The opinion of the Court was delivered by
Moses, C. J.
However far the earlier decisions may have gone in construing as a trust the mere expression of a wish, entreaty or confidence, attached to a devise or legacy, the inclination of the Courts in more modern times, as Mr. Story, in the second volume of his Equity Jurisprudence, § 1069, says, “is not to extend this doctrine of recommendatory trusts.” Mr. Jarman, in his work on Wills, Vol. 1, 329, expresses himself to the like effect.
Though the language used may convey the wish or desire of the testator, as to the use of the property devised, if it does not impose an obligation which can be enforced in a Court of Equity, it cannot be held to control or qualify the absolute interest which is con[460]*460ferred by the previous disposition. Where an absolute right is given, words which are to annex a limitation to its free and uncontrollable exercise must not only be mandatory, but, in themselves, show the manner in which they are to operate, so that the purpose of the testator may clearly appear — how or in what degree he- intended to affect the original gift by restrictions entirely inconsistent with its independent enjoyment.
A mere general expression of affection and favor, even in regard to the children of a testator, has never been held, where, by his will, the estate in unrestricted terms was given to the wife, to convert it into a life interest, unless such disposing intention in their favor is manifest from the words employed. If there is nothing to control the use of the property in the hands of the first taker, and he may appropriate it exclusively to his own purposes, there will be wanting that certainty which is necessary to give effect to the recommendation as a trust.
It is not urged that the will under which the appellant claims uses any mandatory words in any way limiting the absolute right of the widow to the real estate devised. It is contended, however, that the precatory expression by the testator of confidence in her judicious use of it, for the benefit of herself and children, creates such a trust as must entirely destroy the exclusive interest, which, without these superadded words, she would take in the property. It will be observed that there is no direct gift to the children, on whose behalf the trust is sought to be established by the respondent, to shield him from the relief claimed by the complaint, nor are there any words interposed directory to the wife, either as to the mode of her use of it, or at all indicating how or to what extent the children should have its enjoyment. Indeed, such appears to have been his confidence in her affection and judgment, that, though having his children at the time in his mind, instead of conferring on them any express or definite interest in his estate, he prefers to give her the unrestricted power over his whole property, in the confident belief that it would thereby be the more advantageously used for their benefit.
Is this confidence, thus reposed in his wife, which was the declared inducement to the disposition in her favor, to be controlled, unless a clear trust, which would be inconsistent with the right so plainly first conferred upon her, is shown to have been intended by thesuperadded words? He has, in the most solemn instrument a man [461]*461can execute, testified to the confidence which he had. in her, and no authority has been produced to the Court which could justify it in annexing terras or qualifications which would declare that he did not intend what he said. The manner in which she might use the property was to be in entire accord with her judgment. There is no control as to the mode in which she should employ it. Its use was to be subject to her own determination. For aught that appears, she could not better exercise the discretion with which she is invested than by a sale of these very premises. Their conversion into money may be the most judicious use which she can make of them, and may fully justify the confidence which her husband had in her when'he constituted her his sole devisee and legatee.
We are not disposed to extend the rule which the Courts have adopted in regard to the force and effect of devises created by mere words of recommendation. More especially should it be narrowed to the limits prescribed by the authority of decided cases, where there is no mode of ascertaining, as is the one before us, to what extent the trust is to operate. The vagueness in the direction as to the proportions which the supposed beneficiaries shall enjoy, where the benefit may be claimed by more than one, and the want oí description of the manner in which the trust is to be executed, may well be urged against its existence. As observed by Mr. Lewin, in his treatise on Trusts and Trustees, 169, “ the difficulty that would attend the execution of such imperfect trusts is converted by the Court into an argument that no trust was really intended. Nor will the devise be construed into a trust if it appears, from the context, that the first taker was to have a discretionary power to withdraw any part of the subject, from the object of the wish or request.”—Knight vs. Knight, 3 Beav., 174.
The words of the will here are not as strong in favor of the children as those in Pope vs. Pope, 10 Sim., 1, where the testator, after “ trusting that his wife will, from the love she bears him and their dear children, so husband and take care of what property there may be, for their good, and, should she marry again, then she may convey to trustees, in the most secure manner possible, what property she may7 then possess, for the benefit of the children, as they may severally need or deserve, taking justice and affection for her guide.” It was held that no trust was created in favor of the children, and so we are bound to hold here.
There is no branch of equity jurisdiction in which the Court is [462]*462allowed the greater exercise of a sound and reasonable discretion, “ which governs itself, as far as it may be, by general rules and principles,” than that which relates to the specific performance of agreements. As was said by Lord Eldon, in Radcliffe vs. Warnington, 32 Ves., 331, “ the jurisdiction is not compulsory upon the Court, but the subject of discretion. The question is not what the Court must do, but what it may do, under the circumstances.”
“ Time is not generally deemed, in equity, to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows, from the nature and circumstances of the contract.”—Story’s Eq. Juris., § 776.
The aim of the Court is to ascertain the real intention of the parties, from an examination of all the circumstances attending the contract, and to give effect to such intention, when discovered. After an examination of all the cases brought before him on the argument of Upwell vs. Knight, 1 Y. and C. Excheq., 415, (note to § 776, Story Eq. Juris.,) Mr. Baron Alderson lays down what he regards the governing principle: “It is to examine the contract, not merely as a Court of law does, to ascertain what the parties have in terms expressed to be the contract, but what is, in truth, the real intentions of the parties, and to carry them into effect.” The effect of time, in regard to the specific performance of agreements, is considered and discussed in Thompson vs. Dulles, 5 Rich.
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The opinion of the Court was delivered by
Moses, C. J.
However far the earlier decisions may have gone in construing as a trust the mere expression of a wish, entreaty or confidence, attached to a devise or legacy, the inclination of the Courts in more modern times, as Mr. Story, in the second volume of his Equity Jurisprudence, § 1069, says, “is not to extend this doctrine of recommendatory trusts.” Mr. Jarman, in his work on Wills, Vol. 1, 329, expresses himself to the like effect.
Though the language used may convey the wish or desire of the testator, as to the use of the property devised, if it does not impose an obligation which can be enforced in a Court of Equity, it cannot be held to control or qualify the absolute interest which is con[460]*460ferred by the previous disposition. Where an absolute right is given, words which are to annex a limitation to its free and uncontrollable exercise must not only be mandatory, but, in themselves, show the manner in which they are to operate, so that the purpose of the testator may clearly appear — how or in what degree he- intended to affect the original gift by restrictions entirely inconsistent with its independent enjoyment.
A mere general expression of affection and favor, even in regard to the children of a testator, has never been held, where, by his will, the estate in unrestricted terms was given to the wife, to convert it into a life interest, unless such disposing intention in their favor is manifest from the words employed. If there is nothing to control the use of the property in the hands of the first taker, and he may appropriate it exclusively to his own purposes, there will be wanting that certainty which is necessary to give effect to the recommendation as a trust.
It is not urged that the will under which the appellant claims uses any mandatory words in any way limiting the absolute right of the widow to the real estate devised. It is contended, however, that the precatory expression by the testator of confidence in her judicious use of it, for the benefit of herself and children, creates such a trust as must entirely destroy the exclusive interest, which, without these superadded words, she would take in the property. It will be observed that there is no direct gift to the children, on whose behalf the trust is sought to be established by the respondent, to shield him from the relief claimed by the complaint, nor are there any words interposed directory to the wife, either as to the mode of her use of it, or at all indicating how or to what extent the children should have its enjoyment. Indeed, such appears to have been his confidence in her affection and judgment, that, though having his children at the time in his mind, instead of conferring on them any express or definite interest in his estate, he prefers to give her the unrestricted power over his whole property, in the confident belief that it would thereby be the more advantageously used for their benefit.
Is this confidence, thus reposed in his wife, which was the declared inducement to the disposition in her favor, to be controlled, unless a clear trust, which would be inconsistent with the right so plainly first conferred upon her, is shown to have been intended by thesuperadded words? He has, in the most solemn instrument a man [461]*461can execute, testified to the confidence which he had. in her, and no authority has been produced to the Court which could justify it in annexing terras or qualifications which would declare that he did not intend what he said. The manner in which she might use the property was to be in entire accord with her judgment. There is no control as to the mode in which she should employ it. Its use was to be subject to her own determination. For aught that appears, she could not better exercise the discretion with which she is invested than by a sale of these very premises. Their conversion into money may be the most judicious use which she can make of them, and may fully justify the confidence which her husband had in her when'he constituted her his sole devisee and legatee.
We are not disposed to extend the rule which the Courts have adopted in regard to the force and effect of devises created by mere words of recommendation. More especially should it be narrowed to the limits prescribed by the authority of decided cases, where there is no mode of ascertaining, as is the one before us, to what extent the trust is to operate. The vagueness in the direction as to the proportions which the supposed beneficiaries shall enjoy, where the benefit may be claimed by more than one, and the want oí description of the manner in which the trust is to be executed, may well be urged against its existence. As observed by Mr. Lewin, in his treatise on Trusts and Trustees, 169, “ the difficulty that would attend the execution of such imperfect trusts is converted by the Court into an argument that no trust was really intended. Nor will the devise be construed into a trust if it appears, from the context, that the first taker was to have a discretionary power to withdraw any part of the subject, from the object of the wish or request.”—Knight vs. Knight, 3 Beav., 174.
The words of the will here are not as strong in favor of the children as those in Pope vs. Pope, 10 Sim., 1, where the testator, after “ trusting that his wife will, from the love she bears him and their dear children, so husband and take care of what property there may be, for their good, and, should she marry again, then she may convey to trustees, in the most secure manner possible, what property she may7 then possess, for the benefit of the children, as they may severally need or deserve, taking justice and affection for her guide.” It was held that no trust was created in favor of the children, and so we are bound to hold here.
There is no branch of equity jurisdiction in which the Court is [462]*462allowed the greater exercise of a sound and reasonable discretion, “ which governs itself, as far as it may be, by general rules and principles,” than that which relates to the specific performance of agreements. As was said by Lord Eldon, in Radcliffe vs. Warnington, 32 Ves., 331, “ the jurisdiction is not compulsory upon the Court, but the subject of discretion. The question is not what the Court must do, but what it may do, under the circumstances.”
“ Time is not generally deemed, in equity, to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows, from the nature and circumstances of the contract.”—Story’s Eq. Juris., § 776.
The aim of the Court is to ascertain the real intention of the parties, from an examination of all the circumstances attending the contract, and to give effect to such intention, when discovered. After an examination of all the cases brought before him on the argument of Upwell vs. Knight, 1 Y. and C. Excheq., 415, (note to § 776, Story Eq. Juris.,) Mr. Baron Alderson lays down what he regards the governing principle: “It is to examine the contract, not merely as a Court of law does, to ascertain what the parties have in terms expressed to be the contract, but what is, in truth, the real intentions of the parties, and to carry them into effect.” The effect of time, in regard to the specific performance of agreements, is considered and discussed in Thompson vs. Dulles, 5 Rich. Eq., 370, where, although a space of eighteen months had elapsed between the contract for the sale and institution of proceedings, and the title was not perfected until nearly two years thereafter, it was held that the delay on the part of the plaintiff did not amount to such laches as deprived him of his right to a specific performance.
The agreement in the case before us was made on 1st March, 1873 — one-third of the purchase money, to wit, two thousand dollars, was to be paid in cash, the balance in one and two years, interest from date — the terms to be complied with “ whenever clear and unencumbered titles are given.” The only incumbrance on the property was a mortgage, on which, as appears by the decree, was due a balance of $3,000, with interest from March, 1873. It is unnecessary to recite the correspondence which followed the tender of title, on 29th April, 1873, by the plaintiff, to the attorney of the defendant, with the offer to satisfy the mortgage, and apply to it the cash portion to be paid by the vendee. It is enough to say that the offer to make the application, as proposed, was a reasonable one, [463]*463often adopted, under the like circumstances, by both parties, when they are really desirous of executing their contract according to its true intent. On 30th April following the respondent, by his attorney, replies “that a clear and unencumbered title not having been tendered, the purchase is declined.” The instantaneous rejection of the purchase evinces an anxiety on the part of the respondent to free himself from a contract, which he may have repented, by eagerly availing himself of what he may have considered an opportunity of avoiding it. But this was not all. On the 17th May succeeding the appellant, in writing, informed the respondent “ that she proposed to extinguish the mortgage, if he would then accept her conveyance and settle for the purchase.” Two days after a reply was received, to the effect that, when the title was reported to him as not good, he requested her agent (with whom he treated for the purchase) to cancel the agreement, as he desired to use his funds and look for other investments, which he had found.
On 31st January, 1874, an order was made, referring the case to a Referee, to take the testimony, the respondent’s counsel refusing to consent to an order for a reference on the title. To this either party was entitled at any time before a hearing, and, under some circumstances, after the hearing and before decree. The refusal, on the part of the Judge, to entertain the motion for such a reference was clearly erroneous. After the hearing, and before decree, the appellant moved the Court, if it should be of opinion that all that she had already done was not a sufficient compliance with her agreement of sale, that leave be granted her to pay into Court a sum sufficient to meet the full amount due on the mortgage — the application to its satisfaction to be made by the Clerk. This was resisted and refused.
While every attempt was made to remove the objection interposed by the respondent, he has not shown how, or in what way, the delay in perfecting the title has enured to his prejudice, or why he at first declined the offer of the cash payment to the discharge of the mortgage.
It is clear, beyond doubt, that if the party, though not able to make a good title at the time of bringing his bill, is in a condition to do it before the decree, he should be so permitted.—Story’s Eq. Juris., § 77; Morlback vs. Butler, 10 Ves., 314; Langford vs. Pitt, 2 P. Wms., 630.
In 2 Daniels Ch. Pr., 634,it is said: “And, even after the report, [464]*464if the vendor can satisfy the Court that he can make a good title, by clearing up the objection reported by the Master, the Court will make a decree in his favor.” There are cases, too, to show that if the vendor, at the hearing, seems to be in a condition to remove the obstacle in the way of his making a perfect title; and it so appears to the Court, he may have a decree, to take effect upon such removal.—Langford vs. Pitt, 2 P. Wms., 630; Merchants’ Bank vs. Thompson et al., 55 N. Y. R., 7.
Ch. Walworth, in Bates vs. Lyons, 7 Paige, 85, says: “It is not a matter of course, however, to dismiss a bill for spécific performance merely because the title was not perfect at the commencement of the suit, although that may be a sufficient reason for giving costs to the defendant if he has not made any unreasonable objection to the title.”
Much of the litigation in this case might probably have been saved if the usual and proper course of a reference on the title had been followed. The appellant might then have been allowed, before the report, to satisfy the mortgage, and thus clear her title of the only incumbrance which rested upon it. Censequences, involving delay, costs and other expenses, are apt to follow where the usual routine of practice is disregarded.
The objection that there may be creditors of the testator who may subject the said premises to the satisfaction of their demands, cannot prevail. If there are debts which can effect them, after what has been shown by the appellant to the contrary, the onus is on the respondent to disprove her averment. The testator died on 10th February, 1871.. The Referee reports that she advertised, according to law, for creditors holding demands against the testator, to present attested statements thereof; that none were proved within the time prescribed by law, or subsequently; that the tender of title, on 29th April, 1873, was accompanied by her affidavit; that she was sure there were no creditors, save those who had released to the respondent all the claims which they might, in any event, have against the said property, and the creditor holding’ the mortgage, which was, in fact, the only incumbrance on it. Under the circumstances thus disclosed, can the respondent, with any reason, urge this further objection to the execution of his contract ?
The motion to reverse the judgment below is granted.
It is ordered that the case be remanded to the Circuit Court, and [465]*465on its appearing to its satisfaction that the mortgage lien has been removed, the respondent be required specifically to perform his agreement. As the time fixed for the payment of the first instalment has expired, and it appearing that since complaint and answer filed some arrangement has been made in regard to rent and taxes, to continue pending the action, an order may be required to further the purpose proposed through it by the parties. Such order may also be applied for to the Circuit Court, and any other necessary to give effect to the judgment of the Court herein pronounced.
Wright, A. J., and Willard, A. J., concurred.