Fish, P. J.
Can the widow and other heirs at law of the testator set aside his will, and by agreement settle his estate amPng themselves ? Undoubtedly they can, if they are the only parties who have any legal or equitable interest therein; So far it appears from the case before the court, they are the only parties at interest, unless the three plaintiffs in error, who are the only children and descendants of his sister, Mrs. Sarah M. R. Prince, have, under his will, an interest in his estate.- Whether they have-such an interest or .not depends upon the question whether the will creates a trust in their favor, for and during the life of Mrs. Jackson. That General Jackson devised and bequeathed his whole estate to his wife for life, in trust for certain specified purposes, we think is very clear. By the will a life-estate in the whole of his property is given to her, with the condition that she shall apply a- designated portion of the annual income arising therefrom to her own use, then so much of the remainder as may be necessary to the support of Mrs. Prince, then so much more of [818] it as to her [Mrs. Jackson] may seem proper to be allotted to the assistance of the children or grandchildren of Mrs. Prince, and the residue is then to be divided into three equal parts for distribution between his two living children and the children or descendants of his deceased child. The general rule is, that when a testator gives property to one person with or upon condition that such person shall give a designated portion of such property or its proceeds to another person, a non-compliance with the condition by the immediate devisee or legatee does not work a forfeiture of the estate created by the will. “ A grant or devise upon condition of making payment to third persons is usually equivalent to a grant or devise on a trust.” 3 Enc. Laws of Eng. 250, citing Theobald on Wills, 450, and Attorney-General v. Wax Chandlers, L. R. 6 H. L. 1. In Stanley v. Colt, 5 Wall. 119, it was held: “Whether words in a devise constitute common-law conditions annexed to an estate, a breach of which or any one of which will constitute a forfeiture, defeat the devise, and let in the heirs, or whether they are regulations for the management of the estate, and^ explanatory of the terms under which it was intended to have it managed, is a matter to be gathered, not from a particular expression in the devise, but from the whole instrument.” In delivering the opinion, Mr. Justice Nelson said: “ Mr. Sugden, speaking of conditions, observes, that what by the old law was deemed a devise upon condition, would now, perhaps, in almost every case, be construed a devise in fee upon trust, and, by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by a suit in equity.” (Citing Sugden on Powers, 123, 7th London ed.) In a leading English case a testatrix, after giving several legacies, some of which were legal and others void as being contrary to the mortmain act, proceeded as follows: “ I give, devise, and bequeath to T. M. W. all my real estates, both freehold and copyhold, and all the residue of my personal estate and effects, to hold to him the said T. M. W., his heirs, executors, administrators, and assigns for ever, upon this express condition, that if my personal estate should be insufficient for the purpose, he or they do and shall, within twelve months after my decease, pay and discharge all and every the legacies hereinbefore bequeathed.” She then expressed her confidence that he would comply with her wish, and made all her [819] real and personal estate chargeable with the payment of the legacies and bequests. She nominated and appointed two persons as executors and trustees of her will. The personal estate was insufficient for the payment of the legacies, and T. M. W. did not, within twelve months after the decease of the testatrix, pay any of them. It was held by the Court of Queen’s Bench, and affirmed by the Exchequer Chamber, that the words “ upon express condition ” did not create a condition for the breach of which the heir might enter, but created a trust which the defendant, taking the legal estate, would in equity be bound to perform. Cockburn, C. J., said: “We have the authority of Lord St. Leonards, the highest, perhaps, of the present day with regard to the law of real property, for saying that the tendency in modern times has been to depart from the strict interpretation adopted in earlier-periods of our law when these matters were considered only with reference to the common law; and that, where the language of the will and the intention of the testator admit of it, these devises ‘ upon condition ’ are to be considered as imposing a trust, and not as conditions which shall take the estate out of the devisee if he does not comply with them.” (Citing Sugd. on Powers, 7th ed. 122.) Crompton, J., said: “ I think the rule is well laid down by Lord St. Leonards, with regard to estates upon condition, ‘ that what by the old law was deemed a devise wpon condition would now, perhaps, in almost every case, be considered a devise in fee upon trust.’ And he adds, ‘By this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust, by a suit in equity.’ 1 Sugd. Pow. 122, 7th ed. And the passage is cited in 2 Jarman on Wills, note (c), 2nd ed., apparently without the slightest doubt as to its being good law.” And Blackburn, J., after quoting from Lord Coke, and stating that the reason assigned by him for the old rule was “.that otherwise the legatee would be remediless,” said: “ But since Lord Coke’s time that reason has ceased to exist. From the greatly extended jurisdiction of courts of equity, and the mode in which estates are administered in equity, — so far from its being for the advancement of the interests and the protection of the rights of the legatee, the person whose benefit is intended, that such words should be construed as a strict condition, at law, which is to be taken advantage of by the heir at law,— [820] it would be to his advantage to consider them as meaning that the devisee shall take the estate upon the terms that it shall be subject to the obligation that 'he will fulfill the condition; in other words, that he shall take the estate as trustee for that purpose.” Wright v. Wilkin, 2 Best & Smith, 232.
In the present case, that the testator intended that his wife, to whom he devised and bequeathed the life-estate, should take the property in trust, for the purposes and objects which he pointed out, seems to us evident from the provision which he made for the support of his sister, Mrs. Prince. Surely it can not be that he intended that the support which he provided for his sister should be dependent upon Mrs. Jackson’s accepting the provision which he made for her in the will. The fact that Mrs. Prince happened to die shortly before the testator did, whereby the provision for her support lapsed, can make no difference in the construction of his intentions at the time he executed the will. If the presence of the words with “ the condition ” would not have placed it in the power of Mrs. Jackson to defeat the testator’s intention as to the support of Mrs. Prince, if she had survived him, then these words can not have such, an effect as to the provision which he made for the children of Mrs. Prince, unless the language in which be expressed his intention as to them is such as to show that he intended no trust for their benefit, or his intention is expressed in terms so indefinite and uncertain as to render it impossible for a court of equity to lay hold of the trust and administer it. We think .that he intended a trust for their benefit, for the life-estate is given to Mrs. Jackson “ with the condition ” that “ she shall apply ” so much of the annual income remaining after she has provided for herself and Mrs. Prince as he directed, as to her may seem proper to be allotted to their assistance. This is equivalent to its being given to her with direction that she shall apply. He expresses his intention in language which is not, even in form, precatory, but imperative. He does not recommend, wish, or entreat her to assist the children of Mrs. Prince, nor express his confidence that she will, but he gives positive and emphatic direction that she shall do so, to the extent that to her may seem proper. The objects of his intended bounty are clearly pointed out. The only uncertainty is as to the amount of assistance which shall [821] be rendered them. This is left to the discretion of Mrs. Jackson, being so much more of the income remaining after she has taken her portion thereof and provided for the support of Mrs. Prince as to her may seem proper. It is clear that the testator intended that if the children, or grandchildren, of his sister should need assistance, during Mrs. Jackson’s life, they should receive it from the income of his estate remaining after the prior charges thereon had been. met. The amount of this assistance he left to' the discretion of his wife, but he gave her no power to wholly deny them assistance if they should need it; and it is not to. be supposed that the discretion as to the amount to be allotted to their assistance which he intended was to be other than an honest and fair discretion. He never contemplated that it would, or could, be based on mere whim, caprice, or any other than a worthy motive, but the amount was to be the result of an honest, conscientious exercise of her judgment as to what was proper under all the circumstances. Can a court of equity undertake to administer, or direct the administration of, the trust sought to be established under this will, when the trustee intended by the testator declines to accept and administer it; or is it incapable of execution, in consequence of uncertainty as to extent of assistance to be rendered, and because it involves discretionary power on the part of the intended trustee, which a court of equity has no rightful power to assume and- exercise? This is the question which has given us most trouble, and upon which we have spent, much time in investigation and deliberation.
In Colton v. Colton, 127 U. S. 300, the will undér consideration contained the following provisions: “ I give and bequeath to my said wife . . all of the estate, real and personal, of which I shall die seized, possessed, or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best.” The testator’s widow failed and refused to make any provision for his mother and sister. In proceedings instituted by them against her, the Supreme Court of the United States construed the precatory language as being, in effect, imperative, and held that the mother and sister of the testator “ took under the will a beneficial interest in the estate given to the wife, to the extent of a permanent provision for them during their respective [822] lives, suitable and sufficient for their'care and protection, having regard to their condition and necessities, and the amount and value of the fund from which it must come; that it was the duty of the court to ascertain, determine, and declare what provision would be suitable and best under the circumstances, and all particulars and details for securing and paying it.” In delivering the opinion; Mr. Justice Matthews said : “ But it is argued that the trust sought to be established under this will in favor of the- complainants is incapable of execution, by reason' of the uncertainty as to the form and extent of the provision intended, and because it involves discretionary power on the part of the trustee which a court of equity has no rightful power to control. We have seen that whatever discretion is- given by the will to the testator’s widow does not affect the existence of the trust. [The same may be said in the case we now have under consideration.] That discretion does not involve the right to choose whether a provision shall be made or not; nor is there anything personal or arbitrary: implied in it. It is to be the exercise of judgment directed to the care and protection of the beneficiaries by making such provision as will best secure that end. There is nothing left in this so vague and indefinite that it can not, by the usual processes of the law, be reduced to certainty. Courts of common law constantly determine the reasonable value of property sold, where there is no agreement as to price, and the judge and jury are frequently called upon to adjudge what are necessaries for an infant or reasonable maintenance for a deserted wife.. The principles of equity and the machinery of its courts are still better adapted to such inquiries. In the exercise of their discretion over trusts and trustees, it is a fundamental maxim that no trust shall fail for the want of a trustee, and where the trustee appointed neglects, refuses, or becomes incapable of executing the trust, the court itself in many cases will act as trustee.”
In Dexter v. Evans, 63 Conn. 58 (38 Am. St. R. 336), it was held that “ A will by which a testator makes a bequest to his wife in lieu of' dower, and then gives her four separate legacies ‘for her to help as she sees fit’ each of four persons named, at her decease the residue of said legacies ‘ to go to W.,’ who will do. by said four persons ás he sees fit. and see that they are comfortably provided for during their lifetimes, ‘ unless my wife sees fit to [823] make a will and dispose of the remainder of these legacies differently, then they go as she wills,5 followed by a clause giving the' wife another legacy to use as she might see fit in caring for C., must be construed as giving to the widow the five legacies as a trustee, and each upon separate trusts,55 and that if she declined ■ either trust, the probate court could designate a successor to hold during her life, “ whose duty it would then be to apply the money for the help of the beneficiaries, as the widow should from time to time direct;55 and that if there was any failure by tbe trustee to exercise an honest discretion in favor of any beneficiary, such beneficiary could obtain relief in the probate court or in equity; and that “the mode of help extended in all cases [rested] largely in the discretion of the trustee subject to direction by the court.55 It will be observed that the language “ for her to help as she sees fit55 is as indefinite and uncertain, as to the amount of assistance to be rendered, as the language “ so much more of it as to her may seem proper to be allotted to the assistance of,” which is used in the will now under consideration. “Assistance” means “aid” or “ help,” and if it be contended that the word “ assistance55 is, in and of itself, an indefinite term, and one which can not be rendered definite and certain, when applied to given circumstances, by a resort to evidence, the same contention could be applied to the word “help,” used in the Connecticut case. In the opinion in that case, Baldwin, J., after discussing the legacy given, to the widow, “for her to use as she may see fit in caring for” a named person, said: “ The language of the other legacies which provide for assistance to certain relatives of the widow is less decisive of the testator’s intention, but we are of opinion that by these also he designed to create a trust estate of the same nature, and has used words sufficient- for the purpose. Each legacy is given to the widow ‘for her to help5 the person designated, as (not if) she may see fit. That he contemplated her giving such help to some extent is evident from the bequest of ‘ the remainder and residue5 of the legacies upon her decease.” He further said: “ It is to be presumed that these trusts will be wisely and fairly administered,'but should there be any failure to exercise an honest discretion -.in favor • of the respective beneficiaries, they could obtain proper relief either from tbe probate court or in an equitable action: In re Simon’s Will, 55 Conn. 239, 243; Smith v. [824] Wildman, 37 Conn. 384; 1 Jarman on Wills, 696.” While ifc will be seen that, in that case, each of the particular.legacies was bequeathed by the testator to his wife for her to help a designated person, and, therefore, it may be said that the sum given in trust was not itself indefinite and uncertain, yet it is evident that the amount to be applied from this sum, from time to time, by the widow, as trustee, to the help of the. cestui que trust, was as indefinite and uncertain as the amount to be' applied in the present case, by Mrs. Jackson, from the remaining income of the estate, to the assistance of the Princes. If in the case cited the court could undertake to determine whether the trustee, under given circumstances, exercised a proper discretion in helping the beneficiaries, it would seem that a court of equity could, upon the application of the beneficiaries designated in the testamentary provision now under consideration, determine whether Mrs. Jackson, under given circumstances, had exercised a proper discretion in reference to rendering assistance to them. And if in that case, upon the declination of the testator’s widow to accept and execute the trust, the 'Court, notwithstanding the fact that the manner of its execution was left to her discretion by the testator, would not allow such declination to destroy the trust intended by him, why should a court of equity, in this case, allow Mrs. Jackson’s declination to destroy the trust intended by her husband for his sister’s children, merely because the amount of such assistance was to be, from time to time, determined by her discretion ? The rule in cases of this character is, that if the court is of opinion that a trust was intended by the testator, and such trust can, by any possibility, be executed by the couTt, the court will not allow the refusal of the person named or designated as trustee to destroy the trust intended. So we think that the ruling of the Connecticut case, that the declination of the person whose discretion was made by the testator the measure of the amount of help to be extended from time to time to the beneficiary should not be allowed to defeat the trust, was eminently sound.
In Broad v. Bevan, the report of which case is found under a citation in the case of Abraham v. Alman, 1 Russ. 511-512, a testator having bequeathed various legacies, and, among others, an annuity of 5 l to his daughter during her life, directed his son [825] (whom he afterwards made his executor) to take care of and provide for her; and, “subject as aforesaid,” the testator gave to that sou the residue of his real and personal estate. The real estate of the testator having been sold and the proceeds thereof brought into court, the daughter presented a petition, in which she insisted that she was entitled .to have a provision made for her out of the produce of the estate. Mr. Russell, who appeared in opposition to the petition, after contending that the clause on which the petitioher rested her claim was “rather a moral injunction, having reference to personal care and protection, than a pecuniary bequest,” said: “Many events might occur, which would render the care and protection of the brother unnecessary, and even impossible; but if the obligation which this clause is supposed to fix upon him is to vary with every variation in her circumstances, how can the court execute so vague and indefinite a trust ? ” He contended that it was impossible to tell from the will what the daughter of the testator, (admitting her to be entitled to some payment) was to receive; and that all the authorities proved that where the amount is uncertain the bequest fails. But Sir Thomas Plumer, Master of the Rolls, was of opinion that the petitioner was entitled to have a provision made for her out of the residue, in addition to her annuity of 5 l, and granted an order “ that it be referred to the master to inquire and state to the court, what would be proper to be allowed for the support and maintenance of the petitioner,” from the date when the defendant ceased to maintain her, “and for the time to come during her natural life, or until the further order of [the] court.” In Foley v. Parry, 2 Myl. & K. 138, where the testator’s words were, “ and it is my particular wish and request that my dear wife and A. will superintend and take care of the education of D. so as to fit him for any respectable profession and employment,” it was held that a charge was created on the interest taken by the testator’s widow which could be made effectual by a court of equity. In Kilvington v. Gray, 10 Sim. 293, the testator, who had devised his freehold estates upon certain trusts, added a codicil to his will, in which he made a certain provision for the infant son of his relation, M. W., until the age of sixteen, and then provided as follows : “ I then leave him to the care of my trustees, to provide for him in some business or profession, and his future mainte[826] nance out of my property.” Shortly after the infant attained the age of sixteen, he presented a petition, praying that it might be declared that on attaining the age of sixteen he became entitled to receive, out of the testator’s funded property, a sum sufficient for the purpose of providing for him in some business or profession, and to an annual allowance for his future maintenance, and that it might be referred to the master to inquire and certify what sum would be proper to be allowed for the purpose of so providing for him, and also what yearly sum would be proper to be allowed for his future maintenance, from the day he became-sixteen years old, for the time to come, and out of what funds, and to whom the same ought to be paid during his minority. Counsel opposing the petition contended, “that there was no gift to the petitioner, but only a vague, discretionary power in the trustees, to provide for him; and that as the matter was left entirely to the discretion of the trustees, the court would not take upon itself the exercise of that discretion.” But Yice-Chancellor Shadwell held to the contrary. He said: “ The testator has imposed it, as a duty, on the trustees, to take care of the infant, and to provide for him in some business or profession, and his future maintenance; and the question is whether the court, when it sees that the testator has done so, and has pointed out the fund out of which the provision is to be made, does not take upon itself the exercise of the discretion which the testator has reposed in the trustees. Unless that be so, I do not see upon what principle my decision in Foley v. Parry could have been affirmed by the Lord-Chancellor.” He accordingly sustained the prayers of the petition, and referred “it to the master, to inquire and state whether it [would] be fit and proper and for the benefit of the petitioner to place him out to any and what trade or profession, and with whom, and what sums of money [would] be fit and proper to be advanced on such occasion, and out of what fund the same ought to be paid; ” and that the master should “also inquire and state what yearly sum or sums [would] be proper to be allowed, for the future maintenance of the petitioner,” from the date when he attained the age of sixteen years, “ for the time to come, and out of what fund, and to whom during his minority the same ought to be paid.”
In Pride v. Fooks, 2 Beav. 431, a testator authorized the trus[827] tee to whom he devised his property, upon certain trusts, “ to apply so much and such part of the income of his said estate as in. his judgment might be sufficient and proper, for the education and maintenance of the children of his nephews and niece during their minority, and for their future advancement in life. It was held that, as to a daughter of the testator’s. niece, the power of advancement continued, notwithstanding she had attained twenty-one years of age and had married, and the Master, of the Rolls,. Lord Langdale, said: “I conceive that there may be various modes in which, notwithstanding her marriage, and without interfering with the condition in which her marriage has placed her, money may be efficiently applied for her advancement in life; and although no specific mode of application has been suggested, and I think for that reason I can not make a reference to thp master on the subject, yet it appears to me that I ought to declare that notwithstanding her marriage, and the attainment of her age of twenty-one years, she is, upon the construction of this will, entitled to have a portion of the income of the accumulated fund applied for her future advancement, and I give her leave to apply.” Certainly the “future advancement in life” of a married woman would seem to be, at least, as indefinite and uncertain a subject for the exercise of discretionary power in administering a trust as the “assistance” of designated persons can be; and the same may be said in reference to the making of a provision for a minor cestui que trust “in some business or profession.” It was upon the authority of the above-cited and other English cases, to which .he referred, that Vice-Chancellor Wigram, in Thorp v. Owen, 2 Hare, 608, 610, said: “Whatever difficulties might originally’ have been supposed to exist in the way of a court of equity enforcing a trust, the extent of which was unascertained, the cases appear clearly to decide that a court of equity can measure the extent of interest which an adult as well as an infant takes under a trust for his support, maintenance, advancement, provision, or other like indefinite expression, applicable to a fund larger, confessedly, than the party entitled to the support, maintenance, or advancement can claim, and some interest in which is given to another person.” These observations were approvingly quoted by Mr. Justice Matthews in Colton v. Colton, supra, who himself well said: “ It is quite true that where the manner of executing [828] a trust is left to the discretion of trustees, and they are willing to act, and there is no mala fides, the court will not ordinarily control their discretion as to the way in which they exercise the power, so that if & fund be applicable to the maintenance of children at the discretion of trustees, the court will not take upon itself, in the first instance, to regulate the maintenance, but will leave it to the trustees. But the court will interfere wherever the exercise of the discretion by the trustees is infected by fraud or misbehavior, or they decline to undertake the duty of exercising the discretion, or generally where the discretion is mischievously or erroneously exercised, as if a trustee be authorized to lay out money upon government, or real, or personal security, and the trust fund is outstanding upon any hazardous security.” Again, he said: “Plainly, if the trustee refuses altogether to exercise the discretion with which he is invested, the trust must not on that account be defeated, unless by its terms it is made dependent upon the will of the trustee himself.” In the present case, the provision for the children of Mrs. Prince is no.t, by its terms, made dependent upon the will of the trustee, Mrs. Jackson. It can not be wholly dependent upon her will, when the property is devised and bequeathed to her, for life, “with the condition” that “she shall apply,” etc. It is not given to her with the condition that she shall apply if to her it may seem proper, but it is given to her with the condition that she shall apply so much of a designated portion of the income as to her may seem proper to be allotted, ■etc. This gives her no discretion to defeat the trust intended, but simply a discretion as to the manner of its execution; and if she refuses to exercise this discretion, the trust must not on that account be defeated, if the court can by any possibility enforce it. In 1 Perry on Trusts, § 249, it is said: “ In all cases where parties have an imperative power or discretion given to them, and they die in the testator’s lifetime, or decline the trust or office, or disagree as to the execution of it, or do not execute it before their death, or if from any other circumstance the exercise of the power by the party intrusted with it becomes impossible, the .court will imply a trust, and will put itself in the place of the trustee, and will exercise the power by the most equitable rule. And the court will act retrospectively in executing these powers as quasi trusts; and although there may be great difficulties -and impracti[829] cabilities in the way, yet the court will exercise the powers and enforce the trust; for, if the trust or power can by any possibility be exercised by the court, the non-execution by the party intrusted shall not prejudice the party beneficially interested, or the cestui que trust.”
The power or discretion in the present case is, as we have seen, imperative; and, in view of the authorities which we have cited, we can not say that it is absolutely impossible for the court to exercise it. But in the court below it was not shown that the plaintiffs in error, or either of them, needed assistance, or had needed it since the death of the testator; nor do we think that it clearly appeared that Mrs. Jackson had positively declined to accept and execute the trust. In the written agreement between her and the other heirs at law of the testator, it was stipulated that Mrs. Barrow, as sole executrix, should have authority to carry out the provisions of the will relating to the Prince family, which shows that Mrs. Jackson, when this agreement was entered into, intended to transfer the discretion conferred upon her by the will to Mrs. Barrow. This she could not do, without the consent of all parties at interest, including the plaintiffs in error, who were not parties to this agreement; and, besides, Mrs. Barrow has since died. While Mrs. Jackson’s attitude in the present case may be said to be inconsistent with an intention, or desire, on her part to accept and execute the trust, yet it is not clear that she will refuse to do so when she discovers that the prayers of the petition will not be granted, and the agreement between herself and the other heirs at law will not, be confirmed, by a decree of the court. We think that the court should have denied' the prayers of the petition, and decreed that the whole estate of the testator was given to Mrs. Jackson, for life, in trust for the purposes specified in the will, and should have given her, in the light of such finding, a reasonable time within which to either accept or renounce the trust; and, in the event that she did the latter, the court should have appointed a trustee to take charge of and administer, the whole estate, under the direction of the court, in accordance with the testator’s intentions as declared in his will. In this way the right of the plaintiffs in error, or either of them, to receive assistance, during any year while the life-estate continues, if the same should be needed, and the income from the [830] estate for such year will warrant it, would be preserved; and they, or either of them, could apply to the court for the same, ■and the court could give such direction in the premises as, in its opinion, the circumstances shown should warrant.
Judgment reversed.
All the Justices concur, except Oobb, J., disqualified, and