Appeal of McCurdy

Opinion, Mr. Justice Mitchell: • I. The will of Henry J. Stout clearly created a trust as to the residuary estate disposed of by the fortieth clause. The language is “ I give and bequeath the same to my executors .....to be devoted and given by them to such institutions or uses, as they in their best judgment may consider the most compatible with the views and instructions which I have given them,” etc. What is given to the executors by this clause is not a discretion to distribute the estate according to their judgment, but a discretion to carry out the orders received from the testator. He had his own intentions and scheme of distribution, and he meant that they should control the disposition of his estate to the end. In the circumstances under which he made his will, being apparently apprehensive that his speedy death might avoid some of his bequests to charities, he was obliged not only to commit a large discretion to his executors as to the means to be employed to accomplish his wishes, but to trust entirely to their integrity for its exercise. But his intent that they should follow his judgment, not their own, is entirely clear, and his language to that effect is as mandatory as the nature of the circumstances permitted. This plain intent clearly separates the case from the class of gifts of an unlimited discretion of disposal, of which Beck’s App., 116 Pa. 547, is the latest illustration. In that case the testator gave his executor “full and unlimited power and authority to appropriate and dispose of the residue.....to such objects, persons, or institutions as in his discretion shall be best and proper.” By this language he clearly substituted the judgment and will of his executor for his own, not only as [113] to the methods of disposal and appropriation, but also as to the objects themselves. The distinction between this and the mere discretion as to the disposition most compatible with the testator’s instructions previously given, is too obvious to need further discussion. II. There being then a clear creation of a trust, we have to inquire whether it has been fully carried out. What the trust was, could only be learned through the conscience of the executors. It was not put in writing but communicated to them, presumably orally, in testator’s lifetime. The testimony of-the executors was therefore the only evidence attainable as to the objects of the trust. The testator died in February, 1875, and on May 25, 1877, both the executors being then living, they executed a declaration of trust under their hands and seals, in which after reciting that they had paid all the legacies presently due, and secured those to come due after termination of life estates, they set forth, “ that being the utmost extent (with exceptions hereinafter set forth) to which, after years of reflection, Mr. Stout wished his estate to be applied for either charitable purposes or the benefit of relatives, as he repeatedly declared to executors,” etc. They then set forth that the residue is their own by law, but that nevertheless they deem it their duty, and therefore do appropriate and devote certain sums to purposes that they declare to be in accordance with testator’s instructions, and then finally proceed to divide the remainder between themselves. As already noted, the testimony of the executors is the only evidence of the objects of the trust. By a solemn instrument under their hands and seals, against their interests, that is, against their asserted legal right to the whole of the residue, they declare that they have fully carried out, or provided for, all the objects of testator’s bounty, as expressed by him in his secret instructions to them. What further evidence is attainable ? One of the executors is since dead, and to send the matter back now to the survivor to say whether there are still any unexecuted instructions of the testator, would be to. do the vain thing of asking him to repeat his declaration made when the matter was fresh in his recollection, or to offer to self-interest a premium to stimulate memory to recall further instructions, which -twelve years ago, he and his co-executor [114] solemnly asserted over their hands and seals, not to exist. A court of equity is not called upon to take any such step. There being therefore a trust, and the purposes of it being exhausted, the balance remaining is not covered by the will, and as to it, however contrary to his desires, the decedent died intestate. The decree awarding this balance to the next of kin was correct. Decree affirmed.