D. C. I

Opinion of the Court.

be certain and definite and the property to which it is to attach clearly designated, but the recommendatory clause must be peremptory on the donee.

In the case of Warner v. Bates, 98 Mass. 274, 277, Chief Justice Bigelow announced the rule as to precatory trusts as follows: "If the objects of the supposed trust are certain and definite; if the property to which it is to attach is clearly pointed out; if the relations and situation of the testator and the supposed cestuis que trust are such as to indicate a strong interest and motive on the part of the testator in making them partakers of his bounty; and above all, if the recommendatory or precatory clause is so expressed as to warrant the inference. that it was designed to be peremptory on the donee; the just and reasonable interpretation is that a trust is created, which is obligatory and can be enforced in equity against the trustee by those in whose behalf the beneficial use of the gift was intended." This rule is approved in Colton v. Colton, 127 U. S. 300, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164; Briggs v. Penny, 3 MacN. & G. 546, 21 L. J. Ch. N. S. 265, 16 Jur. 93; Green v. Marsden, 1 Drew. 646, 1 Eq. Rep. 437, 22 L. J. Ch. N. S. 1092, 1 Week.. Rep. 511; Lambe v. Eames, L. R. 6 Ch. 597, 40 L. J. Ch. N. S. 447, 25 L. T. N. S. 175, 19 Week. Rep. 659, 25 Eng. Rul. Cas. 471; Re Hutchinson, L. R. 8 Ch. Div. 540, 39 L. T. N. S. 86, 26 Weck. Rep. 904; Burnes v. Burnes, 70 C. C. A. 357, 137 Fed. 781; Hess v. Singler, 114 Mass. 56; Knox v. Knox, 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155. In the present care, because of the lack of a definite object, the clause cannot be interpreted as being peremptory upon the executors. All that they were required to do was to distribute the property to such persons as they might deem proper. While the amount was certain, the object was indefinite and uncertain; hence no express

trust was created.

Trusts are divided into two classes, express and implied. "Express trusts may be created either by direct fiduciary expressions, or by precatory words, or by words indicating that a power is to be used in trust." Bispham, Eq. 8th ed. sec. 20. Their creation depends solely upon the intention of the parties. But

Opinion of the Court.

[43 App. "implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent, or which are superinduced upon the transaction by operation of law, as matters of equity, independently of the particular intention of the parties. The term is used in this general sense, including constructive and resulting trusts." 2 Bouvier's Law Dict. p. 1144. When one conveys property, either by deed or will, and the circumstances are such that the person taking the legal title is not, in equity, entitled to the beneficial interest, equity will imply a trust in favor of the grantor or those standing in his stead. "A resulting trust by presumption of law arises where the legal ownership of property has been disposed of, but it is apparent from the language of the disposition itself, or from the attendant circumstances, that the equitable ownership or beneficial interest was intended to go in a different channel, although there is no declaration, or no sufficient declaration, as to what the channel should be. In this case a trust is implied for the real owner, termed a resulting trust, or trust by operation of law." Adams, Eq. p. 31. In other words, while the legal title passes, the equitable estate remains in the grantor.

Applying these distinctions to the will here under consideration, it is apparent that no express trust was created, either in favor of the next of kin or of any other persons, since those among whom the property was to be distributed are uncertain. But, on the other hand, if it is also apparent that the intention of the testatrix was not to bequeath to the executors the beneficial interest in the property, it would be inequitable to vest in them more than the mere naked legal title. When this condition arises, equity creates a resulting trust.

Having found that no precatory trust was created, and for failure no trust as intended, we are confronted with the contention that the executors took an absolute bequest. Where a testator makes a bequest, coupled with precatory words which fail to create a trust, it does not follow, as matter of law, that such bequest becomes absolute. Before it can be so held, it must clearly appear from the will itself that such was the intention of the testator. The learned justice below was impelled, from the

D. C.]

Opinion of the Court.

language of the will, to conclude that no intention existed in the mind of testatrix to give any beneficial estate to the executors. with this conclusion we agree. The gift to the executors was not in trust for a specific purpose, nor in trust for an indefinite purpose. No trust was created, except such a resulting trust as equity, from the infirmities of the will, may interpose.

We are not avoiding nor overlooking the chief rule which governs the construction of wills. "The intention of the testator has always been regarded as the pole star by which any construction of the testamentary instrument is to be guided. To ascertain that intention is the aim of all well-directed attempts at interpretation. Whenever, therefore, it appears from the language of the will that it was the intention of the testator to create a trust, the courts will give effect to that intention, in whatever words it may be expressed." Bispham, Eq. 8th ed. p.

124.

We do not consider this an unconditional bequest. Finding, as we must, the intention of the testatrix within the four corners of the will, we are forced to the conclusion that it was not her intention to make the executors the beneficiaries of the residue of her estate. The language of the will, "I give and bequeath unto my executors, or unto the survivor of them, and I request" them to distribute it in the indefinite manner expressed, concludes any reasonable inference of an absolute bequest to them of the residue of the estate. In the opening paragraph, testatrix appoints her brother and nephew by marriage as executors, with the provision that, if either decline to serve, General Sharpe shall act with the survivor. She then declares that, "wherever the term 'executors' shall be hereinafter employed, it is my intent and meaning to embrace within the said term Brigadier General Henry G. Sharpe, in case he become one of my executors." Numerous times throughout the will she uses the expression, "my executors, or the survivor of them." Can it be conceived that she had in mind making an absolute bequest of the large residue of her estate to General Sharpe, or some unknown indefinite survivor? That such was not her intention further appears in the closing paragraph of the will, where she

directs that her executors who shall qualify "shall receive the sum of twenty-five hundred dollars ($2,500) each in full satisfaction for all services as such executors."

After bequeathing the residue of her estate to her executors, she requests them to distribute such residue among such persons as they shall deem proper. Distribution is made imperative. No discretion remains in the legatees to apply any of the residue to their individual uses, nor is it to be assumed that such application was intended by the testatrix. In fact, she nowhere refers to them as individuals, but as executors in their official capacity. The law scrutinizes a bequest to an executor. Before it can be held that a bequest vests property of the estate in the executor, it must clearly appear that the testator intended that it should so vest. In the case of Forster v. Winfield, 142 N. Y. 327, 37 N. E. 111, the will, after authorizing the executors to sell the real estate of the testator to pay debts, provided: "And the net residue, after payment of all such debts, I give to my said executors and to the survivor of them as joint terants. I have entire confidence that they will make such disposition of such residue as, under the circumstances, were I alive and to be consulted, they know would meet my approval." The court, considering this provision of the will, said: "Before a gift to executors eo nomine can be held to vest in them individually, the intention that it should so vest must be plainly manifested. In the language here used we find no such intention. He appoints the plaintiffs executors of his will, and gives them a power of sale. Then he directs them out of the proceeds realized by them from the execution of the power of sale, which they are to receive as trustees and in trust, to pay any debts that he might owe, including mortgages, and then he gives the entire residue, after payment of such debts, to his executors and to the survivor of them as joint tenants. If there were no more in this clause of the will it would scarcely be claimed that the testator had manifested any intention to vest the executors individually with the title to the land or its proceeds. All the language used relates to them as executors, and to them only in their official capacity. The gift is to them as joint tenants, and to the survivor of

D. C.]

Opinion of the Court.

them, thus showing clearly that he was dealing with them in their official capacity."

In Davison v. Wyman, 214 Mass. 192, 100 N. E. 1105, the testatrix made the following bequest to her executors: "Any surplus of my estate remaining after the payment of said fifteen. hundred dollars to said * hospital shall be disposed of by my executors (and trustees) at their absolute discretion and according to their own judgment." It was held that no intention was manifested in the will by the testatrix to give the surplus of the estate to the executors for their own benefit; but that it was her intention that they should distribute it to others, and that object being indefinite and uncertain, a resulting trust. arose for the benefit of the next of kin of the testatrix. The court said: "But perhaps the decisive consideration is that, as already has been said, the whole fund of which this remaining surplus is only a part was given to Rust and Wadsworth strictly in trust for certain carefully limited purposes, and that the last one of these purposes, in the event which has happened, was not that they should take any surplus for their own use or pay it over to themselves, but that they should dispose thereof, not according to specific directions of the testatrix, but according to their own judgment and discretion; that is, they were not to keep it for themselves, but were to dispose of it to others. cannot avoid the conclusion that she did not intend them to take this sum for their own benefit, but to dispose of it, though in a manner left to their own unfettered discretion. Under such circumstances it is settled by our decisions that the trust upon. which this sum was held was too indefinite to be carried out, and that a resulting trust arose for the benefit of the next of kin of the testatrix."

We

In each of the cases cited by counsel for appellant, the action was by a supposed cestui que trust to recover from a legatee under a will all or a portion of the estate bequeathed to him, the right of action being founded upon an understanding between the testator and the legatee, dehors the will, that, in the event of the bequest being made to the legatee, without condition in the will, the legatee would carry out the wish of the testator,