The opinion
Hill, J.
(dissenting)—I find myself in disagreement with the majority on the basic issue of whether the challenged legacies in paragraph “Second” of the will of Dr. A. W. Bridge can be sustained on the theory that excuse or waiver of the condition imposed on the legatees can be presumed by reason of impossibility of performance.
*938 ‘ I -:qúote' again the language of the will with which we ate presently coiicerned:
“Second: I hereby will and bequeath unto the following named persons the amounts set opposite their respective names, provided, however, that if any of said-named persons are now employed by me or the Mary Bridge Hospital and are not so employed at the time of my decease, then such named former employes are hereby willed and bequeathed nothing: ....55
Following this language are nineteen bequests to individuals and one to the National Bank of Washington in trust for Clara. Edgar. At least five of the persons named were not employees, of Dr. Bridge or of the Mary Bridge Hospital when the will was executed, and no condition was attached to their bequests. A condition was attached to the bequests to the “named persons . . . now employed by me or the Mary Bridge Hospital,” and the condition was that, if they “are not so employed at the time of my decease,” such former employees “are hereby willed and bequeathed nothing.” I can conceive of no clearer or more explicit language. There is no room for interpretation or' for' conjecture as to what the testator’s intent might bé.' There' is, at least to me, a certain sense of finality to the statement that-those not meeting -the conditions “are hereby ■ willed and bequeathed nothing.”
The executor challenged eight of the bequests as being to person's who were employees when the will was . executed but were not employees when the testator died. Seven of these bequests were to “named persons” Who were not employed by Dr. Bridge at the time he died. The eighth bequest challenged by the executor was to:
' “The National Bank óf Washington, in trust for the use and benefit of Clara Edgar, $5000.00, the earnings and principal of which, sum, less the costs and expenses of administering said trust estate, to be paid to Clara Edgar at the rate of $50.00 per month until all said sum and its earnings have been paid to her. Should she die prior to' receiving said full :sum and its- earnings, the balance unpaid at the time, of her death shall be paid to the Mary Bridge Hospital.”
*939 With this latter bequest I shall concern myself .later; what I now say applies only to. the bequests to the “named persons.” '
Dr. Bridge’s will being concededly clear and unambiguous and the respondents having no legal or moral claim on the bounty of the testator, there seems to me no occasion to invoke the rule relied upon by the majority, which enables the courts to rewrite wills on the theory that the court’s hindsight is better than the testator’s foresight. The rule relied upon developed out of hardship cases, where to deprive a legatee of his or her bequest would be a manifest injustice clearly not intended by the testator and shocking to the conscience of the court.
As the majority says,
“Each case must be examined in the light of its own particular facts in order to determine whether the concept of impossibility of performance should be given controlling effect.”
In the present case, the testator ceased to operate his business May 31, 1946. That event terminated the employment of most of those who are here seeking to establish their right to the amounts bequeathed to them in his will. From the tirpe he ceased to operate the business until he died two and one-half years later (January 6,1949), Dr. Bridge knew that most of those named persons were no longer employees of either himself or the Mary Bridge Hospital, and knew, too, that by the terms of his will “former employees” were “willed and bequeathed nothing.” The application, under these circumstances, of the concept of impossibility of performance due to factors which the testator did not anticipate and for which he consequently failed to provide is, in my opinion, a distortion of the rule relied upon.
It is therefore my position that Edna Van Vlack, John Pieroth (now deceased), Harold N. Rosengreen, W. C. Riddell, Laura Zanusse, D. B. Cook, and Ann Conner (O’Connor) were “former employees” at the time of the death of Dr. Bridge and were therefore “willed and bequeathed nothing.”
*940 ; The other bequest challenged by the executor was, as indicated above, to “The National Bank of Washington, in trust for the use and benefit of Clara Edgar.”
"At the time the will was executed, Clara Edgar was a floor nurse at the Mary Bridge Hospital. She had been employed by Dr. Bridge for more than twenty years. Of hér service one witness testified:
“Mrs. Edgar was one of our most trustworthy employees; I depended upon her whenever we got short of nurses. Even if she was on duty she would come back and work that night. I called her on emergencies, delivered babies before the doctors arrived, she was that important to us.”
A heart condition forced her to cease working on April 2, 1946. Either because Dr. Bridge knew something of her heart condition or for some other reason, he made a provision for her such as he made for no other legatee named in his will, and created a trust for her benefit. As heretofore indicated, nineteen persons were named as legatees in the section of the will here under consideration. Clara Edgar is not such a “named person”; the bequest is to the National Bank of Washington. Attention is again directed to the fact that nonemployees were named as legatees in this particular paragraph of the will, and the National Bank of Washington certainly belongs in that category.
The executor should be required to pay five thousand dollars, less the appropriate taxes, to the National Bank of Washington, in trust for the use and benefit of Clara Edgar; and the challenge of the executor to the other seven legacies questioned in this proceeding should be sustained.
Grady, C. J., concurs with Hill, J.