Williams v. Williams' Committee

• Decision Date: 24 November 1933
• Citation: 253 Ky. 30
• Parties: Williams et al. v. Williams Committee et al.
• Court: United States State Supreme Court — District of Kentucky

Page 30

253 Ky. 30

Williams et al. v. Williams Committee et al.

Court of Appeals of Kentucky.

Decided November 24, 1933.

1. Wills. — Expression "my people" in will giving property to testator's wife, with request that she will one-half thereof to "my people," referred to persons, other than testator's wife, who would take property if testator had died intestate.

2. Wills. — Expression "her people" in will giving property to testator's wife and expressing desire that she will one-half of it to her people meant persons, other than her husband, who would take wife's property if she should die intestate.

3. Wills. — Court will consider intention implied in will by words, accompanying absolute gift, expressing belief or request as to legatee's use thereof, and will declare trust to effectuate testator's intent.

4. Wills. — Will must be considered as whole in determining testator's intent.

5. Wills. — Gift of absolute estate in will raises presumption that subsequent precatory words create moral duties only, but presumption may be overcome by nature of words and testator's intent.

6. Wills. — Will giving all testator's property to his wife absolutely, followed by expressions of "desire" and "request" that she devise "my property" one-half to "her people" and one-half to "my people," held to create trust.

Appeal from Madison Circuit Court.

STEPHEN D. PARRISH and JOHN NOLAND for appellants.

BENTON & DAVIS for appellees.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

Taylor Williams and five others, claiming to be devisees under the will of W.A. Williams, were held to have no interest in his estate, that no trust was created for their benefit, and have appealed.

Omitting the caption and certificate of probate, this is the will:

"I, W.A. Williams, being of sound mind and disposing memory, and desire to indicate while I am able to do so the disposition I wish made of my property after my death, do hereby make, publish and declare this to be my last will and testament, hereby revoking any and all other writings being or purporting to be my last will:

"1st. As soon after my death as is practical I desire all of my just debts, including my funeral expenses, paid.

"2nd. I will, bequeath, and devise to my beloved wife, Mary A. Williams, all of my property real and personal to be hers absolutely. It is my desire and I request that if I pre-decease her, then before her death she make a will giving to her people one-half [1/2] of my property, and to my people the other one-half [1/2].

"3rd. I nominate and name my said beloved wife, Mary A. Williams, as my executrix of this my last will and testament, and hereby invest her with title to all of my real property, and authorize and empower her to convey same as my executrix, and ratify and approve all her acts in so doing, as if they were my individual acts.

"Witness my signature, this 23rd., day of November, 1912.

                                          "W.A. Williams."
                

When this will is stripped to the bone, here is what is left of it:

"I desire all my debts paid, I will to my wife all my property to be hers absolutely. It is my desire and I request she will to her people one half of my property and to my people the other one half. I nominate my wife as my executrix and invest her with title to all my property and empower her to convey same as my executrix."

W.A. Williams left no issue him surviving, and the expression "my people" as used in this will means those other than his wife who would take his property if he had died intestate, to wit, Taylor Williams et al., and the expression "her people" means those other than her husband who would take the property of Mary A. Williams if she should die intestate, to wit, the appellees, Shelby Taylor et al. See Shaver v. Weddington, 247 Ky. 248, 56 S.W. (2d) 980. We shall hereinafter refer to both the Williams family and the Taylor family as Taylor Williams et al.

The estate of W.A. Williams consisted of 568 acres of land in Madison county, Ky., and about $8,000 in personal property. Mary A. Williams qualified as executrix of her husband's will, and entered upon the discharge of her duties as such. Subsequently she was adjudged to be of unsound mind, and Wm. Jett, Jr., was appointed her committee.

On April 18, 1933, Mary A. Williams by her committee filed this action against Taylor Williams et al. (the testator's people) and Shelby Taylor et al. (his wife's people), seeking a construction of the will, asserting that this will vested Mary A. Williams with an absolute fee-simple title, and that the defendants had no interest therein. There is an allegation that it will be necessary for some of this real estate to be sold for her maintenance, but no such relief is asked in the prayer, and probably this allegation was only put in by way of inducement, and this is not a suit under subsection 4 of section 489 of the Civil Code of Practice, as such a suit would have to be by the committee against Mrs. Williams, but is simply a suit for the construction of this will.

A demurrer to this petition was overruled, the defendants declined to plead further, the trial court adjudged that Mrs. Williams took a fee-simple title under this will and the defendants took nothing, and the correctness of that holding is the question before us.

Taylor Williams et al. claim that this will creates for them a precatory trust. We will be less apt to go astray if we will keep in mind that the express "precatory trust" is a misnomer; it should be called a trust created by precatory words. It is simply a trust after all, and to create a trust there are very few requirements, and there is no particular formality to be observed.

When a person having the power of disposal over property shall make an absolute gift to one person in his will, and accompany the gift with words expressing a "belief," "request," etc., that it be kept or used for or given or willed to another, the courts will consider the intention of the testator as thus manifestly implied, and will carry the intention into effect by declaring the immediate donee or first taker to be a trustee, for those whom the testator intended to benefit, and thus create a trust in favor of the parties to be benefited. See Perry on Trusts (7th Ed.) sec. 112.

In the case before us, that the testator had the power of disposal as to the property he was disposing of is certain; he made his wife his immediate donee, that is certain; and equally certain are those to whom he desired the property to pass from her; and our only question is, What did he mean by the words "desire" and "request"? Were they mere words of advice, a suggestion to her of what he thought would be an appropriate thing for her to do, or were they words of command, something he was requiring her to do? What were the nature of the duties he was imposing upon her?

In a lecture delivered by Austin W. Scott, of the Harvard Law School, before the Cleveland Bar Association, he said:

"It is that last I want to comment on, enforceable duties. It arises most frequently in the case of a will. Suppose the testator says he wishes or desires that a certain disposition be made of the property, is that binding or is it not? Of course it is unfortunate that he uses that language. He leaves all his property to his wife, and says, `I desire her to do so and so with it,' or, `I desire her to divide it among the children when she dies.' If he wants to direct her to do it, why does he not do so? There seems to be an inherent desire for politeness in the human bosom, particularly when one is addressing his wife, even though she may not see it until he is dead. `I direct you to do so and so!' Wives do not like that kind of thing and he knows it, and he hesitates to write something that is unpleasant in his will.

"The good old schoolma'am does not say, `I demand that you leave the room,' or `I direct you to leave the room,' but, `I desire you to leave,' or, `I wish you to leave the room.' Those words, although they are merely precatory, may be held to be mandatory in effect. But there is an enormous amount of litigation because the court has to guess what the testator meant."

In the tentative draft of the Restatement of the Law of Trusts prepared by Mr. Scott in section 37 we find this:

"In determining the intention of the settlor the following circumstances among others are considered:

"[1] The imperative or precatory character of the words used "[2] The definiteness or indefiniteness of the property;

"[3] The definiteness or indefiniteness of the beneficiary or of the extent of his interest;

"[4] The relations between the parties;

"[5] The financial situation of the parties;

"[6] The motives which may reasonably be supposed to have influenced the settlor in making the disposition;

"[7] Whether the result reached by construing the transaction as a trust would be such as a person in the situation of the settlor would naturally desire to produce."

When we apply these guiding principles to the will and circumstances before us, all of them except the first at once suggest that the testator intended to create a trust.

The first one, however, presents some difficulty. One principle applicable to this situation, and often stated in both opinions and texts, is this:

"No trust is created unless the settlor [in this case the testator] manifests an intention to create enforceable duties."

In the case before us that means that the moment this will was probated certain enforceable rights then vested in Taylor Williams et al., which related back to the moment W.A. Williams died, else they would never have any rights in this property. Whatever rights Taylor Williams et al. may ever hope to have in this property vested then or never, and the answer to that question must be found, not in what we may suppose the testator meant to say, but in what is meant by what he did say.

But for the use of the words "to be hers, absolutely," we would have no...