Bryan v. Milby , 6 Del. Ch. 208 ( 1890 )

The Chancellor.

An agreement between the solicitors for the plaintiffs and defendant respectively was filed in this cause before the argument thereof began, which is in the following words: “ It is agreed by the solicitors for the complainants and defendants respectively, in order to save costs and expenses consequent upon taking testimony, that as if upon demurrer to so much of the complainant’s bill as alleges that by the will of W illiam A. Bryan, the gift to his widow, Mary It. Bryan, was upon an obligatory trust in favor of the complainants, it shall be first argued whether any such trust was by the said will created; and if it shall be finally determined that such trust was thereby created, then the parties shall be at liberty further to proceed in the cause and take testimony in support of their respective allegations of facts and go on to hearing.”

The only question for me to decide, therefore, is, Was-the gift to his widow, Mary R. Bryan, by William A. Bryan upon an obligatory trust in favor of the complainant's ?

That gift was as follows: “ I give and devise to my wife, Mary it. Bryan, all of my estate both real and personal. And I do hereby authorize and direct my executrix hereinafter named, to sell my real estate as soon as it can be sold to advantage and to invest the money in good • stocks and bonds. And I do request my wife if she should not require the whole of my estate as a support, that she will will at her death the remainder to the children of my brother, Charles A. Bryan, of Cecil County, Maryland. I do hereby constitute and appoint my wife, Mary R. Bryan, sole executrix to this my last will and testament, with the request to the court in which she may qualify that no security may be required of her and no appraisement be made of my estate.”

This is the first case, so far as I know, in respect to what is called precatory trusts, which has come before the courts of Delaware for decision. I am not therefore-embarrassed by authority here upon the subject.

The tendency of modern decisions, however, is, not to extend the rule or practice, which from words of doubtful meaning deduces or implies a trust.

In the case of Mussoorie Bank v. Raynor, L. R. 7 App. Cas. 321, a man gave his widow the whole of his real and personal property, feeling confident “ that she will act justly to our children, in dividing the same when no longer required by her.” The' privy council, in deciding in favor of the widow, expressed the opinion that “ the current of decisions now prevalent for many years in the court of chancery shows that the doctrine of preca.tory trusts is not to be extended.”

Bindley, L. J., in a subsequent case, after quoting from the judgment in the case of Mussoorie Bank v. Raynor, supra, remarked: “ I am very glad to say that the current has changed, and that beneficiaries are not to be made trustees unless intended to be so by the testator.” But I am not going to enter into any extended argument in respect to the principles involved in the case.

The principles have been fully and ably discussed by the solicitors representing the parties plaintiff and defendant. Their arguments were marked by extraordinary research and ability.

I content myself therefore by simply saying that there is no precatory trust in the will of William A. Bryan in favor of the plaintiffs.

The subject of the gift claimed as precatory was not certain. The testator, William A. Bryan, gave and devised to his wife, Mary B. Bryan, all of his estate, both real and personal, after the payment of his debts, and only requested his wife if she should not require the whole of his estate, that she should will at her death, not the property devised to her, but the remainder, to the children of his brother, Charles A. Bryan, of Cecil County, Maryland.

There might be, or there might not be, any remainder of his estate which could be enjoyed after his wife’s death by any person whomsoever. A necessary ingredient or characteristic, therefore, in a precatory devise or gift is wanting in this case. There was nothing that this court could have ordered impounded if application for that purpose had been made to it.

I must therefore decide, and I do so decide, that the gift to Mrs. Bryan was absolute and unconditional,.and not upon an obligatory trust in favor of the complainants.

The bill of the complainants is therefore dismissed with costs.