* Woodbury, J.
delivered the opinion of the court.
It is an established principle in the construction of alt instruments, that verba debent intelligi cum effectu, nt res ma-gis vcileat quam pereat(1) This rule applies with peculiar force to wills, because they are often written by unlearned testators, and without the advice of professional men. But being in a literal as well as technical sense the wills of people who possess the right to dispose of their own estates, such instruments are not only to be made operative, but operative in the manner contemplated by the makers of them, provided their intention be clothed in language which courts of justice can understand and enforce(2) In most cases the testator attempts to pass directly to the objects of bounty the property intended for their benefit. But when [228] these objgcts happen, from youth, extravagance, or lunacy, to want the capacity to manage in a judicious manner pecuniary concerns, it is justly considered unsafe to place property under their absolute controuj ; and in such circumstances it is not uncommon to bequeath it to others, in whom the testator reposes special confidence, and to accompany the bequest with a desire that the whole or a portion of the income should be paid to those whose welfare he is consulting. Consequently, wherever from the whole testament the intention is apparent that the immediate devisee should, in the mode before mentioned, appropriate a particular sum to the use of another, the law is well settled that such devisee becomes a mere trustee to the amount of that sum(3) Whether such an intention be apparent in the will under consideration, remains to be ascertained. The testatrix was a widow, the defendant was her spiritual teacher, and the plaintiff her heir at law. Thus situated she appointed the defendant her executor, and bequeathed to him her whole estate; but at the same time declared that, “placing special confidence” in him, she desired “ that he should at his discretion appro- “ priate a part of the income of her estate aforesaid, not exceeding fifty dollars a year, to the support of M. E.,” the plaintiff. She then adds : “It is my express direction that “ my executor place the aforesaid M. E. in some pious and “ Christian family in the country, at a distance from the town, “ where she may be removed from temptation.”
Had the testatrix not intended to raise a trust for some person, it is probable the will would have closed after the devise to the defendant. But her relations, as -well as the defendant, appear to have been objects of her bounty; for beside the plaintiff, she afterwards, under certain conditions, made provision for other remote connexions. The plaintiff, however, was her nearest relation, and not only so, but from the allusion to her habits, was doubtless destitute of property. To such a person it would be very natural for the testatrix to give a legacy: yet not very wise to give it [229] directly ; and when she had concluded to give it indirectly, by means of a trust, no person would be selected with more readiness for a trustee than her religious pastor and executor, for whom she-entertained “ great esteem.” A peculiar confidence, also, is always presumed to exist between an executor and testator. The slightest wishes of the latter ought, in a case like the present, to be binding on the conscience of the former. The words “ desire,” “ request,”“recommend,” “hope,” “not doubting,” that the executor will conduct in a specified manner, when they come from a testator who has the power to command, are to be construed as commands, clothed merely in the language of civility ; and they impose on the executor a duty which courts have in repeated instances enforced(4). It is probable, then, not only from the circumstances we have enumerated, but also from the two clauses before recited from the will, that E. S. did wish the defendant to appropriate “ a part of the income of her estate” to the support of the plaintiff. Yet it is contended that this wish is not absolute, but so qualified by the phrase, “ at his discretion,” as to leave the intention of the testatrix doubtful, and therefore the payment of. the money optional with the executor. In this case, however, the word “ discretion” does not so naturally relate to the desire that the defendant should or should not appropriate something to the support of the plaintiff, as it does to either the manner or the amount of the appropriation. For the phrase, “I desire that the said J. W. should,” &c. seems, from the arrangement of the words, to be an absolute expression of her wish. Nor could the next clause in the will, that it is her “ express direction that her executor place the aforesaid M. in some pious and Christian family in the country,” &.C., be ever obeyed, without supposing and enforcing an absolute wish that some part of the income of her estate should in some way be devoted to the plaintiff’s benefit. If this were not the correct construction, it would be difficult to account for the specifick direction that the annuity should continue during the “natural life” of the plaintiff, and [230] after jjgr ¿eath be, imder certain limitations, extended to other relations. Nor can we discover any reason why the testatrix confined its amount to fifty dollars, if it were intended that an appropriation might or might not be. made, at the defendant’s election. The phrase, “at his discretion,” is also used in another part of the will. I “ desire to be de~ “ cently buried in the church yard of St. John’s church, at “the discretion of my executor.” Here it must mean a “ discretion” as to the manner, and not a “ discretion” as to the fact of her burial. Her “desire” to be buried in some mode, cannot be doubtful; and though the same words even in the same instrument be not always employed in the same sense,(5) yet the substrata materia in both these places render it probable that the term “ discretion” was not used in either with a view to enable the executor to defeat the desire of his testatrix. This case can be distinguished from vs. Heighley.(6) and Pushman vs. Felton (7); and as tpe wjshes of the testatrix to have something appropriated to the benefit of some one, seem to be sufficiently express,(8) and as the plaintiff is in a particular manner described as the object of that appropriation, the only remaining requisite to complete the trust is a certainty in the subject matter of the appropriation.
The fund, however, from which the appropriation was to be made, is designated with clearness ; because it was the income of her. “ estate,” which had before been described. It is true, that the amount of the appropriation is less distinct, being called “ a part of the income of my estate aforesaid, not exceeding 50 dollars a year.” But it is still said to be for “the support of” the plaintiff — placed “in some pious and Christian family in the country,” and consequently could not mean less than 50dollars, unless the “income” of the “estate” devised, or the expenses of her comfortable “ support,” situated “ in the country,” would amount to less. Whether they would or would not, can without difficulty be determined ; and quod potest reddi cerium, est cer-tumi (9).
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* Woodbury, J.
delivered the opinion of the court.
It is an established principle in the construction of alt instruments, that verba debent intelligi cum effectu, nt res ma-gis vcileat quam pereat(1) This rule applies with peculiar force to wills, because they are often written by unlearned testators, and without the advice of professional men. But being in a literal as well as technical sense the wills of people who possess the right to dispose of their own estates, such instruments are not only to be made operative, but operative in the manner contemplated by the makers of them, provided their intention be clothed in language which courts of justice can understand and enforce(2) In most cases the testator attempts to pass directly to the objects of bounty the property intended for their benefit. But when [228] these objgcts happen, from youth, extravagance, or lunacy, to want the capacity to manage in a judicious manner pecuniary concerns, it is justly considered unsafe to place property under their absolute controuj ; and in such circumstances it is not uncommon to bequeath it to others, in whom the testator reposes special confidence, and to accompany the bequest with a desire that the whole or a portion of the income should be paid to those whose welfare he is consulting. Consequently, wherever from the whole testament the intention is apparent that the immediate devisee should, in the mode before mentioned, appropriate a particular sum to the use of another, the law is well settled that such devisee becomes a mere trustee to the amount of that sum(3) Whether such an intention be apparent in the will under consideration, remains to be ascertained. The testatrix was a widow, the defendant was her spiritual teacher, and the plaintiff her heir at law. Thus situated she appointed the defendant her executor, and bequeathed to him her whole estate; but at the same time declared that, “placing special confidence” in him, she desired “ that he should at his discretion appro- “ priate a part of the income of her estate aforesaid, not exceeding fifty dollars a year, to the support of M. E.,” the plaintiff. She then adds : “It is my express direction that “ my executor place the aforesaid M. E. in some pious and “ Christian family in the country, at a distance from the town, “ where she may be removed from temptation.”
Had the testatrix not intended to raise a trust for some person, it is probable the will would have closed after the devise to the defendant. But her relations, as -well as the defendant, appear to have been objects of her bounty; for beside the plaintiff, she afterwards, under certain conditions, made provision for other remote connexions. The plaintiff, however, was her nearest relation, and not only so, but from the allusion to her habits, was doubtless destitute of property. To such a person it would be very natural for the testatrix to give a legacy: yet not very wise to give it [229] directly ; and when she had concluded to give it indirectly, by means of a trust, no person would be selected with more readiness for a trustee than her religious pastor and executor, for whom she-entertained “ great esteem.” A peculiar confidence, also, is always presumed to exist between an executor and testator. The slightest wishes of the latter ought, in a case like the present, to be binding on the conscience of the former. The words “ desire,” “ request,”“recommend,” “hope,” “not doubting,” that the executor will conduct in a specified manner, when they come from a testator who has the power to command, are to be construed as commands, clothed merely in the language of civility ; and they impose on the executor a duty which courts have in repeated instances enforced(4). It is probable, then, not only from the circumstances we have enumerated, but also from the two clauses before recited from the will, that E. S. did wish the defendant to appropriate “ a part of the income of her estate” to the support of the plaintiff. Yet it is contended that this wish is not absolute, but so qualified by the phrase, “ at his discretion,” as to leave the intention of the testatrix doubtful, and therefore the payment of. the money optional with the executor. In this case, however, the word “ discretion” does not so naturally relate to the desire that the defendant should or should not appropriate something to the support of the plaintiff, as it does to either the manner or the amount of the appropriation. For the phrase, “I desire that the said J. W. should,” &c. seems, from the arrangement of the words, to be an absolute expression of her wish. Nor could the next clause in the will, that it is her “ express direction that her executor place the aforesaid M. in some pious and Christian family in the country,” &.C., be ever obeyed, without supposing and enforcing an absolute wish that some part of the income of her estate should in some way be devoted to the plaintiff’s benefit. If this were not the correct construction, it would be difficult to account for the specifick direction that the annuity should continue during the “natural life” of the plaintiff, and [230] after jjgr ¿eath be, imder certain limitations, extended to other relations. Nor can we discover any reason why the testatrix confined its amount to fifty dollars, if it were intended that an appropriation might or might not be. made, at the defendant’s election. The phrase, “at his discretion,” is also used in another part of the will. I “ desire to be de~ “ cently buried in the church yard of St. John’s church, at “the discretion of my executor.” Here it must mean a “ discretion” as to the manner, and not a “ discretion” as to the fact of her burial. Her “desire” to be buried in some mode, cannot be doubtful; and though the same words even in the same instrument be not always employed in the same sense,(5) yet the substrata materia in both these places render it probable that the term “ discretion” was not used in either with a view to enable the executor to defeat the desire of his testatrix. This case can be distinguished from vs. Heighley.(6) and Pushman vs. Felton (7); and as tpe wjshes of the testatrix to have something appropriated to the benefit of some one, seem to be sufficiently express,(8) and as the plaintiff is in a particular manner described as the object of that appropriation, the only remaining requisite to complete the trust is a certainty in the subject matter of the appropriation.
The fund, however, from which the appropriation was to be made, is designated with clearness ; because it was the income of her. “ estate,” which had before been described. It is true, that the amount of the appropriation is less distinct, being called “ a part of the income of my estate aforesaid, not exceeding 50 dollars a year.” But it is still said to be for “the support of” the plaintiff — placed “in some pious and Christian family in the country,” and consequently could not mean less than 50dollars, unless the “income” of the “estate” devised, or the expenses of her comfortable “ support,” situated “ in the country,” would amount to less. Whether they would or would not, can without difficulty be determined ; and quod potest reddi cerium, est cer-tumi (9).
[231] “ What his executors should think #t;”(10) or that his executor should i! support” another;(11) or that he should “ provide for my daughter Anne, ”(12) are all expressions less definite, because no specifick sum is named as a limitation; yet they were each holden to raise a trust. In a case .... i .n . .. . like the present, it an actual “ discretion” as to the amount of the legacy, however great may happen to be the ties of the cestui que trust, is still conferred on the executor, it is well settled that a court of chancery would interfere and regulate the discretion, when attempts are made to abuse it (13)
But if such a court existed here, no necessity appears in this case for its interference ; because the word, “ discretion,” as used in the will, applies to the manner only of the appropriation — or if to the amount like'wise, so many collateral circumstances limit its extept, that the amount can be ascertained and the discretion regulated in a court of law.
A person in this way invested with a discretion can never act “according to his arbitrary will”(14) His tion” is in law a sound discretion. It is, says lord Coke, a “straight line,” and means “ discernere per legem quod sit justum” (15) “ discre-
On a consideration of these principles and authorities, we incline to the opinion that, by the whole will construed together, a trust must have been intended for the plaintiff, and that this opinion is in conformity with the general rule laid down by lord Eldon,(16) that “ whether the terms are those “oi recommendation, or precatory, or expressing hope, or “that the testator has no doubt ; if the objects with regard “ to whom such terms are used, are certain, and the subjects “ of property to be given are also certain, the words are “considered imperative, and create a trust.” But though a trust was here created, it has been questioned whether courts of law can enforce the execution of trusts. In this class of cases in England we are aware of the uniform practice to resort to chancery. Yet it is observed by Butter, J. (17) [232] íí With regard to the other point made, that a breach of trust “ may not be the ground of an assumpsit, there is not an “ abridgement in the taw which does not contradict such a “ proposition.”
In the common case, where money is, without an express contract, received to the use of another, the practice to sustain an action and allow damages for the non-performance of the trust to pay it over, is well settled. Indeed, it has often been said that this is a liberal action in the nature of a bill ™ ehuity,(18) and unless this trust be now enforced by us> will of the testatrix becomes defeated. Finally, no insuperable abjection is perceived to a recovery in the present suit of all the damages which the plaintiff may have suffer ed from the defendant’s neglect to fulfil the intention of the testatrix (19)’
•'pjei a verdict be entered for the plaintiff for the sum agreed,