160 S.W.2d 363 | Ky. Ct. App. | 1942
Affirming.
The will of the late Rebecca M. Garvey, of Owen County, is as follows:
"Leesburg Va Jan 1 1939 This is to certify that I want my sister Mrs M.H Coleman to have what I leave in the event she survives me to use as near following directions as possible I want three hundred dollars put in trust to keep the two Lots known as the D L Moore Lot. No. _____ and the j j Garvey Lot No _____
"Rebecca M. Garvey." *62
The testatrix, an invalid, was living in the home of her sister, Mrs. M.H. Coleman, in Leesburg, Virginia, when she executed her will and when she died. The circuit court construed the will as devising all the estate, except a trust fund of $300 for the upkeep of two cemetery lots, in fee to Mrs. Coleman, conditioned upon her surviving testatrix, which she did. On this appeal other heirs challenge that construction.
The appellants submit that, taking the will as a whole, the intention of the testatrix was to create a trust for some purpose undisclosed by the instrument, except $300, and the trust failed because the beneficiaries are not designated. They rely upon Arnold v. Clay,
The will in the case at bar may be divided into two parts: By the first it devised the estate to the sister in the event she should survive the testatrix, "to use as near following directions as possible." By the second part a bequest of $300 was made as a trust fund for the maintenance of two lots, identified by the evidence as cemetery lots. Giving the estate to her sister without any qualification or limitation other than for some particular use is materially different from expressly providing, as did the will in the Arnold ease, that it was given in trust. The decision in that case was influenced, if not controlled, by the fact that the trustee, who alone knew what the secret purpose was, had died before it could come to him. In the instant case there is a specific *63
trust of $300. The balance of the estate (which was about $3,500) was given to the sister individually, and it could well be said that the use to be made was personal or for herself. The property itself was given to the sister — not its use. Cf. Griffin v. Griffin, Ky.,
On its face the bequest lacks essential elements of a trust. This is made apparent by applying the test of enforcibility. Had the sister died after the testatrix, before settlement of the estate, the court could not have rendered the trust effective and enforced it for no beneficiaries were indicated — the death of the named trustee being, under familiar law, no impediment. There is a class of cases where an estate was left to one under the expectation that the gift would be applied in accordance with the testator's known wishes, and it is possible that this bequest was of that character. But if the legatee in such a case made no promise, expressly or impliedly, to comply with those wishes, whatever moral obligation there may be there is no legal obligation resting upon him. Title passes to the legatee and it is only to prevent fraud by compelling the fulfillment of a promise that the power of a court of equity will be exercised. Trustees of Amherst College v. Ritch,
Judgment affirmed. *64