Whipple v. Adams

Wilde, J.

That a request contained in a will may be, in many cases, equivalent to a command, or an express direction, cannot be doubted. Thus, if the executor were requested to pay a certain sum of money to another, that would be considered as a legacy which the executor would be bound to pay. So if a legacy be given to A., and the will contain a request that he should pay over a part thereof to B., this would be construed as a legacy to B. In such cases, the testator having a right to make such a disposition of his property as he thinks proper, the expression of his wishes is deemed to be the expression of his will, and a request is equivalent to a command.

But we think it difficult to apply this rule of construction to the present case. John A. Whipple was a stranger, to whom no property was given by the will. The testator, therefore, had no right to lommand his services ; and no provision was made in the will for the accommodation of the widow in case said Whipple should decline to comply with the testator’s request. This leaves it doubtful whether he intended that she should be accommodated with a chaise or carriage at all events.

Again, it is left doubtful to what extent, and at what expense. the testator wished his widow to be accommodated. Was a horse as well as a chaise to be kept solely for her use ; or did he expect that Whipple would accommodate her with the use of his own horse and chaise, as occasions might require ? It is also uncertain how Whipple was to be compensated for his services, whether by the widow, out of the property given to her, or from the rest and residue of the testator’s estate.

Upon the whole, the clause in question is so vague and indefi nite, that it cannot be so construed as to entitle the widow to a legacy. (See Bac. Ab. (Dodd’s ed.) Legacies, B. 1.)

Decree of the judge of probate affirmed.