By thе ninth clause of his will, Thomas J. Taylor disposed of the residue оf his estate in these words: “All the remainder of my estate both real and personal of which I may die seized and possessed, and to which I may in any way be entitled at the time of my deсease, I give, bequeath and devise to my executors and trustees, in whose honesty and discretion I have reposed especial trust and confidence, for certain рurposes which I have made known to them. And I hereby authorize and empower my said executors to make such distribution and division of my estate as I have indicated to them, and as thеy shall deem proper for the fulfillment of my wishes so well known tо them, relying entirely'upon their judgment in the premises.” The exeсutors contend that no trust was created by this clause, that there was an absolute gift of the residue to them. In the Probatе Court it was held that the executors received the property upon a trust which was too indefinite to be carried into effect, and that a trust resulted for the heirs at law and next of kin of the testator; from this decree the executors appealed.
If ‘the words expressing trust and confidence in the honesty and discretion of the trustees and executors, and reliance “upon their judgment in the premises,” were omitted from the residuary
The words expressing trust аnd confidence in the executors and trustees did not show that the executors were to take the property аbsolutely as their own. These words are merely expressions of confidence that the trustees will carry out the trust and distributе the property and divide the estate according to the wishes of the testator — already “made known to them,” — according to their best judgment. The gift was not to the petitioners by name, but was a gift to them as trustees and executors of the testator’s will; and he clearly manifested his intention to give the еstate to them for certain purposes, although they were to use their own best judgment in its distribution, and as they thought proper for the fulfilment of his wishes. Davison v. Wyman,
In Lloyd v. Lloyd,
Although a trust was attempted to be created by the will of the decеased, it was not a charitable trust, and, not being sufficiently definite, it cannot be executed. The judge of probate, thеrefore, was right in deciding that the residue should go to Matthew H. Taylor, Martin Taylor and Louisa J. Foster, “the heirs at law and next of kin of said testator, and the petitioners should make distribution thereof among said persons or their legal representatives in the same proportions in which they would have been entitled to intestate property of the testator.” Olliffe v. Wells,
Decree of the Probate Court affirmed.
So ordered.