73 Neb. 667 | Neb. | 1905
Lead Opinion
This action was originally brought in the district court for Douglas county by Margery H. Smullin and others, appellants, as plaintiffs, against Ida M. Wharton and John C. Wharton, appellees, as defendants. George H. Boggs of the city of Omaha died on the first day of June, 1895, leaving his widow, the defendant Ida M. Boggs, now Ida M. Wharton, surviving him and leaving no children. On the 16th day of May, 1895, about two weeks before his death, he executed a will by which he left all his personal estate, the home property and a lot in the city of Omaha to his wife absolutely, and devised all the residue of his real estate in trust to Harry A. Westerfield, to pay the income to his wife during her life and to distribute what was left in the trust at her death among his brothers and sisters, and the surviving children of any deceased brother or sister. This will was duly offered for probate, whereupon the surviving brothers and sisters and the children of. a deceased sister of the deceased instituted contest proceedings upon the ground of undue influence. These proceedings were finally brought to this court, and an opinion rendered therein (Boggs v. Boggs, 62 Neb. 274) affirming the decision of the district court, and of the county court, admitting the will to probate. After the termination of the proceedings establishing the will, this action was begun by the surviving brothers and sisters and the children of a deceased sister of George H. Boggs to declare a trust in the property for their benefit. The allegations of the petition, in substance, being that their brother George H. Boggs died leaving a will as set forth; that at the time of his death Boggs was 55 years old, his wife a few years younger, and that the plaintiffs, his brothers and sisters,
The ansAArer sets up two defenses; the first defense consisting of affirmative averments setting up the transfer of real and personal property made after the execution of the will and before the testator’s death; specific denials of the allegations of the petition whereby a trust is sought to be raised; an admission that the testator requested Mrs. Wharton-to help his brothers and sisters from time to time according to her own judgment and discretion, as they had done during the testator’s lifetime, provided the brothers and sisters should not make her any trouble by contesting the will, which she promised to do; averments .that all the provisions for his wife’s benefit in the will and all the transfers made inter vivos were intended to be ab
The record in this case is very extensive, but upon the most essential facts there is very little controversy between the witnesses. A full statement of the facts as to the conditions and circumstances and the relations between George H. Boggs, his wife, the defendant herein, and the plaintiffs is contained in the lucid opinion in the Avill case (Boggs v. Boggs, supra), to which reference is made. It is necessary, however, in the case at bar to examine and carefully weigh all of the testimony bearing upon the question of the creation of the alleged constructive trust, and further, to examine the law as laid doAvn by the courts of England and this country for the purpose of evolving the proper principles to be applied to the facts as we believe them to be established by the testimony. In this connection it may be Avell to note that under a recent statute the trial in this court is a trial ele novo. The conclusion which this court may come to from the testimony in the case is not controlled by the inferences drawn by the district court as to the facts.
The transaction from Avhich appellants assert that the constructive trust for their benefit takes its inception took place upon the 16th day of May, 1895, at the time of the
Westerfield testifies that “he went on and stated that he had placed her in circumstances so that she would never Avant for anything. He Avanted her to live — continue to liAre — as they Avere living; have all the money she needed, and keep up the house and everything just the same, and then he said: ‘At the end of every year I want you to divide the surplus among my people.’ And she said: ‘All right, Aidiatever pleases you pleases me, I will carry out your wishes.' And then he told her that her people Avere in good circumstances to take care of themselves, but his people Avere all poor, and that he Avanted her to make her will so that at her death the entire estate Avould go to his
Mr. Connell, after relating the circumstances up to the same point as to where Westerfield’s testimony is quoted, substantially to the same effect, says that Mr. Boggs said to her: “Now, I have had Mr. Connell prepare this will, so that you will have everything you Avant, and I want you to live just as we have been living before this, and I want you to have everything you desire, and the will has been drawn by Mr. Connell for that purpose.” And he said: “You know that my people are poor and your people are well to do, and I would like to have you, if you have any surplus, to help my people.” And she said: “Anything you wish, George, I will do.” He corroborates Westerfield
Mrs. Wharton, formerly Mrs. Boggs, admits she told Mr. Boggs she would carry out his wishes; denies that anything was said as to an annual division of surplus or about her making a will in favor of plaintiffs, and says she agreed to help his relatives if they did not make her any trouble, but nothing was said as to the extent she was to help them. This is the substance of the direct testimony as to what occurred at the time the' will was signed, except that one Millie Novotny, a domestic servant, testified that she was in the hall at the time of this transaction, and she relates at length a conversation substantially the same as that testified to by Westerfield. It appears from Mrs. Wharton’s testimony that Millie told her the next morning that she had heard every word of the will read, and from other circumstances we believe she actually did overhear a part of the conversation, but her testimony is so interwoven with improbable and imaginary circumstances that we deem it inadvisable to give it any weight in attempting to ascertain Avhat- conversation actually took place in the room. There is indirect testimony however which corroborates Westerfield.
On the morning of the next day after the will was signed Mr. Hill who had been Mr. Boggs’ partner for many years called upon him. He says Mr. Boggs told him “he was not feeling very well, and he says: ‘I have made a will,’ and he says: ‘My Avife has agreed that after she has everything she Avants, and lived just as Ave have been living, at the end of the year that she Avould divide the surplus among my people.’ This is about all of the talk.” “He went on to say that his wife was going to carry it out, and would divide with his people at the end of the year.”
Mrs. Drake, another sister, says Mrs. Boggs told her about ten days before Mr. Boggs died that it was all fixed;
John W. Boggs, a brother, testifies that a few weeks after George died he called' on Mrs. Boggs and that she said: “Now, the property business is all settled, just as George said it was. I am to make my will, and agree to make my will, and will this property to you folks at my death, the property that is in trust — that was put into Harry Westerfield’s hands; it was put in his hands to take care of, but she had control of it all, she claimed; and said that George first wanted to turn that property over to us at this time; that immediately after his death he wanted us to have it, but she thought that it ought to go to us through her — • the same talk about that we had before, that it would go to us through her. She said that he had given her the house and lot, and that house back of the high school, and all the personal property amounting to about $75,000, somewhere along there, and that was for her to live on, but she still went further and stated that if anything happened, or she became unfortunate or anything, or lost her property, she could sell a piece of this other property, if she needed it, to apply to her own use.” He says she further said she had promised to divide the surplus each year.
Mrs. Wharton’s attention was called specifically to each one of the incidents narrated by the witnesses Mrs. Drake and John W. Boggs in which they testified to statements or declarations made by her with reference to the disposición of the property, and she denies making any such admissions or statements as are ascribed to her in regard to the property as these witnesses testify to.
After a careful reading of all the evidence, we have come to the conclusion that the transaction actually occurred as testified to by the witness Harry A. Westerfield. His testimony is strongly corroborated by that of Mr. Connell
The legal question presented is whether or not the requests made by George H. Boggs and the promise® made by his wife at the time of execution of the will and before it was signed, together with her refusal to perform her agreement, constitute her a trustee ex maleficio for the benefit of the plaintiffs.
We have been favored with able arguments at the bar and with exhaustive printed briefs upon the legal questions presented. The position taken by the appellants in brief is that under the rules of equity, in such a case as this, the court will compel the wife to keep faith with her husband by constituting her a trustee for the benefit of the interested parties; that whether Mrs. Boggs when she gave her assent intended a fraud or not is immaterial, her refusal to carry out the trust having the effect of consummating a fraud; that the court will presume Mr. Boggs would not have made his will as he did if his wife had stated she would not carry out his wishes; that the relations between husband and wife are confidential; that Mr. Bogg’s confidence was betrayed, and that the fraud gives rise to a constructive trust.
The appellees on the other hand maintain that before a constructive trust can be impressed upon the property the donee must have procured the gift to himself by fraud,
We are convinced that Mrs. Boggs at the time she made the agreement with her husband to pay the surplus income each year to his brothers and sisters, and to make a will whereby his estate should go to them at her death, rather than to her own relatives, fully intended to carry out his vislies. While the relations during her husband’s lifetime between herself and his family were not very close, still when her dying husband requested her to care for his aged relatives she willingly assented. Even at that season, however, she anticipated trouble and asked her husband what she was to do if they should contest the will. They did contest the will, and by their actions renewed and added to a feeling of hostility which apparently had formerly existed. The good will which was manifested by Mrs. Boggs to them at the time of and soon after her husband’s death was changed to animosity, and under the influence of these feelings she has refused to carry out her husband’s wishes. An important question which arises, however, in this connection is whether or not but for her promises to him he would have executed the will in the form that it was executed. Unless the will was signed by the testator in the form that it was because he relied upon his wife’s promise to carry out his wishes, and unless we come to the conclusion that if she had not so promised, the will would not have been executed in the form that it actually was executed, no constructive trust would rise. It is important to notice in this connection that before the will was signed Mrs. Boggs was called into the room,, his wishes Avere clearly stated to her, she promised to carry them out, and not until after the promise Avas made was) the will signed. Had she stated then that she refused tof carry out his wishes, one cannot doubt that other provisions guarding and preserving the interests of his
Cases of like nature to this have been before the courts for many years. The uniform rule in England has b.een that where a person, knowing that a testator in giving him a devise or bequest intends it to be applied for the benefit of another, either expressly promises or by his action at the time implies that he will carry the testator’s intention into effect, and the property if left to him with the faith on the part of the testator that his promises will be kept, he will be held as a trustee. The court will not allow him to set up the statute of frauds or the statute of wills as a defense, for the reason that by his conduct he induced the testator to leave him the property. The court does not violate the statute, but for the prevention of fraud impresses a trust upon the gift in the hands of the devisee in ordei? to prevent fraud. The will is not interfered with, the property passes by it, but equity acts, not because of the trust declared by the testator, but because of the fraud of the devisee. The court acts not upon an express trust created by the testator, but, on account of the fraud, upon the conscience of the devisee.
In Sellack v. Harris, 5 vin. Abr. 521, a father purchased land,. When on his deathbed he sent for his eldest son and told him these lands were purchased Avith his second son’s money and that he intended to give them to him, whereupon the eldest son promised that he should enjoy them accordingly. The lord chancellor held that because of the fraud, in that the eldest son promised the father on his deathbed, the case was taken out of the statute of frauds.
In Segrave v. Kirwan, Beat. (Irish) 157, where an attorney who dreAv a will whereby he was appointed executor did not inform the testator of the rule of law that the personal estate undisposed of by will belonged to the executor, and where the defendant testified he was not aware of the legal effect of his appointment, the lord chancellor said that no fraudulent imposition had been
In Marriot v. Marriot, 1 Strange (Eng ) 666, counsel contended that the probate of the will Avas conclusive evidence, and that a court of equity could not look into the disposition of the estate, but the court said: “A court of equity must consider what is the real wall of the testator, and they cannot declare a trust according to their own fancy, nor according to what the testator should have Avilled, for then they make the will, and not the testator. But they may, to ansAver the real intention of the testator, declare a trust upon such will, though it be not contained in the will itself, Avhich is in these three cases: (1) In that of fraud upon a legatary before mentioned. (2) Where the words imply a trust for the relations, as in the case of a specific devise to executors, and no disposition of the residuum. (3) In the case of the legatee promising the testator to stand as a trustee for- another. And nobody has thought that declaring a trust in any of those cases is an infringement of.the ecclesiastical jurisdiction.”
In Devenish v. Baines, Finch, Ch. Prec. 3, a copy-holder by his Avill intending to give the greatest part of his estate to his godson and the other part to his wife, the Avife persuades him to nominate her to the Avhole and that she would give the godson the part designed for him.
In Barrow v. Greenough, 3 Ves. (Eng.) 151, the testator requested the defendant, who was one of his executors and the person to whom the residuary estate finally was to come, to pay to his sister, Ellen Barrow, an amount greater than left to her in the will, which he promised should be done, though at the same time asking the testator to have a new will made inserting this provision. This the testator refused to do, saying he would leave the same to the defendant’s generosity. The defendant’s counsel insisted that this was contrary to the statute of frauds, and that it was left to defendant’s, discretion as to payment. The master of the rolls said: “I will not criticise upon words; nor do I think the word ‘generosity’ can be construed to take away the effect of a solemn desire of the testator coupled with the promise of the defendant. The defendant had no intention of fraud at that time, for he desired the testator to make a new will. * * * The question is, whether by reposing that trust in the defendant the testator was not prevented from making a new will. The defendant ought to have told him, that if he did not put it in his will, he would not do it, instead of that he promised to do it; upon which the testator refuses to make a new will, and says, he leaves it to his generosity, that is, he leaves it to his conscience. * * * The question is, whether the confidence, that the defendant would perform the trust he undertook, did not prevent the testator from making a new will.” See also Chamberlain v. Agar, 2 Ves. & Bea. (Eng.) 259; Mestaer v. Gillespie, 11 Ves. (Eng.) 638, note.
The same rule has been well expressed in this country in Trustees of Amherst College v. Riteh, 151 N. Y. 282, 324, as follows: “The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing,' but it acts upon the gift itself as it reaches the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has
Nearly all the cases upon this subject have been collected in the opinion of the supreme court of Indiana in ■ Ransdel v. Moore, 153 Ind. 393, 53 L. R. A. 753. We can add nothing to the able and exhaustive discussion of this question by that court. The Indiana court has examined, and cites in the opinion, not only the majority of the English cases upon the question, but almost every American case, among them being nearly all the cases cited in the briefs or in the argument of the case at bar, and draws the conclusion that the act of the husband in that case preventing the wife' from making the will, and in promising to act as trustee, though there was no actual fraud, and the promise was in parol, made him a trustee for the brothers notwithstanding the statute of frauds.
Section 4 (chapter .32, Compiled Statutes, 1903; Ann. St. 5953) of our statute of frauds provides that the preceding section, which prohibits the creation of any trust over lands except by a deed in writing, shall not be construed to prevent any trust from arising or being extinguished by implication or operation of law. This section removes the transaction under consideration from the operation of the statute, because such trusts arose by operation of law before the statute of frauds was éver enacted. Nor, under the rule long ago laid down by the English courts, and followed by the courts of this country, does the statute of wills prevent the raising of this trust by the operation of the chancery powers of the court upon the conscience of the devisee. The section is only
We conclude, therefore, that by the promise made by Mrs. Boggs to her husband at the time of the execution of the will, relied upon by him in signing that instrument, and her refusal to carry out her promise, she thereby became a trustee ex maleficio, if the trust was definite and certain enough to be capable of enforcement. Though no fraud was intended by her at the time, yet by. the circumstances of confidence and trust arising from the marriage relation, her husband trusted her and relied upon her to carry but his wishes; and her refusal to do so after her promise and after the property was vested in her was such a fraud as will make her, in equity, a trustee, if a trust was created by the language used by Mr. Boggs. In other words, we conclude that the plaintiffs are entitled to be treated in relation to the estate as if the Avords used by Mr. Boggs had actually been Avritten in the will.
There remains to be considered the question of Avhether the trust thus created is clear and definite enough in its provisions and so free from uncertainty that a court of equity can enforce its execution. The rule seems to be that Avhenever the property to Avhich such a trust is designed to attach is not certain and definite, or wheneArer the prior disposition of the property by the will is such as to import the absolute and uncontrollable disposition of it, a trust Avill not be created. The earlier English cases carry the doctrine of precatory trusts to a greater extent than the later cases, and at present the party claiming that such a trust exists for his benefit must show that his case falls within the rules of certainty of subject matter, as Avell as establish the intention to charge the property. A trust must be reasonably certain in its terms, as to the property embraced in the trust, the beneficiaries, the nature of the estate they are to have, and the manner in which the trust is to be executed, and when either of these elements is indefinite and uncertain the trust must fail. 3 Pomeroy, Equity Jurisprudence, sec. 1009. If
The same night that the will was executed Mr. Boggs inquired of Mr. Connell whether he could not give his wife outright certain other property, and, upon being told that he could, directed Wester field to prepare a deed to the same real estate specifically devised to his wife and an assignment of certain notes secured by real estate mortgage amounting to about $72,000. These papers were prepared, and the next day executed by Mr. Boggs, and delivered by him to Mrs. Boggs, so that property to that extent was removed from the operation of the will. Mrs. Hoover testifies her brother told her after this that he had given his wife $25,000 or $30,000 to do with as she pleased, while other testimony would indicate an intention to include the whole estate in the attempted trust. We are uncertain from the evidence whether it Avas the intention of Mr. Boggs that the personal property which he thus segregated and delivered to Mrs. Boggs in his lifetime and the real estate thus conveyed to her should be impressed with a trust, or whether it was his intention that this property should become hers absolutely. All authorities agree that in order to create a trust the intention must be clear and satisfactory. As to this property we believe the evidence
As to the request that Mrs. Boggs should make a. will in favor of the plaintiffs there are several reasons why this cannot he enforced. Mr. Boggs said in making the request: “If you want to give anything to a charitable institution, or anything else, why do it, say five or ten thousand dollars. T want the bulk of my property to go to my people.” Under the provisions of the trust in Westerfield all of the real estate might be sold by the direction of Mrs. Boggs. She might use the proceeds for her living, or dispose of it as she pleased. Under the oral request she might give to charity, or anything else, five or ten thou-thousand dollars, and was only asked to bequeath “the hulk” of the property to his relations. There is no certainty in the property here. Mrs. Boggs could convert all of the real estate into money, could use as much as she pleased, could give to charity an indefinite sum, and was only asked to leave the “bulk” of the property to the plaintiffs. Where “the bulk of the property” is given the amount is uncertain and the trust must fall. Palmer v. Simmonds, 2 Drew (Eng.) 221. In Curtis v. Rippon, 5 Mad. (Eng.) 434, a testator gave all his property to his wife “trusting that she would use it for the spiritual and temporal good of herself and children, remembering always the church and the poor.” The vice chancellor held “the wife absolutely entitled to the property, there being no ascertained part of it provided for the children, and the wife being at liberty at her pleasure to diminish the capital either for the church or for the poor.” See also 1 Lewin, Trusts, *132, *133, *134; Knight v. Knight, 3 Beav. (Eng.) 148.
In Bryan v. Milby, 6 Del. Ch. 208, 13 L. R. A. 563, the gift was of all of the estate to the testator’s wife. “And I do request my wife if she should not require the whole of my estate as a support, that she will will at her death the remainder to the children of my brother, Charles A. Bryan.” Saulsbury, chancellor, said: “The subject of the gift claimed as precatory was not certain. * * * There might be, or there might not be, any remainder of his (‘state which could be enjoyed after his wife’s death by any person Avhomsoever. A necessary ingredient or characteristic, therefore, in a precatory devise or gift is wanting in this case. There was nothing that this court could have ordered impounded if application for that purpose
We deem it advisable to note and distinguish in this connection the case of Little v. Giles, 25 Neb. 313. In that case the facts Avere that one Jacob Dawson made an absolute bequest of his estate to his wife Avith poAver to sell as long as she remained his widow, upon the condition that if she married again “all of the estate herein bequeathed, or whatever may remain,” should go to his children. The court held that a conveyance of the real estate by Mrs. Dawson after the death of the testator, and before her remarriage, conveyed the fee to the realty, and her subsequent marriage did not affect the title to the same. In the opinion there are cited, apparently with approval, a number of cases holding that, whenever it is the intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void, because inconsistent with the absolute property in the first devisee. The question whether or not the limitation over of “whatever may remain” was void was not in issue in the case and Avas not passed upon by the court. This is pointed out by Mr. Commissioner Ames in Schimpf v. Rhodewald, 62 Neb. 105, Avherein he says that, in Little v. Giles, “this court did not definitely or distinctly decide whether the AvidoAV took the whole estate in fee and the devise over Avas void, or whether she took a life estate only, with power to sell and convey the fee and the devise over was valid and effective upon the undisposed of residue, if any, at the date of her marriage. * * * ‘Conveyances executed by the devisee during her widoAvhood were alone in the controversy, and it was held that during that time she had power to convey the fee. This sufficed for the disposition of the suits, and that this was all that this court
To effectuate the request made by Mr. Boggs that his wife should make a will in favor of the plaintiffs is impossible, for the court has no power to regulate Mrs. Boggs’ discretion as to the amount of any gift she may desire to make to any charitable institution, or for any other purpose, nor to say she shall or shall not dispose of a large part of the estate as best seems to her. Further than this “the bulk of my property” is a very vague, uncertain and indefinite term, not subject to definite ascertainment. It may vary from a little over half to nearly the whole estate, and is not susceptible of being rendered certain by any proceedings within the power of a court.
There remains to be considered Avliether or not the direction that the surplus money in Mrs. Boggs’ hands each year, if any there should be after she had had everything she, wished, Avas to be divided betAveen the plaintiffs, can be enforced as a trust. We may assume that the direction given by Mr. Boggs Avas positive enough to make it the duty of his Avife to carry out his wishes, if the property upon AArhich the request Avas intended to operate was sufficiently definite in amount and subject matter, and did not depend upon the absolute poAver of disposition of the trustee as to whether there would ever be any property upon Avhich it could operate.
In Cowman v. Harrison, 10 Hare (Eng.), 227, the testator gave his Avife a yearly income from certain property and “particularly -recommended, desired, and directed his wife, at her decease, by Avill or otherwise, to divide or dispose of what money or property she might have saved from the yearly income thereinbefore given to her, amongst all his children in equal shares.” The vice chancellor said: “The first question Avhich arises, is upon the right of the children and parties claiming through them under the will of John Barwise the father to the savings of the
This principle is applicable in the case at bar.
In the instant case the amount of money which is necessary for the support and maintenance of the appellee is left entirely uncertain, no limit is placed to her expenditures for her own use. Is it not beyond the province of a court to act as custodian, director and purveyor of the household expenses of an individual in a case where the expenditure is left alone to the individual’s discretion? Courts of equity in this country have not been swift to assume the plenary powers so often exercised in England by the court of chancery. The court cannot undertake to control her expenditures, to dictate how much she shall pay for her clothing, for the furnishing of her home, the exercise of hospitality or for whatever outlay she may desire to make. It was her husband’s intention that she alone should have the control over the amount of money she should spend. If she desires to travel she has the right to do so, provided the income is sufficient to pay her way. The court cannot undertake to limit nor prescribe in any manner or in any form the amount of money which she may use. It is within her power to spend all the income if she so desire, and thus leave no surplus upon which the trust may operate. Since the amount of any surplus liable to be divided between the appellants is uncertain, indefinite and incapable of ascertainment, a court of equity will not attempt to establish or administer such a trust. A court can only enforce a disposition of property which has been made by the deceased if it is capable of being enforced, and will not attempt to make a new disposition of it, or to make more definite and specific the disposition of the property which the testator may have made himself. Prom these considerations we conclude that the direction by Mr. Boggs that the surplus income
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed January 3, 1906. Reversed with directions:
In tbe opinion heretofore filed will be found a full and accurate statement of the case, and but little need here be added in order to intelligently understand the controverted points and the course of the discussion to follow. Smullin
But one inference can be drawn from the remarks to
Soon after the execution of the will the wife, it appears, became alarmed lest the will should be contested, and
It is manifest, we think, that the testator intended to provide for the comfort, care and support of his Avife during her lifetime to the extent, if required for that purpose, of the whole of his estate, and undertook to accomplish this purpose in such a way as that no future contingency or misfortune should result in a miscarriage in the bestowal of his bounty on her, the first and principal object of his solicitous care and loving affection. It is equally
Passing this point, however, and treating the wife, as we do, as the general OAvner of, and with poAver to acquire the legal title to, the property covered by the express trust, and construing the poAver of alienation therein given her as being inconsistent Avith a gift over to the other beneficiaries therein mentioned, and therefore free from a trust arising in their favor subject to her right to use what is reasonably necessary to support her during life, it must, we think, follow, as expressed in the former opinion, that the oral requests and directions of the testator made at the time of the execution of the last will, and assented to by the wife, raise a constructive trust in their favor as to all such property, and the wife should be held with reference thereto as a trustee ex maleficio. To hold otherwise is to ignore the expressed will and manifest desire of the testator, and the effect would be to per
We are led to this conclusion because of his separation of his estate into two parts, and of the language used in providing for the disposition of each portion. Relative to that portion passing to his wife directly, he used strong and positive terms, disclosing an intention to bestow such property on her absolutely, without condition and in her own right forever. These words and the terms used are inconsistent with the idea that she took only a life estate, or an estate charged with a trust in favor of his collateral heirs. Furthermore, three or four days afterwards, by the most formal sort of conveyance and written assignments this same property, or substantially all of it, was transferred to his wife as fully and unconditionally as it is possible to transfer the highest and most perfect known title to property. The other wills disclose indubitably a disposition on the part of the testator to give a portion of the estate absolutely to his -wife and the remainder to his collateral heirs. Giving due Considerations to all of these evidences as to his intentions, and his verbal expressions made at the time of the execution of the last will, it seems reasonably clear that he impounded a specific portion of his estate, the bulk of it, to be used, first, for the support of his wife, if required, and second, the remainder to go to his heirs as named in the provisions of the express trust found in the will. If from the record the deduction be proper that a constructive trust should be declared and established, as is held in the former opinion, except for a sufficient description of the property to which the trust attaches, and it be now, upon further consideration, determined that the property embraced in the constructive trust is the same as covered by the provisions creating the express trust found in the will, then it occurs to us that there exists no serious difficulty in ascertaining with reasonable definiteness and certainty what property the trust is fastened upon, and enforcing the trust according to the de
We are not disposed to recede from anything said in the former opinion, save in respect of the question of the certainty and definiteness of the property embraced in the trust resting in parol. If this language be construed, as we think it should be, as applying to the property devised to Westerfield in trust, and as giving to the wife the right to the use of the annual income in so far as it is required to maintain her in the style and comfort she had been accustomed to, and also a like right to the original fund or property devised in trust, if so required for a like purpose, then the matter is resolved into a very simple proposition wherein lies no serious difficulty in the way of the enforcement of the trust. The five or ten thousand dollars to be devoted to charity, if the wife so desires, involves only a matter of mathematical computation, the limit being ten thousand dollars, the limit in other respects being what is required and reasonably necessary for the support of the wife in the style and comfort in which she had been living. The rights of the parties in the main aspects of the case are well summed up in the former opinion, ante, p. 667, in the following language:
“We conclude, therefore, that by the promise made by*702 Mrs. Boggs to her husband at the time of the execution of the will, relied upon by him in signing that instrument, and her refusal to carry out her promise, she thereby became a trustee ex maleficio, if the trust was definite and certain enough to be capable of enforcement. Though no fraud was intended by her at the time, yet by the circumstances of confidence and trust arising from the marriage relation, her husband trusted her and relied upon her to carry out his wishes; and her refusal to do so after her promise and after the property was vested in her was such a fraud as will make her, in equity, a trustee, if a trust was created by the language used by Mr. Boggs. In other words, we conclude that the plaintiffs are entitled to be treated in relation to the estate as if the words used by Mr. Boggs had actually been written in the will.”
The ground upon which relief was denied was based upon the holding, which is well supported by the 'authorities, to the effect that “whenever the property to which it (the trust) is to attach is not definite or certain” a trust will not be created. All the other tests as to what is necessary to create a constructive trust are found to be in favor of the appellants.
Accepting, as we do, the correctness of the proposition with reference to the certainty required in describing property on which the trust is to operate, there yet remains the question, does, the description of the property in the case at bar which is embraced in the alleged constructive trust, on account of its indefinite and uncertain character, fall within the rule? It is rightly said in the opinion the declarations of the testator on which the constructive trust rests are to be construed and treated as if they had actually been written in the will. If the testator’s language or the substance of it were incorporated in the will, would the court find any difficulty in construing the words used and give force and effect to their evident intent and meaning? We dare say not. Let us consider what the effect would be. They would naturally, occur after the main provisions for the disposition
“We ought not, without absolute necessity, to let ourselves embrace the alternative of holding a devise void for uncertainty. Where it is possible to give a meaning, we should give it, that the will of.the testator may be operative; and where two or more meanings are presented for consideration, we must be well assured that there is no sort of argument in favor of one view rather than another, before we reject the whole.” Home for Incurables v. Noble, 172 U. S. 383.
In Cox v. Wills, 49 N. J. Eq. 130, the legacy was given to the wife “in good faith, believing that she will make a will and thereby distribute so much of the last named legacy among my near relatives as she may not use for comfortable maintenance, and it is my Avill that my said Avife shall make such distribution.” The court said: “PoAArer to expend for comfortable maintenance should be construed, in my judgment, to mean what is reasonably necessary for that purpose, having regard to the previous habits, tastes and style of living of the donee, and the amount of the estate.”
In Cresap v. Cresap, 34 W. Va. 310, the following language was contained in the will: “I give and bequeath to my beloved wife, A. C. C., in trust for her support and maintenance during her life, all my estate both real and personal with full poAver and privilege to sell and convey any, all or so much of my real estate in such a manner as she may see fit, in as full and complete manner as I myself can do, to, sell and dispose of my personal estate, or so much as she may see fit, for her own support, according to her condition in life, and for the benefit of my estate, so far as she may see proper.” These words, it is held, Avill not confer upon the wife either a fee simple in the testator’s real estate or absolute property in his personal
Justice and equity require that the alleged trust in favor of appellants found to have been created should be held sufficiently definite and certain in all its essential elements and capable of enforcement, and that effect be given to the expressed intentions of the testator, and a palpable injustice prevented by giving appellants a measure of the relief they are seeking. The former opinion should be accordingly modified, and the trust property held to have vested in the collateral heirs of the testator named in the will, subject to the use of the net annual income and the principal estate by the appellee, Ida M. Wharton, as the same may be reasonably necessary and required to support and maintain her in the style of living she had been accustomed to, and subject to her right to devote not exceeding $10,000 to charity.
The judgment of affirmance is vacated, and the decree of the district court is reversed and the. cause remanded, with directions to enter such a decree in the trial court as will fully conserve the rights of both parties in harmony with tlie vieAvs and conclusions herein and in the former opinion expressed and announced.
Judgment accordingly.
Dissenting Opinion
dissents.
The following opinion on motion for rehearing and to modify mandate was filed June 7,1907. Sustained in part:
The appellee has filed two motions. The first one alleging that the court has not considered or decided the issue of res judicata in this case, and urging that the case be reconsidered upon this point. As a second defense it is alleged in the answer that, in the contest of the will, Mrs. Wharton was a party as proponent, and that the plaintiffs in this suit were parties contestant, objecting to the probate of the will and asking for affirmative relief, and that it was alleged by the contestants that, prior to the making of the will, it Avas Mr. Boggs’ Avish and intention to give his wife only a small portion of his property absolutely, and the balance for her natural life, and at her death to descend to the plaintiffs, and that she should annually divide between herself and them the net income from the estate, and that Mrs. Wharton did by. undue influence induce the testator to make the will offered for probate contrary to what he desired, and for the purpose of excluding them from any share in his property. The answer in this case further alleges that after a trial of the issues it was finally adjudged that the Avill Avas valid; that the testator was competent to execute the same; that no undue influence had been exercised, and that all the objections should be overruled and the will admitted to probate. The appellee now contends that the judgment admitting the will to probate is a bar as to l„e matters set forth in the answer in the will contest to establish undue influence, which are the same facts relied upon in this case to establish the constructive trust; and it is said that the county court in the will contest had full power to grant the relief demanded by the plaintiffs in this case, for the reason that it had equity powers. It is further said that the former judgment is an adjudication that the absolute and unconditional gifts made to his wife were made voluntarily; that the testator was not induced to make the same by any fraud or undue influence of the Avife, and that these acts and provisions are in all respects valid.
In the opinion of this court upon the contest of the will it is said:
“He (the testator) had asked his wife, and she had agreed, to give Avhatever of the income she did not need or use to his relatives, for Avhom he made no immediate provision, and had also asked her to make a will in their favor. * * * Where undue influence is charged, the question is, in substance, whether or not the testator acted freely and upon his own judgment or under some species of coercion or imposition.” Boggs v. Boggs, 62 Neb. 274.*708 In the present case the question is whether he was led to exercise his judgment and free will in her favor, relying upon her promises to do for his relatives that which, but for his reliance upon her promise, lie would himself have; done in his will. The first decision determined that the will of the testator was not overcome by the will of his wife. The present case determines that his action was so far dependent upon her promises that she is constituted a trustee to carry out those1 promises. Manifestly these conclusions are not inconsistent with each other.
By the second motion the appellee urges the court to interpret the opinion, and to modify and make definite and certain the directions to the district court, in substance, so as to direct that the maintenance of Mrs. Wharton according to the testator’s wishes be charged upon the income and corpus of the trust estate devised to .Westerfield, and also to charge the legal expenses incurred by Mrs. Wharton in sustaining the will of the testator, and in defending this action, upon the same trust estate, and to take an account necessary to make such provisions. While we think that the last opinion filed in this case sufficiently evidences the intention of the court,, still there are some expressions used which perhaps tend to ambiguity, and which may not be as clear as may be desired. We therefore deem it well to amplify and, if possible, make more specific and definite our views as to the duty and liability of Mrs. Wharton with reference to the proceeds of the property impressed with the trust.
We think it is clearly pointed out in the opinion that, after the conversations occurred upon which it is held the constructive trust arose, the testator removed from the operation of the trust certain specific property of which he made an absolute gift to his wife, free and untrammeled by any restrictions or limitations of any kind or nature whatsoever. This 'included the home and other real estate and personal property. With this property so conveyed the oestuis que trustent have no concern whatsoever. They have no interest in it. It belongs solely to Mrs, Wharton.
Mrs. Wharton’s reasonable expenses in the litigation in which the will was established should be paid out of the whole estate taken under the will, including taxable costs and reasonable attorneys’ fees. The taxable costs in this
The motion of the appellee is sustained so far that the case is remanded, with directions to the district court to take an account of and ascertain what sum per annum is sufficient to support and maintain the appellee, Ida M. Wharton, using the family homestead, according to the style of living to wdiich she was accustomed at the time of the death of the testator, and to charge the payment of the same annually during her life upon the income of the trust estate devised to Westerfield, and upon the corpus thereof if the income is insufficient, and according to the conditions of said trust; second, to charge the said appellee as trustee in trust, to pay and distribute annually all such surplus income from the trust estate, if any there be after providing for the maintenance of the appellee as aforesaid, and such gifts to charitable purposes as she may desire to make from time to time, not exceeding $10,000 in all, to the brothers and sisters of the testator, share and share alike, the issue of deceased brothers and sisters, if any such issue, to take the share of the deceased parent; third, for such other accounting and decree as may be necessary to carry fully into effect the provisions of the constructive trust declared to exist, and of the trust declared by the will in Westerfield, and according to the views expressed in the opinion by Chief Justice Holcomb, and of this opinion.
Judgment accordingly.
Rehearing
The following opinion on motion for rehearing was filed October 3,1907. Rehearing denied:
By the Court: In the brief upon the motion for .rehearing one point only is discussed. It is contended that the judgment in the former action in which the probate of the will was contested is a bar to this action. The promise of Mrs. Boggs (now Mrs. Wharton) to carry out certain pur
The motion for rehearing is
Overruled.