1 EXPRESS TRUSTS— PRECATORY WORDS. 377

WARJIER V. BATES.1

(98 Mass. 274.)

Supreme Judicial Court of Massachusetts.Nov.. 1867.

Bill in equity filed September 4, 1865, ^ya 'son of Sarah _I.,Bates, deceased, seekingjor a deCT ee to enforce" penEomianee by theresponde nt, Ms stepfather, of a ti?ti§tT!refft!6d-•gy herTm ltr^ " "• "* ——-The-blU alleged that on December 12. 1833.the deceased^ being a widow, having ad«"frM gr and two sons, ot whom tne com

"

plainant was one, and ownin g property tothe amonnt of mofe th^^TOOiHiJttJKas mar-Tied to the responden^and her property se-cured by a setflem^t from any marltaTHgfit

Thereto: that thereafter, until her '3eaffi"on'May 17, I859,~she'^a "the respohdent,*wTEE"these ~cHn3raltpang "with another daughter,thejssue of this' mairiage, lived together asone Jamily inJh er~irotise. where she and herchlldr gn had formerly resided; that the ex-

gen&M of "maihtaiiilng the family iB'a liber alstyle suitable to their circumstances were"defrayed chiefly'fWCT;3T Sg'7income of Ber"pi'Opait yp-the 'respondent having but littlepropel!ty-of--iii8"0Vv'Ii;''1S'tfraetins as tEeT^d

e ramu;' "- ^.IM^gteg the general care there-

of, and managing the'^ranfla for i^'^^pqintivnance;~affd""ffianhe lefta will of_whichshg^ated the"fgpon^ Br^te executor, andan"esBiT«» nr-pmffTTfhprp wag a larg^ iggnFTTTaaFC^ naying her debts.

" " ^'

"rmrmtrvSr^rmrtb m the bUl; boredate of December 30. 1857; was indorsedwith the approval of the respondent underdate of October 1, 1858; was amended by acodicil dated April 14, 1859. in particularsnot needful to be recited; and disposed ofthe estate during the respondent's life as fol-lows:"I give and-^bequeatb unto my husband,Geo^ Bates aforiaia1d7ia:e'''Bg!gnncome'^n dimprovem^ m Of alT'the estate, real, 'personalaS'd mixea ," ^r Wmch'TsEairgrf'Sgiggfandpossesse d, for and ,guifng'l'^'Terni., jj^I^snatural life, in the full confidence that uponmy decease he will, _ as he has heretofore5one, continue to glvfi and afford my chil-dren" (enumerating tnem I "sueh nrotectinn .j^mfort and support as they or either o^them may..ata Tid in nftftd-of Ji:Upon the death of the respondent, It gaveon^Tial fr^ the_.estate.to2t]lfc.,riOTP,nto\P?^ana his brother; and the _otlierha.lf to threepersons designated by, maftg, "4ei.Ja.theIjirrttors or'survivor "<* tbfTB. .ihlfav "'• higexecutors, administrators or assigns, to havyand to hold the; . ,B^me upon lind for the'iises.frnsts an fl mim ose smentioned and expresse dof and- concerninj^ the' same,

^''

an d then, jetjorth TTi iflfitgiv , f;i

;^^;f^rn.trusts for the ben efiFof the tvyo daughter s.The"1bTll furthe r alleged that, after the

1 Argued November, 186&

death of the testatrix, the respondent under.the clause of thg will ^ first above quoted.took possession o f the estate remafning afterpayment of the debts; Jhat^he'compfainant

.with. .his lM:i

Dther and ujmareied sister con-'iJaai4-tAXegl%.in.theJouseMlbefore,;andto receive from the respondent, without pay-ment or charge therefor, the benefits andprivifeles which "children of their'conciitionHsua ffy^eceive

'ln their own "f^fllies, until,

on or about Agrll_!C,"186S, jffie^espondent, jo.ttg^^mplainant's absencei^rfflmovecL,tte com-plainant's effects from the house, and ever

s!^e "forbade and prevented hlHTTf giHTcoih-jn^Tnto i t

, and neg^Ee'd arid~fSiSefftogi^Mm the saiy_^M teSts'ahd'"'pnvi!egt^^

_ h^^3^fSi?^^PJ°,yg'^r' or "ihake Tiim~°Myreasonable compen saTt'lon

'instead

'iKferSSff

ever afterwards was a clerk in a countingtoom in Boston; that: up" to TBTtiffir of "Elsmot.iier's"deatE''B is"sarar y had never exceed-ed S400 per annum, which "fac1t"~^sh 6 "tyeO"' -' " ' • -" -" , -n it was at

'

knew; that in 1858. 1859 and ^ _

tha t rate, but from 1860 to 1864 did not inany year ex(;ee"d"$2(K)T 'Sat from "i864'u^S'Trne niiri^ of t"KinBi]r it ^was at the rate of■^Pje^;;^^|g£-tHat -artKe'time of his ex-clusion from "the houSS'lh 1883'ttr'had"saved.:««

JTom Ibis salary of j>reviou8 years oiily $250;t£at afterwa.rds.i_d'uiing that yea'r,^ In ordertoobtaln" means for Hs si^porT, 'he sold for^00 jjis'revaKioh of aoine Itmd belongin g[

_ tohis mot.he£a..fistote.;^.Jh8J;_tt ege_.two sums ,

'^agetterwithjbis. ga}ary, jn^pfl alLJIjJa.mean^ of support^ except such provision a s

are wholly inadeqiiate thereto; thai he stood

^"heed"o3f' such sup port as he hadT been ac-customed to receivelSnmTn-OttBf^rti miffl^'XridTESOEe respondent, though wej"awaretBSSresrr^nd'offen'Trequested therefor, refus-

and"Tliy liUMU WttS I'eseTvea ^ CEapinaBrJ.,fdrthe considerattMnrfB e fulTcourE:G^"(jr'S?fiafflck and J. B. Thayer, for com-plainant. E. D. Sohier and C. A. Welch, forrespondent.

BIGELOW, O. J. We see no sufficientground for calling in question the wisdomor policy of the rule of construction uni-formly applied to wills In the courts in Eng-land and in most of the United States, thatwords of entreat; , recom mendation or wish,

t^^>""^Tir"makeMm,,jjJEjjgtee]^?2^ji^S^^persQns3i" wJSose favor such... expxessiaaa.are used, providgfl„the-tes.ta.teft.rbaB~poini;edouF with "cleaim ^

s and ce r taint y , the, objecta^theJcus^^^dffiesubject-mattCT^^

It islo attach oFftwm which it is to ariseandlSe'a'dmini^efearT'^nSe criticisms whichliave"Beeh sometimes applied to this rule bytextwi-iters and In Judicial opinions vrlU befound to rest mainly on its applications inparticular cases, and not to involve a doubt

378 EXPRESS TRUSTS— PRECATORY WORDS.

of the correctness of the rule Itself as asound principle of construction. Indeed, wecannot understand the force or validity ofthe objections urged against it, if care Istaken to keep it in subordination to the pri-mary and cardinal rule that gie intent. of thetestator Is to govern, and to apply it only'wKSfe'the creation of a trust will clearlysubserve that intent. It may sometimes bedifficult to gather that intent, and there isalways a tendency to construe words asobligatory in furtherance of a result whichaccords with a plain moral duty on the partof a devisee or legatee, and with what itmay be supposed the testator would do if hecould control his action. But difficulties ofthis nature, which are inherent in the sub-ject-matter, can always be readily overcomeby bearing in mind and rigidly applying Inall such cases the test, that |o create a trustit, must clearly appear that the testatorTF*landed to govern ana controlTffiS^SSSsS ^^

ftt8-^n^--t5~wiiom'TOrT asguagrorthrwii iiTajTOfeggearsflr'ma'iSor^s^Trasan^-pSfgggtp'or Indication of thafWBlca:;ffi r|es-tator thougHt woulh be a reasonable esCT;cise^oF ydisCTeHSn whic hTie in tende.d..to je-pose in the legatee ^or deyiage.'l

iy objectsat tbe siip^^ed jrugL. a^^e-GerStSrand-^eiF-Inite; iftlie^proper^Mtowhich it is to attachis'^fe'SHr ■^tilCtecToufrirtlie' felaSons jadftwanbff 'gf•tH rtegtatgr"t[gg^ge •"suropsedeStuis flue U'UBLyiTt" are "sucn j^t9_^gl|caTea"itraaf"rfiterest'atia'"ffio!ivron ttepart oftfieteSmSTTii -ffiSEnrffiem^af^SCTF of filsbtmmyrTilir'atSSfr'air "ir th'e'recbmmenda-toryToTj^i'e'cataty clause Is 86 '»'fteg Ma_as towa^anf "ffie^lnfeferice' that it was^esiffledto''Be pei'empfory on tlie dbiiee.^^Rie'just andTegsonawrTHterpfeffftttm-i-s," thar^atriKt-iscrgafey which is oBliga|or£' and3ia, be' en-forcecnft" equity" "SI" against the trustee Jjythose in'whose befialf the beneficial ^fi^ oftfie"gift was Intended." T Jarm. Wills, 333;T'ftedf. Wills, § IT, els. 11-13; Id. § 43; 2Story, Eq. Jur. §§ 1068-1070; Malim v.Keighley, 2 Ves. Jr. 383, 529; Bernard v.MinshuU, Johns. Eng. Ch. 287; Williams v.Williams, 1 Sim. (N. S.) 358; Bonser v. Kin-near, 2 GifC. 195; Knight v. Boughton, 11Clark & F. 513, 551; Harrison v. Harrison'sAdm'x, 2 Grat. 1; Coate's Appeal, 2 Pa. 129;McKonkey's Appeal, 13 Pa. 253; Erickson v.Willard, 1 N. H. 217; Van Amee v. Jackson,35 Vt. 173. The doctrine was recognized asan established rule of construction by thiscourt in Whipple v. Adams, 1 Mete. 444, andHomer v. Shelton, 2 Mete. 194, 206.Jurning now to the clause of the will•v^ich islhe subject of the present eontM^er-sy, it seems to us that it does not leave ^iies'lSpport of the children of the testatrix to th«discretion Of the- responaentrt(r be affordedor withheld at his pleasure,'1)ut "thatjthe de-vise to him was made on the trust th^ heJtould fuMlsh sticli support so long as _helived and received the mcome of her property,ISe objects of the trust are distinctly named.

The nature and extaat of the trust .ISl clearlystated and defined . It was such a siim~nfmoney as might be necessary to the comfortand support of each one of the children of-tne testat rix. JNor Is the amount nf thp ^na.ficlal hiterest_lgfjL.tedelTiTlitP ,nr withnnt a.Standard by .jeM-ciJijcan he .iaeasui£iL_lLi§to_ b^. such_comfort.jai. sunn ort "^fi thev meither of them may stand ih need of." ThegglgPtjog. such-a-Denenciai.. mt(ir6St canTeascertained and enforced by suitable pro-

teeamm'^&mef^ans:^: 01 m equity. , Thorpyr"Owen, 2 "Hare, 607, 610;. Sanderson'sTrust, 3 Kay & J. 497-507; Parwell v. Ja-cobs, 4 Mass. 634. In the last case. It washeld by this court that an action at lawwould lie against an executor who was di-rected by the testator to furnish support toa person in whose behalf the suit wasbrought. But In the present case the. .phrase"comfort and support'' Is made moreSeflnite

"

and certain by an express reference In theterms of the g ift to thfi._ c.oiitinuance of apreviously existing state of things in the fam -

Hy of'W't'ggiatMx-gaa'h tftlusTBand. Sn whi^ii•ttteTcEildren of 'TEe'lormer had resided andreceived support iinrinp; ^^r life. Nor is itto be overlooked tliat the iaT^f>ngp;e acaresseato the respondent in the clause of the vrillunder consideration is no t coniine (? tn w/iri^Texpressive or a wisn or. recomm endation, only.

hut the property is given to tiie respondent"jTi thp"iull confidence" that he" vrill affo rdto the children of the testatrix„ ,acL^qufite sun-jg^J~STffiougE~these words would not nec-essarily create a trust in a case where a dif-ferent Intent is clearly indicated, they arenevertheless strong and significant to snow

*"

that'suct' was 'the i)urposrt(f-tK|1gsSffl2rwtfs!rtaKg nJn;''^nfleetCT "wiy^ffier "tacts 'and circumstances whicfihave a like tend-ency.— WnpT v.' I'tkins, IT-TEST 255, 258,St)l! Meredith v. Heneage, 1 Sim. 542, 556.We think it also worthy of remark In thatconnection that it is not left to the respond-ent to determine the amount or extent of thesupport which he was to afford to the chil-dren. The^gif t to him is not in the confi -

dence that he will P'ivp'thpm s^i;ipj:\xiTOPOrt ashg may think proper, or as in his ludgmenttSey niay need.'but' to such an extent as theyBBainr"raar-''StaHaTnJne e^^^ It was tnbe meas ured, not by tEe^xercise,jof his discre-tion in the inafierTtrtft'" by Ine actual wants

or^ESTcEIffien."-^

The view which we have taken of the con-stru'ction of the clause of the vyil fby whichtK| properly of the testaSSlg givra tojffierespondent for his life' Is' greatly 'fGri SSthened

w'Eien7W'£ 'take Into considerat ion the relation sof all the parties toward eJch other, the na -

ture^anyconditlon 'of TJiel^operty which wastfie"~subjecf "of tiie'gff^ and the ultim ate dis^positloir" WBTCh was- made "SOr^nffie^nrafter the death of the respondent TTje ob-jectiS" for whose comfort and 'sujjini-t tlip tes-tatnx was aiifl!^ to^pr'&'vige ^ere her__ ownchildiin," tiSfee of jienS* by "sTforme^ husBSid,

EXPRESS TRUSTS— PRECATORY WORDS. 379

and one by the rt^ joTifiPTit. Thev had al-ways lived in the family of the testatrix andher nusband, and received all needfuT sup-port as members the reof:

—TW^~fSSa. no prop-

erty of their ownr"an"3. If taey were dfejU 'lV-ed after her death during tne me of the re-spondent of all benefit of the estate of theirmother, trom whien me support of the fami lrhad been chiefly drawn dWmg her life, theywoiild not only lose the support wmcn tnfeyhad previonslv enioyed, hut would be In dan-ger of being left without aaequate Uliuailii ofsupport, and without habits or abilities Wlil(!h 'would enable mem to optain a livel ihood. Sothpsp ^iigren she gives the entire benefici alinterest in her whole estate after tne deat hnf her huahaTid. Is it reasonable to supp cwethat under snoh oironnistances sne mtM Wfedthaf; thps(> ''1iii'^™ji,js]ia,js^j ^_so^clearly thecljjef objects of her bounty, should be leftdirnng'^e'TttgH mr^"^ 'husbMd'~wahouta^~gich'^'nggrt(r tme rV Mt In -her-estate aswould~"&iable "'"tBem^to

'enforce a claim for

supptiWto-'the event tfia^ 'froni"aIien"atio n off^llue,-MnT)iil'iTiTy'"or"miiid^ oF any other lili:ecause, the resporigm't sJ&oISSl-15'e^TmwiIIin g orunable to comply with hec wish or to exerc isea aiscretion m~tliefr"b"^att^

""""It is gnffffpgfifi^^ that li^ other clanqfi f } of th p

will, in which she creates a trust in favor of

her daughters for their-Efispectisfe. shares of

her- estate. of which they areJaJtofiJ&s en-

tlre income after the d^th of her_hiKiband,she" does not use words of entreaty, request

anff1recoiD5mS53alion,_jKF apt and technical

w^s by which to estsibliSbua jKiM-.m ..theirbej^lf. But w e think this sugg estion .i§_notentitled to muchlat fiialatl ^Ee migJitweU ex-press herself in a different language whenaddressing her husband from that which shewould use toward strangers, and at the sametime intend a similar result. Words of con-fidence, entreaty and recomm endation werenatural and appropriate when "used to expresstEe'will of'a testatni wBrintg Mea-term'rectalia C'0'iltr01"tll'fe conduct otECT "husband In a

tBSttCT"m whi ch the right to give directions^g" tjo cohti'br "belonged 4o~Jber. lii such^acase, the wnri^iji iised. by. r

are applicatto another who is independent of him, thereis nothing imperative; but if he recommendsthat to be done by a person whom he has a

right to order to do it, the mode is only civil-ity." Malim v. Keighley, ubi supra.After a careful consideration of the case,

in favor of the coni , p)^

fi,ina gt^ , yhich it la ourd^ty, siton g as a court of equity, to enforce.TPHUrHti klicordirigiy,"'

■"""■"■ ^~**- ^^

380 EXPRESS TRUSTS— PRECATORY WORDS.

is HESS et al. v. SINGLER et al.

(114 Mass. 56.)

Supreme Judicial Court of Massachusetts;

Nov.. 1873.

Bill in equity by Charles Hess and Au-S.Ut.'rMer.::att;(!u toTs-t3f" tiig'wgroi: ueorgel A..KrameTi^to whicli j^U lie persons_mterestedin the '^estate were'^m^jgSESiLdgEfiHdant,iSE"the'aife|p:^ court.

!j:pff tijjl alleged ttiat.Matthlas Kramer, fhe

fat,bec^fl£'George A., diedJ}asiB&4gsi§ai«fi?sproperty Ij)^. a, yuih 4S£..J6atSiSL.ESSt§_ of

"All the r^t, residue and remainder_^allmy" eslate'and^peftyiTSairfSm and

mtxedQncM^^ll^of_.t^:X^^^^seised, and"Xo"^®cE I may be entiHe d at th e

£!."iLiam ^T: , To haye ana'To"'Boia'''tIf6 lanigto him, nis heirs and assigns forever, _to his

■"a^tiieir ownHSeTbut'subject'Tiowe^^^JotSeToII5Wn !lgighan ^eB^~namelyr To 'pa^ and

tor the use^ supyor£ ana rnainte'nance ofjny^Ife, Follx. J^Jb^^"^ ^dS during ^eF nat-ural life, at themtejjf fifteen dollars a week:

Genevieve Sineler. for and dm-lng her , nat1,1 iiH.i. piitfii II iiiiiiim I" ■ J"ural life,half a montfl ,"iher eby augiorize the executor or ex-ecSm'^ acnn'g-'ffl3grthis''vf^ or my^said sdn,S'purcjjase annurflg§|^for'*t'ge'''SBo'v°MQentionedpayments at tlie'Mas'sac;luS'aW''H8S||iVLair lilfmufance''U'oiWpagy , Oi;;'|r?5ffle~oTSarp-gBreoffice, in "favofW my saiJ'wIfiJan^d my saidUlster, at any nm'fe'tif 'times. andlSy^and n^n•such purchases the saiqjinarges upon ihe es-tate and property given to my said son shallcease and ''Be dTscharg ed.

*' ""'--"- ' '*'"It is my will, "anil I hereby direct the ex-ecutor or executors actmg unae r '{Ms will toexpend, In addittonjtg^

^liiclL Hl?X, ^?^_necess2£Us-JWffl«£^tfB'out the^J)roper nursing and iaking care off^T ivlffi In ii'^T ,M"i^"°°p or sic]£nesses"wr*

eyTCT1meaKa~'atteHaaH'eg^''medicines., nursip^oFother. jLecassaCT., QC-Pr oper attentions to heror for ^ftj:. TO.TUfP'^ ^" sickness; It belnp mv .__iiitention jo provide for the sultable_a fld-£flm-fortable support, care and' fnain tenMice of myvWie '^wEo is subject to mental (ierang^aQl)during '^Jier natural iifeT "an3" fE"e _ provisionwhich I have . thus made for her is Intende dby me'to be in lieu of and in full and in thestead of any"'lowCT~or "HgHCElo a'6Wei:~orfiHras^ftErEgfesCrTffTHy-mMe^ jirui iSfEyr'•"T-nffTSliv gigni'l^y fn my "aa^ ann mv d(Vsire and hpp.a^^aL"!® ''^iU ?° provide, by willor oUierwlse, that in caiSTie' shall die Tga;^^no lawful issue living, the^property whldi hewiUT take under this yyill" shall go Tn"'e '(jualsE^s,-^to"'t£e chUdreh oT my lata brotlSer

ofmy said sister, Genevieve Siflgler, includ-ig any she may have after the date of this

^ . . ^. -v- t™...^

wlll, one share; to my coup jItI iTftllB ..Kramer ,'^T3verDool, In the state of Ohio, one share:to' my cousin Matthiita KramOT. .nf"1S^^<'t7t-M^oof nna" Sharp; arifl f/n my ccmSJJ^ CrescfiimKramer, of said Boston, one ^hare."'~?rh'e'''b"M

'then 'alleged that the greater por -

tion 'or r.ne Bs rq,^e devise fll ^Y (^"nrirn \^Kramer, (i f whose will thev wora PTivntnrara cony of the will ^^pj"" spt fnr.»h\ waa tT^^^JSJIS'^ ^" ^'""^ "^t*?? ':^-?^'^'Ja'^ devisee underthe win of his father, flnd that the chllfii-i>nbT Genevie ve Sineler. the surviving childrenCT^gg^liin- TrramoT-, anrl .Jf^fjn T^rf^mpr, iyra|.th ias K ramer and Crescenz Kramer, mentioii -ea'TiTtte^U of MattJilas Kramer, conffii^.ea that DT-the. tru e construcHon of. tJiat wilTTKey jvCTajBatJilfiiJft. a Simi^XJff.WPA\mM^^P '^'fMfi tfta"

^"•^ ^^i^P"dftviHRd tn fhPm hv

me will q ,f George A. Kraiqer. and denied" theplaintigs'~authority to sell the real estate ac-cording to the authority given ^1T th^ win"BrGeo rge A. Kramer.The answer of those claiming tmder thewill of Matthi as .Kramer jUJe^ecLjnat^g^geA'. Kramer died leaving"no~ia wful issu e llv-iSa-JSijliJ.^W-fiat . they,' were _ejiJH,flid Jothe "residue^ and remaindeE -a£^ the estate JjfMjatthias Krame r, the son,.^S2Eg£- ■*••Kra-" "' """ ~ *

jhalLout lawful issue

mer having taken It sub.iect to IJie:

in the event afhiCdyrrig wTl"It should^o to them respeq tnTHT <" ^'"'shares provided in the will.

'

The other aeienaants admitted the allega-tions of the bill.The case was heard and reserved by Ames,

^., on the bill and answers.

B. H. Atobot & Ij. A. Jones, for those claim-ing under the will of Matthias Kramer. D.Foster and G. W. Baldwin & J. P. Colby,for those claiming under the wiU of GeorgeA. Kramer.

GRAY, O. J. It Is a settled doctrine ofcourts of chancery that a devise or bequestto, one pe rson. accompanied b y words ex-pressing* a wi^h, entreaty or MUUium^datio fl-that he will apply it to the henent or oESe rs,mfyTSail^^nEoCTeate aLfcu st. Jf the subjec t

and the ctbjects are sufflciently^ ggetajn. Some.oFtnle eaiflier iimgiish decisions had a tend-ency to give to this doctrine the weight ofan arbitrary rule of construction. But by thelater cases, In this, as tn aU other questionsof the interpretation of wUls, the intention ofthe testator, as gathered from the whole wUT,controls the court; In order to create a trust ,

It must appear tnat tne wordsjaterajntrndedSyThe'testator to" belm pCTa5ve; and wh en^^ergjis given •ffBsoIutely and without "re -

"^^IfflBU-a trust Is'noE to belightly imposed;

upon mere words of recommendation. iuid_con-

flSence . "^"Warner v. Bates, ^ Mass. 274, 277;Spooner v. Lovejoy, 108 Mass. 529; In rePennoek's Estate, 20 Pa. 268; Van Duyne v.Van Duyne, 14 N. J. Eq. 397; Knight v.Knight, 3 Beav. 148, 172, s. c. nom. KnightT. Boughton, 11 Clark & F. 513; Lantbe v.

BXPRBSS TRUSTS— PRBXJATORY WORDS. 381

Eames, L. R. 10 Eq. 267, s. c. L. R. 6 Oh.SdT; 1 Spence, Bq. Jur. 439, 499; 2 Spence,Eq. Jur. Gir-70.In_the_case at ba^the testator d^Tisea andbequeaths the "resldne 'of his estate to his^^n^__^'to have and to hold the same to him .hiaheira and assiggsjorev er, to his and theirgwn use, but subject hgyfever to the follow-"ing charges :"

"'These diarggs.jsa:gA§£JMJQag-

n^ent of"specifle(fsum3 yearly to the testator' s

\^e and sister for their respecave lives, nn-

le"ss""3ificharged b y the purcnase .oF anniutjesin tneir favor fey the" executors (of whom thesoiris~M'eT"nn^^ffiy al^j^jlppLliy e^y &o. them

b y th e will; "secondj the further paym ent,

pffiThra tn rnai^^^^^^^'-^ t the wife's expenses in

case of sicimeasBia.flfiiuiLfefiLi!i^Li2_3.ower(rf^ffi^^^^ja^JJa—egJatP- Subject to theseagrges during the lives of th e " IfeSt gtOyB' WifetiSa'^sfCT; tlie sori'Ti J giveit, by Ulti lUlle st,

df

tiai-tair aHU° moii fW riiiai""wata s, ah ftpsaiut eestate in tee.

" ' "~ ■" ■

By the further clause of the will, the_tes-ta for me r e ly Blgmfle ar'Br"Bi8~B(mTgjs '"desire'

and hope"That he wnTso provide, by will or

otherwSe^jmat35r3;ggr^ shall die leavingno'lawful issiie living, the property which _hewill takg under~S5"s wiflT shall go in equalshares" t o lJertaln^^pS ewii^ nieces, ah3"cous-ins 0

^ the ,testator. /fhisclSiuse, if construedas_ mea]^!g.,ft ttust, leavesTno thing to the"cjiicretlon o f the son, ibut ai^ounts to an ex-ecutory devise over, in case of Ms deathleaving no ijssue, to the persons »aime^, indefinite amounts. Tg^jjve it.,Biit;,,(EDnstnic-!Son would be inconsistent with tiie^principalintention of the testatOTiasnreviously mani-

restea,^to^ye the son an^absolnte title, asweU as "with the dSc3ption of tte estate inthis veyclause as

'"t^e projp^er& wh^^;h

h e

Will tak e unAer this wtH^*'""

It rSH^wT'tSSt'tb e" son had fuU Eower todispose or tne estiit'^ 'py wii l

j hnlettered bytWsupposed trust!, and t£at: tDere must 'Be a

dec r e e '16rtllS a'm '"r iaBV li i (iHa.-

382 EXPRESS TRUSTS— PRECATORY WORDS.

VvA A ©lAX et al. v. WOOD et al.

\^ ' (4T N. B. 274, 153 N. T- 134.)Court of Appeals of New Tork. June 8, 1897.

Appeal from supreme court, general tenn,First department.Action by Geo rge S. Clay and others agains tLncretia M.- TWooa and other s for partition,and in'cidentally to construe tne will of T^_-nam _W.. Clay, deceased. A judgment cUs-missinig- Jtbfi. csfflpIalSLja ftp jcffeiislwiiuaf-firmed by the general term (36 N..X».SaBP-317), and ^jajnfijgCs. appealTAffirmed.

This a,ct ion was brought fior the partition ofreal' prppertyj" andn 't 'jP^^ptSaT the 2^M&c-non ofihe will of William W. Clay, deceased.By that"will tfie 't'esTa|Q£,.,a,ff^r dirggtjngjEbe5^^^]]of__his debtf^aai. funeral^exgeDses,and partici3 ari!y"an indebtedness secured bymdrtgaige upon nis Bouse' a^^L lot, in tBe^s^^^dSus€rgave~toTiis wife, Lucretla, "and to^her

h_Sls-and assigns,' forever," the house and-Jot

i^tiraed;„.andjjJgaJjisJuffl§d!flliL-gaoda. and

hold the said house and lot to her, iny-saidWlfeTXticre^TSir'Claj^and to her ,h,eirs ang^signsr lorever, and to have and to hold„ the,s7TO~BmreTim'd-g tTOgr etc.,~un'£oTi"er^ my saidWiTeTEucreHaTS' Clay, and to her heirs-exee-iiTigsrga fflTBigtya»B!SZ-and..aa§igna..JM^firBso^gave^to he£jii;.SBjn-ij£JS2fl,fl00. In( third and^four th clauses„h e

gave )pgacies

tpBS~15rp!KersrTo^.a.,§jster, to nephews, andto an adopted daughter, provlSng^at thesame^time jffiat none_ ofJho§g. regacies^bojild be a^Earge upon the house and lot and householdgoodsT etc., which he had given' to "Ws wite.Vf~m:mtE'c lS^rTi^~^l^iT^ resida£of

"

his estate to ffls ynfft and"^to her heirs, exec-

mOTs','

' '

adminisEraEorsT "and "assigns,,^ forever,"SnS^ en sf^teF^ , follows : "^nd it is_my_de-^JF^.ft"'^

request .that my ,'s3i§Jwjte'^^^^

p S'

oy l d e for ^ and educate Lucretia M. Wood,tlffe' jfaugtife r o

^ my safd^a&opfeS daughter,Josephine "MTWxmd: And lt"ls""ffiy furthef"de:_^re^andj^eqa^Ohftt my wife do make theSai3' Lucretia M. Wood, Jo^g'ffi^ M. Wobdlgnd^'tdy^riephews aSg'niec es^The 'children "of

^brothers, (Jaieb^ S.jClaj^^Jnd, George Clay,jotnTTieirs after 'her death In the said estatewMch by ijiis will I have bequeathed to m y

said wife;" The question in this case arisesBpon the efeecP^tU bfe glVeii lo Iharcoucraffiagsentenc'e™orjEErffij£. paragraph. Ipje pJain-tfffs, who are the nephews anJL nieces referred

tSTbereEJ clajLmJjyji^ complaint that a trustwas Thereby created in JavOT, of ttie personsi^med, all u that LucretialjrClay, the widow

o'f the testator, having^died, "ttibse persons ^ad

Kcome tenants" in common of the pr^erty,or entitled tEefefo' under tiie tr^t allefed. Itappears that MipsT Cfiiy" died, leaving a will

T^Tereby shfe' gave th e prdiierergqTOlly'tcrJBS e-p6ineT3rr~Wood and Lucretia M. Wood. ""

John' F. Dillon, lor appeUanta. James L.Bishop, for respondents.

GRAY, J. (after stating the facts). 'Dponreading this will, we can Infer some conflictin the mind of the testator with respect to theultimate disposition which he should make ofhis property. It was as to how he might bene-fit the persons named in the fifth clause, afterhis widow's death. He could have created, Ie

terms, a life estate in his wife, with a remainder over in their favor, in which casethere would be a certainty with respect totheir Interest; or he could have created a pow-

er of appointment in their favor, with a likecertainty; or he could take the course whichhe did, namely, of desiring that his wife shouldmake them "her heirs." The mental conflictwas not serious respecting the superior claimsof his wife, as we seem clearly to see fromthe careful and elaborate provisions of hiswill; but it appears when we read his expres-sions of desire and of request, addressed to hiswife, respecting a disposition of the estatewhich he had given to her, and which shemight well have heeded. What wag_tlie dom-inant intention of Mr. Clay ^' makinghis'wlll

S 7"To "Hicbver ffia

Into consideration tne whole scheme of thewill, and weigh the expressiuiis WllHiH llti Ms''iflade use'of when deitimilg Tflg"ittt6t6St of hiT'wlfe^ .^WlSether the will in question was^"Srawn with the aid of a lawyer, or by a layhand, we are not Informed. Th e langu age is

somewhat inartificial, and yet It is so plainMlIIInil Tl•''-IMI.rii ^^^" JMIllllll II Mill " " 'and emphatic as to leave nttle room for doubt

in^the^mind as to what was_.tt©-P™isitoI^B^pose of^the tesiktor. His general scheme waiito„g'vff.fiveryth]nfr t;^ Tiia wifo upon hia.'iipath,except the legacies which he gave by the thir d

afar~fOin13r~elailses7'Thal was th^ sjmp ^e

pI5n"wEicBTie' evidently BSSTin mind, and thequestion Js^^_whether, the d^"osition wBKff^mSde regjjltg4 in vesting in her the fullTrene"J,^2. interest In, and in absolute .right of ais-

posal^^gf,_to e projiertv. or w1-^p,|J]g];, sa„the an-rellants claim, ^ trjgj, '^a s c reate d with rg-s^e^^TEgfe. property, xaLa power of trustlm

-

pera;dvg4ftjtgi3a±Hre. It is veCT_eaTnestly an dablv arpied in behalf oTtheappellants thatto force of tM last -clansfi m the fifth para-

legal estate in fep. It was subject, as to th e

realaad. personaLpropert yf to a trust, or to a

power in trust, in favor ofthepersoiis and theclasses of persons named tWein; and they"raSe the "argume d[jaP°° ^^ "?"f'?fi'UiP"r h'"^-

sgCBHany^ that 'the provision Is couched In suchpremtory words as to tuMl'i all the condiOons

ri^eff^ the anthnriti^ S ps rpniiisite to cre-ate'lT'trust, in that the wor ds used excludeanf option or' di^fgtlo n'Tn the wife, and tE e

■SBBJect of the request and th e objects of the

totin^^3re^9^^^j^Sted_out. Thty argue,t&6,' that the relations sustained by the per-sons named to the testator are such, and are

shown by other parts of the will to be such,as to indicate a strong Interest on his part tomake the gift. If, however, th e conc lusionmust be reached tSat'the .'jjestetor lntended an'*bsel«te'girf"'ES"his wife of. iis_5^. and

"pw-

EXPRESS TRUSTS— PREX3AT0RY WORDS. 383

sonal proBP'^Ti ''arrylng with It an absolutetight of disposal, then it will become unaeces-sary for us to consider questions of trust or ofpower in trust; for the existence of an aBso -

Intfi and beneficial estate in fee in the widowwould be pqi^^ll^r des^ctlve of the claim ot""UtT2i;tj_jaL£!f ttift '^^''''? ■'0f-3Ji imperatiye trustjKjBefc- —The testator, it must be admitted, was veryemphatic in the use of language when defin-ing the nature of the holding by his wife ofthe estate devised and bequeathed, ^hen hegave to her the house and lot where he resid-

'

eS. he MaeOSrw ofg§r'''aHd--tg'lia- Beirg' andassigns? ^qr^ver." "In the same "paragr aph\there he had so give n her tlie house ancfiotr-and 'Sso"lLiroriir ioqMi(na''igwar'aga: ef-f^S", E'e reiCfffettfethat §lle'"WS§- "to *!we"anti-toESld ttHi said bouiae and lot to hor» a—*-^ »g[nd to her heirs and assigns, forever"^ andbg-states with reference to 13ie personal IF"iects that she was to have and to hold them"untQ her._ " * * and to her neirs, exec-

qtors. administrators." 'and assigns, forever ."This repetition of language, indicating com-pleteness and perpetuity of ovynershjp, arres tsl;he attent ion, it will De opservea. too^thatthere was discrimination i^ the empljoym etft

o^language defin uig„iJlj|f,r.„Holding._iq ,^epse ofwords which would be appropriate In speak-ing" of

'

^e_s nc(;g^^ioi\ to either class of prop-sriy'. 'Be had been particular, in the nrst

debts the mortgagejp on jjj.^ h°Sf.^„ ^^^ "***should be disciiarg£d7^aijriiF'wal™equS^ticulajtjn jhejrom6tion"5jtlig ^tCTegtgfbf Jis■frife, in directog^^Jn^^^Jourtli'ciaus^' thattEiTegaclS given should noF Be" aTcHS!^' up-on e"ither"ffie"Tioi5Be and" lot,' of 'lE^^ pergonale"tteMjiea^gd.~'" ^e° he aisposes^f Jlsresiduary estate, in the_fi"fff'*c,laus"C. wfe,eJsa]pin emphaijc '"in "Befining^the estatej ;^Lichbis wife shallTate&erelhrb y glroignttofi^- "and to Wf'heirs, execufofs radministrator s,atra-TEsi^dmSis^' '3Lgai1a.''in "pypressmg

aisposltionto"liis desire and request asbe made by his 'wife in that clause, he refersto "i£e said estate wJleh by tnis will X haveh''pqnpafheiil""tn rnv sinywife." lt_is "hardly, j5nceiYameTHrW-ntfen!Ton of a testato r^hat his wife should' have the absolute titlefi7^inrtlre-TCTpgtggr riglTt--n1"fli'snnsa1 of. thegiitatd ijU'fen <ii)ald be stated in more forcibl e

igngn^c:— l^h e words which have bppn smrrfc.

nntgslised. and which the counsel for the ap-

pellants think would be mgre aBBmByJatg lb

e^fesB the intention to"^ake an absol utegitt 'tff'the wife, sueii"'as'"with full power ofSiSposaV^fi! _'^lo£_igr „§(5Il~Ufwonifi"norbe anv strong:er, and. Indeed, wouldseearCSlSemore appropriately use d when pro-

to protect her agaitist her husband's act s.'^■!^^-f^

'°'^ -'°-^'^ "'^ '^'"te K^ft of reaLor -ner-sonal property , in order to q;^lif£jt,_jgr_tocuflt dowiirtESTaHeTpaHISrthewill should

sjiow~aB~egga3'ly- "clear^tfftentlon Jt»:JO^lbythe "use of wMraS-delnite jn J^„.meaning,

imperative . That is a general rule, and canit be said of the concluding clause of thisfifth paragraph that it stands the test? Wecannot think so. jt undoubtedly contains thedesire and request of the testator that hiswife should make the P_ersons named her"joint heirs" ai:ter'"3S!E 5r"i)u t. In view of gievery emphatic and precise language which heJiad seen fit to empl pyTn"deflBing, .tbe'JEa^which^is_w^e should take in his property, itwould be going too far in The effort to give ef-

gcT'TS'^mynestaffir^ itdomjnaled his brevjous expressigns jQf._i,nten-tTonT'an'd"

'atfected

'their legal force and slg-

nrgs^Zjrt^nBpTvTTOmipTTis-Tsr. y.,.,.197, 19 N. B. 411,—a case upon which muchreliance is placed by the appellants,— JudgeFinch observed of the testator's will, In thecourse of his opinion, "that in the gift to his'wife he does not add words that could seeminconsistent with a subsequent charge. upon

it,

as for her own use and benefit, or to herand her heirs, forever, but leaves the path toa trust or a charge unobstructed so far aspossible." That case differed from the pres-ent one in that the testator "wished" his wife,who was his executrix, "if she finds it alwaysconvenient," to pay to his sister and brotherduring their lives the interest on $10,000. Inthat case there was no cutting down of hiswife's fee to a life estate; but, it being seenthat a gift was made, dependent only uponthe fact of abihty to do so, a precatory trustwas deemed to have been created with re-spect to the annuities. The very words ofdistinction pointed out by Judge Finch arepresent here. In Re Gardner, 140 N. Y. 122,35 N. E. 439, -the testator gave the residue ofhis estate to his wife, to have and to hold thesame, to her and her assigns, forever, provid-ing that what should remain unexpended or'undisposed of at her death he gave to his sonand his heirs. The testator added this clause:"And I expect and desire that my said wifewill not dispose of my said estate by will insuch a way that the whole that might remainat her death shall go out of my own familyand blood relation." It was held that "theestate of the wife was not qualified by theprecatory words mentioned," and that theywere "merely the expression of an expectationor desire." The construction of a trust wasrefused by us upon the ground that the wordsof the will in the first instance clearly indi-cated a disposition in the testator to give theentire interest, use, and benefit to the donee.In Re Hamilton [1895] 2 Oh. 370, which is re-lied upon in the prevailing opinion at the gen-eral term, the following language is used: "1give, bequeath, and appoint to my dear nieces

* • • the sum of £2,000 apiece, for theirsole and separate use, and to be independentof their husbands, and I wish them to be-queath tie same equally between the familiesof my nephew Silver Oliver and my dearniece Mrs. Packenham in such mode as theyshall consider right" It was held that the

884 EXPRESS TRTJSTS—PRECATORY WORDS.

nieces took absolutely, and a construction ottlie WOTds was refused whicli should implythat the ladles took for life only, instead otabsolutely.We are referred to many cases on the oneside and on the other, butprecedents in willcases are not very satlSacto^ alds,iivreach-Tn'g a conclusion in the^work'qljyotCTpretotipn;for each will wlU differ In Its scheme, as InTEsTforms of expressioiii "Affflost; they.jHi;-'nTsHTnusfi'atl^ig.^ the aBglication,^f2^sege£e£SL'TSfi§J'£.£25?,t"^'^^'^<"'' which have been

fUr^wn In tte|3MHMis"'^3]|"the^ courts.Whether the precatory words iSra vriJl shallbe a.ccorded such force as to deprive the donee"of the'"abs61ufe""flgffr6f disposaTTand therebygfiaiify the beneflcial Interest in thegft^ustBra^nflmea;;;ffiTSffi^^on" wiffi what mayfie^athered fromth£rMtj^^t^jfvin^ as aninten iion which woulS' ie 'reconcilable withtfie'ldSTorrTrasr^^^lTOP^CLifte. legalgsta^e."

WTSgre" to impose such a trust would_6e^^_MUifx3,??M9B§_e5Pressiona]£rthe , -y^i,"andjio create j^_ repugnancy Jejtwee;n_ Its dif-ferent parts, then the rules of constructionfgrbidJ:|Le attempt, and this Is not_dlsputed3j the apjellants' c'SiTriM. ■Their 'contentionin that respect is that that principle of con-struction has no application to the presentcase, because of the absence of words show-ing that the wife was to have the whole bene-ficial Interest. Thus we see that the pivotalpoint of construction Is as to the significanceof the expressions used by the testator whengiving hifl estate to his wife, and the infer-ences to be drawn therefrom. In our view,they are unmistakable, and create an atmos-phere about the instrument of an entire sub-jection of the claims of others upon his bountyto the paramount claim of his wife, and taher ultimate testamentary disposition. Inthe present case we can only read the lan-

guage, In which the testator expresses bis de-sire and request, in the light of the emphaticlanguage previously used In the will, and, asso read, award to It the force of a suggestionand of an expectation, which, however strong-ly phrased, were only morally binding uponthe widow. Within the .case of Colton v. Col-ton, 127 U. S. 300, 8 Sup. Ct 1164, where thetestator gave to his wife all of the real andpersonal estate of which he should die seised,possessed, or entitled to, with a recommenda-tion to her as to the care and protection of hismother and sister, and with a request to herto make such gift' and provision for them asIn her Judgment would be best, the presentcase might be said to be within the exceptionthere recognized. It was there held that thelanguage of the bequest was sufficient to con-vey to the testator's wife the whole estateabsolutely, if it stood alone, but that neverthe-less, as it did not stand alone, and did not"contain any expressions which necessarilyanticipate or limit any subsequent provisionsaffecting It," the bequest was affected by therequest Precisely that did occur In the willunder consideration, as we view it, and thelanguage of the devise and bequest to the wifedid contain such expressions as to anticipateand limit the possible effect of the subsequentprovision. The cases of Dominick v. Sayre,3 Sandf . 555, and Smith v. Floyd, 140 N. Y.337, 35 N. B. 606, related to devises for life,with a power, in the one case, and with a"right and privilege," In the other case, ofdisposal by will in favor of certain persons,and we do not perceive how they affect theconclusions we have reached. We have suffi-ciently expressed our views upon the ques-tions presented by this appeal, and they leadto an affirmance of the judgment. The judg-ment should be affirmed, with costs. All con-cur. Judgment affirmed.