ind. 63.) Appellant is an orphan asylum, and it is immaterial that the corporate name and the statement of the purposes in the articles of incorporation do not contain the words "orphan asylum." (Century Dictionary, tit. "Asylum;" Los Angeles V. State Loan etc. Co., 109 Cal. 396; Thompson on Corporations, arts. 5641, 5642, 5967; In re Wehr

hane, 40 Hun, 542; Wood v. Hammond, 16 R. I. 98; New York Institution for the Blind v. How, 10 N. Y. 84; Lanning v. Sisters of St. Francis, 35 N. J. Eq. 392; Lefevre v. Lefevre, 59 N. Y. 440; Domestic and Foreign Missionary Society's Appeal, 30 Pa. St. 425; Chapin v. School District, 35 N. H. 445; Bunting v. Marriott, 19 Beav. 163; Wilson v. Squire, 1 Younge & C. Ch. 654; In re Gibson, 75 Cal. 329.) St. Vincent's Roman Catholic Orphan Asylum is not an orphan asylum of the city and county of San Francisco.

George W. Haight, for Respondent San Francisco Protestant Orphan Asylum.

A. N. Drown, for Respondent Maria Kip Church Orphanage.

A. H. Loughborough, for Respondent Roman Catholic Orphan Asylum.

Naphtaly, Freidenrich & Ackerman, for Respondent Pacific Hebrew Orphan Asylum.

The testator intended to confer upon the judge of the probate court a power of selection, and this power has been exercised, and the selection made thereunder is exclusive. (Civ. Code, sec. 1325; 1 Perry on Trusts, secs. 250, 256; 18 Am. & Eng. Ency of Law, 882; American Board of Commrs. of Foreign Missions v. Ferry, 15 Fed. Rep. 696; Pray v. Belt, 1 Pet. 679.) Appellants are not members of the class to which the fund in question was bequeathed. (See Century, Webster's Standard, Worcester's Dictionaries, tits. "Asylum," "Institution"; Century Dictionary, tit. "Orphan Asylum.") While the San Francisco Ladies' Protection and Relief Society conducts and maintains an asylum, it is not an orphan asylum. The Girls' Directory Orphan Asylum was not, at the date of the testator's death, nor at any time prior thereto, one of the "different orphan asylums of the city and county of San Francisco." The Boys and

Girls' Aid Society is not, and never has been, one of the "different orphan asylums of the city and county of San Francisco."

TEMPLE, J.-The decedent died July 7, 1889, leaving an olographic will. In it he provided that in a certain event-which occurred-specified property should be sold, and that "the proceeds of such sale be equally distributed among the different orphan asylums of the city and county of San Francisco, "and said asylums I request to be designated by the judge of the probate court." The property was sold and a large sum realized. There were thirteen different applications for a share of the fund, each applicant claiming to be an orphan asylum of the city and county of San Francisco, and asking that a partial distribution be made.

The court found that of the money in the hands of the executor one hundred thousand dollars could be distributed without danger to creditors, and that such sum did not constitute one-third in value of the estate.

The court made a decree distributing that sum, and designated five only of the applicants as orphan asylums of the city and county of San Francisco. These are the Roman Catholic Orphan Asylum, the San Francisco Protestant Orphan Asylum, the Maria Kip Church Orphanage, the St. Vincent Orphan Asylum, and the Pacific Hebrew Orphan Asylum.

Four of the eight institutions whose claims were rejected appealed. They are the San Francisco Ladies' Protection and Relief Society, the Bishop Armitage Church Orphanage, the Boys' and Girls' Aid Society, and the Girls' Directory Orphan Asylum.

Respondents raise a preliminary point that it matters not whether the appellants are orphan asylums of the city and county of San Francisco or not, because, they say, the will gave to the judge of the probate court the power of selection, and that selection having been made is conclusive. This must mean that the judge was not acting simply as judge, exercising functions con

ferred upon him by law, but was acting under a power contained in the will.

A mere statement of the proposition disposes of it. The judge could not at the same time act as trustee of a power under the will and as judge. The principle is correctly enunciated in Druid Park Heights Co. v. Oettinger, 53 Md. 46, as follows:

"In this state, as in almost all the United States, courts of equity take the supervision of all trusts. 'Relief has been decreed when the original trustees declined to act, or were desirous of being discharged; or had absconded; or were incapable of acting, through age or infirmity; or could not discharge the trust through disagreement among themselves; or had been guilty of breaches of trust; or had become bankrupt.' (Hill on Trustees, 290, 291.) The substituted trustee, when so appointed and qualified, sustains to the estate the character of trustee as fully as if he had been originally appointed. (Cole v. Wade, 16 Ves. 44.) But where the discretionary powers are such as would not belong to the court because of its jurisdiction over the subject matter of the trust, independent of the authority of the willas, for instance, where the power is one of selecting the beneficiaries to enjoy the testator's bounty-the court will not exercise it, and under the rules of law cannot confer such discretion on a trustee.”

The

But there is no indication of such intention in the will. The "different orphan asylums" plainly means all the orphan asylums, and these-that is, all the orphan asylums-the court is asked to designate. This clause was unnecessary, but it is not inoperative. presumption undoubtedly is, that no clause is redundant or unnecessary. But this is a presumption easily overcome, and such repetitions and unnecessary expressions are quite common in wills. They are sometimes inserted to remove doubts or make plain some previous clause. It is not inconsistent with the previous clause requiring a division among the asylums, and must be so construed as to harmonize with it.