Mohan v. First Nat. Bank

UDALL, Chief Justice. Benjamin J. Conness, a resident of Yuma county, Arizona, died testate, February 3, 1946, in Los Angeles, California. He left no direct descendants but was survived by a brother Luke E. Conness, and some twenty-one nephews and nieces, the children of his brothers and sisters, to all of whom he made specific bequests as well as to some grandnephews and nieces. This appeal primarily involves the construction and interpretation of the “Fourth” paragraph of the will which provides in part as follows: “Fourth: I direct that my executor sell as soon as possible all of my real property in Yuma County, Arizona, in Beach, Golden Valley County, North Dakota, in Yankton, Yank-ton County, South Dakota, in Illinois, in Oklahoma, and at 163 West Jefferson Street, Los Angeles, California, and any other real property which I may own at the time of .my death. It is my will and desire that the said real property, be converted into cash, in order to pay the specific bequests hereinafter contained in my will in paragraph Fifth following. In the event the proceeds of sale or sales of said real property are more than sufficient to pay the said specific bequests, then and in such event, such excess shall be used for the education of my brothers’ and sisters’ children so far as possible commensurate with the mno'unt of such excess; * *" (Emp. Sup.) At the time the testator executed his will, in November of 1945, the youngest living niece or nephew to fall within the above paragraph was thirty-eight years of of age, and several of them were college graduates. The real property was liquidated by the executor as directed and after paying the specific bequests, $128,584.00 remained to be distributed under the above paragraph of the will. No general residuary clause was contained in the will and as to the testator’s personal estate it passed per stirpes to his heirs-at-law as intestate property. Appellants contend (a) that the “Fourth” paragraph, supra, sets up a trust of the excess from the sales of the real property in favor of the children of the deceased’s brothers and sisters, but that it fails for uncertainty, or (b) if it is a specific bequest then it fails because it is [218] too vague and indefinite and urges that the property be distributed according to the law of descent and distribution. The lower court held there was no intention to create a trust, that the words “for the education * * * ” were precatory and this was a valid specific bequest to a class which was ascertainable as of the date of death of the testator and ordered the property distributed per capita. It is left to the courts in doubtful cases to ascertain from the language used and surrounding circumstances the meaning attributed to the words by the testator. It is the duty ■ of the courts to say what was intended when he executed his last will and testament. In discharging this responsibility the courts are not left completely in the dark as there are some general rules of construction to guide us. The controlling factor is the intention of the testator which is gathered from a reading of the whole instrument, not just the doubtful clause, and when so ascertained it will be given effect. Newhall v. McGill, 69 Ariz. 259, 212 P.2d 764. Once the will is established the courts liberally construe the language so as to carry out the intention of the testator and where two constructions are possible the one favoring testacy is preferred. In re Estate of Sullivan, 51 Ariz. 55, 74 P.2d 346; Newhall v. McGill, supra. We agree with appellants that if an express private trust was intended by the “Fourth” paragraph that it would fail for uncertainty. Our first question then is, did the testator intend to create a trust thereby? This court in Newhall v. McGill [69 Ariz. 259, 212 P.2d 766] quoted with approval from Fields v. Fields, 139 Or. 41, 3 P.2d 771, 773, 7 P.2d 975, the following from 40 Cyc. pp. 1734, 1735: “The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator’s intention to create an express trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust declared in the ordinary manner.” We are of the opinion that no clear intent to create a trust is manifested by the language used in the “Fourth” paragraph, hence if one is established it must be by judicial construction alone. There is no provision for a trustee, or language from which a command or directory for establishing a trust may be drawn. The circumstances surrounding the execution of the instrument, i. e., a formal witnessed will drawn by an able and experienced attorney (who doubtlessly would have made the trust specific and the intent clear, had that been the purpose of the testator), lend further assistance in arriving at his true intention. Some of the testator’s other provisions in the will are: “I give and devise to Mrs. Alice Whalen, the sum of [219] $3,000, which sum shall be used for the purpose .of purchasing a home”; “I further give and devise to Luke Quinn * * the sum of $3,000, to be used for his education” ; “1 further give and devise to * * * Miss Lilly Mohan * * * the sum of $3,000 to be used by her for the care of John Mohan”, and in paraphrase his language in another place is “I give a ranch to my nephew, and direct that he keep the ranch thrifty in appearance, and that he retain it as long as possible in the Conness name.” These specific bequests are clearly followed by precatory words yet no one would contend they establish a trust. We agree with the trial court that at most this was only an expression of a wish or desire on the part of the testator to the legatees as to how they should use the bequest. They form a strong moral duty on the legatees to follow his wishes but without more do not establish the necessary intent to create a* trust. We are now faced with the problem of whether the testator made a gift by the “Fourth” paragraph, or whether it is too vague and indefinite to constitute a specific bequest. We adopt in to to the cogent views of the learned trial court as decisive of this issue, viz.: “I have seen no case holding that the use of the words ‘to be used for’ in connection with the names of the beneficiaries of the ‘use’ is equivalent of ‘to give to’ or like words of donation. That the donative words need not be literally expressed is attested by many cases; but in all it is clear that the donative intent must appear from the fair and reasonable reading of the language of the will. Such expressions, however, as ‘shall be divided among’, or ‘are to be divided between,’ ‘shall go to’, ‘is to receive’, ‘shall have’, ‘shall be paid to,’ ‘leave to,’ ‘my executor shall offer (a certain bargain or option to buy),’ appear in the cases and have been held to be of as binding force as though the perfect clause T give’ had been employed. This is not because such words by any possible interpretation can be said to be literally synonymous with T give’, but because the donative intent appears from the nature of the document, from the context, from the rule that the testator’s inent should be effectuated when that intent can fairly be derived from the language of the will, and from the fact that a statement that one is to receive, or take, or be paid a certain sum is from the circumstances equivalent to a statement that T give’ that one the sum. * * * * $ * “The inference, not a strong one, but rather a straw in the wind, is that the term ‘used for’ implied in the mind of the testator the contemplation that the ‘use’ carried with it the possession, and therefore the gift, for in no other way — there being no trust — could the gift be devoted to the purpose desired but by possession in the per [220] sons clearly intended to be the beneficiaries. “By the will, if the proceeds of sale were inadequate to pay the bequests a pro rata deduction was provided for. Surplus fluids were ‘to be used’ for education. The balancing of the two contingencies raises an inference, if but a weak one, of the intent that the surplus in the event of this contingency was intended, at least latently, as a gift to the nephews and nieces, for it is clear by whatsoever reading given the language that they were to be the ultimate beneficiaries of the unknown or problematic surplus. In the one event there was to be a subtraction from or a diminution of the specific bequests. In the opposite contingency there appears the manifest purpose to dispose of the surplus, and a class is selected to be the ultimate beneficiaries of the surplus, if any remained. The attempt, however inartificial the language used to effect the purpose, was made to dispose of that surplus by the will. While we are not authorized to redraw the will by putting into it any words or language not found in it to express the intent, it is my conclusion that a fair reading of the questioned clause in connection with the entire instrument and in the light of the fact that it is a will supports the view that the language expresses with sufficient clearness the dispositive intent that the amount of the unknown contingent surplus should go to' the testator’s nephews and nieces as a class for the use of improving their education. “It is with no feeling of dogmatic certainty that I state this as the correct construction. I think it is one within the terms of the will; that • it is reasonable, natural, and inherent in the spirit or genius of it. Being obliged in the circumstances to take one horn or the other of the dilemma it is the one I elect as the most reasonably held to be the - correct reading of the testator’s expressed intent. “This being the conclusion upon the mooted point the surplus in question must be considered as a specific bequest * Therefore the legatees belonging to the class named take per capita. Decree affirmed. STANFORD and PHELPS, JJ., concurring.