Wood v. Seward

The Surrogate.—The question involved is whether the decedent’s expression of a wish and desire that his mother and four sisters should live together and continue to occupy the homestead, accompanied by the statement, at the close of the first clause of his will, that such expression should not be considered or treated as a direction or instruction, has any binding force upon the .executor, executrix and trustee. Such precatory words as are first used as above would .constitute a trust, by declaring the first taker to be a trustee for those whom the donor intended to benefit. So that, but for the subsequent words which conclude the clause, I am of the opinion that the estate taken by the executors and trustee would have been subject to that trust in behalf of the mother and the four sisters, although the third clause, by which the whole property is given and devised, makes no reference thereto. (1 Perry on Trusts, 112; see also 2 Story Eq., § 1068; [275] 2 Roper on Legacies, § 1417 ; 2 Redfield on Wills, 410, pl. 6 ; Tiffany & Bullard on Trusts, 47, 223.) But it seems to me equally clear that the concluding words of the clause, that the expression of his wish and desire should not be regarded as a direction or instruction, forbids the implication of any such trust. Perry, in his first volume on Trusts (§ 115), says: “However strong the language of recommendation or request may be, a trust will not be implied if the testator declare that such is not his intention.” (And see 2 Story Eq., § 1009.) Redfield on Wills (vol. 2, p. 416), in quoting the language of Lord Cramworth, V. C., in Williams v. Williams (1 Sim., N. S. 358), says that ‘1 the real question in these cases always is, whether the wish or desire or recommendation that is expressed by the testator, is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party, leaving it, however, to the party to exercise his own discretion.” To the same effect are the cases, Gilbert v. Chapin (19 Conn., 342), Pennock’s Estate (20 Penn., 268). In the last case, it was held, that expressions of desire, &c., in a will were not prima facie sufficient to convert a devise or bequest into a trust, and that the Homan and English rule on the subject did not prevail in that state, and only amounts to a declaration of trust, where it appeared from other parts of the will, that the testator did not intend to commit the estate to the devisee or legatee, or its ultimate disposal to his discretion. These authorities, and numerous others that might be [276] cited, establish the doctrine that precatory words will not create a trust, where, either by a consideration of all of the provisions of the will, or by the express words of the testator, it appears that the recommendation was not intended to be obligatory. The language of the. first clause of the will in question, if inserted in or engrafted upon the third clause, would not in this case create a trust for the benefit of the mother and four sisters, in the use and enjoyment of the homestead in question. It will be observed that by the third clause all the real and personal property is given and devised to the executors, with power to sell and receive the income, with- directions for its disposition, with power on the part of the sisters to give and devise the whole body of the estate, with no reference whatever to the wish and desire of the testator contained in the first clause. It is claimed, however, that the second clause, charging his' mother and sisters to continue to their aunt Jane "Dunlap the same home, &c., as he had always assured, is an indication that the mother and sisters would be in a condition to afford such home, which affirms the obligatory trust created by the first clause. : But I am not willing to hold that that is a sufficient indication of its obligatory character, to- overcome the positive language of the testator, that it should not be so regarded. It is also claimed, that the statement by the testator "in the fourth clause of the will, of the reasons for making his will as he did, that the income might be sufficient to provide his said mother and sisters with a permanent and "comfortable home and income, affords another indication [277] that the precatory words contained in the first clause were to be regarded obligatory, and that the “ comfor: table home” so mentioned was that referred to in the first clause; and that the term, comfortable home, meant a home without liability for rent. But it will be observed, that by this clause the home and income are to be^ afforded from the income of decedent’s property, and hence the cases of Willett v. Carroll (13 Md., 459), and Lyon v. Lyon (65 N. Y., 339), cited by the learned counsel for the executors, have no application to this case. Entertaining this view of the will, it is not necessary to consider the question whether it was the intention of the decedent to charge his mother and sisters rent for the use and occupancy of the house. ‘ It is suggested that the latter portion of the first clause of the will was added by the testator for the purpose of escaping the force of the statute against the unlawful suspension of the power of alienation of real estate, upon the assumption that the mother and four sisters being entitled to occupy the. premises, would unlawfully suspend the power of alienation. But how the force of the statute could thus be avoided, if there was any obligatory force in the request, is not apparent. For the rule is well established, that if by the terms of the instrument there may be such suspension the future estate is void in its creation. I cannot suppose that the precatory words referred to were' used for that purpose, as the trustee, the mother and the sisters were adults, and hence able to convey an absolute fee in possession. The question raised by the learned counsel for the executors, that by the correspondence between Mrs. [278] Wood and himself the former is estopped from claiming rent for the period past, is not tenable for two reasons : first, because there is no exception to the finding of the auditor upon that subject.; and, second, because the transaction lacks the important features of an estoppel. It does not appear that the executors have so acted on the faith of Mrs. Wood’s statement, that any loss would accrue to them by her present claim of her share of the rent of the homestead, for the liability of the mother and sisters to pay rent subsists, as well as the authority of the executors to enforce it. If there is any question as to the responsibility of the mother and sisters, the executors and trustee have the means of reimbursing themselves for any over-payments made to them, and the authority to do so should be contained in the decree. The exception to the report of the auditor, disallowing the claim for rent of the premises in question, should be sustained, and the report, so modified, should be confirmed.