Colton v. Colton

• Decision Date: 22 September 1884
• Citation: 21 F. 594
• Parties: COLTON v. COLTON.
• Court: United States Circuit Court, District of California

21 F. 594

COLTON v. COLTON.

United States Circuit Court, D. California.

September 22, 1884

W. W. &amp H. S. Foote and Grove L. Johnson, for complainant.

Crittenden Thornton and Stanly, Stoney & Hayes, for defendant.

SAWYER J.

This is a bill in equity to establish a trust in favor of complainant in the estate of the late David D. Colton, deceased, in the hands of his devisee and legatee, Ellen M. Colton, and to obtain a decree against the defendant requiring her to make a suitable provision out of the estate devised and bequeathed to defendant for the maintenance of complainant. The will out of which the suit arises is as follows, to-wit:

'I David D. Colton, of San Francisco, make this my last will and testament. I declare that all of the estate of which I shall die possessed is community property, and was acquired since my marriage with my wife. I give and bequeath to my said wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seized or possessed, or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as, in her judgment, will be best. I also request my dear wife to make such provision for my daughter Helen, wife of Crittenden Thornton, and Carrie, as she may, in her love for them, choose to exercise. I hereby appoint my said wife to be the executrix of this, my last will and testament, and desire that no bonds be required of her for the performance of any of her duties as such executrix. I authorize and empower her to sell, dispose of and convey any and all of the estate of which I shall die seized and possessed, without obtaining the order of the probate court or of any court, and upon such terms and in such manner, with or without notice, as to her shall seem best. If my said wife shall desire the assistance of any one in the settlement of my estate, I hereby appoint my friend S. M. Wilson, of San Francisco, and my secretary, Charles E. Green, to be joined with her in the said executorship, and authorize her to call in either or both of the said gentlemen to her co-executors. And, in case she shall so unite either or both of them with her, the same provisions are hereby made applicable to them as I have before made for her in reference to bonds and duties and powers.'

The question is, does this will create a trust in favor of complainant? Do the recommendations and requests found in the will give an absolute legacy to the complainant out of the estate, and do they constitute an imperative command to make the provision, or is the matter left to the discretion of the surviving wife, as sole devisee and legatee, to act in the matter as her judgment and feelings shall dictate? It cannot be denied that the earlier English decisions and a few of the earlier cases in this country go a long way towards sustaining the claim set up by the complainant. But later cases, both in England and the United States, considerably limit the construction given by the earlier decisions to precatory words of a will, or words of request or recommendation, and some of them, especially in this country, fall little short of repudiating and altogether overruling the earlier cases. Says Story, on this subject:

'In the interpretation of the language of wills, also, courts of equity have gone great lengths by creating implied or constructive trusts from mere recommendatory and precatory words of the testator.' 2 Story,Eq.Jur. 1068.

After considering the English cases he adds:

'The doctrine of thus construing expressions of recommendation, confidence, hope, wish, and desire into positive and peremptory commands is not a little difficult to be maintained upon sound principles of interpretation of the actual intention of the testator. It can scarcely be presumed that every testator should not clearly understand the difference between such expressions and words of positive direction and command, and that, in using the one and omitting the other, he should not have a determinate end in view. It will be agreed on all sides that where the intention of the testator is to leave the whole subject, as a pure matter of discretion, to the good-will and pleasure of the party enjoying his confidence and favor, and where his expressions of desire are intended as mere moral suggestions to excite and aid that discretion, but not absolutely to control or govern it, there the language cannot and ought not to be held to create a trust. Now, words of recommendation, and other words precatory in their nature, imply that very discretion, as contradistinguished from peremptory orders, and therefore ought to be so construed, unless a different sense is irresistibly forced upon them by the context. Accordingly, in more modern times, a strong disposition has been indicated not to extend this doctrine of recommendatory trusts, but, as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense.' 2 Story, Eq. § 1070.

The most favorable rule for complainant now recognized, that can be deduced from the body of the English authorities, is, doubtless, that stated by Lord LANGDALE in Knight v. Knight, 3 Beav. 173, where he said: 'As a general rule it has been laid down that where property has been given absolutely to any person, and the same person is, by the giver who has power to command, been recommended or entreated or wished to dispose of that property in favor of another, the recommendation, entreaty, or wish should be held to create a trust: (1) If the words are so used that, upon the whole, they ought to be construed as imperative; (2) if the subject of the recommendation or wish be certain; and (3) if the objects, or persons intended to have the benefit of the recommendation or wish, be also certain. ' See 44 Amer.Dec. 372, note to Harrisons v. Harrisons' Adm'x, 2 Grat. 1.

On the contrary, in the language of Story: 'Wherever, therefore, the objects of the supposed recommendatory trusts are not certain or definite; wherever the property to which it is to attach is not certain or definite; wherever a clear discretion or choice to act or not to act is given; wherever the prior dispositions of the property import absolute and uncontrollable ownership,-- in all such cases courts of equity will not create a trust from words of this character.' 2 Story,Eq.Jur. § 1070. See, also, Howard v. Carusi, 109 U.S. 733, 734; S.C. 3 S.Ct. 575; citing and recognizing the rule as stated by Story, and 2 Pom.Eq.Jur. §§ 1014-1017, where the subject is well discussed.

Upon a careful consideration of the language of the will-- giving the words their usual natural signification, as they would doubtless, be understood almost, if not quite, universally by ordinarily intelligent English-speaking people, without reference to any strained, artificial, or technical rules of construction-- it appears to me that two, at least, if not three of these requisite conditions, negatively stated, are found in the will. The 'objects of the supposed recommendatory trusts' are, undoubtedly, 'certain and definite,'-- they are the mother and sister of the testator. But 'the property to which it (the trust) is to attach is not certain or definite. ' 'The subject of the recommendation or wish' is, surely, not 'certain.' No specific property or amount is indicated as the subject of the asserted legacy or trust. The testator only 'requests' his general legatee and devisee 'to make such gift and provision for them as in her judgment will be best,' apparently leaving the whole matter to her judgment and discretion. How is the court to determine to what property, or to what amount of money, the trust is to attach? Neither the property nor the amount of money is indicated; and the testator has not left the matter to the judgment of the court to determine, but in express terms to the judgment of his surviving wife, his sole devisee and legatee. The subject is, therefore, not certain or definite. The testator has neither indicated the particular property, nor the particular amount of money, out of the million of dollars in value claimed to have been left, to which the legacy or trust is to attach, nor has he indicated any rule by which the property or amount can be ascertained, other than the judgment of his surviving wife, which judgment she appears to have exercised, for she made gifts from time to time, in small sums, amounting in the aggregate to $1,500. Certainly, the property or amount of money to which the trust, if any there be, is to attach,-- the subject of the recommendation or request, or the subject of the trust,-- could not well be more uncertain or more indefinite. In the absence of words expressly creating a...