2 Va. 1 | Va. | 1845
Lead Opinion
I think it clear that by the will in question, the testator intended to confer upon his wife the ownership of his whole estate, real and personal; but not for her exclusive benefit. There is an express declaration of a trust in favour of the children of the marriage, by which they are entitled to distribution of the estate amongst them; a distribution, however, not immediate or unqualified, but subject to a power and discretion on the part of the wife, the effect of which is to limit the trust; and to enable her, at her own election, to enjoy the whole subject during her life for her own benefit. The scheme of the testator’s testamentary dis
The effect of the construction contended for on the part of the children, is to entitle them to immediate distribution of the whole property, so as to deprive the widow of all discretion in regard to the periods for allotment to the children of their respective portions of the estate: and leave her destitute of all provision for her comfort and maintenance. And this, in that view, we must take to have been the testator’s intent; for we cannot suppose that he contemplated her breaking through the dispositions of the will, for the purpose of obtaining the means of subsistence provided for her by law. Thus (upon that construction) while expressing for his wife the utmost love and confidence, devising to her in terms his whole estate in fee simple, and confiding to her the distribution of it amongst their children, we are to hold the testator’s intent to have been to leave her penniless. Such a construction is impossible. It is against the whole spirit of the will, and unwarranted even by its letter. The distribution contemplated by the testator was a distribution not at his own death, but at that of his wife, or earlier at her option; with a perfect discretion in her as to the times, manner, amount and proportions, subject
The construction contended for on the part of the w^ow^ by which she would hold absolutely for her own uge anq benefit the whole estate, real and personal, with the power of disposing of it according to her own mere will and pleasure, so as to leave the testator’s children destitute, and enrich strangers to his blood and affections, I regard as equally unfounded. It is true, by one clause of the will the testator leaves to his wife all his worldly goods, doubtless meaning all his estate, real and personal; but in the same clause the purpose expressed is, “ to sell or beep for distribution amongst our dear children.” This was surely the declaration of a trust in their favour. And though by the next clause the devise to her is of all his estate, real and personal, in fee simple, yet it is accompanied with a request, “ to make an equal distribution amongst our heirs.” The only foundation of the widow’s claim to absolute and unqualified, ownership, is the language of discretion in the first mentioned clause, and of request in the second. But the words of discretion in the first, “ as she may think proper,” have reference to the executing, and not the defeating of the trust; and the words of request in the second, “only requesting her to make an equal distribution amongst our heirs,” serve but to shew that her ownership was limited merely for the purposes of the trust, and that the testator desired the distribution required by the trust should be equal. The second clause is an explanatory repetition of the first, and in no wise does it impair the trust, or enlarge the ownership of the widow to the detriment thereof. The two taken together shew it was the testator’s intention that his wife should succeed him to a qualified ownership of his estate; and that their common offspring should be the joint and equal “ heirs” or distributees of both; with a parental discretion in her to accelerate, in the whole, or in part, the periods of enjoyment by the children respectively.
That doctrine (applicable to cases where there is such a testamentary disposition of property to one as is susceptible of a trust in behalf of others) is founded upon the cardinal rule in the construction of wills, that the testator’s intent, when ascertained, is to be carried out, by whatever words conveyed. Hence it has come to be well settled, in such cases, that in order to effectuate the testator’s intention, words of request, recommendation, or hope, may be treated as imperative ; and shall be so treated where the objects of the precatory language are certain, and the subjects contemplated are also certain ; unless a clear discretion or choice to act or not to act, be given, or the prior dispositions of the property import absolute or uncontrollable beneficial ownership. 2 Story’s Eq. § 1068 to 1070; 2 Rop. on Leg. ch. 21, § 6; Lewin on Trusts, ch. 5, <§, 2, p. 77, 81, 24 Law Libr. ; Jeremy Eq. Jurisd. Book I, ch. 1, <§> 2, p. 99, 102. Exceptions have been taken by some Judges and writers to
Where a testamentary benefit contemplated is direct and primary, it is obvious that there is no room for a distinction between the force of peremptory and precatory words. Thus in the devise of an estate, or a tenement, or the bequest of a horse, or a sum of money, the effect is the same whether the testator employs the language of gift, grant or conveyance, or that of request, recommendation or even advice, however awkward or inappropriate any of the latter might in some cases seem. The difficulty arises where there is first a devise or bequest of the property to one, with the addition of words of request, recommendation or hope in behalf of others ; and it consists in the question whether the testator’s intent is decisive in their favour, or merely suggestive or advisory to the first taker. Now, to make that question turn upon the precise intrinsic import of the very words employed, upon the supposition advanced by some, that the testator always understands clearly their true force and meaning, would involve us in verbal criticisms, and chain us down to a literal interpretation; with what success in ascertaining the testator’s intention, common sense, the best and safest guide in such matters, will readily answer.
A testator’s desires in regard to the disposition of his property, to be collected from his will, ought not to be the less obeyed because he has confided the execution of them to another, unless it appears that he designs to subject his own wishes and expectations to the caprice or inclination of the person so entrusted. This idea is quaintly, but comprehensively and forcibly, expressed by Lord Alvanly, Master of the Rolls, in Malim v. Keighley, 2 Ves. jr. 335, where he says: “ Wherever any person gives property, and points out the object, the property and the way it shall go, that does create a trust,
In the application of the doctrine of precatory bequests, to this case, it cannot be doubted that the objects are positively certain, to wit, the children of the marriage. But it is urged that the subject is rendered uncertain by the clause in regard to the slaves, by which the testator expresses his desire that his wife shall do for some of his faithful servants whatever she may think will most conduce to their welfare, without regard to the interest of his heirs. Now, this provision, regarded as a trust, is a mere null^q it being altogether uncertain, as well in respect to the individuals, as the nature and extent of the benefit contemplated. Regarded as a power given to the wife, it is not an enlargement of her estate; but a charge upon, and at the same time a recognition of, the trust in favour of the children. It occasions no uncertainty as to the existence of an interest in them, but only as to the value of that interest. The power is limited to a great extent, not only by its terms, but by its very nature; and the unreasonable exercise, or abuse of it, would doubtless be restrained, by judicial authority. The uncertainty to which the authorities refer, goes to the whole subject, and bears upon the question of intention. It arises sometimes out of the vagueness of the benefit contemplated, but most usually out of the unqualified enjoyment, or unbounded discretion given by the previous dispositions of the will, so as
^he result of the foregoing views of the case is, that the widow is invested with the legal title to the whole of the testator’s estate, real and personal, with the beneficial ownership thereof during her life, but in trust for the children of the marriage, at her death, subject to her powers of sale, distribution and advancement above indicated, and to her optional benefactions in behalf of some of the testator’s faithful slaves by the will authorized.
Concurrence Opinion
concurred in the opinion of Baldwin, ex-
cept that he was of opinion the provision for the slaves was void.
was inclined to the opinion that the adjudged cases favoured the conclusion that the widow, while she had under the will, full discretion to sell and apply any part of the estate for the purpose of paying debts, took under it no beneficial interest in the residue left after the payment of debts, but was trustee thereof for the children, with power to make advancements to them at discretion : so, however, as ultimately to make the shares of each substantially equal. He, however, readily deferred to the opinions of his brethren, and acquiesced in the decree that was to be entered as the decree of the Court.
If a testator has complete dominion over his property, and may throw it into the sea, if he so wills, I can see no reason why he may not give it absolutely to his wife. That the testator so intended in this case, I think there can be no doubt, if language can express ideas. That he did not intend she should give it to
I think the decree ought to be affirmed.
The decree of the Court was as follows :
The court is of opinion, that by the last will and testament of Randolph Harrison deceased, in the proceedings mentioned, his widow, Henningham C. Harrison, the appellee, is invested, subject to the payment of his debts, with the legal title to the whole of his estate, real and personal, and the beneficial ownership thereof during her natural life, but in trust at her death for the children of their intermarriage, who take a vested remainder therein in fee simple, to be enjoyed at her death, or earlier at her election; and that by said will she has authority to make distribution of said estate, real and personal, amongst, or advancements therefrom to, said children, with full discretion on her part as to the periods, amount and proportions, subject to the requirement of ultimate completeness and equality in the division, and to her optional benefactions in behalf of some of the testator’s faithful slaves by the will authorized ; and further, that she has power by said will to make sale of all or any of said estate, real or personal, for payment of the testator’s debts, or more convenient enjoyment, advancement or division, or to keep the same for the like purposes in kind, at her discretion. The Court is, therefore, of opi
