53 W. Va. 165 | W. Va. | 1903
Aaron Baker, of Grant County, executed bis last will and testament in which he provides: “1st, I will to my beloved wife, Mary E. Baker, my home farm and my one hundred-acre
2nd, I will to her, Mary E. Baker, all the stock that is on my farm including all furniture in my house, and all tools and machinery there is on the place at my death.
3rd, I will to my wife, Mary E. Baker, my bank stock and three thousand dollars of my bonds, her choice.”
Having no children he proceeds to provide certain sums for his brothers and sisters and half brothers and half sisters and nephews and nieces, the 8th clause of which is as follows:
“8th, I will to Bernie V., daughter of my half brother, Benjamin E. Baker, dec’d, Five Hundred Dollars.”
And makes disposition of the home place at the death of his wife. He then provides in clause 21; as follows:
“21, I will that the balance of my lands not willed shall be sold and the money given to my wife for charitable purposes. I will that the balance of my bonds not willed shall be collected and the money given to my wife for charitable, purposes.”
And appoints his said wife and G. W. McCauley his executors and directs that they should not be required to give bond. The will is dated the 7th day of January, 1898. Afterwards, on the 9th day of April, 1898, he made the following codicil:
“1st, I revoke the legacy given in said will to Bernie V., daughter of my half brother Benjamin F. Baker, dec’d., she being now dead and I devise and bequeath the five hundred dollars that I had given to her, to be given to my wife, Mollie E. Baker for charitable purposes.”
The executors filed their bill in the circuit court of Grant County praying that the court would construe item 21, and the said codicil, and determine whether said item 21, and said codicil or either of them were valid, and that in the event the court should determine that said provision of item 21 and the said codicil were void for uncertainty or some other cause, it would direct the plaintiffs to whom the money coming into their hands, under said provision, should be paid, and for general and special relief.
The defendant, Mary E. Baker, filed her separate answer, denying that said item and codicil were void on account of being indefinite and uncertain or for any other reason, averring that testator willed to his next of kin, of his estate all that he
On the 4th of December, 1901, the cause was heard on the bill and exhibits filed, process duly executed on all the home defendants, order of publication as to the non-resident defendants completed and posted and the answer of Mary E. Baker then filed and general replication thereto, and was argued by counsel. “On consideration whereof the court being of the opinion that item 21 in the will of Aaron Baker, deceased, which is as follows: ‘I will that the balance of my lands not willed shall be sold and the money given to my wife for charitable purposes. I will that the balance of my bonds not willed shall be collected and the money given to my wife for charitable purposes,’ is void because too indefinite and uncertain and that the codicil to said will is also void because too indefinite and uncertain and doth so decide, and the court being further of the opinion that the defendant, Mary E. Baker, widof of
The principal question involved in this matter is what was the intention of the testator. Was it his purpose and intent by the words “For chartable purposes,” to create a trust, making his wife, Mary E. Baker, trastee, to dispense the charities he intended, or whether such words can be construed to create a trust? It is asserted by counsel for appellant and not denied that the will was written by the testator himself and it is very probable without the aid or advice of an attorney, and in construing the will it is our duty, as it would be in any case, to take the whole will together and ascertain, if possible, the purpose and intent of the testator. He had Evidently bestowed upon his next of kin as much of his property and substance as he intended they should have; he provided a reasonable support for his wife, the first object of his care and protection.
Evidently the testator had no special charity in view, he points out no particular charity he intended should receive his bounty, gives no directions and suggests no course to be pursued by his wife in dispensing the charities. His only purpose seems to have been to place at her disposal such funds as would enable her to exercise the generous and charitable disposition with which she was evidently endowed, in her own way and in any direction that she, in her discretion saw proper. If he had placed this money in her hands with directions to build a church or some charitable institution, without particularizing, to make it certain as to what he desired and intended to be carried out, it might be said he had created a trust, but one which was so indefinite and uncertain that it was
It is there further held: “The intention of a testator to create a trust must be apparent upon the face of his will apart from the mere existence of words of trust and confidence, or none will be deemed to exist. Mere precatory words or words of command or of explanation, contained in a will, are not enough to create a trust, or to establish an intention not to be gathered from a consideration of the operative words upon the face of the instrument.”
Beck’s Appeal, 46 Pa. St. 527, “A testator after bequeathing an annuity to his wife for her support, in lieu of dower, directed his executors to allow her during her widowhood, a further sum per ánnum to be paid in the same manner and at the same time with the yearly annuity, in addition thereto, Tor house-rent.’ Heidi:
“(1) That the bequest of the additional annuity was absolute, depending only on the condition of widowhood.
“(2) That the clause describing the object of the gift was not a condition subsequent to the bequest of the annuity so as to defeat it, when, and for so long as, the widow ceased to be a housekeeper.
“(3) That the widow was entitled to the additional annuity so long as she remained the widow of the testator, though she did not keep house and was not therefore obliged to pay rent.” In Williams v. Worthington, 49 Md. 572; 33 American Reports, 286, the syllabus of the case is as follows: “A testator provided as follows: Tt is my will and desire, and I hereby devise and bequeath all my property, real, personal and mixed, to my dear wife E. A., and her heirs and assigns forever, and it is my request and desire that my said wife E. A.
In support of appellee’s proposition that the bequest made in item 21 and codicile are void for uncertainty, they cite a long line of cases decided by this Court, beginning with Carpenter v. Miller, 3 W. Va. 174, where it is held that a clause devising estate “To the propagation of the Gospel in foreign lands,” is void for uncertainty. This citation is followed by Bible Society v. Pendleton, 7 W. Va. 69; Knox v. Knox, 9 Id. 124; Carskadon v. Torreyson, 17 Id. 43; Brown v. Caldwell, 23 Id. 187; Mong v. Roush, 29 Id. 119; Wilson v. Perry, Id. 169; Pack v. Shanklin, 43 Id. 304. In all these cases the devises and bequests were made attempting to create a trust .for the benefit of particular charities named and specified, leaving no question as to the purpose and intent of the testator to create a trust, and in each case the bequest or devise was held to be void for uncertainty. Counsel for appellees argue three propositions.
First, was a trust created in said items 21 and codicil?
Second, were the gifts mentioned therein void because the beneficiaries were indefinite and uncertain?
Third, who is entitled to the money, if said gifts are void ?
In our view of the case, as set forth in what has preceded, no trust was created by said item' 21 and codicil, and the gifts mentioned therein are void for uncertainty. Taking the whole will together it was clearly the intention and purpose af the testator to provide his wife with a fund which would enable her, solely at her discretion, to dispense charities in such manner as she might choose.
For the reasons herein given decree of the circuit court must be reversed, and this Court doth construe the said item 21, of the will, and the codicil, to give to' the said Mary E. Baker, wife of, the testator, the money and property mentioned in said item 21 and codicil to be hers absolutely, and this Court doth accordingly so decree.
B&uersed.