Murphy, by next Friend v. Carlin

• Decision Date: 22 December 1892
• Parties: Murphy, by Next Friend, v. Carlin et al., Appellants
• Court: Missouri Supreme Court

20 S.W. 786

113 Mo. 112

Murphy, by Next Friend, v. Carlin et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1892

Appeal from St. Louis City Circuit Court.--Hon. L. B. Valliant Judge.

Affirmed.

Rowell & Ferriss, Rassieur & Schnurmacher and J. II. Zumbalen for appellants.

(1) The decree should have been in favor of the defendants, as no trust is raised by the will in favor of plaintiff, because First. The precatory words are insufficient to cut down or limit the prior absolute bequest to the widow. 2 Story's Equity Jurisprudence [13 Ed.] secs. 1069, 1070; 2 Pomeroy's Equity Jurisprudence [2 Ed.] secs. 1015, 1016 1017, 1019; Hess v. Singler, 114 Mass. 57; Spooner v. Lovejoy, 108 Mass. 529; Sears v. Cunningham, 122 Mass. 538; Barrett v. Marsh, 126 Mass. 213; Foose v. Whitmore, 82 N.Y. 405; Campbell v. Beaumont, 91 N.Y. 464; Pennock's Estate, 20 Pa. St. 268; Hopkins v. Glunt, 111 Pa. St. 287; Good v. Miller, 22 A. 1032; Bills v. Bills, 80 Iowa 269; Wilde v. Smith, 2 Denio (N. Y.) 93; In re Adams & Vestry, 27 Ch. Div. 394; Diggles v. Edmondson, 39 Ch. Div. 253. Seeond. The will shows affirmatively that the testator intended to commit the matter to his wife's discretion. 2 Spence's Equitable Jurisdiction, 69; Otway v. Otway, cited in Malim v. Keighley, 2 Ves. Jr. 530; Ellis v. Ellis' Adm'r, 15 Ala. 299; Gilbert v. Chapin, 19 Conn. 342; Randall v. Randall, 135 Ill. 399. Third. The subject-matter of the alleged trust is not definite and certain. Bryan v. Milby, 24 A. 333; Williams v. Worthington, 49 Md. 572; Wynne v. Hawkins, 1 Bro. 179; Bland v. Bland, 2 Cox Ch. Cas. 349; Fox v. Fox, 27 Beav. 301; McNab v. Whitbread, 17 Beav. 279; Pope v. Pope, 10 Simons, 1; Bank v. Raynor, L. R. 7 App. Cas. 321; 2 Story's Equity Jurisprudence, sec. 1070. (2) If the will did raise a trust for the plaintiff, then the decree was for an excessive amount and contrary to the law and the evidence, whether the provision was to be a permanent one or was to be limited to the support and education of the plaintiff during minority

R. A. Bakewell and J. L. Hornsby for respondent.

(1) The precatory words are sufficient to create a trust. Schmucker's Estate v. Reel, 61 Mo. 596; Noe v. Kern, 93 Mo. 367; Buck v. Ashbrook, 59 Mo. 200; Warner v. Bates, 98 Mass. 274; Hunter v. Sternbridge, 12 Ga. 192; McRee v. Means, 34 Ala. 349; Van Ames v. Jackson, 35 Vt. 176; Harrison v. Harrison, 2 Gratt. 1; Colton v. Colton, 127 U.S. 300; Taylor v. Martin (S. C. Pa.), 8 A. 920; 1 Jarman on Wills, 680, note 5; Knox v. Knox, 59 Wis. 172; Foley v. Perry, 2 Mylne & K. 138; Ericson v. Wittard, 1 N.H. 217; Perry on Trusts, sec. 112; Row v. Stuyvesant, 8 Johns. 426. (2) Where a testator in one part of his will gives to a person an absolute estate, and in a subsequent passage shows that he meant the devisee or legatee to take a lesser interest, or to hold the property devised or bequeathed, or any part of it, impressed with a trust, the gift is restricted accordingly. Knight v. Knight, 3 Beav.; Smith v. Bell, 7 Pet. 68; Taylor v. Martin, 8 A. (Pa. St.) 920; Bohon v. Barrett, 79 Ky. 383; Ericson v. Wittard, 1 N.H. 228; Knox v. Knox, 59 Wis. 172; Lucas v. Lockhart, 10 Sm. & M. 471; Lewis v. Pittman, 101 Mo. 281; Hawley v. Northampton, 8 Mass. 40; Hill on Trustees [4 Ed.] side p. 71; Perry on Trusts, sec. 112; Story's Equity Jurisprudence, [4 Ed.] 452, sec. 1068. (3) There is sufficient certainty in both the subject and object of the precatory devise in the case at bar. Farwell v. Jacobs, 4 Mass. 634; Griffith v. Evans, 5 Beav. 341; Harrison v. Harrison, 2 Gratt. 10; Ericson v. Wittard, 1 N.H. 230; Gillam v. Chancellor, 43 Miss. 437; Warner v. Bates, 98 Mass. 278; Wigram on Wills, 155; Noe v. Kern, 93 Mo. 367; Broad v. Bevan, 1 Russ. 511 note; Kilvington v. Gray, 10 Sim. 293; Foley v. Perry, 5 Sim. 138; Pride v. Fooks, 2 Beav. 430.

Brace J. Barclay, J., not sitting.

OPINION

Brace, J.

This is an action in the nature of a bill in equity to enforce a precatory trust alleged to arise under the will of John Whelan, who died January 9, 1882. The will is dated May 13, 1880, and provides as follows:

"First.--For payment of debts and funeral expenses.

"Second.--Legacy of $ 1,500 to the testator's sister, Mary Conners.

"Third.--Legacy of $ 1,000 to Mollie Curran, the child of the testator's niece, Ann Conners.

"Fourth.--Legacy of $ 1,000 to John Cullinane in recognition of many years of faithful service.

"Fifth.--I give, bequeath and devise all the rest of my property, both real and personal, and of every kind, nature and description, unto my dearly beloved wife, Margaret, and to her heirs and assigns forever, to have and to hold the said property with all privileges and appurtenances thereto belonging unto my said wife, Margaret, and to her heirs and assigns forever.

"Sixth.--It is my wish and desire that my wife continue to provide for the care, comfort and education of Thomas Joseph Murphy, now aged nearly five years, who has been raised as a member of my family since his infancy, and to make suitable provision for him in case of her death, providing that he continue to be a dutiful child to her and shows himself worthy of such consideration."

After the death of Whelan, his widow, the said Margaret, inter-married with William P. Smythe, and afterwards died intestate, seized of certain real estate situate in the city of St. Louis and described in the petition, purchased by her during her widowhood, with the proceeds of property acquired by her by said will. The defendants are the heirs at law of the said Margaret.

The circuit court found for the plaintiff, awarding him the gross sum of $ 10,000, and charged the same as a lien upon said real estate, and defendants appealed.

The testator by his will appointed his wife sole executrix thereof without bond. At the time he executed the will, and at the time of his death he was possessed of a large estate, and was living in a style befitting that estate, which was the fruit of his own economy and industry. His widow, after paying all the specific legacies contained in the will, funeral expenses and other liabilities, received of the personal estate as sole legatee under the will, as appears from her last settlement made April 15, 1884, the sum of $ 86,630.39 in cash or its equivalent. The testator and his wife had no children. The plaintiff, who is a minor, suing by his next friend (at the time of the trial of the age of fifteen years), was taken by Mrs. Whelan when he was eighteen months old to be reared as her own child. He was then an orphan, the son of respectable parents, and under the control of his mother's relations, his father and mother both having died but a short time before. He was never formally adopted by the testator, but was taken into his family, given his surname, and ever afterwards treated as a favorite son by him and his wife until they died, and never found out that he was not their son until after Mrs. Whelan's death. He was about seven years old when Mr. Whelan died, and about ten when Mrs. Whelan died, was a dutiful child and fully reciprocated the affection of his supposed parents.

I. The cardinal rule prescribed by the legislature of this state for "all courts and others concerned in the execution of last wills" is to "have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them." Revised Statutes, 1889, sec. 8916.

The true intent and meaning of the testator can be best ascertained by the courts and those concerned in the execution of wills by putting themselves, so far as may be, in the place of the testator and reading all his directions therein contained in the light of his environment at the time it was made. Hall v. Stephens, 65 Mo. 670; Noe v. Kern, 93 Mo. 367, 6 S.W. 239; Suydam v. Thayer, 94 Mo. 49, 6 S.W. 502; Munro v. Collins, 95 Mo. 33, 7 S.W. 461; Small v. Field, 102 Mo. 104, 14 S.W. 815; Long v. Timms, 107 Mo. 512, 17 S.W. 898. When that intent and meaning can be thus clearly ascertained, then all technical rules and adjudicated cases in other jurisdictions that would stand in the way of its execution must be disregarded.

In Schmucker's Estate v. Reel, 61 Mo. 592, the prevailing doctrine in regard to precatory trusts was recognized to be "that no particular form of expression is requisite in order to create a binding and valid trust and that words of recommendation, request, entreaty, wish or expectation will impose a binding duty upon the devisee by way of trust, provided the testator has pointed out with sufficient clearness and certainty both the subject-matter and the object of the trust." This rule was again recognized by this court in Noe v. Kern, supra, in which it was said: "In this class of cases the difficulty is not as to what the rule is, but as to its application." "Every case must depend upon the construction of the particular will under consideration. The point really to be determined * * * is, whether looking at the whole context of the will the testator intended to impose an obligation on his legatee to carry his wishes into effect, or whether, having expressed his wishes, he intended to leave it to the legatee to act on them or not at his discretion." 1 Perry on Trusts [3 Ed.] sec. 114. Bigelow, C. J., in Warner v. Bates, 98 Mass. 274, says in regard to this rule: "The criticisms which have been sometimes applied to this rule by text-writers and in judicial opinions will be found to rest mainly on its application in particular cases, and not to involve a doubt of the correctness of the rule itself as a sound principle of construction. Indeed, we cannot understand the force or validity of the objections urged against it, if care is taken to keep it in subordination...