— Lumpkin J.
By the Court.
delivering the opinion.
It will be conceded that the words used in this will, are sufficient to vest the legal title to the property in William Fraley. And the question is whether, from the whole will, we are bound to infer it was not the intention of the testator to give it to him absolutely, but on the contrary, that a trust was intended. If so, William Fraley, the legatee, will be excluded from taking any beneficial interest under the will.
I have neither the time nor the inclination to review the library of volumes read on the argument. The numerous decisions upon this question, have been thoroughly examined by the able and distinguished counsel who have argued the ease. And the conclusion to be drawn from this thorough review is, that so infinitely various are the forms of expression used by testators, that all that remains for the Courts to do, is to determine, upon the terms employed in each particular case, whether an absolute gift was intended, or was the legal title placed in the hands of the legatee, to enable him to carry out some fiduciary appointment respecting the property ?
Where the testator declares expressly that he gives the property upon trust, and yet declares no trust, it is admitted there is no doubt or difficulty. It has long been established that, in such a case, the next of kin will take. And yet it must be conceded, that a fiduciary intent may be equally indicated by other expressions. And can it, we ask emphatically, make any difference when equivalent words are used ? No particular words, we know, are necessary to create a trust. This is one of the elementary rules, under the head of Trusts. The books make no such distinction. It would be too unreasonable ever to find favor or foothold in the Courts.
If Briggs against Penny (S Engl. L. & E. R. 231) be law, it settles this case conclusively for the plaintiffs in error-This is not disputed. There, the testatrix, Frances Harley, after giving to the legatee, Sarah Penny, certain pecuniary [558]*558legacies, and making other bequests, gave all the rest, residue and remainder of her personal estate to Sarah Penny, her executors, administrators, and assigns, “well knowing that she would make a good use and dispose of it in a manner in accordance with her views and wishes.” She nominated Sarah Penny her sole executrix, and declared, “that alone to be her last will and testament.” The testatrix never formally declared her “views and wishes.” Various papers were found in her handwriting, expressive of her “ views and wishes;” and containing directions for Miss Penny, with regard to her property. But those papers were some of them void under the Mortmain Act, and none of them were admitted to probate.
It was held by the Vice-Chancellor, upon the construction of this will, that Miss Penny did not take the residue beneficially, but that it was a resulting trust in favor of the next of kin. And this decree was affirmed by the Chancellor, upon the appeal. It needs only to read the two wills to see how much stronger the case under consideration is than this.
But it is insisted that this case is contrary both to principle and precedent; and therefore, is not law. The learned and eminent counself have failed, we think, in making good this assumption. It is in conflict with neither, but in accordance with both, when properly understood and applied. Morice vs. the Bishop of Durham (10 Ves. Ch. Rep. 522,) is admitted on all sides to lay down the true doctrine upon this subject. Let us test then this case by that.
Lord Eldon there distinctly held, that “if the testator meant to create a trust, and not to make an absolute gift, but the trust is ineffectually created — is not expressed at all — or fails, the next of kin take.” And “ on the other hand, if the party is to take himself, it must be upon this ground, according t@ the authorities, that the testator did not intend to create a trust, but intended a gift to that person for his own use and benefit.” To this sound and sensible rule the Court ad[559]*559hered in Briggs and Penny, and by it we will abide in the case before ns.
It is true that Lord Eldon did say that “it might perhaps originally have been as well to have held, that if the testator did not declare any. trust, the person to whom the property wag given should take it.” Thus yielding implicitly, that the law was otherwise. And this great Judge will find few, we apprehend, to concur with him in the opinion, that where property is placed in the hands of another, for a particular purpose or person, that if the desire and design of the testator fails of accomplishment, for any cause, that the mere naked trustee or depository should, therefore, take and hold it for his own use and benefit, to the exclusion of the next of kin. Such a proposition is abhorrent to every one’s sense of justic?.
Where the language of the will is vague and indefinite as to the objects of the trust, this fact is legitimately used as an argument, to show, that no trust was intended to be created. This is relied on in Morice vs. The Bishop of Durham. And not denied in Briggs vs. Penny. But if the words in the latter, “ well knowing that she will make a good use and dispose of it in a manner in accordance with my views and wishes,” were deemed sufficient to impose a trust in Briggs vs. Penny, a multo fortiori do the terms of Mr. Ingram’s will necessarily import a trust.
“Having the utmost confidence in my long tried friend William Fraley, and that he will entirely carry out my wishes and desires, as they may be expressed to him, verbally or in writing, and knowing that my said friend will by this will be enabled, much more effectually to dispose of my estate as / wish it done than I could at this time do myself, and with much less trouble vto himself, 1 hereby give,” &c.
Cau any one read or hear read this will, and contend, that it was the intention of the testator, to give his property to the legatee absolutely and for his own use and benefit. To arrive at such a conclusion, it must be by some arbitrary and [560]*560technical rule of construction not patent to the common understanding. We know of none such ; nor do the adjudications furnish any.
This whole will is embraced in a single sentence. And it has been urged with much plausibility, and even force, that the recitation in the preface is nothing more than the reasons assigned by the testator, for making the bequest which follows. However specious this reasoning, we are not satisfied of its soundness. Either the testator had previously made known to Mr. Fraley his “ wishes and desires,” as to the disposition he intended him to make of his property, or he designed to do so, "verbally or in writing.” Otherwise he could not say that he had entire confidence in his integrity, that he would carry them out fully. And what possible difference can there be between such a case, and that of a testator who gives all his estate to one upon trust, but never declares the trust? None that we can see.
And suppose the objects of the trust in this case were certain, and the plan of disposition also, would any Court hold, that the words of this will were not imperative, and its execution could not be enforced ? Surely not.
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— Lumpkin J.
By the Court.
delivering the opinion.
It will be conceded that the words used in this will, are sufficient to vest the legal title to the property in William Fraley. And the question is whether, from the whole will, we are bound to infer it was not the intention of the testator to give it to him absolutely, but on the contrary, that a trust was intended. If so, William Fraley, the legatee, will be excluded from taking any beneficial interest under the will.
I have neither the time nor the inclination to review the library of volumes read on the argument. The numerous decisions upon this question, have been thoroughly examined by the able and distinguished counsel who have argued the ease. And the conclusion to be drawn from this thorough review is, that so infinitely various are the forms of expression used by testators, that all that remains for the Courts to do, is to determine, upon the terms employed in each particular case, whether an absolute gift was intended, or was the legal title placed in the hands of the legatee, to enable him to carry out some fiduciary appointment respecting the property ?
Where the testator declares expressly that he gives the property upon trust, and yet declares no trust, it is admitted there is no doubt or difficulty. It has long been established that, in such a case, the next of kin will take. And yet it must be conceded, that a fiduciary intent may be equally indicated by other expressions. And can it, we ask emphatically, make any difference when equivalent words are used ? No particular words, we know, are necessary to create a trust. This is one of the elementary rules, under the head of Trusts. The books make no such distinction. It would be too unreasonable ever to find favor or foothold in the Courts.
If Briggs against Penny (S Engl. L. & E. R. 231) be law, it settles this case conclusively for the plaintiffs in error-This is not disputed. There, the testatrix, Frances Harley, after giving to the legatee, Sarah Penny, certain pecuniary [558]*558legacies, and making other bequests, gave all the rest, residue and remainder of her personal estate to Sarah Penny, her executors, administrators, and assigns, “well knowing that she would make a good use and dispose of it in a manner in accordance with her views and wishes.” She nominated Sarah Penny her sole executrix, and declared, “that alone to be her last will and testament.” The testatrix never formally declared her “views and wishes.” Various papers were found in her handwriting, expressive of her “ views and wishes;” and containing directions for Miss Penny, with regard to her property. But those papers were some of them void under the Mortmain Act, and none of them were admitted to probate.
It was held by the Vice-Chancellor, upon the construction of this will, that Miss Penny did not take the residue beneficially, but that it was a resulting trust in favor of the next of kin. And this decree was affirmed by the Chancellor, upon the appeal. It needs only to read the two wills to see how much stronger the case under consideration is than this.
But it is insisted that this case is contrary both to principle and precedent; and therefore, is not law. The learned and eminent counself have failed, we think, in making good this assumption. It is in conflict with neither, but in accordance with both, when properly understood and applied. Morice vs. the Bishop of Durham (10 Ves. Ch. Rep. 522,) is admitted on all sides to lay down the true doctrine upon this subject. Let us test then this case by that.
Lord Eldon there distinctly held, that “if the testator meant to create a trust, and not to make an absolute gift, but the trust is ineffectually created — is not expressed at all — or fails, the next of kin take.” And “ on the other hand, if the party is to take himself, it must be upon this ground, according t@ the authorities, that the testator did not intend to create a trust, but intended a gift to that person for his own use and benefit.” To this sound and sensible rule the Court ad[559]*559hered in Briggs and Penny, and by it we will abide in the case before ns.
It is true that Lord Eldon did say that “it might perhaps originally have been as well to have held, that if the testator did not declare any. trust, the person to whom the property wag given should take it.” Thus yielding implicitly, that the law was otherwise. And this great Judge will find few, we apprehend, to concur with him in the opinion, that where property is placed in the hands of another, for a particular purpose or person, that if the desire and design of the testator fails of accomplishment, for any cause, that the mere naked trustee or depository should, therefore, take and hold it for his own use and benefit, to the exclusion of the next of kin. Such a proposition is abhorrent to every one’s sense of justic?.
Where the language of the will is vague and indefinite as to the objects of the trust, this fact is legitimately used as an argument, to show, that no trust was intended to be created. This is relied on in Morice vs. The Bishop of Durham. And not denied in Briggs vs. Penny. But if the words in the latter, “ well knowing that she will make a good use and dispose of it in a manner in accordance with my views and wishes,” were deemed sufficient to impose a trust in Briggs vs. Penny, a multo fortiori do the terms of Mr. Ingram’s will necessarily import a trust.
“Having the utmost confidence in my long tried friend William Fraley, and that he will entirely carry out my wishes and desires, as they may be expressed to him, verbally or in writing, and knowing that my said friend will by this will be enabled, much more effectually to dispose of my estate as / wish it done than I could at this time do myself, and with much less trouble vto himself, 1 hereby give,” &c.
Cau any one read or hear read this will, and contend, that it was the intention of the testator, to give his property to the legatee absolutely and for his own use and benefit. To arrive at such a conclusion, it must be by some arbitrary and [560]*560technical rule of construction not patent to the common understanding. We know of none such ; nor do the adjudications furnish any.
This whole will is embraced in a single sentence. And it has been urged with much plausibility, and even force, that the recitation in the preface is nothing more than the reasons assigned by the testator, for making the bequest which follows. However specious this reasoning, we are not satisfied of its soundness. Either the testator had previously made known to Mr. Fraley his “ wishes and desires,” as to the disposition he intended him to make of his property, or he designed to do so, "verbally or in writing.” Otherwise he could not say that he had entire confidence in his integrity, that he would carry them out fully. And what possible difference can there be between such a case, and that of a testator who gives all his estate to one upon trust, but never declares the trust? None that we can see.
And suppose the objects of the trust in this case were certain, and the plan of disposition also, would any Court hold, that the words of this will were not imperative, and its execution could not be enforced ? Surely not. Chancery would decree, it has done often, upon words much less mandatory, that there was no discretion left to the legatee, but an obligation imposed upon his conscience by the will, not inclining him merely, but compelling him to execute the testator’s purpose. Such, at any rate, is our interpretation of the will.
It has been ingeniously suggested that while the terms of this will might be sufficient to create a trust in an English will, still that consequence would not necessarily follow here. That there, the wish or desire of the testator was naturally supposed to be founded on and growing out of his affection for the object of his bounty, his legatee. He gave his land or his stock or his money, to his relative, his friend, or to charity; not for the love or regard he had for the thing given, but for the person to whom given; or the purpose for which he gave. But that this is not necessarily so in Geor[561]*561gia. That it is not an uncommon thing for our people to cherish a strong affection for their negroes. Fidelity, association, mutual struggles and benefits, and many other causes, often produce warm attachments between master and slave, which must enter into the solicitude of the owner in determining and directing how his property shall be disposed of after his death. True, our laws prohibit manumission; but they do not forbid the master to permit his slave to select his future owner, and to express the desire, that husband and wife, parent and child, friends and relations, shall not be separated, but kept together as long as it can be done.
Grant all this. Counsel seem to have overlooked the fact, that a trust may have been contemplated for the benefit of the slaves themselves; and prompted by the very causes which he suggests. Nothing is more common in the slave States. Still if the testator failed to declare it, are not the next of kin equally entitled ? We do not see, that this supposition helps the construction contended for, in behalf of the defendants in error.
And then, if we look to surrounding circu distances, as disclosed by the outside evidence, the case is plain. The parol proof was offered by Wm, Fraley, and rejected by the Court. That decision is excepted to; but the opposite counsel agree that it shall be considered by this Court without objection, and what does it establish ? That the testator uniformly declared, that none of his slaves, should go to Alabama, or to the Ingrams, if you please, his brother’s children, but that he intended to give them to his sister’s children, the young Fraleys, but not to their father,the legatee.
I would remark in passing, that had he declared expressly, that the complainants in the bill, his heirs at law, should never inherit any portion of his estate, still they would take, unless it had been disposed of otherwise. (Wright vs. Hicks, 13 Ga. Rep. 155.) And we submit in all candor, if owing to the peculiar situation of the testator’s property, and the par[562]*562amount wish and desire of his heart was, to keep his negroes together as long as possible, is it not much more probable.' that he would have directed this to be done, until the youngest child of William Fraley became of age, and then to be divided between the offspring of his sister,.than to have given them to their father unconditionally, who was an aged man; añd at whose death, to say nothing of other contingencies, they would have been subject to a subdivision amongst his family ?
And yet if this was the purpose in the mind of the testator, and he failed to declare it, the complainants would come in for the two-sixths of their uncle’s estate, which they are seeking to recover; the four Fraley children taking the other four-sixths.
' Wishing to meet this case in the strongest light in which it has been presented to sustain the judgment, we have fore-borne to intimate several testamentary schemes which might have been in the testator’s mind, in the disposition of his estate. To say nothing of any emancipation project, what is there effectually to combat the idea, that he intended his slaves for his sister’s children, and to make up the portion of his nieces, out of his lands, notes and other effects ?
But being convinced from the face of the will, that some trust was intended, without pretending to know or even to guess what that trust was, no more than we could have done, had the testator simply declared that he gave his property to William Fraley, upon trust, and there stopped; we are clear that the legatee takes nothing beneficially under the will of LaFayette Ingram, and that the estate is subject to distribution between the next of kin of the deceased.
Judgment reversed.
Judge Stephens having been of counsel in this ease, prior to his promotion to the bench; did not preside.