Erickson v. Willard

E, T. devised all her estate to J. VV., and appointed him her executor. In the will was the following clause — “ I desire that the said J. W. should, at his “ discretion, appropriate a part of the income of my estate aforesaid, not ex- “ ceedinT 50 dollars a year, to the support of the widow M. E.,” &c. It was hplden that this clause, coupled with some other expressions, rendered the devise to J. W. a trust to the above amount, which a court of law could enforce.

THIS was an action of assumpsit. The writ contained several counts, in which the substantial allegations were, that on the 1st day of September, A. D., 1806, one Elizabeth Twyman died testate ; that the defendant was her sole de-visee under a condition to pay the plaintiff, from the income of the estate devised, the sum of fifty dollars annually during the plaintiff’s life ; that the defendant was also executor of said Elizabeth, accepted the trust, took possession of her estate, the income of which was more than sufficient to pay the above annuity ; and that he thereby became liable, and iin consideration thereof promised, &c., but had neglected the payment of it. The defendant pleaded non assumpsit, and the cause was tried here at the last February term. The will of Elizabeth Tivyman, duly executed and proved, was offered in evidence; and, except the usual introduction and close, was as follows : “ I desire to be decently buried in the church yard of St. “John’s Church, at the discretion of my executor herein “ after named ; and my worldly estate I give and devise as “■follows: First, whereas it having pleased the Almighty in “his wise Providence to take from me all my children, and “ placing special confidence in my minister, the reverend “ Joseph Willard, of Portsmouth aforesaid. I give and be- “ queath unto him, the said Joseph Willard aforesaid, clerk “and rector of St. John’s Church, his heirs and assigns for-,- “ ever, all my real and personal estate at the time of my de- “ cease, after my just debts and funeral charges are paid, “ consisting of the estate where I now live, which is bound- “ ed on the street forty-three feet, and is forty feet in depth, “as by my deed of the said premises will appear, be the “ same more or less, with the buildings thereon. Also, one “other lot of land, at Frame Point, so called, in Portsmouth, “ aforesaid, as by the deed of reference being had will ap- “ pear ; also the furniture and personal estate where I now “ live. And I desire that the said Joseph Willard should “ at his discretion appropriate a part of the income of my “ estate aforesaid, not exceeding fifty dollars a year, to the “support of the widow Margaret Erickson, my sister’s “ daughter, during her natural life; and it is my express di- “ rection that my executor place the aforesaid Margaret in “ some pious and Christian family in the country, at a distance from this town, where she may be removed from' “ temptation. After the decease of the said Margarei, should “ either of her children be in necessitous circumstances, or “ should my relation, Theodore Adams, ever return home “ and be in a destitute situation, 1 desire that the aforesaid “ Willard would afford all or either of them such relief as “ his discretion and knowledge of my intentions may direct. “ And I do hereby constitute and appoint the aforesaid Jo- “ soph Willard my sole executor.” It was admitted that the defendant had taken upon himself the above executorship, gone into possession of the estate described in the will, and refused to pay the plaintiff fifty dollars yearly, or any sum sufficient for her support, though he had furnished her with occasional assistance when he thought it expedient. The parties then agreed that, if the court, on the above facts, should think the action could be supported, a verdict might be entered for the plaintiff, for a stipulated sum; but should the court think otherwise, the plaintiff was to become nonsuit. Words which in common discourse import only request, wish, desire or recommendation, may, when used in wills, create a trust which courts of chancery will compel the trustee to execute. .The cases where courts of chancery have undertaken to compel the execution, are those in which it clearly appeared that ’ J 11 they were not merely recommendations, where discretion or choice was implied (1). They are those in which the property and objects are certain and definite, and where discretion to the executor is not expressly delegated or clearly implied. As,for instance, a testator requests his executor to giveA.B. his gold watch. Here the testator, having a power to make the bequest, the thing given, and the person to whom given being defined, the particular language used shall' be considered as mere civility, and as tantamount to an order or direction. The fund must be so certain as to enable a court of chancery to impound it. If the whole is given to the first taker, then there is no trust which can be conferred, and the devise over is void, — Push-man vs. Filliter, 3 VeS. jr. 7. — Sprague vs. Barnard, 2 Brown. Ch. R. 587. The case of Bland vs. Bland, 2 Brown. Ch. R. 43, shews that where the first gift is of the absolute property, such a recommendation following it shall not raise a trust. In that case lady Bland gave the estate in question to sir W. Bland, and earnestly requested that in case he should die without issue he should dispose of the estate, or so much as he should die seized ~f, so that the estate might be enjoyed by her daughter. It was held to be no trust, as the words, so mnch as he might die seized of, shew that he might dispose of the whole, The eases of LeMaitre vs. Bannister, cited in 2 Brown. Ch. R. 40; Harland vs. Trigg, 2 Brown. 142, and Malim vs. Highly, 2 Ves.,jr., 533, clearly shew that where there is a gift of absolute ownership in the first instance, a devise over is void, in whatever terms it may be conceived. In the same case of Malim vs. Highly, at the rolls(2), lord Alvan-ley says, I will lay down the rule as broad as this-wherever any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he does shew that his desire thus expressed is to be controlled by the party, and that he shall have an option to defeat it. The case of Palmer vs. Linbb, cited in 2 ~Swin-byrne on Wills 473, is to the same effect,'-A. devised all his estate to his wife, saying, I desire and request my wife to give all her estate which she shall have at the time of her death to her and my nearest relations. This was holden a mere recommendation, and not a trust, In the case at bar the whole property is expressly given to the defendant, before any expression of the testatrix's wish that the plaintiff should be an object of the care and bounty of her executor. The case of the Countess of Briclgewater vs. Duke of Bolton, cited in 2 Swinburne 475, in note, and many of the other cases referred to in the same note, clearly shew that where it is the intention of the testator to leave the subsequent application of the property at the discretion of the first taker, no trust will arise, The will shews that the testatrix fully intended: to make no absolute bequest to Mrs. Erickson, but to recommend her simply to the care and bounty of her executor. This is apparent from the part of the will which relates to Mrs. Erickson, and that part is not qualified or altered by the language used in other parts of the will. The words which relate to Mrs. Erickson are : “and I desire the said “Joseph Willard should, at his discretion, appropriate a part “ of the income of my estate aforesaid, not exceeding fifty “ dollars a year, to the support of the widow Margaret “ Erickson, my sister’s daughter, during her natural life. “ And it is my express direction that my executor place the “ aforesaid Margaret in some pious and Christian family in “ the country, at a distance from this town, where she may “ be removed from temptation.” It was beyond the power of the testatrix to confer on her executor authority to remove her frail niece into the country, and place her in a pious and Christian family, where she might be less exposed to temptation. The reason for limiting the extent of the sum which the executor might appropriate for the support of Mrs. Erickson, was from an apprehension that a greater-provision might induce her niece to lead a life of indolence and sin, and lest it might conflict with her other views in the disposition of her property. If she had designed to make a bequest to her niece of an annuity of fifty dollars, she would have so expressed herself in clear and unambiguous language. The words, “not exceeding,” and, “at his discretion,” clearly shew that it was the testatrix’s intention to leave the smallness of the sum entirely at the choice and option of her executor, who was her spiritual guide and friend, and one in whom she doubtless supposed that she might safely confide. The words, “ at his discretion,” used in the first part of the will, respecting her interment, must, as it has been observed on the other side, be construed as applicable to its manner. There is not. however, any rale of construction, which requires the same words to be used in the same sense in every part of the same instrument. It is not unusual for the same words to be used in different senses in instruments drawn with more care and consideration than wills generally are. Words are to be construed according to their collocation, and according to the subject matter. — In last wills and testaments, which are frequently made when, in the language of the law, the testator is inops concilii, the law regards chiefly the intention; and any words which manifest the intention to create a legacy, will be holden sufficient for that purpose. In support of this general position are Bac. Abr., Will, F, 5 — 6—6 Mass. Rep. 174. — 2 Black. Com. 379. — Co. Litt. 112, b. — 1 Vezey 25. — 6 D. &■ E. 314. — 11 Mass. R. 531. — 3 Lev. 125. — Lovelass vs. Wills, 149, Bac. Abr., Legacy, B, 1. — Com. Dig., Chan. 3, y, 4. Words of recommendation or desire come within this general position, and are a sufficient expression of the intentions of the testator to be imperative upon the executor, if the subjects of property and the object to whom to be given are sufficiently certain. Among cases in point is that of Harding vs. Glyn, in 1 Atk. Rep. 469. The testator gave all his property to his wife — but did desire her at her decease to give certain parts of it to such of his own relations as she should approve of. The wife chose not to approve of his relations, or comply with his desire, and devised the property to other persons. The court ordered distribution to his relations. And the language of the reporter is, !< that any words of a testator intimating a request, wish, desire, recommendation, &c., are sufficient to create a trust, provided there be certainty of the gift and the object to be benefitted thereby.” In Blount vs. Doughty, 3 Atk. Rep. 481, Hardwicke observes that “ where a father gives a legacy to his son, and desires he will do an act for the benefit of his sisters, this tobe sure does amount to an obligation upon the son, &c. And in Malim vs, Keigly, 2 Vezey, jr., 532, the language of the lord chancellor is, “ if a testator recommend that to be done by a person whom he has a right to order, the mode is only civility.” In the Duchess of Buckingham’s case, mentioned by lord Thurlmo, iu Jhtrland vs. Triggs. 1 Bro. C. C. 401, the direction was to pay 100Z., “ if it shall be her grace's pleasure so to do" — and this was holden to create a trust. In Bales .vs. England, Pro. Chan. C. 201, the master of the rolls says, “ words of recommendation and desire in a will are always expounded a devise.” — Cited in 2 Ves. jr. 531. In Pushman vs. Filiter, 3 Ves., jr., 7, the testator devised his property to his wife, “ desiring her to dispose of what should be left at her decease among his children, in such manner as she should judge most proper.” The master of rolls observed, “ the words are clearly sufficient to raise a trust, for we are now got beyond any possibility of doubt as to the rule of the court that all words of recommendation or desire," &c. — Also, 4 Ves., jr., 708. Warcham & al. vs. Brown & «Z. 2 Vernon 153. One devises to two of his sisters 400Z. each, and to his third sister what his executors should think fit. -The court decreed that the third sister should have 400Z. Lord Chancellor Eldon, in 8 Ves., jr., 380, states the law upon this point in these very strong and comprehensive terms. “ The eases upon words of recommendation have, I take it, now settled this rule ; whether the terms are those of recommendation, or precatory or expressing hope, or that the testator has no doubt, if the objects with regard to whom such terms are used are certain, and the subjects of property to be given are also certain, the words are considered imperative, and create a trust.” See, also, 2 Bro. C. Rep. 226, Pierson vs. Garnet. — Nab vs. Nab, 10 Mod. Rep. 404. — Kingsman vs, Kingsman, 2 Vernon 559. — 2 Fonb. 37. — 2 Sand, on Uses 2i0.— Farewell vs. Jacobs, 4 Mass. Rep. 635.- — 2 Vernon 513, 421.— Godolp. 132. Upon the principle supported by the cases cited, it is contended that the intention of the testator is sufficiently manifested in this will to create the legacy claimed by the plaintiff. And this intention is apparent, not only from the particular words used, but from the general tenor of the instrument. If the language of this will was of a character so doubtful as to require a consideration of the circumstances under which it was made, it is believed that the general rule of a favorable construction for the devisee would be found to apply with unusual force to the present plaintiff, from some facts peculiar to this case. Had the testator been skilled in all the technical learning of the law; — had the will been written by a person whom the testator had thought it necessary to overlook with caution ; — had it been written by a person whose interest would have been promoted by the creation of a legacy to the plaintiff — such circumstances certainly would not be urged in support of a construction favorable to the plaintiff s claim. But the facts, as they appear in the statement agreed to by the parties in this action, shew us that the testator was a feeble and solitary female, in the eve of life. The defendant was her religious teacher, the pastor of her church, writing an instrument making himself residuary legatee and executor of her estate — and with every possible inducement of interest not to create a legacy out of himself contrary to her intention. Notwithstanding the clerical character of this executor, and the singleness of view with, which he may have been supposed to have devoted himself to the spiritual concerns of his flock, the history of the ingenious stratagems with which the gentlemen of his cloth evaded all the skill and care of parliament from the 7th of Edw. I. to the 9th of Geo. II. shew that they are not always indifferent to their temporal interests. By the instrument itself it appears that this same draftsman, executor and legatee, possessed not only the influence which, as her spiritual guide, he might be supposed to have exercised, but that, in the words of the will, “ having great esteem for,” she placed “ special confidence in her minister, the Rev. Joseph Willard,” as he was pleased to style himself, and with such esteem and confidence she no doubt did believe her desire ox request upon the executor he would consider as obligatory as his bond. The words, “ I desire,” &c., used in the will, are distinctly within the rule of law established by the authorities referred to. The object of the bounty it is impossible should with more certainty be designated, than is the plaintiff by the same clause ; and the property is expressly stated to be “ the income of the estate aforesaid,” described in the will. Were the words, “ I desire,” &e., at all of doubtful meaning as to the intention of the testator, we would ask if the language of the next clause, ordering a provision for this plaintiff, is not sufficiently explicit, which begins, “and it is my express direction,” &c. But all this is said to be “ at the discretion” of this same defendant. The idea of making a bequest, and leaving it to be paid or not, at the election of the residuary legatee, is so absurd in itself, that the language must be such as to justify that and no other construction, before it would be assented to by the court. By the plaintiff it is contended that the word discretion applies only to the manner — and the law has so limited its meaning, when used in such instruments as in the cases that have been read. And even where it could not be applied to the manner, the courts have in many, instances given the term a very definite signification, as in Cragrave vs. Perrost, 2 Vernon, 355. What the executrix “ should think fit," was decreed to mean 1000Í. And so in others. That the word discretion applies to the maimer only in which the legacy shall be paid, is certainly very apparent . from the connexion and tenor of the whole will. In the first -place, from the use of the same term, with that meaning previously in the same instrument, by which the testator i! desires to be decently buried in the chufch yard of St. John’s church, at the discretion of the executor.'" Now apply to this period the construction contended for by the defendant, and let him have been as averse from expending, as paying over the property to legal claimants, and the testator’s chance for burial would have been much more problematical than the good woman herself would ever have suspected. Another circumstance in support of the plaintiff’s construction, is the limitation of the same to fifty dollars per annum. If the defendant was to pay or not, at his own pleasure, could this precaution have been necessary to guard against his being too liberal to the plaintiff? This very limitation to that sum is a bequest of that sum. As in the case cited from Godolphin, 283, where the testator says : “ If my son A marries B, let not my executor give him 100Í. These, on A’s not marrying B, are holden to be sufficient to give him 100Í.” Again, the same clause of the will provides this sum for the plaintiff’s “support” “during her natural life.” This must have been intended to secure .some privilege to the plaintiff, or to guard against some evil that might result to the defendant. It was, then, either intended to secure the annual payment of the sum before mentioned, to the plaintiff for that period, or to protect the defendant, in the overflowing of his benevolence, from the danger of appropriating that sum “ for her support” after her decease ! And again — it is provided in the next succeeding clause of the will, that “after the decease of the said Margaret,” &c., he should in a certain case furnish relief to some other of the testator’s relations. But if he was not compelled to furnish the plaintiff any thing during life, no reason could exist why he should wait for her death to aid the other poor relations. If the intention of the testator had been to convey all her estate to the defendant, as is contended by his counsel, then the first clause of the will only was necessary for that purpose, and all the remainder of it might as well have been omitted. The latter clauses must be considered perfectly nugatory, or admit of the construction insisted upon by the plaintiff. It is not even pretended they can answer any other purpose. Do not the words and general tenor of the will express with sufficient certainty the intention of the testator as to the legacy claimed, the person to whom given, and the property to be appropriated, to become imperative upon the executor ? In coming to a decision in the affirmative of that question, it cannot but be gratifying to the court, as to every friend of humanity, that the principles and precedents of the law in this case confirm the decree of mercy — as the sum which the plaintiff may recover in this action is a portion only of the estate to which she was, without the will, entitled as heir, and it now will be appropriated for the support of her who far a long time has depended for bread upon publick charity.