With due deference to the opinion entertained by majority of this court I am compelled to dissent.
I am of the opinion that the disposing clause of the will bequeathing and devising, or attempting to bequeath or to devise, the estate of the testatrix is an invalid testamentary disposition as constituting a testamentary disposition made without the formalities and safeguards required by the provisions of Section 41-102, A.C.A. 1939, statute of wills, and not being within any of the exceptions permitted by this section or Sections 41-104 and 41-105.
The disposing clause reads: "I give, devise and bequeath to my sister, Sarah Campbell McGill all my real and personal *Page 267 property to be cared for and disposed of according to my personal directions to her."
The majority opinion is to the effect that Sarah Campbell McGill took the estate for herself and herself alone disregarding the language "to be cared for and disposed of according to my personal directions to her", with which conclusion I am unable to agree.
The language used by the testatrix giving the words their usual and ordinary meaning, is clear, plain and unequivocal; and considering a well-known rule of construction that, where no ambiguity in phraseology exists, the intention of the testator is to be discovered in the express language which he used, Lowell v. Lowell, 29 Ariz. 138, 240 P. 280; and as was said In re Ogden's Estate, 78 Cal. App. 412, 248 P. 680, 681, "* * * the question for the court to determine is not what she intended to declare in her will, but what she intended by what she did declare therein. * * *" I recognize that one of the cardinal rules of construction of wills is to ascertain and give effect to the intention of the testator and that testacy is favored by the law. However, this court should not adopt a construction founded on conjecture or supply an omission by rewriting a will in order to avoid a conclusion of intestacy. In re Hisey's Estate, 106 Cal. App. 678,289 P. 889. Nor should the court, under the guise of construction, make a will for a testator to take the place of the one made by him if its intent is plain; and, this is so regardless of the consequences to the testator's will. In re Beldon's Estate, 11 Cal. 2d 108, 77 P.2d 1052.
In the present case can it be said that the testatrix, by the use of the words "to be cared for and disposed of according to my personal directions to her", intended to pass a fee simple estate? These are not mere words of desire or request, but in fact constitute a limitation upon and a direction as to the disposition of the estate not reduced to writing or executed with the solemnities required by our statutes. There is no intimation that the testatrix was expressing only a wish or a hope as to the ultimate disposition to be made of the property by someone else. The testatrix made it clear that the property was to be cared for and disposed of in a certain fashion made known by the testatrix to the devisee through personal and apparently oral directions. In any event the method of disposition was not left to the discretion of the devisee with the expectation that the testatrix' desires or wishes would be followed, but to be "* * * disposed of according to my personal directions to her." (Emphasis supplied.)
The mere fact that the testatrix used these words at all shows an intention to devise an estate other than in fee simple. If the testatrix intended to give a fee simple estate no such words were required for the reason that a fee simple estate carries with it the absolute power of disposal.
In re Hayward's Estate, 57 Ariz. 51, 110 P.2d 956, 957, the testator (Thompson) devised *Page 268 the residue of his estate to two nieces, Theodora and Winifred, in equal shares, "* * * and if either of them shall have died before my decease, * * * then her share shall pass to * * * (others)." Both nieces outlived him. On the death of Theodora claim was made that her interest under the Thompson will died with her. The claimants contended that they were devisees of Theodora's portion of the Thompson property by this final statement in the Thompson will: "`It is my wish, though this is not a restriction or a limitation upon the use and enjoyment of the legacies and bequests herein made, that my estate, after the payment of my debts, the cash bequests and expenses of administration, shall be kept among the descendants of my late father and mother.'" Their claim was denied upon the grounds that the "wish" was not imperative in the connection in which it was used. The court said: "* * * We regard the wish expressed by Thompson as a recommendation or a request directed to his legatees and devisees, descendants of his father and mother, because: (1) The `wish' expressly disclaims any intention to limit or restrict the use and enjoyment of the property given to the devisees and legatees; * * * (4) the wish is evidently addressed to legatees and devisees who are descendants of his father and mother. In other words, the testator had apportioned his estate among the descendants of his father and mother as he wanted them to have it, and then expressed the wish to them, as a parting word, that he would like for them in disposing of such donations, whether by will or deed, to do so to the lineal descendants of his father and mother, leaving it, however, tothem to follow such recommendation or not as they pleased. He does not undertake to command or direct his donees in their disposition of such property, except as they might be guided by his wishes. This wish is all-pervading; it is perpetual. * * *" (Emphasis supplied.)
Did the testatrix, Mary McGill, express any wish to her sister that when she (the sister) disposed of the property that the testatrix merely hoped, expected or desired that her recommendations would be followed? I think the answer is no. Shesaid that the property was to be "* * * disposed of according to my personal directions to her." (Emphasis supplied.)
The majority opinion cites In re Ferdun's Estate, Cal.App.,205 P.2d 456, presumedly with the thought in mind that it demonstrates that the words here under consideration are precatory. For the exact language of the will in the Ferdun case see quote in the majority opinion. The California court in concluding that this language was precatory pointed out that the testatrix did not say "I leave it to Ernest Ferduns family" but after advising him "to `hang on to it'" there followed this statement with reference to the vineyard: "you keep as long asyou live, at the time of your death John (you) leave it to Ernest *Page 269 Ferduns family." The reasoning of this California case demonstrates to my mind that the language of the will we are considering is words of limitation.
It must be kept in mind that the testatrix directed that her property should be (1) cared for and (2) disposed of. How? "* * * according to my personal directions to her." The majority opinion holds that these words under consideration were precatory and say "In order to ingraft a trust upon this will we would have to assume that any `directions' that may have been given to the devisee by the testatrix were `imperative' in their nature." I understand from this statement that if the given directions, if any, were imperative that a trust was created. I am not going to delve in the realm of conjecture, but am trying to limit my endeavor to the will itself. I am not prepared to give the word "directions", when used in connection with a directive disposing of property, "the nonnatural meaning of recommendations carrying with them no obligation." Magnus v. Magnus, 80 N.J. Eq. 346,84 A. 705, 706. Even precatory words become imperative "* * * if it appears that they were intended to create an obligation * * *." Wemme v. First Church of Christ, Scientist, 110 Or. 179,219 P. 618, 627, 223 P. 250).
"The basic principle in the construction of precatory expressions is well stated by a distinguished judge. `The primary question in every case is the intention of the testator, and whether in the use of precatory words he meant merely to advise or influence the discretion of the devisee, or himself to control or direct the disposition intended' * * *". 1 Bogert on Trusts Trustees, § 48, page 224.
On the general subject of wills and particularly on their construction, judges as a whole have great respect for the opinions of the Court of Chancery of New Jersey and it is with more than a little satisfaction that I am able to cite a case from that court where the disposing clause under consideration is astonishingly like the clause here under review. The clause reads: "* * * I give the same (residue) to my niece Clara Seidensticker to dispose of in accordance with my instructions to her. * * *" Magnus v. Magnus, supra. The court held that a trust had been created; that there was no uncertainty of an intent to create a trust, but that the trust failed for uncertainty as to the objects to be benefited; and, that the next of kin took the residue.
Having concluded that the bequest to Sarah McGill was in trust, without declaration of beneficiaries on the face of the will, it follows that it is no bequest at all so far as the beneficial interest is concerned, since it shows an intention that it should not vest in Sarah, and does not declare in whom it shall vest. In this situation the laws vest it in the heirs of the testatrix. 26 C.J.S., Descent and Distribution, § 43; Home Ins. Co. v. Latimer, *Page 270 33 Ariz. 288, 264 P. 103; Stephens v. Comstock-Dexter Mines, Inc.,54 Ariz. 519, 97 P.2d 202; MacKenzie v. Wright, 31 Ariz. 272,252 P. 521; Ray v. Fowler, Tex.Civ. App. 1940, 144 S.W.2d 665.
The judgment should be reversed with directions to enter judgment invalidating the testamentary disposition attempted for the reasons heretofore assigned.
J. MERCER JOHNSON, Superior Court Judge, concurs.
NOTE. Justice PHELPS having presided at the trial of this cause, the Honorable J. MERCER JOHNSON, Judge of the Superior Court of Pima County, was called to sit in his stead.