Woodcock v. McCord , 160 Wash. 607 ( 1931 )

I dissent. It is contended in behalf of appellants that a precatory trust is created by the language of this will, in favor of them and their co-employees of the deceased; that is, while the language of subdivision (a) of the third paragraph of the will is not, as to the sale of the plant to a corporation to be organized by the employees, mandatory in form, it is so in legal effect. If the introductory words of that subdivision,

"I suggest that my said trustees, as soon after my death as convenient, sell and dispose of my stock of merchandise, mill and mill plant, to a corporation to be organized by my employees,"

for the sum of seventy-five thousand dollars, stood unqualified by other language therein, there might be some basis upon which to rest this contention. But the mandatory nature which might be so attributed to that language is, I think, clearly negatived by the concluding language of that subdivision:

"All the provisions of this subdivision of my will in regard to the formation of such corporation and the purchase of said business, merchandise and other property, and, in fact, all of the provisions of this subdivision, are not mandatory upon my trustees, but are merely a suggestion as a basis for working out a plan by which said business can be handled advantageously."

In the early case of Hunt v. Hunt, 18 Wn. 14, 50 P. 578, Judge Reavis, speaking for the court, made this general observation, and I think correctly, touching the creation of precatory trusts by language in wills other than in express terms:

"A precatory trust arises out of words of ``entreaty, wish, expectation, request or recommendation, frequently employed in wills,' and a trust has been created by such words as ``hope,' ``wish,' ``request,' etc., if they be not so modified by the context as to amount to no more than mere suggestions to be acted upon or not according to the caprice of the interested devisee, or negatived by other expressions indicating a contrary intention, and the subject and object be sufficiently certain."

In the late case of In re Hochbrunn's Estate, 138 Wn. 415,244 P. 698, there was involved language in a will which, we held, created a precatory trust. The testator by his will gave a large amount of property to a named brother, "with the special request to my said brother" to pay therefrom ten thousand dollars to a named sister "as soon as possible after my decease;" this request being wholly unqualified by any other language in the will. We held that there was thereby created a precatory trust, to be so executed by the brother devisee in favor of the sister; but we there recognized the correctness of the holding in Huntv. Hunt, supra, and similar cases, by this language:

". . . upon an examination of which [those cases] it will be found that the language employed in the instruments under consideration was mediately or immediately used in connection with other inconsistent and more dominating provisions of the instruments."

In the following cases the language in each of the wills claimed to be sufficient to create a precatory trust in the devisee, which language, standing unqualified, was apparently sufficient to that end, was accompanied by express language negativing any such intention upon the part of the testator; and, for that reason, it was held that no such trust was created:Bacon v. Ransom, 139 Mass. 117, 29 N.E. 473; George v.George, 186 Mass. 75, 71 N.E. 85; Enders' Ex'r v. Tasco,89 Ky. 17, 11 S.W. 818; In re Keleman, 126 N.Y. 73, 26 N.E. 968;Tabor v. Tabor, 85 Wis. 313, 55 N.W. 702; Fellowes v. Durfey,163 N.C. 305, 79 S.E. 621; In re Purcell's Estate, 167 Cal. 176,138 P. 704. In the text of 40 Cyc. 1736, referring to testamentary expressions such as hope, wish, request, etc., we read:

"The question in every case is whether they express merely the testator's wish, or whether they express his will. A trust is created if it clearly appears that the words were used in an imperative sense; but this only where the testator's desires can be ascertained with reasonable certainty, the subject and the object being clear. Sometimes the testator explicitly states the sense in which precatory words are used, and in such case of course his express intention governs."

I am of the opinion that the words "I suggest," used in this will by Williams, the testator, should not be held mandatory in meaning, accompanied as they are by the express statement that they "are not mandatory;" and that appellants have not stated in their complaint facts constituting legal cause for compelling the executors and trustees to sell to the corporation the mill and mill plant, as prayed for.

HOLCOMB, MAIN, and FULLERTON, JJ., concur with PARKER, J.