Bohon, &C., v. Barrett's ex'R.

• Decision Date: 27 April 1881
• Citation: 79 Ky. 378
• Parties: Bohon, &c., v. Barrett's ex'r.
• Court: Kentucky Court of Appeals

79 Ky. 378

Bohon, &c., v. Barrett's ex'r.

Court of Appeals of Kentucky.

April 27, 1881.

APPEAL FROM LOUISVILLE CHANCERY COURT.

F. T. FOX, W. LINDSAY, JAS. S. PIRTLE, AND E. F. TRABUE FOR APPELLANT.

GOODLOE, ROBERTS & HUMPHREY, AND BRECKINRIDGE & SHELBY FOR APPELLEE.

JUDGE HARGIS DELIVERED THE OPINION OF THE COURT.

John W. Barrett took Lillie Beeler, when she was but three years of his age, to his home, caused her name to be changed to Lillie Barrett, and adopted her.

From that time until his death he recognized and cared for her as his own child.

He was unmarried, childless, and owned an estate worth about $15,000 when he died.

For several years before his death he and his adopted child Lillie were domiciled with his brother, the appellee, Thos. L. Barrett, whose estate is alleged to be worth $200,000.

Thus situated, he executed and published his last will and testament in this language:

"1st. I hereby appoint Thomas L. Barrett my executor, to execute this my last will, and I request A. J. Wood and Wm. J. Wood to give him the benefit of their advice so far as selling my real estate in Barren county, and in collecting what is due me in the counties of Hart, Barren, and Metcalfe, requires the same.

"2d. It is my will that out of the first means realized from my estate that he pay my just debts.

"3d. I desire that my executor shall, at such time, on such terms, and in such quantities as he may think best, sell all my real estate, of every kind, and wherever situated, and convey the same to the purchaser or purchasers by deed or deeds duly executed.

"4th. I devise all the residue of my estate, after the payment of my just debts, to my brother, Thomas L. Barrett, but it is my request of him (but not as a condition upon which this devise is to take effect) that he take charge of, raise and educate Lillie Barrett, who is now with me in his family, and that if she is obedient to him and his wife, Mary J. Barrett, and is governed by their advice and counsel, and conducts herself in such a manner as to merit the same, and does not marry without their consent and contrary to their advice, and she remains with my said brother and his wife, and is not taken from them, or does not voluntarily go away from them, or abandon their home, then I request him to expend for her benefit, in such manner, at such time, in such time, or to settle upon her in such way, at such time, and on such terms as he, in his judgment, may think her interest requires, the sum of $10,000; but these requests are not to be legally binding upon him, but I desire to leave the same entirely to his discretion, and to make no requirement of him that would be legally binding upon him in a court of equity or elsewhere — it being my wish to leave the whole matter to his sense of right and discretion, he being fully advised of my wishes concerning the said Lillie, and also concerning the said sum of $10,000, which I request him to use for her benefit on the conditions aforesaid, if he sees fit to do so, and the condition of his family is such that he can do so without embarrassment, but not otherwise."

The executor, Thos. L. Barrett, took charge of, raised, and educated Lillie Barrett. She complied in every respect with the conditions of the will, and married without objection on his part.

The executor refused to expend, use, or settle upon her any sum for her benefit.

And she and her husband instituted this action to compel him to execute the alleged trust. A demurrer was sustained to the petition, and they have appealed.

The only question involved is the construction of the foregoing will.

The doctrine of precatory trusts is well established.

They grow out of words of entreaty, wish, expectation, request, or recommendation frequently employed in wills.

The meaning of the word precatory, according to its ordinary use, does not embrace a command — it means beseeching, suppliant, prayerful.

In its primal sense, as descriptive of an act relative to a right, it conveys the idea that the right is equivocal or uncertain, because it impliedly depends on the will of another, who is besought to exercise his power over it.

If such power were natural or independent of the testator, then no command of his to exercise it could be enforced but where the power or discretion is created by will, it is subject to such limitations as the testator sees proper to impose, and whatever may be the character of the words which he uses to indicate his wish or will, whether preceptive or recommendatory, they are imperative — "the wish of a testator, like the request of a sovereign, being equivalent to a command."

His wishes and desires as to the disposition of his property after his death constitute his will. (Bent v. Herron, 66 Penn., 402.)

And although such desire is not expressed in mandatory language, yet if from the language used it can be inferred, with reasonable certainty, what the desire of the testator is, it will be treated by the courts as his commands, and executed accordingly. (Cary v. Cary, Sch. & Lef. Reports, 189.)

In section 112 of Perry on Trusts he says:

"Implied trusts are those that arise when trusts are not directly or expressly declared in terms; but the courts, from the whole transaction and the words used, imply or infer that it was the intention of the parties to create a trust. Courts seek for the intention of the parties, however informal or obscure the language may be; and if a trust can fairly be implied from the language used as the intention of the parties, the intention will be executed through the medium of a trust."

The authorities, both English and American, are conclusive, and in the main harmonious, that a trust will be created by such precatory words as "hope," "wish," "request," &c., if they be not so modified by the context as to amount to no more than mere suggestions, to be acted on or not, according to the caprice of the immediate devisee, or negatived by other expressions indicating a contrary intention, and the subject and object be sufficiently certain. (Hill on Trustees, page 92, and authorities there cited; Perry on Trusts, chapter 4, notes and authorities cited; 66 Penn., 402; 1 N. H., 228.)

Many of the decisions are somewhat difficult to reconcile from their diversity in construing precatory words, but it will be noted that this springs from the difference in the order of expression and the surroundings, which are scarcely ever the same in two testators.

Hence necessity evoked the rule that "every case must depend upon the construction of the particular will under consideration." (18 Md., 165; 2 Vesey, jr., 634.)

The legal right to provide for the disposition of his property according to his own wish is unquestionable, and the only important point involved in the construction of this will is, has the testator by his words, viewed in their express and implied senses and according to all the light that the contexture of his will affords, shown how and for whom he desired his property disposed of after his death?

It is, in effect, insisted that the appellee took an absolute estate which vested immediately upon the death of the testator, and that this evidenced his intention not to create a trust in behalf of Lillie Barrett.

This position is untenable; for it is well settled that where a testator makes an absolute gift to one person, accompanying it with a request to appropriate a particular sum to the use of another, that the immediate devisee becomes a mere trustee to the extent of such sum. (1 New ...