113 Mo. 112 | Mo. | 1892
This is an action in the nature of a bill in equity to enforce a precatory trust alleged to ' arise under the will of John Whelan, who died January 9, 1882. The will is dated May 13, 1880, and provides as follows:
“First. — For payment of debts and funeral expenses.
“Second. — Legacy of $1,500 to the testator’s sister, Mary Conners.
“Third. — Legacy of $1,000 to Mollie Curran, the child of the testator’s niece, Ann Conners.
“Fourth. — Legaey of $1,000 to John Cullinane in recognition of many j ears of faithful service.
“Fifth. — I give, bequeath and devise all the rest of my property, both real and personal, and of every hind, nature and description, unto my dearly beloved wife, Margaret, and to her heirs and assigns forever, to have and to hold the said property with all privileges and appurtenances thereto belonging unto my said wife, Margaret, and to her heirs and assigns forever.
“Sixth. — It is my wish and desire that my wife continue to provide for the care, comfort and education of Thomas Joseph Murphy, now aged nearly five years, who has been raised as a member of my family since his infancy, and to make suitable provision for him in case of her death, providing that he continue to be a dutiful child to her and shows himself worthy of such consideration.”
The circuit court found for the plaintiff, awarding him the gross sum of $10,000, and charged the same as a lien upon said real estate, and defendants appealed.
The testator by his will appointed his wife sole executrix thereof without bond. At the time he executed the will, and at the time of his death he was possessed of a large estate, and was living in a style befitting that estate, which was the fruit of his own economy and industry. His widow, after paying all the specific legacies contained in the will, 'funeral expenses and other liabilities, received of the personal estate as sole legatee under the will, as appears from her last settlement made April 15, 1884, the sum of $86,630.39 in cash or its equivalent. The testator and his wife had no children. The plaintiff, who is a minor, suing by his next friend (at the time of the trial of the age of fifteen years), was taken by Mrs. Whelan when he was eighteen months old to be reared as her own child. He was then an orphan, the son of respectable parents, and under the control of his mother’s relations, his father and mother both having died but a short time before. He was never formally adopted by the testator, but was taken into his family, given his surname, and ever afterwards treated as a favorite son by him and his wife until they died, and never found out that he was not their son until after Mrs. Whelan’s death. He was about seven years old when Mr. Whelan died, and about ten when Mrs. Whelan died, was a dutiful.
I. The cardinal rule prescribed by the legislature of this state for “all courts and others concerned in the execution of last wills’’ is to “have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them.” Revised Statutes, 1889, sec. 8916.
The true intent and meaning of the testator can be best ascertained by the courts and those concerned in the execution of wills by putting themselves, so far as may be, in the place of the testator and reading all his directions therein contained in the light of his environment at the time it was made. Hall v. Stephens, 65 Mo. 670; Noe v. Kern, 93 Mo. 373; Suydam v. Thayer, 94 Mo. 49; Munro v. Collins, 95 Mo. 33; Small v. Field, 102 Mo. 104; Long v. Timms, 107 Mo. 512. When that intent and meaning can be thus clearly ascertained, then all technical rules and adjudicated cases in other jurisdictions that would stand in the way of its execution must be disregarded.
In Schmucker’s Fstate v. Reel, 61 Mo. 592, the prevailing doctrine in regard to precatory trusts was recognized to be “that no particular form of expression is requisite in order to create a binding and valid trust; and that words of recommendation, request, entreaty, wish or expectation will impose a binding duty upon the devisee by way of trust, provided the testator has pointed out with sufficient clearness and certainty both the subject-matter and the object of the trust.” This rule was again recognized by this court in Noe v. Kern, supra, in which it was said: “In this class of cases the difficulty is not as to what the rule is, but as to its application.” “Every case must depend upon the construction of the particular will under consideration. The point really to be determined * * * is,
As thus explained this rule was applied by this court in the case of Noe v. Kern, supra, In that case a childless married couple had -taken two children to raise. The wife was possessed of an estate and died before her husband. The children were the offspring of the wife’s deceased brother; they were both frail, in bad health, and without any means of support. They had been taken into the family and treated as the children of the testatrix and her husband, though never legally adopted. The wife by her will devised and bequeathed all her estate to her husband absolutely, and added, “I make this bequest in the full faith that my husband will properly provide for the two children of my deceased brother Simeon, whom we have undertaken to raise and educate,” and appointed her husband executor of her will. He died two days after the death of his wife without,having made any provision'¿n his will for the children. And we held that the property
That case is strikingly analogous to the one in hand, and most of the objections urged against a similar holding here are answered in the opinion in that case. As in that, so in this case, both the subject-matter and object of the trust are pointed out with sufficient clearness and certáinty. The precatory words in this ease are a positive and unequivocal expression of the wish and desire of the testator; and the fact' that the whole estate is bequeathed absolutely and immediately before the precatory words are used, ought not in this, as they did not in that case, prevent the trust from attaching — provided such was the intention of the testator. Knight v. Knight, 3 Beav. 172; Bohon v. Barrett, 79 Ky. 378; Warner v. Bates, 98 Mass. 274; Ericson v. Wittard, 1 N. H. 217; Knox v. Knox, 59 Wis. 172; Colton v. Colton, 127 U. S. 300; Hill on Trustees, p. 71; 1 Jarman on Wills, 680.
So that we recur to the main proposition, as stated by Mr. Perry: Did the testator, in this will having expressed his wishes, intend to impose an obligation upon his legatee to carry them out; or to leave her to act on them or not at her discretion? In considering this question it is to be remembered that the devisee is the wife of the testator, between whom it is not expected that commands would be expressed in such forcible language as between strangers. Warner v. Bates, 98 Mass. 274; Knox v. Knox, 59 Wis. 172. That not only as wife and legatee receiving the great bulk of his estate was her conscience charged with the duty out of the abundance of the estate given her to make provision for this child; but that, as executrix, she was charged by him and by the law with the duty of carrying out “his directions,” according to the true intent and' meaning of the testator. That it was his intention
In the will and the circumstances of this case is
That the force of her obligation to provide for the plaintiff was recognized by Mrs. Whelan is evidenced by the fact that during her life she continued to provide for his care, comfort and education, and frequently told her second husband that she intended to leave him the very property sought to be charged in this case. That it was the duty of Mrs. Whelan to make a suitable provision for the plaintiff out of the estate which her husband bequeathed her, we think is evident from what has been said, and, she having died without having done so, a court of equity ought to make that provision for him.
In view of the amount of the estate bequeathed, the mode of life to which the testator and his wife had accustomed this plaintiff, and the reasonable expectations that would be engendered by the treatment which he received from his supposed parents ' during their lives, the amount allowed by the circuit court was entirely reasonable, and its decree will be affirmed.