Sears v. Cunningham , 1877 Mass. LEXIS 178 ( 1877 )

Morton, J.

The will we are called upon to construe in this case is in artificially drawn; but, taking into consideration the relations of all the parties to each other, and the nature and situation of the property which is the subject of the will, we think it is not difficult to arrive at the intention of the testator. The first clause, “ that my whole estate, real and personal, I hereby devise and bequeath to my wife Catherine, in her own name and for her own purpose's,” standing by itself, would clearly give to his widow an absolute estate. The expression “ in her own name and for her own purposes ” imports a fee, and is inconsistent with the idea that he intended to give her a life estate or an estate upon a trust for their children. The will then provides that the estate is given to the widow “ with only this condition,” “ that I wish at the death of my wife Catherine that she should make an equal division of her estate to such children as shall survive her, or their representatives; ” and the question is whether this provision created an imperative trust in favor of the children. In this, as in all other questions of the interpretation of wills, the intention of the testator, gathered from all the provisions of the will, controls the court. “ In order to create a trust, it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence.” Hess v. Singler, 114 Mass. 56, 59, and cases cited.

The clause we are considering merely expresses a wish that the wife at her death should make an equal division of her estate among the children. It does not purport to give the children any legal or equitable estate, but looks to a disposition to be made by the wife at her death. The estate given by the will consisted mainly of unimproved land of great value for building purposes, which was taxed yearly to a large amount and which yielded but little income. The testator’s whole income, independent of that of his wife, was for many years barely sufficient to pay the taxes on this property, and he was accustomed to sell, from time to time, portions of the property to meet the payment of the taxes.

The gift to the wife would be of no benefit to her unless she had the power of disposing of the land during her life. The first clause of the will clearly gives her an estate in fee, and we are of opinion that it was not the intention of the testator by the succeeding clause to create a trust, but that the words used were intended to be recommendatory and not imperative. It follows that the defendant’s deed to the plaintiff conveyed a good title.

Judgment for the defendant.