Aldrich v. Aldrich

• Decision Date: 20 October 1898
• Citation: 172 Mass. 101,51 N.E. 449
• Parties: ALDRICH v. ALDRICH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 101

51 N.E. 449

ALDRICH v. ALDRICH et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 20, 1898

The will in controversy is as follows, viz "All my just debts must be paid. All the rest and residue of my estate, after payment of my debts, I give and bequeath to my beloved wife, Sarah Aldrich. I hereby nominate my wife, Sarah, aforesaid, sole executrix of this, my will. As I do not intend to leave any debts unpaid at my decease, I request that my said executrix shall be exempt from giving any surety or sureties on her bond as such executrix, and that she will not be required to file any schedule of property in the probate court. I give all my estate to my said wife, to the end that she may be able to maintain a home for herself, and one where she can receive all our dear children, as we have been accustomed to during our joint lives. I am confident she will manage with good discretion and fidelity what is committed to her, and that, when she shall no longer need the property, it will be equally divided among our dear children or their representatives."

COUNSEL

G.S Taft, for plaintiff.

W.B Durant and C.F. Aldrich, for respondents.

OPINION

MORTON J.

If the testator had intended to create a trust in favor of his children at his wife's death, there can be no doubt that he knew how to do it in clear and unmistakable terms; and it is almost inconceivable that, if such was his purpose, he should have expressed himself in the manner in which he has done. There is no doubt that words of recommendation, or of confidence, entreaty, hope, or desire, have been held sufficient under some circumstances to create a trust. But, speaking generally, this was because in such cases such a construction was supposed to carry out the intention of the testator. If an arbitrary rule seems to have been laid down at one time in regard to what would constitute a precatory trust, there can be no doubt, we think, that the tendency of later decisions has been, if not to relax the rule thus laid down, at least not to extend it. Hess v. Singler, 114 Mass. 56; Lambe v. Eames, L.R. 10 Eq. 267, 6 Ch.App. 599.

In the present case there is what clearly would constitute in law if it stood alone, an absolute gift of the estate to the wife. There follows after one or two intervening clauses the one on which the complainant relies. This was intended by the testator, it seems to us, to express his reason for the gift to his wife, and his confidence in her, and not to cut down or affect the absolute character of the gift which he had previously made to her. It is true that he says, in substance, that he expects that the property, when she shall no longer need it, will be divided equally between the children and their representatives. But there is nothing which renders it obligatory on her to do this, and therefore one of the features of a precatory trust is wanting. See Warner v. Bates, 98 Mass. 274; Spooner v. Lovejoy, 108 Mass. 529; Hess v. Singler, supra; Sears v. Cunningham, 122 Mass. 538; Barrett v. Marsh, 126 Mass. 213; Davis v. Mailey, 134 Mass. 588; Sturgis v. Paine, 146 Mass. 354, 16 N.E. 21; Durant v. Smith, 159 Mass. 229, 34 N.E. 190; Lambe v. Eames, supra; In re Hutchinson, 8 Ch.Div. 540; Bank v. Raynor, 7 App.Cas. 321; Parnall v. Parnall, 9 Ch.Div. 96; Eaton v. Watts, L.R. 4 Eq. 151; Meredith v. Heneage, 1...