Wooldridge v. Gilman

Hart, J., (after stating the facts). The primary rule of construction in the interpretation of a will is to ascertain the intention of the testator, according to the meaning of the words he has used, deduced from a. consideration of the' whole will and a comparison of its various clauses in the light of the situation and circumstances which surrounded the testator when the instrument was executed. Bloom v. Strauss, 73 Ark. 56; and Colton v. Colton, 127 U. S. 300. No hard and fast rule can be laid down to determine when precatory words will be construed to create a trust; but the intention is to be gathered in each case from the general purpose and scope of the instrument. Whether precatory words impose an imperative obligation on legatees, or are but the expression of a hope or recommendation, the carrying out of which is left to the discretion of such legatees, must now, according to the weight of authority, be determined by the language actually used, the context, and the consideration of the will as a whole. O'Brien v. M’Carthy (Court of Appls. Dist. of Columbia), 285 Fed. 917; In Re Marti’s Estate (Sup. Ct. of Cal.), 61 Pac. 924; Webb v. Webb, 111 Ark. 54; and Cook v. Worthington, 116 Ark. 328. Item six of Mrs Lindsay’s will is the one under consideration, and is as follows; “To Elizabeth Gilman I bequeath my entire stock in the 'Simmons National Bank, and request that she never disposes of it, but keep to educate her children, Chas, and William Gilman.” It is the contention of counsel for the appellants that, under this clause of the will, the stock owned by the testatrix in the Simmons National Bank at the time of her death vested in Elizabeth Gilman charged with a trust enforceable in equity in favor of her minor children, Chas, and William Gilman. In support of his contention, counsel points out that in other clauses of the will both real and personal property are left absolutely to Elizabeth Gilman, and that this shews clearly that the precatory language was intended to be imperative, and to create a trust in favor of the minor children of Elizabeth Gilman. Hence it is contended that the acceptance of the property by Elizabeth Gilman under the will is upon the condition that she will comply with the request of the testatrix with regard to the education of her children, and that she should be held as a trustee for that purpose. On the other hand, it is contended that when the language of item six is taken in its ordinary and grammatical sense, it carries with it merely an expression of hope or confidence, and does not import a command. We are of the opinion that the latter construction, when considered in the light of the context of the will and the circumstances surrounding the testatrix, will best carry out her intention. The testatrix had raised Elizabeth Gilman, and was greatly interested in her welfare. After the death of the husband of Elizabeth Gil-man, at the request of the testatrix, she returned with her two children to live with her, and during the last few months of the life of the testatrix she took charge of her household. The testatrix always exhibited affection and interest in Elizabeth Gilman. She made an absolute bequest to Elizabeth Gilman of her entire stock in the Simmons National Bank. It is true that the bequest is coupled with a request that she never dispose of it, but keep it to educate her children, Chas, and William Gilman. Under authorities laid down above, in order that the recommendation or request be held to be imperative and thereby create a trust', it is necessary that the subject and objects should be definite and certain. The clause of the will under consideration does not state with certainty whether or not the legatee should consume the principal or merely the income of the bequest in educating her children. It does not even indicate the character and extent of their education. Hence it will be seen that it is too ambiguous and uncertain as to the objects to be enforced as a trust, and we are of the opinion that there is no obligatory meaning to the word “request.” In the case at bar the word “request” is employed as a mere expression of hope or confidence on the part of the testatrix that the legatee will use the bank stock in the education of her children, but the extent and character of their education is left wholly to the judgment of the legatee. Therefore, we do not think the language used justifies the conclusion that the testatrix intended to create a trust in favor of Charles and William Gilman. The result of our views is that the decree of the chancellor was correct, and it will therefore he affirmed.