Aldrich v. Aldrich

172 Mass. 101 | Mass. | 1898

Morton, J.

If the testator had intended to create a trust in favor of his children at his wife’s death, there can be no doubt that he knew how to do it in clear and unmistakable terms, and it is almost inconceivable that, if such was his purpose, he should have expressed himself in the manner in which he has done.

There is no doubt that words of recommendation, or of confidence, entreaty, hope, or desire, have been held sufficient under some circumstances to create a trust. But, speaking generally, this was because in such cases such a construction was supposed to carry out the intention of the testator. If an arbitrary rule seems to have been laid down at one time in regard to what would constitute a precatory trust, there can be no doubt, we think, that the tendency of later decisions has been, if not to relax the rule thus laid down, at least not to extend it. Hess v. Singler, 114 Mass. 56. Lambe v. Eames, L. R. 10 Eq. 267; S. C. 6 Ch. App. 597.

In the present case there is what clearly would constitute in law, if it stood alone, an absolute gift of the estate to the wife. Then follows, after one or two intervening clauses, the one on which the plaintiff relies. This was intended by the testator, it seems to us, to express his reason for the gift to his wife and his confidence in her, and not to cut down or affect the absolute character of the gift which he had previously made to her. It is true that he says in substance that he expects that the property, when she shall no longer need it, will be divided equally between the children and their representatives. But there is nothing which renders it obligatory on her to do this, and therefore one of the features of a precatory trust is wanting. See Warner v. Bates, 98 Mass. 274; Spooner v. Lovejoy, 108 Mass. 529; Hess v. Singler, 114 Mass. 56; Sears v. Cunningham, 122 Mass. 538; Barrett v. Marsh, 126 Mass. 213; Davis v. Mailey, 134 Mass. 588; Sturgis v. Paine, 146 Mass. 354; Durant v. Smith, 159 Mass. 229; Eaton v. Watts, L. R 4 Eq. 151; Lambe v. Barnes, L. R 10 Eq. 267; In re Hutchinson, 8 Ch. D. 540; Mussoorie Bank v. Raynor, 7 App. Cas. 321; Parnall v. Parnall, 9 Ch. D. 96; Meredith v. Heneage, 1 Sim. 542; Sale v. Moore, 1 Sim. 534; Hoy v. Master, 6 Sim. 568; Webb v. Wools, 2 Sim. (N. S.) 267; In re Adams, 27 Ch. D. 394, 406; In re Williams, [1897] 2 Ch. 12; Pennock’s estate, 20 Penn. St. 268; Clay v. Wood, 153 N. Y. 134; Randall v. Randall, 135 Ill. 398; Nunn v. O’Brien, 83 Md. 198.

The cases which we have cited do not resemble in all respects the one at bar, and there are English and American cases which seem to support the view for which the plaintiff contends. But the question is, whether, taking the will as a whole, it was the intention of the testator to create a trust, and we are of opinion that it was not, and that the construction which we have adopted is in harmony with the more recent English and American cases. Bill dismissed.