The opinion
TODD, Judge
(concurring).
The will of the deceased is explicit as to the three classes of persons to benefit from the residuary clause thereof. Said classes are:
(1) Old Women
(2) Old Men
(3) Orphan Children
In Item (2) of the residuary clause, the will specifically limits the Salvation Army in the use of funds bequeathed to it; i.e., “for the care of old men.”
Item (3) of the residuary clause gives equal indication that the funds bequeathed thereunder are to benefit an orphanage; i.e., a home for homeless children.
Such was the function of the Protestant Orphanage Foundation, Inc., on the date of the will and on the date of the death of the testator.
To the extent (and only to the extent) that the Protestant Orphanage Foundation, Inc., acts as trustee (or trustees) for an institution for homeless children, said Foundation is the intended beneficiary of the bequest.
To the extent that the Protestant Orphanage Foundation, Inc., is pursuing and supporting other charitable activities, it is not the “Trustees of the Protestant Orphanage of Nashville, Tennessee,” as designated in the will, regardless of its former activities or similarity of name.
The courts have no right to assume that Protestant Orphanage Foundation, Inc., will use said bequest for objects other than that intended by the testator any more than the courts would be justified in assuming that the Salvation Army would use its bequest for purposes other than to assist old men.
However, according to this record, the Protestant Orphanage Foundation, Inc., is not presently engaged in providing refuge for homeless children, and this separate concurring opinion is filed to emphasize the final, major paragraph of the principal opinion with which I concur under the foregoing considerations.