Carpenter v. Miller's Ex'rs

Maxwell, J. The testator Miller, by a will made by him bearing date on the 15th day of September, 1845, gave all the residue of his property to his friends Chandler and Al-derson, in fee simple, and appointed the said persons the executors of his will. After the death of Miller the said will was probated and the said- Alclersou qualified as execu,tor. Afterwards, the appellants here, who claim to be the [179] heirs at law of Miller, filed their bill to have probated and construed a codicil to said will, bearing date on the 6th day of June, 1856, and alleged to be in th'e possession of the said Chandler and Alderson. The bill claims that the codicil is a revocation of the will as to the residuum, and that the codicil is itself void for uncertainty, by reason of which the testator died intestate as to the residuum of his property aud it descended to his heirs at law, the appellants. • The codicil is in these words: “I, Peter Miller,, of Monroe county, Virginia, do request my executors, H. J. Chandler aud L. A. Alderson, to give the entire proceeds of my estate, when said estate shall fall into their hands, according to my will, to the propagation of the Gospel in foreign lands. Given under my hand,” &c., and signed by him. "When the cause came on to be heard the bill was dismissed, but the complainants took an appeal to the court of appeals of Virginia, where that decree was reversed and the cause remanded, with directions to the court below to send the codicil to the county court of Monroe county for probate, that being the court in which the will was probated. The codicil was probated by the county court as a testamentary paper, and afterwards the cause was again heard in the circuit court and the bill again dismissed and another appeal taken to the court of appeals of Virginia, whence it has been transferred to this court by operation of law. The appellants claim that the court erred in dismissing the bill and not rendering a decree according to the prayer of the bill; that all the property embraced in said codicil passed to the heirs at law of Peter Miller, 'deceased. The first question to be considered is whether or not the object expressed in the codicil “the propagation of the Gospel in foreign lands” is too indefinite and uncertain to be executed. In a late case, Wheeler vs. Smith, 9 How., 76, in the supreme court of the United States, this question was examined quite extensively. In the will in that case the testator, after making a number of specific bequests, declared : “The residue of my estate is left in trust of Hugh Smith, Robert J. Taylor and Phineas Janney, for such purposes as [180] • they consider promise to be most beneficial to the town and trade of Alexandria. If any difficulty occurs in construction as to any‘of my bequests, R. J. Taylor is especially charged to give said construction.” The said Smith, Taylor and Janney were appointed executors. In a codicil the testator declared, “I leave the residue of my estate, after paying all bequests and appropriations, to some disposition thereof which my executors may consider as promising most to benefit the town and trade of Alexandria. Now I leave the same entirely to their disposition of it in such manner as appears to them promises to yield the greatest good.” The court held unanimously that the devisees were too uncertain and could not be sustained. Judge McLean, in delivering the opinion of the court, makes this statement, “In a late ease in Virginia, not yet reported, of Brand’s administrator vs. Brand, et al., the following devise was held to be void: ‘Third, I give to the Rev. W. J. Plummer, D.D., the residue of my estate, both real and personal, in trust for the board of publication of the Presbyterian church in the United States:’ ” I do not find that this case has yet b.een reported. All the Virginia cases are to the same effect, as the above cases. Prom the principles laid down in the cases referred to it is clear that the devise in the cojlicil under consideration is void for uncertainty in the devisee. This brings us to the next question, which is, the devise in the codicil being void for uncertainty does the codicil nevertheless revoke the will as to the property mentioned in the codicil ? It is well settled that a second will, inconsistent with the first, perfect in its form and execution, but incapable of operating as a will on account of some circumstance dehors the instrument, may nevertheless be set up as a revocation of the first. 3 Lomax Dig., 61, Loughton vs. Atkins, 1 Pick., 545. Story, in his Equity Jurisprudence, vol. 2, 'sec. 1068a says, “In short, it may be stated, as a general result of the [181] cases, in the language of Lord Eldon,-that, whether the words of the will are those of recommendation, or precatory, or expressing hope, or that the testator has no doubt, if the objects, with regard to which such terms are applied, are certain, and the subjects of property to be given are also certain, the words are considered imperative, and create a trust.” And in section 1070, he says, “ wherever, therefore, the objects of the supposed recommendatory trusts are not certain or definite; — wherever the prior dispositions of the property import absolute and uneontrolable ownership; in all such cases courts of equity will not create a trust from words of this character.” The same doctrine will be found in the case of Moggridge vs. Thackwell, 7 Ves. 84; Morice vs. the Bishop of Durham, 10 Ves., 536. The rule then is that wherever the words are imperative, though inoperative by reason of some incapacity in the devisee, they operate a revocation of a former will, and whenever the words are precatory, or expressing hope, desire or request, if the object of the hope, desire or request be certain and definite the words are considered imperative, and are held by the courts to create a trust for the purpose indicated, and operate a revocation of a former will. But whenever the prior dispositions of the property are complete and the words are precatory, or expressing hope, desire or request and the object of the hope, desire or request be uncertain and indefinite the words will not be held to create á trust or be construed to revoke a former will. In the will of Miller the property is given to Chandler and Alderson to be equally divided between them, in fee simple. They are also named as executors. In the codicil the language is, “I do request my executors, Chandler and Alderson, to give, &c.” According to the will then they would take the residuum in absolute and uneontrolable ownership, and the objects of the recommendatory trust mentioned in the codicil being uncertain and indefinite a court of equhy cannot, according to the authorities, construe the words of the codicil to create a constructive trust which would fail for uncertainty, merely [182] for the purpose of working a revocation of the will to defeat the residuary devisees. It seems to me that the decree dismissing the will is right and that it will have to be affirmed, with damages and costs to the appellees. The other judges concurred. Decree affirmed.