Hess v. Singler

114 Mass. 56

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1873
• Status: Published

Opinion

Gray, C. J.

It is a settled doctrine of courts of chancery that a devise or bequest to one person, accompanied by words expressing a wish, entreaty or recommendation that he will apply it to the benefit of others, may be held to create a trust, if the subject and the objects are sufficiently certain. Some of the earlier English decisions had a tendency to give to this doctrine the weight of an arbitrary rule of construction. But by the later cases, in this, as in all other questions of the interpretation of wills, the intention of the testator, as gathered from the whole will, controls the court; in order to create a trust, it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence. Warner v. Bates, 98 Mass. 274, 277. Spooner v. Lovejoy, 108 Mass. 529. Pennock's Estate, 20 Penn. St. 268, Van Duyne v. Van Duyne, 1 McCarter, 397. Knight v. Knight, 3 Beav. 148, 172; S. C. nom. Knight v. Boughton, 11 Cl. & Fin. 513. Lambe v. Eames, L. R. 10 Eq. 267; S. C. L. R. 6 Ch. 597. 1 Spence Eq. Jur. 439, 499. 2 Spence Eq. Jur. 64-70.

In the case at bar, the testator devises and bequeaths the residue of his estate to his son, “ to have and to hold the same to him, his heirs and assigns forever, to his and their own use, but subject however to the following charges : ” These charges are, 1st, the payment of specified sums yearly to the testator’s wife and sister for their respective lives, unless discharged, by the purchase of annuities in their favor by the executors (of whom the son is one) under the authority given them by the will; 2d, the further payment, which the testator expressly “ directs ” the executors to make, of all the wife’s expenses in case of sickness, in lieu of her right to dower or thirds in his estate. Subject to these charges during the lives of the testator’s wife and sister, the son is given, by the fullest, clearest and most formal words, an absolute estate in fee.

By the further clause of the will, the testator merely signifies to his son his “ desire and hope that he will so provide, by will or otherwise, that in case he shall die leaving no lawful issue living, the property which he will take under this will shall go in equal shares ” to certain nephews, nieces and cousins of the testator, This clause, if construed as creating a trust, leaves nothing to the discretion of the son, but amounts to an executory devise over, in case of his death leaving no issue, to the persons named, in definite amounts. To give it that construction would be inconsistent with the principal intention of the testator, as previously manifested, to give the son an absolute title, as well as with the description of the estate in this very clause as “ the property which he will take under this will.”

It follows that the son had full power to dispose of the estate by will, unfettered by the supposed trust, and that there must be a

Decree for the son’s devisees.