Newhall v. McGill

• Decision Date: 12 December 1949
• Docket Number: No. 5069,5069
• Citation: 212 P.2d 764,69 Ariz. 259
• Parties: NEWHALL et al. v. McGILL.
• Court: Arizona Supreme Court

Page 764

212 P.2d 764

69 Ariz. 259

NEWHALL et al. v. McGILL.

No. 5069.

Supreme Court of Arizona.

Dec. 12, 1949.

Snell, Wilmer, Walsh & Melczer, of Phoenix, for appellants.

Clark & Clark, of Phoenix, for appellee.

DE CONCINI, Justice.

Mary McGill Luke died in January, 1939, leaving a witnessed will dated August 4, 1928, which appointed her sister, Sarah C. McGill, executrix. Her will was admitted to probate February 8, 1945, in Maricopa County, Cause No. 19135. She left fifteen heirs. Sarah C. McGill was the sole devisee. Helen Newhall, another sister residing in Chicago, died in that city in 1944. The latter left a will bequeathing one-sixth of her estate to each of plaintiffs in this action, appellants herein, viz.: Franklin D. Newhall and Agnes Newhall, who bring this action as heirs. Franklin D. Newhall acts also in the capacity of administrator of the estate of Helen Newhall, deceased.

Plaintiffs first filed an action in the Superior Court of Maricopa County, being Civil Cause No. 55554, the file of which is not here on appeal, although the minute entries of the court in that case are a part of the record by stipulation of counsel. The lower court dismissed plaintiffs' complaint in that action on May 8, 1946. The defendant, appellee, here maintains that said dismissal is res judicata and judgment of the lower court in the probate matter (Cause No. 19135) should be affirmed because of the dismissal of plaintiffs' complaint in Action No. 55554.

It appears from the meager records we have here in action No. 55554 that the court was without jurisdiction of that cause under our holding in Re Estate of Hesse, 62 Ariz. 273, 157 P.2d 347, except to dismiss it; and therefore the same is not res judicata.

Plaintiffs filed petition for determination of heirship in the probate matter, August 16, 1946. Twelve relatives by consanguinity of Mary McGill Luke filed a renunciation in favor of Sarah C. McGill, sister of deceased. Both sides made a motion for judgment on the pleadings and stipulated there was only one issue to be decided and that was whether or not the disposing clause of the will was valid. The will is set out haec verba below:

'The Last Will and Testament

'In the Name of God, Amen. I, Mary McGill Luke of the State of Arizona County of Maricopa, State of Arizona, being of sound and disposing mind and memory, do make, publish and declare this my last Will and Testament, hereby revoking and making null and void all other last Wills and Testaments by me made heretofore.

'First--My Will is that all my just debts and funeral expenses shall be paid out of my Estate, as soon after my decease as shall be found convenient.

'Second--I give, devise and bequeath to my sister, Sarah Campbell McGill all my real and personal property to be cared for and disposed of according to my personal directions to her.

'I nominate and appoint same Sarah Campbell McGill of Phoenix, Arizona as Executrix of this my Last Will and Testament.

'In Testimony Whereof, I have set my hand to this, my Last Will and Testament, at Phoenix, Arizona this 4th day of August, in the year of our Lord, One Thousand Nine Hundred twenty-eight.

'Mary McGill Luke.

'The foregoing Instrument was signed by the said Mary McGill Luke of Phoenix--Arizona in our presence and by her published and declared as and for her Last Will and Testament, and at her request, and in her presence, and in the presence of each other, we hereunto subscribe our Names as Attesting Witnesses, at Phoenix, Ariz. this 4th day of August, 1928.

'Estelle Holman Resides at Phoenix, Ariz.

'Maggie Malone Resides at Phoenix, Ariz.

'Sections 1204 to 1225, Revised Statutes of Arizona, 1913, Chapter XIX, Title 6, and Amendments thereto.'

The lower court dismissed plaintiffs' complaint and held that the devise was in fee and the words 'to be cared for and disposed of according to my personal directions to her' were merely precatory and surplusage.

Plaintiffs on appeal make several assignments of error which may be boiled down to one issue: Does the disposing clause in the will make a valid devise in fee or does it create a trust?

Plaintiffs maintain it creates a trust and is therefore void because it is indefinite and uncertain.

This court agrees with plaintiffs that if a trust was created it must fail for want of certainty. A valid trust must among other things have (1) subject matter that is certain, (2) beneficiaries specifically designated. Thompson on Wills, 2d Ed., Sec. 419, p. 36.

The next question is: Do the words following the devise create a precatory trust? In order to create a precatory trust (1) the words must be imperative in their nature, (2) subject of recommendation or wish must be certain, (3) the object of the bounty must be certain. McDuffie v. Montgomery, C.C., 128 F. 105. Applying the foregoing tests to the situation at hand we hold that no type of trust was created.

The cardinal rules for construction of all wills is to ascertain the intention of the testator, and this intention is to be ascertain from the words of his will, taking into view when necessary or appropriate the circumstances under which it was made. In re Estate of Marti, 132 Cal. 666, 61 P. 964, 64 P. 1071.

The court will determine from the context of the will what the testator intended and give that intention effect. In re Baxter's Estate, 58 Ariz. 16, 117 P.2d 91. In this case the circumstances of making the will are not shown except that the will was 'regularly made' although obviously 'homemade' and not the work of a lawyer. The will is written in long hand, apparently by one of the witnesses, by her filling in the blanks of a printed form. There is no other disposing clause except the one in question.

All the blood relatives of deceased, with the possible exception of plaintiffs, whose relation is not shown, recognized that the testatrix intended defendant to have her property by renouncing any rights they might have in favor of the devise to defendant. Plaintiff's predecessor in interest, Helen Newhall, sister of Mary McGill Luke, died five years after the testatrix. It is significant to note that Helen Newhall didn't come forward after the death of testatrix in 1939 and before her death in 1944 to claim her interest, if any, in the property of testatrix. Her interest, if any, would have vested upon the death of the testatrix. Home Ins. Co. v. Latimer, 33 Ariz. 288, 264 P. 103; Stephens v. Comstock-Dexter Mines, 54 Ariz. 519, 97 P.2d 202.

'Courts will assume that no testator intends to make conflicting provisions in his last will.' Rosenberger v. Rosenberger, 184 Va. 1024, 37 S.E.2d 55.

'It is a well-recognized rule that where an estate in fee is given in one clause of a will in clear and explicit terms, the interest which the devisee thus obtains in the lands cannot be taken away or diminished by any subsequent vague or general expression of doubtful import, or by any inference deducible therefrom, that may be repugnant to the estate given.' Irvine v. Irvine, 69 Or. 187, 136 P. 18, 19.

In Fields v. Fields, 139 Or. 41, 3 P.2d 771, 773, 7 P.2d 975, the court quotes with approval from the following:

1. 40 Cyc. pp. 1734, 1735: "* * * The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator's intention to create an express trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust declared in the ordinary manner. * * *"

2. 1 Perry on Trusts and Trustees, 6th Ed., Sec. 115: "* * * 'Where the later words of a sentence in a will go to cut down an absolute gift contained in the first part of a sentence, and are inconsistent with such gift, the court will, if it can, give effect to the absolute gift.' * * *"

A well-reasoned statement of the law as to when a trust is intended and established is found in Re Feldman's Estate, 78 Cal.App.2d 778, 178 P.2d 498, 504:

"There is a well-recognized distinction between an uncertainty where the intent to establish a trust is clear but the provisions are so indefinite as to render the trust void for uncertainty, and the uncertainty which simply indicates the want of intention to create a trust. Loomis Inst. v. Healy, 98 Conn. 102, 119 A. 31. This distinction is discussed in Pratt v. Trustees of Sheppard & Enoch Pratt Hospital, 88 Md. 610, 42 A. 51, 56, wherein the following appears:

"'But it must be borne in mind that there is a distinction between a trust that is void for uncertainty, and an uncertainty that is simply indicative of the absence of an intention to create a trust. In the one case there is no uncertainty as to the intention to create a trust, but merely an uncertainty as to the objects to be benefited or the subject to be affected; in the other case, there is simply an uncertainty as to whether any trust was intended to be created at all. If it be uncertain as to whether there was an intention to create a trust, it is obviously not the province of the courts to ingraft a trust upon the gift; but, if it be apparent from the whole will that a trust was intended to be established, then the uncertainty as to the objects or the subject of that trust will not indicate that there was no intention to raise a trust, but the uncertainty will avoid the trust attempted to be founded. Where the expressions have been held too vague to show an intention to creat a trust, the devisee or legatee retains the property for his own use; but where the intention to create a trust is sufficiently expressed, and yet the objects or the subjects of it are uncertain, the gift fails, and the heir or next of kin is let in to the beneficial ownership.' * * *'

"* * * In the authorities last cited it is said that where a testator has made an unrestricted devise of property by the terms of his will, subsequent precatory...