149 Mich. 248 | Mich. | 1907
(after stating the facts). Probably, in the multitude of cases that have come before the courts of this country and of England for construction, the provisions of no two wills or trust deeds are exactly alike. The courts and law writers recognize that—
“No general rule can be stated that will determine when a conveyance will carry with it a beneficial interest, and when it will be construed to create a trust; but the intention is to be gathered in each case from the general
In each case, where the language is unambiguous, courts must ascertain from the four corners of the instrument the intention of the testator, and enforce that intention, unless unlawful.
Counsel for complainants say that the “familiar canon of construction is that the intention of the testatrix must be ascertained, and, if legal and adequately expressed, must prevail.” The same counsel quote the language of Ralston v. Telfair, 2 Dev. Eq. (N. C.) 255, as well stating the doctrine:
“ There is a distinction between an express trust for an indefinite purpose, and those cases where, from the indefinite nature of the purpose, the court concludes that a proper trust could not have been intended, though words may have been used, which, had the objects been definite, would by construction import a trust. In the first description of cases the devisee does not take beneficially; in the latter, he does. ”
The language of the will in question contains no ambiguity. If the testatrix intended to vest in her trustee complete and uncontrolled dominion over the residuum after the execution of the trust the defendant is entitled to a decree.
The testatrix had other children, but the chief object of her solicitude was her son Thomas. Eor reasons which do not appear, and which are immaterial, she evidently considered him incompetent to manage his estate. She therefore desired to provide for his maintenance and care to the extent of the expenditure of all of her estate if necessary. Nocontest was made.over the will. She chose as her executor and trustee a man of high character and repute, to whom she referred in her last codicil, executed shortly before her death, as her friend. She chose to provide that in the event of his death his son should succeed to the trust. She had confidence in them, and the result shows that the confidence was not misplaced. The an
The third clause of the will conveyed the entire title, as the judge found, to the executor named. It is clear that she did not intend the residuum, if any there were, to go to her other children. The language of the fourth clause cannot be construed to indicate any such intention. She did intend to dispose of it otherwise'. If the fourth clause were eliminated, then, under the universal rule in this country and in England, since the enactment of 1 Wm. IV, chap. 40, the residuum must be divided among the heirs. 1 Perry on Trusts (4th Ed.), § 155. Even prior to that enactment the courts of England were astute to find'language which would make the executors trustees rather than beneficiaries, and * ‘ therefore a little matter was sufficient to show that intent.” Bishop of Cloyne v. Young, 2 Ves. Sr. 91, decided in 1750. The trust was exclusively for the benefit of her son, except as to a few specific bequests. It ceased with his death. She clearly intended that it should. She could dispose of the residuum as she pleased. She attempted to do so. What did she intend ? is the sole question.
The fourth clause provided for no trust after the first trust had been executed. She provided that he should appropriate it to defraying the expense of the trust, viz., the trust for the benefit of her son, or in such other or different manner as he should deem best. No secret trust is even hinted at; no suggestion of a desire to make any one the object of her bounty; nothing upon the face of the will to indicate that the testatrix had any object or
In all the cases cited by counsel for the complainants, there is language from which it may fairly be inferred that the executor or trustee took it in trust for some purpose, as in Minot v. Attorney General, 189 Mass. 176, where the testator provided that his residuum should be distributed by his executors ‘ ‘ to charitable or worthy objects, or such as I may designate during my lifetime,” etc. The court correctly held that it was the intention of the testator to create a trust of some kind. Similar cases are Morice v. Bishop of Durham, 9 Ves. Jr. 899; White v. Crossman (N. J. Eq.), 64 Atl. 168; Forster v. Winfield, 142 N. Y. 327. The following cases appear to support the conclusion which we have reached: Beck’s Appeal, 116 Pa. 547; Powell v. Powell’s Ex’rs, 2 Murph. (N. C.) 326; Gibbs v. Rumsey, 2 Ves. & B. 294; Bulfer v. Willigrod, 71 Iowa, 620; Taft v. Taft, 130 Mass. 461; Jacob v. Macon, 20 La. Ann. 162; Apreece v. Apreece, 1 Ves. & B. 364; Paice v. Archbishop of Canterbury, 14 Ves. Jr. 370; Jones v. Jones, 25 Mich. 401.
The learned circuit judge held that under the contention made by the defendant the residuum, in case of the death of the successive executors before the execution of the trust, would go to a stranger, whom the court would
Decree should be reversed, and decree entered in this court for the defendant. No costs* will be allowed.
I think that the circuit judge arrived at a correct conclusion in this case, and that his decree should be affirmed. While the intention of the testatrix is the main subject of inquiry, it is necessary to specify in this case the particular intent to be made the subject of inquiry. In my opinion, it is wholly immaterial, for the purpose of this inquiry, whether the testatrix intended to give anything to complainants. Their case is planted upon the proposition that, she did not intend to give it to them, but has failed, through the vagueness and uncertainty of her will, to give it to anybody else. Neither is the fact that testatrix intended to dispose of her entire estate important. Complainants’ position is,-substantially, that she did intend to dispose of her entire estate, but has failed to state how she intended to dispose of the particular part of it in controversy here, which, therefore, passes to them as though she had died intestate. The particular intention
There is no claim that the original executor or his successor acted otherwise than in the utmost good faith, but in determining the meaning of this will we can have no reference to the characters or conduct of the persons named as trustees. This is practically an amicable suit to obtain a construction of the will, desired by both parties. As said by the court of appeals, in Forster v. Winfield, 143 N. Y. 337:
“Before a gift to executors eo nomine can be held to vest in them individually, the intention that it should so vest must be plainly manifested.”
Furthermore, this will was drawn by the original trustee, himself a lawyer, and familiar with the phrases and language commonly used to create a devise, or bequest. This circumstance not only invites great circumspection, but authorizes the court to construe the language used as unfavorably to the claim of defendant as the language will permit.
There is no devise, gift, or bequest contained in the fourth clause of the will. The grant is in the third clause, and that is not to the individual, as an individual, but as a trustee. The fourth clause simply contains a direction what to do with the remainder of the trust fund. The amounts to be paid by the executor for the support of the son Thomas, and to contribute to the support of her sister, Jane Lovell, are largely left to the discretion of the executor, and the exercise of that discretion would directly affect the amount of the residuum. While this circumstance would not invalidate a gift of the residuum to the executor, it is worthy of consideration in determining whether the testatrix intended to make such a gift. If the testatrix desired to give the remainder of her estate to the executor, no reason is perceived why the executor, when drawing the will, could not have so stated in a few
In Forster v. Winfield, the testator, after providing for the payment of debts, proceeded as follows:
“ And the net residue after payment of all such debts, I give to my said executors and to the survivor of them as joint tenants. I have entire confidence that they will make such disposition of such residue as, under the circumstances, were I alive and to be consulted, they know would meet my approval.”
The court say:
“ The last part of this clause does not qualify what precedes it. There he says: ‘ I have entire confidence that they will make such disposition of such residue, as, under the 'circumstances, were I alive and to be consulted, they know would meet my approval.’ This language does not necessarily imply that they were to take the land or its proceeds as individuals. It was just aa appropriate in its relation to them as executors. He gives the real estate or its proceeds to them upon some undefined trust, a confidence not disclosed. The testator evidently supposed that the secret trust would be carried out, and possibly that it could legally be enforced.”
In the case before us the provision is:
“ In case any remainder be left in the hands of my executor and trustee, then he shall appropriate the same to the defraying of the expenses of this trust, or in such other or different manner as he may deem best.”
If this provision had ended with the word “trust,” there could be no question that the trustee would not take the remainder, as an individual, but would hold it in
The whole will manifests the extreme confidence of the testatrix in the executor and his son, and her willingness to leave the disposition of her estate very largely to their discretion. The amount to be paid for a monumontal stone'; the amount to be devoted to the support of the son, and the additional provision that “my executor shall appropriate and pay to him, in case he shall deem it for his best interests, the sum of two hundred dollars per year, or such other or different sum as he may think best;” the provision for her sister, Jane Lovell, and the amount which should be set apart for the cemetery lot— in fact, the most important provisions of the will, depend for their execution largely upon the discretion of the executor. In view of this confidence, it appears to me reasonable to suppose that the testatrix was willing to leave the disposition of the remainder of the trust fund to such trust purposes as her trustee, acting as a trustee and not as an individual, should think best. The case of Beck’s Appeal, 116 Pa. 547, is cited as opposed to this conclusion. The same court refer to that case in McCurdy’s Appeal, 124 Pa. 99, as follows:
“ But the doctrine of Beck’s Appeal ought, if possible, to be restricted rather than extended. Its practical application in that case was a disposition of the testator’s residuary estate apparently very different from that which he
If, as defendant’s counsel contends, and I believe correctly, the intention of the testatrix is to be ascertained and enforced, it clearly follows that the decision in Beck's Appeal should not be f óllowed. It seems improbable to me that a lawyer of Mr. Duffield’s ability understood that the testatrix wished in effect to make an absolute gift to him of the remainder of her estate, and then expressed that intention in the language of this will. Furthermore, to so hold would, in my opinion, be a matter of evil import to be avoided, if possible. By statute, a bequest to a subscribing witness, necessary for proving the will, is declared absolutely void (3 Comp. Laws, § 9268), and this, though the subscribing witness may be and generally is ignorant of the contents of the will. Although there is no statute to invalidate a bequest to a scrivener, the reasons are, at least, as strong for such a statute as in the case of the subscribing witness. I believe it to be generally recognized by the profession as contrary to the spirit of its code of ethics for a lawyer to draft a will making dispositions of property in his favor, and this court has held that such dispositions are properly looked upon with suspicion. Dudley v. Gates, 124 Mich. 440. I, therefore, do not believe that Mr. Duffield supposed that he was making provision for his own benefit, and it seems clear from his letters that his son had no such supposition until he was so advised by counsel.
I am for affirming the decree, but without costs.