Brinn v. . Brinn

Barnhill, J. What is the estate of the widow in the property of the testator ? Is such estate as she took impressed with a trust % These are the questions presented to us for determination. Formerly the rule in England was that whenever property was given, coupled with expressions of “request, desire or recommendation,” that the person to whom it is given will use or dispose of the same for the benefit of another, the donee will be considered a trustee for the purpose indicated by the donor. This was so held, even when the language of the gift, unaccompanied by the words of “request,” etc., was absolute in its nature. This rule was followed by earlier American decisions. Thus, precatory words were given an arbitrary meaning and force imperative in nature. This doctrine has been modified, both by the English and American courts, so that now in this and other jurisdictions precatory words are interpreted in their usual, ordinary meanings, the force and effect of which are to be determined by consideration of the whole will in ascertaining the real intent of the testator. . The old rule that the expression of a wish by a testator, like that of the sovereign, was construed as a command, has been abandoned. The later eases hold that in the absence of a clear indication to the contrary, expressions of wish, desire, etc., are to be taken as used in their commonly accepted sense and are not to be artificially construed by the courts as a trust unless it clearly appears from the consideration of the will as a whole that it was so intended by the testator. As was said by Allen, J., in Hardy v. Hardy, 114 N. C., 505 : “Under the early English and American authorities language in a will expressive of the wish or desire of the testator as to the disposition of his property was generally held to raise a trust, or to limit the estate devised, unless a contrary intent was manifest from a consideration of the whole will; but the tendency of modern authority is to reverse this rule, and to hold that precatory words ‘are not to be regarded as imperative unless it is plain from the context that the testator so intended them.’ ” This does not mean that precatory words will not impress a trust upon a devise, but that the force and effect to be given to precatory words is to be determined by a consideration of the will as a whole, and a trust will be imposed when it clearly appears that such was the intent of the testator. *287 A consideration of the decisions in tbis jurisdiction discloses that it is now a well-establisbed rule in tbis State tbat where an estate is given to a person generally or indefinitely it is construed to be a devise in fee simple, unless sucb devise shall, in plain and express words, show, or it shall be plainly indicated by the will, or some part thereof, that the testator intended to convey an estate of less dignity. It is so provided by our statute-C. S., 4162. Springs v. Springs, 182 N. C., 484; Hayes v. Franklin, 141 N. C., 599; Carter v. Strickland, 165 N. C., 69; Hardy v. Hardy, supra; Barco v. Owens, 212 N. C., 30; Peyton v. Smith, ante, 155. Carter v. Strickland, supra, is reported and annotated in Ann. Cases, 1915 D, at p. 416. Where, however, a limited estate is devised to the first taker, words of recommendation, request, entreaty, wish or expectation addressed to the legatee or devisee will ordinarily make the first taker a trustee for the person or persons in whose favor such expressions are used, provided the testator has pointed out with sufficient clearness and certainty both the subject matter and the objects of the intended trust. Such words of recommendation or request, when used in direct reference to the estate, are held to be prima facie testamentary and imperative -and not preca-tory. When accompanying a limited gift or bequest, words of request or desire or recommendation that a particular application be made of such bequest will be deemed to impose a trust upon these conditions: (a) That they are so used to exclude all option or discretion in the party who is to act, as to his acting according to them or not; (b) the subject is certain, and (c) the objects expressed are not too vague or indefinite to be enforced. This is particularly true when those in behalf of whom the requests are made are natural objects of the bounty of the testator and no other disposition of the remainder of the estate after the limited estate is made. Little v. Bennett, 58 N. C., 157; Cook v. Ellington, 59 N. C., 371; Russ v. Jones, 72 N. C., 52; Young v. Young, 68 N. C., 309; Crudup v. Holding, 118 N. C., 222; Waldroop v. Waldroop, 179 N. C., 674; Jarrell v. Dyer, 170 N. C., 177; Laws v. Christmas, 178 N. C., 359. The subject is fully discussed in Colton v. Colton, 127 U. S., 300, 32 U. S. Law Ed., 138. And so it appears that the old rule has been modified- — -not abrogated. We still consider the will as a whole, giving “each key its proper tone” to ascertain the real intent of the testator. Applying these principles of law in the interpretation of the will under consideration it appears: (1) That the gift to the plaintiff was a limited gift — “as long as she remains my widow.” It is so limited in both the third and fifth paragraphs. (2) The limited gift is not accompanied by any words conferring the power of disposition. It is “to be handled” by her. “Handled” means to manage and control. It does *288 not import the power of disposition. (3) Those in behalf of whom “requests” are made are his children, his sister, and his church. (4) The manner in which he requests his estate to be distributed is definite and certain. And (5) provision is made for the execution of the request in the event his widow should die before fully executing the same. It may also be noted that in subsection (d) of paragraph 5 his request is specifically referred to as a “bequest.” It is likewise significant that the disposition of the remainder of his estate by the testator, unless the widow should remarry, is inseparably tied in with the requests contained in the will and that the remainder is to be distributed in accordance with such requests. That this was the intent of the testator would seem to be clear by force of the express language used in the last paragraph: “In the event of my wife’s death before she may have fully executed my request, I desire that my estate be equally divided between my four chil dren — as hereinbefore specified, and that all my requests be carried out — and . . . my son Preston be made administrator or executor with authority to carry out my wishes.” It is apparent that this is the interpretation both the widow and the probate court first placed upon the language used in this will. She is not appointed executrix except by implication, yet she tendered the will to the probate court for the purpose of qualifying as executrix by virtue of the language used in the will and she was so qualified. Should the widow die during the present state of administration what would become of the estate? "Would it go to the children by inheritance or by virtue of the terms of the will as contained in the sixth paragraph? Unquestionably the courts would give force and effect to the language contained in this paragraph, which would require that his estate be equally divided between his four children, having due regard to his request that each be required to account for advancements, with the right in his son Preston to administer the estate and to distribute it among his children in accordance with his wishes. And yet such interpretation cannot be put upon this language without regarding the “requests” as express limitations upon the estate devised to the widow and as directions to her as to the manner in which she shall handle the estate. We conclude that the gift to the wife is a gift in trust during widowhood, not for herself alone and not for the children alone, but for both, to be managed by her in her discretion — presently for her own benefit, but ultimately for the benefit of her children; and that the trust is coupled with the power to dispose of the property among the children in accordance with the terms expressed in the will in her discretion at any time she may choose. She has the power now if she so elects to close the trust by “executing” the “requests.” She is not, however, vested with any general power of disposition. *289 Young v. Young, supra, is very similar to the instant case. There the testator’s will devised, “To my beloved wife I give all my estate, real, personal and mixed, to be managed by her (and that she may be enabled the better to control and mamage our children), to be disposed of by her to them in that manner she may think best for their good and her own happiness.” Although the provisions in that will as to the manner of disposition among the children was not near so definite and was left entirely to the discretion of the devisee, it was held that the gift was one in trust for the use and benefit of the wife and the children, with power to dispose of the property among the children, discriminating at her own discretion as to the time, quantity and person. The Court said: “The trust is that it shall be managed and disposed of for the family.” The plaintiff has not remarried and it does not appear that she contemplates remarriage. It is not necessary, therefore, for us to anticipate a situation that may not arise and to undertake to determine the rights of the parties in the event of this contingency. The judgment below should be modified to conform to this opinion. Modified and affirmed.