This is an action brought by William J. Bryan, as executor of the will of Philo S. Bennett, to determine the construction to be placed upon a certain clause of Mr. Bennett's will, upon the ground that there is such a question as to its proper construction that the executor cannot safely discharge the duties of his office without the advice and protection of a court of chancery.
The questions presented by this appeal are stated in the following inquiry propounded by the executor in paragraph 9 of the complaint: "Are the bequests and trusts mentioned in section 12 of said will valid, and is said Grace Imogene Bennett, in said section named, or are the residuary legatees, entitled to receive the fifty thousand dollars ($50,000) therein mentioned, or is William J. Bryan entitled to receive the said sum?"
The real question to be considered is whether the trust upon which the $50,000 was given to Mrs. Bennett has been lawfully created; if it has not, the money should not be paid to her, either as an individual or as a trustee. Mrs. *Page 612 Bennett herself makes no claim, either as an individual or as a trustee, to any interest in the money, as a legatee under the twelfth clause of the will. If the trust upon which the sum is given to her by paragraph 12 is neither disclosed by the will itself, nor created by the sealed letter, the gift to her as trustee becomes inoperative, and the beneficial interest in the sum named results to the residuary legatees named in section 34 of the will. 1 Perry on Trusts (5th Ed), §§ 92, 150, 157; Lewin on Trusts (Amer. Ed., 1888, with notes), 144; Phelps v. Robbins, 40 Conn. 250, 274. The controversy is therefore one between Mr. Bryan as an individual and as an alleged trustee under the sealed letter, Exhibit 1, upon the one hand, and the residuary legatees, of whom Mrs. Bennett is one, upon the other; the issue between them being whether a valid bequest of the $50,000 named in the sealed letter and in section 12 of the will, has been made to Mrs. Bennett in trust, either by force of the sealed letter itself, or by the twelfth paragraph of the will, or by the sealed letter and said paragraph together.
The sealed letter is an instrument of both a dispositive and testamentary character. It directs to whom the money shall be paid by Mrs. Bennett, and it directs that it shall be paid after the death of the testator, without giving any interest in the sum named to take effect during his life.
No effect can be given to this letter as a part of the will, even if the evidence offered proves that it was in existence and known to the testator at the time the will was executed. We held in Bryan's Appeal, 77 Conn. 240, 246, that there was no such clear, explicit reference in the will itself to any specific document, as to incorporate the sealed letter into the will, and that such defective reference in the will could not be helped out by parol evidence.
The letter cannot operate as a declaration of the trust upon which the money was bequeathed to Mrs. Bennett. Our statute of wills is not only directory but prohibitory.Irwin's Appeal, 33 Conn. 128. To treat this letter as an operative declaration of trust would be, in effect, to hold that a testamentary disposition of property could be made *Page 613 by an instrument not executed in conformity with the statute regulating such transfers of property. Mr. Perry in his treatise on the Law of Trust and Trustees, Vol. I, § 92 (5th Ed.), in discussing the question of whether a parol expression of intention by a testator to create a trust, though void as a devise or bequest, may yet be good as a declaration of trust, and quoting with approval the language of Lewin on Trusts, says: "We may therefore safely assume, as an established rule, that if the intended disposition be of a testamentary character and not to take effect in the testator's lifetime, but ambulatory until his death, such disposition is inoperative, unless it be declared in writing in strict conformity with the statutory enactments regulating devises and bequests." Again, in Phelps v. Robbins,40 Conn. 250, 273, in referring to the claim made, that documents which were held to be so defectively referred to in a will as not to become a part of it might still be used as a declaration of the trust upon which the property was conveyed to the trustees named in the will, this court said: "Allowing them thus to operate is in effect making them a part of the will." In speaking of the effect of the statute of wills, JUDGE LOOMIS, in giving the opinion of the court inLane's Appeal, 57 Conn. 182, 187, says: "So that our statute amounts to a positive rule for the transmission of property, which must be complied with, as a complete act at the time of the execution, or never, so far as the act of the testator is concerned." To the same effect is Goodwin v. Keney,49 Conn. 563, 565.
That the twelfth clause of the will, unaided by the sealed letter, makes no disposal of the equitable interest in the $50,000 named therein, admits of no question. To what purposes the sum given to Mrs. Bennett in trust is to be devoted, and in whom the beneficial interest in that sum is to vest, is neither stated nor attempted to be stated in paragraph 12, independently of Exhibit 1.
But it is urged that the twelfth clause of the will and the sealed letter, read together, clearly show the purposes to which the testator intended the $50,000 given to Mrs. Bennett *Page 614 in trust should be devoted by her, and show a valid bequest to her as trustee; and that the sealed letter and other exhibits offered in evidence should have been received for the purpose of showing such intention of the testator, and of thus enabling the court to properly construe the will.
It may be conceded that such an intention of Mr. Bennett is clearly shown by these exhibits, but it does not follow that they are for that reason admissible as evidence, or that they can be considered in construing the will. While extrinsic evidence may be admitted to identify the devisee or legatee named, or the property described in a will, also to make clear the doubtful meaning of language used in a will, it is never admissible, however clearly it may indicate the testator's intention, for the purpose of showing an intention not expressed in the will itself, nor for the purpose of proving a devise or bequest not contained in the will. It is "a settled principle, that the construction of a will must be derived from the words of it, and not from extrinsic averment."Greene v. Dennis, 6 Conn. 292, 299. A will cannot be established by showing an intent to make one. Avery v.Chappel, 6 Conn. 270, 275. In Crosby v. Mason, 32 Conn. 482,487, a superscription upon a package of papers, reading "For Amasa Mason — accounts, notes, drafts, and vouchers to make up to him the sum of $90,000 devised to him by will," and which, in the clause of the will containing a bequest to said Amasa, was referred to by the words "which will be found sealed up and among my papers, and directed to him," was held to be admissible for the purpose of identification only, and that the words "devised to him by will" could not be used as evidence that the contents of the paper were bequeathed. The court said: "If there is not a complete bequest without adopting the superscription it will fail." In Fairfield v. Lawson, 50 Conn. 501, 508, the court, by JUDGE LOOMIS, said: "The law is imperative that the entire will must be in writing, and herein are found the rules and limitations that must be applied to such evidence. The intent must in every case be drawn from the will, but never the will from the intent." "So far as concerns the *Page 615 construction of a will, the question always is, not what the testator meant to say, but what is meant by what he did say." Weed v. Scofield, 73 Conn. 670, 677. In aid of the process of construction and interpretation, extrinsic evidence may be received "for the purpose of rightly understanding the meaning of the words of his (the testator's) will." Thompson v. Betts, 74 Conn. 576, 580.
The sealed letter and other exhibits were not admissible in the case at bar for the purpose of identifying the beneficiary of the trust described in paragraph 12, for not only is there no beneficiary or trust described in that section, but it clearly appears from the language of the will that it was the intention of the testator that neither the name of the beneficiary nor the purpose of the trust upon which the bequest was made to Mrs. Bennett should be disclosed by the will, but that they should be stated in another instrument.
The evidence offered was not admissible upon the ground of a latent ambiguity in the language of the will. There is no latent ambiguity in the language of paragraph 12. What the testator has said in this clause of the will is clearly stated; and what he intended to say in this paragraph, concerning the gift of the beneficial interest in the $50,000 and the name of the beneficiary, he has evidently fully stated. We are unable to determine from the language of the will what use it was intended Mrs. Bennett should make of the sum bequeathed to her as trustee, not because the meaning of the language of paragraph 12 is doubtful or obscure, but because the language used does not state or assume to state the use which it was intended Mrs. Bennett should make of the sum so given to her in trust. In the words of the sealed letter — "It is my desire that the fifty thousand dollars conveyed to you in trust by this provision [paragraph 12 of the will] shall be by you paid to William Jennings Bryan of Lincoln, Nebraska, or to his heirs if I survive him" — and not in the will, we discover the real gift which the testator intended to make. The sealed letter and Exhibits 2, 3, 4 and 5 were inadmissible for the purposes of *Page 616 construction and interpretation, because the intended bequest described in them is not contained in the will. The gift itself fails, because it is an attempted testamentary disposition of property by an instrument not executed as a will, and which we have held not to be a part of it, without disclosing in the duly-executed will either the purpose of the bequest to the so-called trustee, or the name of the person who was to receive the benefit of the gift.
The excluded evidence was not admissible to rebut a resulting trust to the residuary legatees. "The resulting trusts which can be rebutted by extrinsic evidence are those claimed upon a mere implication of law, not those arising on the failure of an express trust for imperfection or illegality."Woodruff v. Marsh, 63 Conn. 125, 141.
The cases of Dowd v. Tucker, 41 Conn. 197, Buckingham v. Clark, 61 id. 204, and other cases in which trusts exmaleficio have been declared against persons who have obtained property by promising to apply it to certain purposes, have been cited as applicable to this proceeding. Assuming that while the $50,000 was still in the hands of the executor the Superior Court, as a court of equity, might, in this proceeding, in directing to whom the money should be paid, have considered whether if paid to Mrs. Bennett, or the residuary legatees, they or either of them could be held to be trustees ex maleficio by reason of an express or implied promise to apply the money to the purposes named in the sealed letter, we cannot find error in the judgment of the Superior Court, since neither the evidence excluded nor the facts proved show any agreement, express or implied, by Mrs. Bennett or the other residuary legatees, to accept the money upon the trust described in Exhibit 1, or that during the lifetime of the testator they even knew of any of the provisions of the twelfth clause of the will. Proof that Mrs. Bennett possessed such knowledge was not prevented by the rulings of the court sustaining the demurrer to Mr. Bryan's answer and denying his motion for leave to file a cross-complaint. These rulings were not upon the ground that evidence of that fact was inadmissible, and an opportunity *Page 617 was apparently given to the claimant Mr. Bryan, during the trial of the case, to offer the evidence of Mrs. Bennett, without objection, as to the facts upon which a disclosure was asked for. Further discussion of these rulings is unnecessary, since they did not prevent the claimant Mr. Bryan from proving upon the trial all the facts alleged in his answer and cross-complaint.
There is no error.
In this opinion the other judges concurred.