Hopkins v. Glunt , 17 W.N.C. 39 ( 1886 )

Mr. Chief Justice Mercur

delivered the opinion of the Court, January 4th, 1886.

The alleged error in this judgment is determined by the construction to be given to the will of David Hopkins. The specific contention is whether Margaret Hopkins took an estate in fee, in the real estate of which he died seised.

In the second paragraph of his will he declares, “ I give, devise and bequeath to my beloved wife, Margaret Hopkins, her heirs and assigns forever, all my property, real, personal and mixed, of what nature or kind soever, and wheresoever the same shall be at the time of my death.”

In the third paragraph he declares “ My wish is, that after the sale of my real estate by my wife, Margaret aforesaid, without charging my said real estate, that she will, if she has a sufficient sum of money to do so, to give to my daughter Mary’s children as follows.” Then to three named the sum of fifty dollars each, at any time she may deem most suitable for herself; and to one other named, fifty dollars, when he attains the age of twenty-one years.

The following and concluding paragraph reads: “My further request is that at the death of my wife Margaret aforesaid, that she will so divide what ■ she may have among our daughters, Martha and Eliza’s children, share and share alike.”

It is unquestionably conceded that the second paragraph of the will standing alone would give a fee to Margaret. On behalf of the plaintiff in error, it is claimed that the estate thus given is changed by subsequent language in the will, so that in lieu of an absolute devise to her, the last paragraph created a trust in her for the benefit of the persons therein named.

It is undoubtedly true the intent of the testator, as gathered from the whole will, furnishes the cardinal rule of construction. When that intent is manifested with sufficient certainty and is not in conflict with established rules of law, it must govern: Middlesworth’s Admr. v. Blackmore, 24 P. F. S., 414; Schott’s Estate, 28 Id., 40; Reck’s Appeal, Id., 432; Webb v. Hitchins, 9 Out., 91.

In this state the rule is' well settled that words in a will merely expressive of desire, recommendation, and confidence, are not sufficient to convert a devise or bequest into a trust: Pennock’s Estate, 8 Harris, 268; Jauretche v. Proctor, 12 Wr., 466; Second Reformed Presbyterian Church v. Disbrow, 2 P. F. S., 219; Bowlby v. Thunder, 9 Out., 173.

Expressions of a desire or a wish of the testator as to a specific disposition of his property, standing by themselves alone, may constitute a valid devise or bequest thereof. The rule is different when such expressions are used after an absolute disposition of the property has been made. After an unqualified devise by the testator of his property, no precatory words to his devisee can defeat the estate previously granted : Burt v. Herron, 16 P. F. S., 400; Bowlby v. Thunder, supra.

The language in the third paragraph of the will appears to assume that Margaret will sell the real estate, yet there is no direction that she shall do so, and the testator did not appoint any executor. Whether she had a “ sufficient sum of money ” to comply with his wish appears to have been left to her to decide. No question however now arises as to the gifts therein mentioned. It is merely referred to as aid in construing the last paragraph.

In the last the word “ request ” is used as synonymous with “ wish ” in the former. The language is “ my further ” request, thus continuing the use of a word merely precatory. The testator makes no reference to his property nor to the proceeds of property which he has devised to her. His wish or request is that she will divide “ what she may have ” at her death, among the persons named. This language is sufficiently broad to apply to all her property however acquired. Nothing less than her will duly executed could give effect to the request of David Hopkins. This was an act purely optional with her. We are clearly of the opinion that no subsequent language in the will converted into a trust the property which had previously been devised to her absolutely in fee.

Judgment affirmed.