212 P.2d 764 | Ariz. | 1949
Lead Opinion
Mary McGill Luke died in January, 1939, leaving a witnessed will dated August 4, 1928, which appointed her sister, Sarah C. McGill, executrix. Her will was admitted to probate February 8, 1945, in Maricopa County, Cause No. 19135. She left fifteen heirs. Sarah C. McGill was the sole devisee. Helen Newhall, another sister residing in Chicago, died in that city in 1944. The latter left a will bequeathing one-sixth of her estate to each of plaintiffs in this action, appellants herein, viz.: Franklin D. Newhall and Agnes Newhall, who bring this action as heirs. Franklin D. Newhall acts also in the capacity of administrator of the estate of Helen Newhall, deceased.
Plaintiffs first filed an action in the Superior Court of Maricopa County, being Civil Cause No. 55554, the file of which is not here on appeal, although the minute *261 entries of the court in that case are a part of the record by stipulation of counsel. The lower court dismissed plaintiffs' complaint in that action on May 8, 1946. The defendant, appellee, here maintains that said dismissal is res judicata and judgment of the lower court in the probate matter (Cause No. 19135) should be affirmed because of the dismissal of plaintiffs' complaint in Action No. 55554.
It appears from the meager records we have here in action No. 55554 that the court was without jurisdiction of that cause under our holding in Re Estate of Hesse,
Plaintiffs filed petition for determination of heirship in the probate matter, August 16, 1946. Twelve relatives by consanguinity of Mary McGill Luke filed a renunciation in favor of Sarah C. McGill, sister of deceased. Both sides made a motion for judgment on the pleadings and stipulated there was only one issue to be decided and that was whether or not the disposing clause of the will was valid. The will is set out haec verba below:
"The Last Will and Testament
"In the Name of God, Amen. I, Mary McGill Luke of the State of Arizona County of Maricopa, State of Arizona, being of sound and disposing mind and memory, do make, publish and declare this my last Will and Testament, hereby revoking and making null and void all other last Wills and Testaments by me made heretofore.
"First — My Will is that all my just debts and funeral expenses shall be paid out of my Estate, as soon after my decease as shall be found convenient.
"Second — I give, devise and bequeath to my sister, Sarah Campbell McGill all my real and personal property to be cared for and disposed of according to my personal directions to her.
"I nominate and appoint same Sarah Campbell McGill of Phoenix, Arizona as Executrix of this my Last Will and Testament.
"In Testimony Whereof, I have set my hand to this, my Last Will and Testament, at Phoenix, Arizona this 4th day of August, in the year of our Lord, One Thousand Nine Hundred twenty-eight.
"Mary McGill Luke.
"The foregoing Instrument was signed by the said Mary McGill Luke of Phoenix — Arizona in our presence and by her published and declared as and for her Last Will and Testament, and at her request, and in her presence, and in the presence of each other, we hereunto subscribe our Names as Attesting Witnesses, at Phoenix, Ariz. this 4th day of August, 1928.
"Estelle Holman Resides at Phoenix, Ariz.
"Maggie Malone Resides at Phoenix, Ariz. *262
"Sections 1204 to 1225, Revised Statutes of Arizona, 1913, Chapter XIX, Title 6, and Amendments thereto."
The lower court dismissed plaintiffs' complaint and held that the devise was in fee and the words "to be cared for and disposed of according to my personal directions to her" were merely precatory and surplusage.
Plaintiffs on appeal make several assignments of error which may be boiled down to one issue: Does the disposing clause in the will make a valid devise in fee or does it create a trust?
Plaintiffs maintain it creates a trust and is therefore void because it is indefinite and uncertain.
This court agrees with plaintiffs that if a trust was created it must fail for want of certainty. A valid trust must among other things have (1) subject matter that is certain, (2) beneficiaries specifically designated. Thompson on Wills, 2d Ed., Sec. 419, p. 36.
The next question is: Do the words following the devise create a precatory trust? In order to create a precatory trust (1) the words must be imperative in their nature, (2) subject of recommendation or wish must be certain, (3) the object of the bounty must be certain. McDuffie v. Montgomery, C.C., 128 F. 105. Applying the foregoing tests to the situation at hand we hold that no type of trust was created.
The cardinal rules for construction of all wills is to ascertain the intention of the testator, and this intention is to be ascertained from the words of his will, taking into view when necessary or appropriate the circumstances under which it was made. In re Estate of Marti,
The court will determine from the context of the will what the testator intended and give that intention effect. In re Baxter's Estate,
All the blood relatives of deceased, with the possible exception of plaintiffs, whose relationship is not shown, recognized that the testatrix intended defendant to have her property by renouncing any rights they might have in favor of the devise to defendant. Plaintiff's predecessor in interest, Helen Newhall, sister of Mary McGill Luke, died five years after the testatrix. It is significant to note that Helen Newhall didn't come forward after the death of testatrix in 1939 and before her death in 1944 to claim her interest, if any, in the property of testatrix. Her interest, if any, would have vested upon the *263
death of the testatrix. Home Ins. Co. v. Latimer,
"Courts will assume that no testator intends to make conflicting provisions in his last will." Rosenberger v. Rosenberger,
"It is a well-recognized rule that where an estate in fee is given in one clause of a will in clear and explicit terms, the interest which the devisee thus obtains in the lands cannot be taken away or diminished by any subsequent vague or general expression of doubtful import, or by any inference deducible therefrom, that may be repugnant to the estate given." Irvine v. Irvine,
In Fields v. Fields,
1. 40 Cyc. pp. 1734, 1735: "`* * * The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator's intention to create an express trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust declared in the ordinary manner. * * *'"
2. 1 Perry on Trusts and Trustees, 6th Ed., Sec. 115: "`* * * "Where the later words of a sentence in a will go to cut down an absolute gift contained in the first part of a sentence, and are inconsistent with such gift, the court will, if it can, give effect to the absolute gift." * * *'"
A well-reasoned statement of the law as to when a trust is intended and established is found in Re Feldman's Estate,
"`There is a well-recognized distinction between an uncertainty where the intent to establish a trust is clear but the provisions are so indefinite as to render the trust void for uncertainty, and the uncertainty which simply indicates the want of intention to create a trust. Loomis Inst. v. Healy,
"`"But it must be borne in mind that there is a distinction between a trust that is void for uncertainty, and an uncertainty that is simply indicative of the absence of an intention to create a trust. In the one case there is no uncertainty as to the intention to create a trust, but merely an uncertainty as to the objects to be benefited or the subject to be affected; in the other case, there is simply an uncertainty as to whether any trust was intended to be created at all. If it be uncertain as to whether there was an intention to create a trust, it is obviously not the province of the courts to ingraft a trust upon the gift; *264 but, if it be apparent from the whole will that a trust was intended to be established, then the uncertainty as to the objects or the subject of that trust will not indicate that there was no intention to raise a trust, but the uncertainty will avoid the trust attempted to be founded. Where the expressions have been held too vague to show an intention to create a trust, the devisee or legatee retains the property for his own use; but where the intention to create a trust is sufficiently expressed, and yet the objects or the subjects of it are uncertain, the gift fails, and the heir or next of kin is let in to the beneficial ownership." * * *'
"`* * * In the authorities last cited it is said that where a testator has made an unrestricted devise of property by the terms of his will, subsequent precatory language will not be deemed to create a trust therein. In (the) Estate of Browne, supra, it is stated that a trust will not be created in the absence of language imposing upon the devisee an imperative obligation to perform specific acts. The early liberal construction of language upholding precatory trusts has been frequently rejected by modern authorities in this and all other jurisdictions. In 1 Bogert on Trusts and Trustees, § 48, it is said in that regard at page 231:
"`"The tide has run so strongly against turning precatory expressions into words of trust that the ordinary words of request, recommendation, wish, and desire are quite generally construed to have no legal effect."'"
In the instant case the uncertainty is of such a character that it indicates a want of intention to establish a trust, and therefore we refrain from engrafting a trust upon a gift.
In re Ferdun's Estate, Cal.App.,
Courts have held that precatory words directed to an executor indicate the objects of a trust in the mind of the testator, while the same words addressed to a devisee do not indicate a trust. In re Hood's Estate,
"`The general rule is well established that whenever an estate is given to a person generally or indefinitely with an unlimited power of disposition annexed, invariably the absolute fee is vested in the first taker, and an executory limitation over is repugnant and void. * * *
"`Where there is an absolute or unlimited devise or bequest of property, a subsequent clause expressing a wish, desire, ordirection for its disposition after the death of the devisee or legatee will not defeat the devise or bequest or limit the estate or interest in the property to the right to possess and use during the life of the devisee or legatee. The absolute devise or bequest stands, and the other clause is to be regarded as presenting precatory language. The will must be interpreted to invest in the devisee or legatee the fee simple title of the land and the absolute property in the subject of the bequest.
"`In the case of executory devises, the question whether the primary gift is in fee, so as to exhaust the entire estate, is in each case to be decided on a careful examination of the entire will, aided by legitimate extrinsic evidence, to ascertain the actual intent of the testator, which intent, when so discovered and made obvious, is controlling.'" (Emphasis supplied.)
In the instant case it is our opinion that the language used does not indicate a trust in any way, the words "according to my personal directions" being merely precatory. "Likewise the use of the word `direct' has under some circumstances, been held to be precatory when addressed to the legatee or devisee and not to the executor." In re Farrelly's Estate, supra.
In re Will of Jansen,
In Moore et al. v. Garvey's Adm'r,
In order to ingraft a trust upon this will we would have to assume that any "directions" that may have been given to the devisee by the testatrix were "imperative" in their nature. To make such an assumption, *266
in order to create a trust, which would destroy the will of the testatrix would be going beyond the point of reason. We need no assumption to uphold the validity of the will. The well-established rule is that of two constructions of the language of a will, the one favoring testacy will be followed. "An intestacy is a dernier (last) resort in the construction of wills, and the abhorrence of courts to intestacy under a will has been likened to the abhorrence of nature to a vacuum." 57 Am.Jur., 1158, p. 756. California Probate Code, §
Quoting again from Fields v. Fields, supra [
We can find no positive order nor can we read any imperative command, into the will of the testatrix.
"It is an elementary rule in the construction of wills that the language used must be liberally construed with a view to carrying into effect what the will as a whole shows was the real intent of the testator." In re Effertz' Estate, Mont.,
Evidently the lower court felt that the testatrix had no intention of creating a trust. Whether a trust is created by precatory words depends on the court's impression as to maker's intention. In re Sowash's Estate,
Judgment affirmed.
UDALL and STANFORD, JJ., concur.
Dissenting Opinion
With due deference to the opinion entertained by majority of this court I am compelled to dissent.
I am of the opinion that the disposing clause of the will bequeathing and devising, or attempting to bequeath or to devise, the estate of the testatrix is an invalid testamentary disposition as constituting a testamentary disposition made without the formalities and safeguards required by the provisions of Section
The disposing clause reads: "I give, devise and bequeath to my sister, Sarah Campbell McGill all my real and personal *267 property to be cared for and disposed of according to my personal directions to her."
The majority opinion is to the effect that Sarah Campbell McGill took the estate for herself and herself alone disregarding the language "to be cared for and disposed of according to my personal directions to her", with which conclusion I am unable to agree.
The language used by the testatrix giving the words their usual and ordinary meaning, is clear, plain and unequivocal; and considering a well-known rule of construction that, where no ambiguity in phraseology exists, the intention of the testator is to be discovered in the express language which he used, Lowell v. Lowell,
In the present case can it be said that the testatrix, by the use of the words "to be cared for and disposed of according to my personal directions to her", intended to pass a fee simple estate? These are not mere words of desire or request, but in fact constitute a limitation upon and a direction as to the disposition of the estate not reduced to writing or executed with the solemnities required by our statutes. There is no intimation that the testatrix was expressing only a wish or a hope as to the ultimate disposition to be made of the property by someone else. The testatrix made it clear that the property was to be cared for and disposed of in a certain fashion made known by the testatrix to the devisee through personal and apparently oral directions. In any event the method of disposition was not left to the discretion of the devisee with the expectation that the testatrix' desires or wishes would be followed, but to be "* * * disposed of according to my personal directions to her." (Emphasis supplied.)
The mere fact that the testatrix used these words at all shows an intention to devise an estate other than in fee simple. If the testatrix intended to give a fee simple estate no such words were required for the reason that a fee simple estate carries with it the absolute power of disposal.
In re Hayward's Estate,
Did the testatrix, Mary McGill, express any wish to her sister that when she (the sister) disposed of the property that the testatrix merely hoped, expected or desired that her recommendations would be followed? I think the answer is no. Shesaid that the property was to be "* * * disposed of according to my personal directions to her." (Emphasis supplied.)
The majority opinion cites In re Ferdun's Estate, Cal.App.,
It must be kept in mind that the testatrix directed that her property should be (1) cared for and (2) disposed of. How? "* * * according to my personal directions to her." The majority opinion holds that these words under consideration were precatory and say "In order to ingraft a trust upon this will we would have to assume that any `directions' that may have been given to the devisee by the testatrix were `imperative' in their nature." I understand from this statement that if the given directions, if any, were imperative that a trust was created. I am not going to delve in the realm of conjecture, but am trying to limit my endeavor to the will itself. I am not prepared to give the word "directions", when used in connection with a directive disposing of property, "the nonnatural meaning of recommendations carrying with them no obligation." Magnus v. Magnus,
"The basic principle in the construction of precatory expressions is well stated by a distinguished judge. `The primary question in every case is the intention of the testator, and whether in the use of precatory words he meant merely to advise or influence the discretion of the devisee, or himself to control or direct the disposition intended' * * *". 1 Bogert on Trusts Trustees, § 48, page 224.
On the general subject of wills and particularly on their construction, judges as a whole have great respect for the opinions of the Court of Chancery of New Jersey and it is with more than a little satisfaction that I am able to cite a case from that court where the disposing clause under consideration is astonishingly like the clause here under review. The clause reads: "* * * I give the same (residue) to my niece Clara Seidensticker to dispose of in accordance with my instructions to her. * * *" Magnus v. Magnus, supra. The court held that a trust had been created; that there was no uncertainty of an intent to create a trust, but that the trust failed for uncertainty as to the objects to be benefited; and, that the next of kin took the residue.
Having concluded that the bequest to Sarah McGill was in trust, without declaration of beneficiaries on the face of the will, it follows that it is no bequest at all so far as the beneficial interest is concerned, since it shows an intention that it should not vest in Sarah, and does not declare in whom it shall vest. In this situation the laws vest it in the heirs of the testatrix. 26 C.J.S., Descent and Distribution, § 43; Home Ins. Co. v. Latimer, *270
The judgment should be reversed with directions to enter judgment invalidating the testamentary disposition attempted for the reasons heretofore assigned.
J. MERCER JOHNSON, Superior Court Judge, concurs.
NOTE. Justice PHELPS having presided at the trial of this cause, the Honorable J. MERCER JOHNSON, Judge of the Superior Court of Pima County, was called to sit in his stead.