Foster v. Willson

Blodgett, J. The intention of the testatrix to provide for the maintenance of her father being sufficiently apparent from the will itself, it is the duty of the court to effectuate it by regarding the defendant as trustee for the father, if, from the whole trans••action and the words used, such a trust may be fairly implied. In determining this question it is to be borne in mind that there is no uncertainty as to the subject or object of the testatrix’s ■expression of her wish and desire; and that precatory words in ;a will, equally with direct fiduciary expressions, will constitute a trust. “ Technical language is not necessary to constitute a trust. It is enough if such intention is apparent. Thus, words of recommendation, request, entreaty, wish, or expectation, addressed to a devisee or legatee, will make him a trustee for those persons in favor of whom such expressions are used, provided that from the construction of the whole will such was the apparent intention of the testator, and provided he has pointed out with sufficient clearness and certainty both the subject-matter and the object of the trust.” 1 Per. Tr. (8d ed.), s. 114, note; 1 Jar. Wills'(5th Am. ed.) 680; Erickson v. Willard, 1 N. H. 217, 229. “ The criticisms which have been sometimes applied to this rule by text writers and in judicial opinions will be found to rest mainly on its application in particular cases, and not to involve a doubt of the correctness of the rule itself as a sound principle of construction.” Warner v. Bates, 98 Mass. 274, 277, per Bigelow, C. J. The only element of uncertainty then is, whether the maintenance of the testatrix’s father was intended by her to be executed by her husband as a trust. That is to say, did the testa *243 trix intend to impose an obligation on her husband to carry her wish and desire as to her father’s maintenance into effect, or, having expressed her wish and desire, did she intend to leave it to him to comply with them or not at his discretion ? From the nature of the case, no certain answer can be given; but upon the established rule of testamentary construction in this state, as well as in accordance with the general rule where like words have been used by testators (44 Am. Dec., note, 372-379), and with a plain moral duty on the part of the defendant, we are of opinion that the clause of the will which is the subject of the present controversy does not leave the maintenance of the plaintiff to the discretion of the defendant, to be afforded or withheld at his pleasure, but that the devise to him was made on the trust that he should furnish such maintenance during the plaintiff’s life, should he need and require it, which the bill charges and the demurrer admits. “ The wish of a testator, like the request of a sovereign, is equivalent to a command ” (1 Hill Tr. 73; 1 Per. Tr., s. 121, note); and especially should it be so held in a case like the present, where it would seem that even the slightest wish of a deceased wife as to the care of her aged, infirm, and dependent father ought of itself to be sufficiently binding on the defendant’s conscience. The question whether the maintenance of the plaintiff shall be in the defendant’s family or elsewhere will be determined at the trial term. Demurrer overruled. All concurred.