Wait, J.
This petitioner sought the direction of the Probate Court in the construction of the will of Mary C. Gifford, and instruction with regard to his duties as executor thereunder. Notice was given to her heirs at law, and to all the legatees and devisees under the will. From the decree only one respondent, Mabel A. Zerbone, the sole heir at law and a donee under the will, appealed to this court. Nevertheless, the appeal brings up the decree and we can deal with the interests of others affected by the decree, G. L. c. 215, § 28, necessarily involved in the determination of the matter before us. See Day v. Nichols, 228 Mass. 236, 239.
Mrs. Gifford drew her own will without assistance from a lawyer, and without knowledge of the law adequate to clear and indubitable declaration of her wishes. She did not number the items and she has left room for argument in regard to the precedence which one benevolent wish is to take over another. The will admits of different constructions. In such circumstances the law is well established that the court will “ascertain the intent of the testator from the whole instrument, attributing due weight to all its language, and then give effect to that intent unless prevented by some positive rule of law.” Ware v. Minot, 202 Mass. 512, 516. Temple v. Russell, 251 Mass. 231. It will not create an intent where none appears, nor permit some of the words of the will to defeat an intent fairly to be deduced from study of the [327]*327will as a whole and of the circumstances in the light of which it was executed. Crowell v. Chapman, 257 Mass. 492.
After the conventional introductory sentences and direction for the payment of just debts and funeral expenses, the will. proceeded: “I bequeath and devise as follows: To . , . [¡naming the donee] I bequeath the sum of . . . [¡naming the amount] dollars.” There were ten such provisions alike in form except that in the first she directed that if the donee named was not living at “my death” the sum was to go to the donee’s son, and that, in the second, she used the words “I give and bequeath.” The total amount of these gifts was $8,750. Then followed: “To Ethel Hicks daughter of Dr. Charles A. Hicks, I give and bequeath the sum of one thousand ($1000) dollars. Also to the same Ethel Hicks the use of my home during her fife, and my executor to see that she is comfortable. If she does not so desire, it is to become a Community House or otherwise, after her death. It is to be called the William H. Gifford Memorial or The William and Mary House. I wish my niece Mabel A. Zerbone consulted in all matters in regard to it. The front lots to be used as rental as at present. The rear lots to be used to extend my niece’s husband’s business if he so desires.
“First and always I wish my niece Mabel A. Zerbone to have whatever income is necessary for her every comfort and pleasure without stint, during her fife; also all personal effects belonging to me — jewelry household goods, absolutely everything she desires.
“I hereby appoint John T. Swift of the Citizens Savings Bank as my Executor; desiring him to carry out my wishes to the end; to take care of my charities, using all incomes and principal or parts of the principal for the upkeep of the home and its surroundings. The 'home’ if thought desirable in the future, to be used as an 'Old Ladies’ Home.’”
Then came the in testimonium clause.
It is agreed, by stipulation, that the value of the estate will, probably, not exceed $65,000; that Mabel A. Zerbone is the sole heir at law; that at the time of her death the testatrix was about seventy years of age; that the will is in her own handwriting; that the premises occupied by her as her [328]*328home was real estate in the north part of Westport, about three quarters of a mile from the easterly line of Fall River and easterly of the North Watuppa pond, on which is an old story and a half farm house of ten rooms, five of them on the upper floor with sloping ceilings and dormer windows; that in the rear is about half an acre of land with a large barn, a two-car garage and a woodshed; that Westport has a population of between 3,000 and 3,500 people. The will is dated February 5, 1926, and was duly admitted to probate on May 14,1926.
The petitioner asks for instruction upon eleven points. He is not entitled to an answer upon some of them. The rule is established that instructions can be obtained only in regard to present duties. Hall v. Cogswell, 183 Mass. 521. Hill v. Moors, 224 Mass. 163, 165. Murray v. Roman Catholic Home for Orphans, 232 Mass. 384. No present occasion appears for the appointment of any one as trustee. Ethel Hicks is living and has not released her right to occupy the home. Until her death or until such release no duty arises in regard to what shall be its use as home or community house. No charitable trust can arise in regard to it before she has released or died. Accordingly no instructions will be given in answer to requests numbered seven, eight and ten.
The remaining requests relate to present duties toward Mabel A. Zerbone, Ethel Hicks and the donees of specific sums.
It is noteworthy that while the testatrix “gives” or “bequeaths” or “devises” to the other objects of her bounty, she does not use either word with reference to Mrs. Zerbone. She wishes her “to have ... all personal effects belonging to me — jewelry household goods, absolutely everything she desires,” as well as “whatever income is necessary for her every comfort and pleasure without stint, during her life.” She is to be consulted in all matters in regard to the proposed “home.” Her husband is to use the rear lots of the home estate for the purposes of his business if he wishes. The provision dealing with her begins “First and always.” Butler v. New England Trust Co. 259 Mass. 39. Placed where it is, we t.bink the paragraph deals with what is left after the specific sums previously given have been taken from the estate. It [329]*329deals with the “personal effects” of the testatrix; by which she means, not all her personal property as the law classifies property, but all the articles used by her in ordinary living — clothing, jewelry, household goods. Of these Mrs. Zerbone is to have “absolutely everything she desires.” It deals also with income. The testatrix with some $65,000 worth of property to dispose of began with outright gifts of small amounts to eleven beneficiaries, no single gift greater than $1,000. She thus disposed of $9,750. Then she took up her real estate and gave a right to Miss Hicks to use it in comfort for her life. The mind of the testatrix turned toward the use of the income of the remainder of the property. She makes provision for Miss Hicks’s comfort and for the memorial home, but before anything, “First and always,” Mrs. Zerbone must have “every comfort and pleasure without stint” from the executor. She, probably, did not reflect that the law had made Mrs. Zerbone owner of everything undisposed of by her will. She made no conveyance of the residue of the estate beyond $9,750 in pecuniary legacies, a life interest in the home, and such of her “personal effects ” as Mrs. Zerbone desired, but she empowered her executor to use all incomes and principal for the “upkeep of the home and its surroundings,” and made it further his duty to use it for the comfort of Miss Hicks if she used the home, and “without stint” to use income for Mrs. Zerbone.
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Wait, J.
This petitioner sought the direction of the Probate Court in the construction of the will of Mary C. Gifford, and instruction with regard to his duties as executor thereunder. Notice was given to her heirs at law, and to all the legatees and devisees under the will. From the decree only one respondent, Mabel A. Zerbone, the sole heir at law and a donee under the will, appealed to this court. Nevertheless, the appeal brings up the decree and we can deal with the interests of others affected by the decree, G. L. c. 215, § 28, necessarily involved in the determination of the matter before us. See Day v. Nichols, 228 Mass. 236, 239.
Mrs. Gifford drew her own will without assistance from a lawyer, and without knowledge of the law adequate to clear and indubitable declaration of her wishes. She did not number the items and she has left room for argument in regard to the precedence which one benevolent wish is to take over another. The will admits of different constructions. In such circumstances the law is well established that the court will “ascertain the intent of the testator from the whole instrument, attributing due weight to all its language, and then give effect to that intent unless prevented by some positive rule of law.” Ware v. Minot, 202 Mass. 512, 516. Temple v. Russell, 251 Mass. 231. It will not create an intent where none appears, nor permit some of the words of the will to defeat an intent fairly to be deduced from study of the [327]*327will as a whole and of the circumstances in the light of which it was executed. Crowell v. Chapman, 257 Mass. 492.
After the conventional introductory sentences and direction for the payment of just debts and funeral expenses, the will. proceeded: “I bequeath and devise as follows: To . , . [¡naming the donee] I bequeath the sum of . . . [¡naming the amount] dollars.” There were ten such provisions alike in form except that in the first she directed that if the donee named was not living at “my death” the sum was to go to the donee’s son, and that, in the second, she used the words “I give and bequeath.” The total amount of these gifts was $8,750. Then followed: “To Ethel Hicks daughter of Dr. Charles A. Hicks, I give and bequeath the sum of one thousand ($1000) dollars. Also to the same Ethel Hicks the use of my home during her fife, and my executor to see that she is comfortable. If she does not so desire, it is to become a Community House or otherwise, after her death. It is to be called the William H. Gifford Memorial or The William and Mary House. I wish my niece Mabel A. Zerbone consulted in all matters in regard to it. The front lots to be used as rental as at present. The rear lots to be used to extend my niece’s husband’s business if he so desires.
“First and always I wish my niece Mabel A. Zerbone to have whatever income is necessary for her every comfort and pleasure without stint, during her fife; also all personal effects belonging to me — jewelry household goods, absolutely everything she desires.
“I hereby appoint John T. Swift of the Citizens Savings Bank as my Executor; desiring him to carry out my wishes to the end; to take care of my charities, using all incomes and principal or parts of the principal for the upkeep of the home and its surroundings. The 'home’ if thought desirable in the future, to be used as an 'Old Ladies’ Home.’”
Then came the in testimonium clause.
It is agreed, by stipulation, that the value of the estate will, probably, not exceed $65,000; that Mabel A. Zerbone is the sole heir at law; that at the time of her death the testatrix was about seventy years of age; that the will is in her own handwriting; that the premises occupied by her as her [328]*328home was real estate in the north part of Westport, about three quarters of a mile from the easterly line of Fall River and easterly of the North Watuppa pond, on which is an old story and a half farm house of ten rooms, five of them on the upper floor with sloping ceilings and dormer windows; that in the rear is about half an acre of land with a large barn, a two-car garage and a woodshed; that Westport has a population of between 3,000 and 3,500 people. The will is dated February 5, 1926, and was duly admitted to probate on May 14,1926.
The petitioner asks for instruction upon eleven points. He is not entitled to an answer upon some of them. The rule is established that instructions can be obtained only in regard to present duties. Hall v. Cogswell, 183 Mass. 521. Hill v. Moors, 224 Mass. 163, 165. Murray v. Roman Catholic Home for Orphans, 232 Mass. 384. No present occasion appears for the appointment of any one as trustee. Ethel Hicks is living and has not released her right to occupy the home. Until her death or until such release no duty arises in regard to what shall be its use as home or community house. No charitable trust can arise in regard to it before she has released or died. Accordingly no instructions will be given in answer to requests numbered seven, eight and ten.
The remaining requests relate to present duties toward Mabel A. Zerbone, Ethel Hicks and the donees of specific sums.
It is noteworthy that while the testatrix “gives” or “bequeaths” or “devises” to the other objects of her bounty, she does not use either word with reference to Mrs. Zerbone. She wishes her “to have ... all personal effects belonging to me — jewelry household goods, absolutely everything she desires,” as well as “whatever income is necessary for her every comfort and pleasure without stint, during her life.” She is to be consulted in all matters in regard to the proposed “home.” Her husband is to use the rear lots of the home estate for the purposes of his business if he wishes. The provision dealing with her begins “First and always.” Butler v. New England Trust Co. 259 Mass. 39. Placed where it is, we t.bink the paragraph deals with what is left after the specific sums previously given have been taken from the estate. It [329]*329deals with the “personal effects” of the testatrix; by which she means, not all her personal property as the law classifies property, but all the articles used by her in ordinary living — clothing, jewelry, household goods. Of these Mrs. Zerbone is to have “absolutely everything she desires.” It deals also with income. The testatrix with some $65,000 worth of property to dispose of began with outright gifts of small amounts to eleven beneficiaries, no single gift greater than $1,000. She thus disposed of $9,750. Then she took up her real estate and gave a right to Miss Hicks to use it in comfort for her life. The mind of the testatrix turned toward the use of the income of the remainder of the property. She makes provision for Miss Hicks’s comfort and for the memorial home, but before anything, “First and always,” Mrs. Zerbone must have “every comfort and pleasure without stint” from the executor. She, probably, did not reflect that the law had made Mrs. Zerbone owner of everything undisposed of by her will. She made no conveyance of the residue of the estate beyond $9,750 in pecuniary legacies, a life interest in the home, and such of her “personal effects ” as Mrs. Zerbone desired, but she empowered her executor to use all incomes and principal for the “upkeep of the home and its surroundings,” and made it further his duty to use it for the comfort of Miss Hicks if she used the home, and “without stint” to use income for Mrs. Zerbone.
Nothing in the will indicates a conscious purpose to give the corpus of the estate to Mrs. Zerbone, or to subject what was expressly given others to burden in her favor. The Probate Court was right in deciding that the pecuniary legacies are not to be subordinated to the rights of Mrs. Zerbone. The requests 1, 3 and 11, are properly answered No. Request 2 is correctly answered Yes.
The remaining questions relate to the rights of Miss Hicks in the real estate and to the duty of the petitioner with respect to her. No title to the house is expressly given her. Her right is limited to the exclusive use of the house as a place of residence at any time during her fife for so long as she desires, with the use also of such of the land as would pass by a deed conveying the house. See Schon v. Odd Fellows Build[330]*330ing Association, 255 Mass. 465, 468. The language of the will justifies an inference that there is land, possibly within the same enclosing walls or fences, which has not been regarded as attached to the house lot. The language makes plain that the “front lots” and the “rear lots” are not subjected to the control of Miss Hicks.
The requirement that the executor “see that she is comfortable” imposes no greater obligation than to keep the house in reasonable repair. The gift of household goods to Mrs. Zerbone is inconsistent with an intent to leave to Miss Hicks a furnished house which is to be kept up by the executor from the income of the estate. The expenditure of income for the benefit of Miss Hicks is clearly subject to a prior right in Mrs. Zerbone if “necessary for her every comfort and pleasure” during the latter’s fife.
The court, as has already been stained, is not called upon to decide what may become the duty of the executor in the event of her death or her failure to use the house. The words ‘ ‘ If she does not so desire, it is to become a Community House or otherwise after her death,” impose no responsibility at this moment. “Or otherwise” as there used, relates to the character of the use to which the place eventually is to be put. There is to be either a community house or an Old Ladies’ Home, but which of them the testatrix does not know. Neither does she know, nor can any one else know, at what times during her fife Miss Hicks will desire to use the house. So long as she lives Miss Hicks can demand the use, but she may not wish it at all times. It is not until her death, therefore, that the suggested charitable use is practicable. It is conceivable that the testatrix thought that in the periods during Miss Hicks’s fife in which she did not care to use the house — and it may be simultaneously with her use, with her consent — it also could be used as a “community house,” and that, at her death, a final determination whether to continue such use or to change to an Old Ladies’ Home should be made. Such a supposition is supported by the provisions in regard to the renting of the front lots, the use of the rear lots by Mr. Zerbone, the carrying out of “my wishes to the end” by the executor, and consultation with Mrs. Zerbone. [331]*331But the more reasonable construction is that those phrases are suggestions applicable to the situation that will arise on the death of Miss Hicks or her final rejection of the right to use the house.
It follows that the decree of the Probate Court is to be modified and answers are to be made as follows: To (1) No. But the right of Mrs. Zerbone to specific “personal effects” of the testatrix, jewelry, household goods and everything she desires therefrom, is absolute; (2) Yes; (3) No; (4) Ethel Hicks is entitled to the use of the house and such land as would pass by a deed of “the house” for her fife, and the executor should use such of the income from the personal property remaining after the payment of debts, expenses of administration, and payment of the pecuniary legacies, as is required to keep the house in comfortable repair inside and out, but subject to a right in Mabel A. Zerbone during her life to have whatever is necessary for her every comfort and pleasure without stint first paid to her from the income of that principal; (5) No payment other than the pecuniary legacy is required to be made to Ethel Hicks; (6) Mabel A. Zerbone is entitled during her fife to so much of the income of personal estate remaining after the payments set out in answer (4) as is necessary for her every comfort and pleasure without stint — to all if required; and to the real estate with its income subject to the right of Ethel Hicks to the use of the house as described in answer (4); (9) No occasion now exists for the appointment of a trustee; (11) No.
Whether a valid charitable trust is created, and what duties will exist if one comes into being need not now be determined.
So ordered.