—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:

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:

That the will fails to create a valid private trust is apparent from a reading of the trust provision. It violates the rule against perpetuities. (Secs. 715, 772, Civ. Code.) (Estate of Hinckley, supra.) The beneficiary under the trust, or the class from which it may be selected by the trustee, is not made certain in the instrument attempting to create it. (Sec. 2221, Civ. Code.) In Estate of Ralston, 1 Cal. (2d) 724 [ 37 Pac. (2d) 76 , 96 A. L. R 953], it is said:

If, however, the will created a valid charitable trust an uncertainty as to the beneficiary is no ground for asserting its invalidity where, as here, the power is given to the trustee to nominate the recipient of the charity. (Estate of Bartlett, 122 Cal. App. 375 [ 10 Pac. (2d) 126 ]; Estate of Bailey, 19 Cal. App. (2d) 135 [ 65 Pac. (2d) 102 ] ; Estate of Hinckley, supra.)

Under paragraph seven of the will it would seem clear that the trustee could nominate as the beneficiary of the trust “an institution for old people” that was either charitable in its purposes or was organized for profit. The will contains no limitation on the power of selection by the trustee that would require him to select a charitable institution as beneficiary.

The use of the word “institution” by the testatrix is of no particular significance here. In Estate of Sutro, 155 Cal. 727 [ 102 Pac. 920 ], the Supreme Court in quoting from In re Shattuck’s Will, 193 N. Y. 446 [ 86 N. E. 455 ], and in commenting on that case, said:

It is well known that there are many charitable institutions that are organized and exist solely for the purpose of caring for needy old people. It is equally well known that there are other such institutions organized and conducted for private profit. Both classes may be composed of deserving institutions in that they provide repose and care for the aged: The deceased used no appropriate language in her will to designate either of these classes. We cannot rewrite her will. We must construe it as she wrote it. The conclusion that the testatrix had in mind either a charitable institution or one organized for private profit would be based on conjecture and not on anything written in the will. In order to avoid intestacy, either partial or complete, we are not permitted to place on the will any construction not expressed in it and which is based on supposition as to the intention of the testatrix in the disposition of her estate. (Estate of Hoytema, 180 Cal. 430 [181 Pae. 645].)

A similar situation was before the court in the Estate of Sutro, supra. Under the trust attempted to be created in the will there under consideration, the beneficiaries of the trust could be either charitable or other than charitable. The Supreme Court there concluded that:

We consider this holding conclusive here. The ease of Estate of Kline, 138 Cal. App. 514 [ 32 Pac. (2d) 677 ], is to the same effect.

The decree of the probate court under review here is affirmed.

Barnard, P. J„ and Jennings, J., concurred.