Ellsworth, J.
The questions in this case arise upon the construction of the 14th article of the will of Samuel St. John, Esq. Does this article give to Mrs. Harper, one of the plaintiffs, a fixed and certain portion of the 2,000 dollars annuity to Catharine S. St. John, now Mrs. Phelps; and in case of her default in distributing it, can it be distributed by a court of chancery? Or, on the other hand, as claimed by the defendants, is the annuity given to Mrs. Phelps, to be expended, for her support and others in her own family, according to her wishes and pleasure?
At the first reading of this will, there is an apparent ambiguity as to the testator’s meaning in the language made use of, which strikes us with some doubt and surprise, when we find, that the other parts of the will exhibit such professional accuracy and precision. But a more attentive perusal and comparison of its provisions one with another, removes all doubt; and we are quite satisfied what is the meaning of the testator, and that that meaning is clearly enough expressed, by the language used.
He first gives 10,000 dollars to each of his four brothers [268]*268and sister; then 5,000 dollars to each of his nephews and nieces, being in all thirty-five; then 1,000 dollars to each of his nephews and nieces in the second degree, being in all, one hundred and twelve. So far, by a three-fold classification, Mr. St. John puts all his relatives upon a corresponding equality. He next makes an additional bequest to Mrs. Sheffield,
The house thus given to Mrs. Phelps is to be furnished from the estate, in a manner suitable for her family’s use; and an annuity of 2,000 dollars is given to her, to support her family, in a manner corresponding, as we believe, with what she had been accustomed to, in the family of her uncle, during his life. It is for herself likewise to say, who shall be the inmates of that family, though the article seems to assume that she will wish to continue her kindness in her family to such nephews and nieces as were then under her supervision and care. It is, we think, the clear expectation of the testator, that Catharine will keep an establishment in New-Haven, with such a family or inmates as will be agreeable to her to maintain; for she is to have the annuity of 2,000 dollars for that purpose alone; and no persons are to share in the annuity but through her pleasure and invitation—such as she may invite to dwell in the family with her—“members of her family,” is the expression used.
The annuity, let it be remembered, is given to her, for her life, to be paid to her; and she alone can receive it and execute a legal discharge for it. Had the testator intended to create a trust for nephews and nieces, and strangers, (for they too may become inmates,) he would have made it similar to the other trusts of the will, and would have empowered his confidential trustees, Townsend and Pardee, to execute it; as they do the other trusts of the will.
Looking through the whole will, it would seem manifestly a harsh and strained construction of the 14th article, to say, that the testator intended, by this provision, for his niece [269]*269Mrs. Phelps, to make her the sub-trustee of the general trustees; and especially, as the trust terminates with her life, and the four nephews and nieces, claimed to have some special rights in this annuity, may survive their aunt, and be in dependent and necessitous circumstances. If the nephews and nieces were intended, by the will, to be the beneficiaries of the testator’s bounty, rather than that of Mrs. Phelps, it is strange, that the will, so carefully drawn, does not say so, explicitly. This would have been most natural. And why give her such discretionary power over a fund, which belongs absolutely, in part, to other persons? Why too, make the legacy dependent on her life, rather than on the lives of the beneficiaries themselves? No reason can be perceived why the testator is supposed to single out these children of his brother Benjamin to be the special objects of his favour and bounty; the nephews had never lived in his family; nor had they ever been under the care of his niece Catharine; nor does it appear, they were specially near to him. True, they had occasionally received aid, from his generosity, to defray the expenses of their schooling and support, as undoubtedly did other nephews and nieces. In his will, he manifestly ranks these nephews and nieces with the rest of his relatives in equal degree; and he gives each 5,000 dollars, and the annuity, in addition, to Mrs. Phelps. This annuity is given to her, over and above all else, in order to enable her to make them, and other relatives and strangers, if she pleased, objects of her favour, in her own family. Surely, the testator does not intend to make her his almoner, when he provides that her generosity, her election, her pleasure, shall denote the beneficiaries of this provision.
The language of the testator, whatever else may be said of it, imposes no legal obligation on Mrs. Phelps in the use or distribution of the annuity. He expresses perhaps the motive or cause of the gift; but he does not put a condition upon it, and place her under a legal responsibility to others. The disposition of the annuity belongs to that class of cases where it is the intention of the testator to leave the whole subject of disposition, as a pure matter of discretion, to the judgment and pleasure of the party enjoying his special confidence; and where his expressions of desire are intended as mere moral suggestions to excite and aid that discretion, but [270]*270not absolutely to controul and govern it, or in the language of Ch. J. Church, in Gilbert v. Chapin, 19 Conn. R. 348. “No trust will be raised, by expressions in a will importing recommendation, hope, confidence, desire, &c., &c., unless there be certainty as to the parties who are to take; nor if a discretion whether to act or not, be left with a devisee, or so called trustee.” It is a principle of equity, well established by numerous cases, that to raise a trust, it must be ascertained what proportion each beneficiary is to take. Bardswell v. Bardswell, 9 Sim. 320. Pope v. Pope, 10 Sim. 1. Curtis v. Rippon, 1 Madd. R. 434. Knight v. Knight, 3 Beavan, 148. 1 Jarm. on Wills, 338. Now, who will assert, that in this article in Mr. St. John’s will, the beneficiaries, or their proportions, except Mrs. Phelps, are definitely ascertained and fixed; or that any practicable rule for ascertaining either, is given? She may invite into the family whom she pleases, relatives or strangers; but this election is too indefinite as a rule of property, and as such, must therefore, be held void and inoperative. Besides, the two nieces Mary Jane and Lucinda Amelia, “now under her care,” though alluded to, in the manner of her enjoying the legacy, as possibly to be members of her family, the nephews, William A. and
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Ellsworth, J.
The questions in this case arise upon the construction of the 14th article of the will of Samuel St. John, Esq. Does this article give to Mrs. Harper, one of the plaintiffs, a fixed and certain portion of the 2,000 dollars annuity to Catharine S. St. John, now Mrs. Phelps; and in case of her default in distributing it, can it be distributed by a court of chancery? Or, on the other hand, as claimed by the defendants, is the annuity given to Mrs. Phelps, to be expended, for her support and others in her own family, according to her wishes and pleasure?
At the first reading of this will, there is an apparent ambiguity as to the testator’s meaning in the language made use of, which strikes us with some doubt and surprise, when we find, that the other parts of the will exhibit such professional accuracy and precision. But a more attentive perusal and comparison of its provisions one with another, removes all doubt; and we are quite satisfied what is the meaning of the testator, and that that meaning is clearly enough expressed, by the language used.
He first gives 10,000 dollars to each of his four brothers [268]*268and sister; then 5,000 dollars to each of his nephews and nieces, being in all thirty-five; then 1,000 dollars to each of his nephews and nieces in the second degree, being in all, one hundred and twelve. So far, by a three-fold classification, Mr. St. John puts all his relatives upon a corresponding equality. He next makes an additional bequest to Mrs. Sheffield,
The house thus given to Mrs. Phelps is to be furnished from the estate, in a manner suitable for her family’s use; and an annuity of 2,000 dollars is given to her, to support her family, in a manner corresponding, as we believe, with what she had been accustomed to, in the family of her uncle, during his life. It is for herself likewise to say, who shall be the inmates of that family, though the article seems to assume that she will wish to continue her kindness in her family to such nephews and nieces as were then under her supervision and care. It is, we think, the clear expectation of the testator, that Catharine will keep an establishment in New-Haven, with such a family or inmates as will be agreeable to her to maintain; for she is to have the annuity of 2,000 dollars for that purpose alone; and no persons are to share in the annuity but through her pleasure and invitation—such as she may invite to dwell in the family with her—“members of her family,” is the expression used.
The annuity, let it be remembered, is given to her, for her life, to be paid to her; and she alone can receive it and execute a legal discharge for it. Had the testator intended to create a trust for nephews and nieces, and strangers, (for they too may become inmates,) he would have made it similar to the other trusts of the will, and would have empowered his confidential trustees, Townsend and Pardee, to execute it; as they do the other trusts of the will.
Looking through the whole will, it would seem manifestly a harsh and strained construction of the 14th article, to say, that the testator intended, by this provision, for his niece [269]*269Mrs. Phelps, to make her the sub-trustee of the general trustees; and especially, as the trust terminates with her life, and the four nephews and nieces, claimed to have some special rights in this annuity, may survive their aunt, and be in dependent and necessitous circumstances. If the nephews and nieces were intended, by the will, to be the beneficiaries of the testator’s bounty, rather than that of Mrs. Phelps, it is strange, that the will, so carefully drawn, does not say so, explicitly. This would have been most natural. And why give her such discretionary power over a fund, which belongs absolutely, in part, to other persons? Why too, make the legacy dependent on her life, rather than on the lives of the beneficiaries themselves? No reason can be perceived why the testator is supposed to single out these children of his brother Benjamin to be the special objects of his favour and bounty; the nephews had never lived in his family; nor had they ever been under the care of his niece Catharine; nor does it appear, they were specially near to him. True, they had occasionally received aid, from his generosity, to defray the expenses of their schooling and support, as undoubtedly did other nephews and nieces. In his will, he manifestly ranks these nephews and nieces with the rest of his relatives in equal degree; and he gives each 5,000 dollars, and the annuity, in addition, to Mrs. Phelps. This annuity is given to her, over and above all else, in order to enable her to make them, and other relatives and strangers, if she pleased, objects of her favour, in her own family. Surely, the testator does not intend to make her his almoner, when he provides that her generosity, her election, her pleasure, shall denote the beneficiaries of this provision.
The language of the testator, whatever else may be said of it, imposes no legal obligation on Mrs. Phelps in the use or distribution of the annuity. He expresses perhaps the motive or cause of the gift; but he does not put a condition upon it, and place her under a legal responsibility to others. The disposition of the annuity belongs to that class of cases where it is the intention of the testator to leave the whole subject of disposition, as a pure matter of discretion, to the judgment and pleasure of the party enjoying his special confidence; and where his expressions of desire are intended as mere moral suggestions to excite and aid that discretion, but [270]*270not absolutely to controul and govern it, or in the language of Ch. J. Church, in Gilbert v. Chapin, 19 Conn. R. 348. “No trust will be raised, by expressions in a will importing recommendation, hope, confidence, desire, &c., &c., unless there be certainty as to the parties who are to take; nor if a discretion whether to act or not, be left with a devisee, or so called trustee.” It is a principle of equity, well established by numerous cases, that to raise a trust, it must be ascertained what proportion each beneficiary is to take. Bardswell v. Bardswell, 9 Sim. 320. Pope v. Pope, 10 Sim. 1. Curtis v. Rippon, 1 Madd. R. 434. Knight v. Knight, 3 Beavan, 148. 1 Jarm. on Wills, 338. Now, who will assert, that in this article in Mr. St. John’s will, the beneficiaries, or their proportions, except Mrs. Phelps, are definitely ascertained and fixed; or that any practicable rule for ascertaining either, is given? She may invite into the family whom she pleases, relatives or strangers; but this election is too indefinite as a rule of property, and as such, must therefore, be held void and inoperative. Besides, the two nieces Mary Jane and Lucinda Amelia, “now under her care,” though alluded to, in the manner of her enjoying the legacy, as possibly to be members of her family, the nephews, William A. and George S., are not so alluded to; nor were they ever subjects of her care, nor nearer to her than the other nephews and nieces of herself, or of the testator. Wherever the objects of the supposed recommendatory trust are not certain or definite; or wherever the property to which it is to be attached, is not certain or definite; or wherever a clear discretion and Choice to act, or not to act, is given; or wherever the prior dispositions import absolute and uncontroulable ownership; in all such cases, courts of equity will not create a trust from words of this character. 2 Sto. Eq. § 1069. 1070. 3 Beavan, 148. Gilbert v. Chapin, 19 Conn. R. 342. and cases there cited.
The plaintiffs then fail to make out a case for distributing this annuity fund. They present no certain rule for settling the distribution, or the supposed share belonging to Mrs. Harper. They talk of one-fifth as a rule, it is true; but for what reason we cannot apprehend. Before we can feel it to be our duty to adopt that principle of distribution, we should unhesitatingly pronounce this bequest to be utterly void for [271]*271uncertainty and indefiniteness. We have already alluded to another difficulty, which appears to us insurmountable by the plaintiff, unless we are prepared to discard the intention of Mr. St. John in his bounty towards Mrs. Phelps. The annuity is to be paid to Mrs. Phelps, primarily to support her family. A furnished house is provided for her; and the annuity is to enable her to live in it, in a style, as we think, corresponding with the rank and habits of life, in which she had lived, in her uncle’s family. Surely, he did not mean, that as soon as he was dead, she should be forced to earn a livelihood, by taking boarders in her elegant and “furnished" house, or to live upon a scanty allowance inadequate to the maintenance of the establishment committed to her care. Is it possible, that Mrs. Phelps, after this generous provision for a respectable family establishment, is to be deprived of this provision, and to pay over four-fifths of the annuity to four nephews and nieces, leaving for herself only 400 dollars, to fulfill the wishes of the testator? And to do this too, irrespective of their places of residence, or their necessities and circumstances in life; or is she to be compelled to receive them into her family, whatever may be her own situation, even though they become ever so unworthy of her care, and utterly indifferent to her comfort and happiness?
And further, if this annuity is to be considered a trust, why is it not, as we have already hinted, put into the hands of the selected trustees, Townsend and Pardee, for the beneficiaries of the testator, and not paid over by them to a sub-trustee for the same identical purpose, imposing an onerous burden upon an inexperienced and delicate female, who too might contract new relations in life, inconsistent with the trust, and, as it might be, take up her residence abroad, in this or any foreign country? And further, we have already said, that the legacy is made to fall with her life, even though she may die immediately after the testator. A strange provision this for nephews and nieces!
Our conclusion is, that the superior court be advised, that the plaintiffs’ bill be dismissed, with costs.
In this opinion the other Judges concurred.
Bill dismissed.
To avoid unnecessary prolixity, the twelfth article, here referred to, and some other portions of the will, occasionally alluded to, have been omitted, in the statement of the case.