Omitting the title of the cause, plaintiffs' complaint is as follows:
"Come now the plaintiffs, and for cause of suit against the defendant, as Executor of the Estate of William Parker Olds, deceased, and individually, alleges:
I. "That for many years prior to September 2d, 1911, William Parker Olds and Lillian Cooke Olds were husband and wife, and as such they had accumulated by their joint efforts and together a substantial estate; that plaintiffs herein are the two surviving sisters of said Lillian Cooke Olds.
II. "That on or about the said 2d day of September, 1911, said William Parker Olds and Lillian Cooke Olds entered into an agreement wherein and whereby they were to execute a joint will leaving the entire estate of each of them to the survivor, and upon the death of such survivor, then to certain trustees, a copy of which joint will is attached hereto, marked `Exhibit A,' and made a part hereof; that by the terms and provisions of said agreement, plaintiffs herein and each of them were to receive from said trustees the sum of One Hundred ($100.00) Dollars per month as long as they might live. *Page 637
III. "That on or about the 20th day of April, 1914, said Lillian Cooke Olds died, leaving no heirs except plaintiffs and another sister and mother, both of whom are since deceased; that said joint will was duly admitted to probate in Multnomah County, Oregon, and all of the estate of said Lillian Cooke Olds was distributed to the surviving spouse, William Parker Olds, pursuant to said will and said agreement.
IV. "That on or about the 8th day of February, 1935, said William Parker Olds died, testate, leaving said joint will as his last will and testament, which said will was duly admitted to probate in the Probate Department of the Circuit Court of Multnomah County, Oregon, on the 15th day of February, 1935; that pursuant to said order admitting will to probate, the defendant, Charles King, was duly and regularly appointed Executor of said estate; that he properly qualified as such Executor, and ever since said date has been acting in that capacity.
V. "That by reason of the said agreement and said last will and testament, the defendant, Charles King, is made devisee and legatee of the entire estate of said William Parker Olds, in trust, among other purposes, for the payment to plaintiffs and each of them of the sum of One Hundred Dollars per month as long as they may live, as provided in the agreement between said Lillian Cooke Olds and said William Parker Olds, but said defendant, contrary to said agreement and the provisions of said will, claims the entire estate of the decedent, William Parker Olds, for his own, absolutely and entirely, free from any trusts in favor of plaintiffs or at all; that plaintiff Pearl L. Cooke is 53 years of age, and plaintiff Agnes Bradshaw is 75 years of age, and the present value of said trust estate, based on the American mortality tables, is respectively $17,381.40 and $9,425.40. *Page 638
VI. "That by reason of the facts herein stated, plaintiffs are entitled to a decree establishing their rights or claims as beneficiaries in or to the estate of William Parker Olds, deceased, in accordance with the terms of the agreement entered into by said William Parker Olds and Lillian Cooke Olds, and the joint last will and testament executed by them; that plaintiffs have no plain, adequate or speedy remedy at law.
"Wherefore, plaintiffs pray that the estate of decedent, William Parker Olds, be decreed and held to be in trust pursuant to the terms of the agreement entered into between William Parker Olds and Lillian Cooke Olds in their lifetime; that plaintiffs be held and decreed to be entitled, as beneficiaries of said trust, to the sum of One Hundred Dollars ($100.00) per month each so long as they shall live, or, in the alternative, that they have and recover of and from said trust estate the sum of $17,381.40 for and on account of plaintiff Pearl L. Cooke, and the sum of $9,425.40 for and on account of plaintiff Agnes Bradshaw, and for such other and further relief as to the Court may seem equitable."
The joint will referred to in said will as "Exhibit A" and made a part of said complaint is as follows:
"Know All Men By These Presents, That we, William Parker Olds, a resident of Portland, Multnomah County, Oregon, of the age of fifty-four (54) years, and Lillian Cooke Olds, wife of said William Parker Olds, also of the age of fifty-four (54) years, being both of sound disposing mind and memory, do make, this, our last joint and mutual will and testament, in manner following, to-wit:
"First: We hereby revoke any and all former will or wills made by us, or either of us, it being our particular intention at this time to revoke and rescind that certain joint and mutual will heretofore made by us on or about the tenth day of August, 1910, which said will was made in contemplation of an extended trip *Page 639 taken by us at that time, and which said will has been lost and cannot be found for the purpose of destruction.
"Second: We and each of us desire that at the time of our deaths all our outstanding debts be first paid, including the expenses of our last illness, our funeral expenses and the expense of the administration of our respective estate. And for the purpose of paying such indebtedness, we, and each of us, desire that our executor or executrix, as the case may be, shall have full power to pay such indebtedness out of the first funds coming into the estate, whether the same be funds from the sale of the personal property, funds from the sale of real property, or income. And in the that event it be necessary to sell property for the payment of such indebtedness, it is our wish that our executor or executrix, as the case may be, shall have full power to choose such property as in the judgment of said executor or executrix, as the case may be, may seem best for the purpose of such sale, whether the same be personal or real.
"Third. We and each of us hereby give, devise and bequeath to the one of us who shall survive the other, all of the property owned by us, real, personal and mixed, wheresoever situate, including after-acquired property.
"Fourth. In the event that at the time of the death of the survivor of us Jay Cass Olds, brother of William Parker Olds, shall be alive, then and in that event the survivor does hereby give, devise and bequeath unto the said Jay Cass Olds all of the said survivor's property, real, personal and mixed, wheresoever situate, including after-acquired property.
"Fifth. In the event that the said Jay Cass Olds shall have died prior to the death of the survivor of us, then and in that event, if Charles Willard King, the half-brother of William Parker Olds, shall be alive, the said survivor does hereby give, devise and bequeath unto the said Charles Willard King all of the said survivor's property, real, personal and mixed, wheresoever situate, including after acquired property.
"In disposing of our property as herein set out, we do so with the hope that the survivor or the said Jay *Page 640 Cass Olds or Charles Willard King, as the case may be, will so dispose of and handle our said properties, real, personal or mixed, as to carry out our personal intentions with relation thereto, which intentions are known to us, and each of us, and are known to the said Jay Cass Olds and Charles Willard King. It is not intended by this expression of our desire that our property shall eventually be disposed of according to our own wishes, to in any manner indicate that a trust is thereby or hereby created, or that there is any obligation upon the part of the said survivor, the said Jay Cass Olds or the said Charles Willard King, as the case may be, to carry out any such personal wishes or desire that we may have, but each of us having the utmost confidence in the other, and both of us having the utmost confidence in the integrity and ability of the said Jay Cass Olds and Charles Willard King, are confident that insofar as practicable our wishes in the disposition of our property will be carried out.
"Sixth. In the event that both said Jay Cass Olds and Charles Willard King shall have died prior to the death of the survivor, then the said survivor does hereby give, devise and bequeath unto C.A. Bell, of Portland, Oregon, who is familiar with our properties and our wishes, all said survivor's property, real, personal and mixed, wheresoever situate, including after-acquired property, as Trustee, however, to be handled and disposed of by said C.A. Bell according to certain instructions in writing this day delivered to said C.A. Bell, said instructions being hereby referred to and by reference made a part hereof.
"Seventh. We and each of us do hereby make, constitute and appoint the one of us who shall survive the other the Executor or Executrix of our estate, to act as such without bonds.
"Eighth. In the event that at the time of the death of the survivor of us Jay Cass Olds shall be alive, then and in that event the survivor of us does hereby make, constitute and appoint the said Jay Cass Olds the executor of the estate of said survivor, to act as such without bonds. *Page 641
"Ninth. In the event that said Jay Cass Olds shall have died prior to the death of the survivor of us, then and in that event, if Charles Willard King shall be alive the survivor does hereby make, constitute and appoint said Charles Willard King the executor of the estate of said survivor, to act as such without bonds.
"Tenth. In the event that the said Jay Cass Olds and Charles Willard King shall have died prior to the death of the survivor of us, then and in that event the survivor of us does hereby make, constitute and appoint C.A. Bell the executor of the estate of said survivor, to act as such without bonds.
"In Witness Whereof, We have hereunto set our hands and seals this second day of September, 1911.
"William Parker Olds (Seal) Lillian Cooke Olds (Seal)"
While it was urged by plaintiffs that this is a suit for the specific performance of the contract alleged to have been made by decedents, Olds, prior to the execution of their joint will, the writer thinks that such contract has either been performed by said decedents in the making and execution of said joint will or that it was thereby modified or rescinded. In either event it is not subject to specific performance.
The complaint, however, by its terms, seeks a decree of the court impressing a trust pursuant to the terms of said contractand said will. As the writer construes this complaint, it charges that the language employed in the second paragraph of the fifth clause of said joint will refers to the contract alleged to have been entered into by decedents prior to the execution of said joint will. In so far as said language in said will is pertinent to this phase of the case, it is as follows:
"In disposing of our property as herein set out, we do so with the hope that * * * Charles Willard King, * * * will so dispose of and handle our said *Page 642 property, real, personal or mixed, as to carry out our personal intentions with relation thereto, which intentions are known to us, and each of us, and are known to the said * * * Charles Willard King. It is not intended by this expression of our desire that our property shall eventually be disposed of according to our own wishes, to in any manner indicate that a trust is thereby or hereby created, or that there is any obligation upon the part of the said * * * Charles Willard King * * * to carry out any such personal wishes or desire that we may have, but each of us having the utmost confidence in the integrity and ability of the said * * * Charles Willard King, are confident that insofar as practicable our wishes in the disposition of our property will be carried out."
Thus construing it, the writer thinks that prima facie the complaint alleges facts showing the creation of a trust by the terms of which payment should be made to each of them of the sum of $100 per month during their respective lives.
It will be noted that the sixth clause of said will provides for the gift, devise and bequest unto one C.A. Bell of all the survivor's property, real, personal and mixed to be handled and disposed of by C.A. Bell as trustee according to certain instructions in writing which instructions are referred to and by reference made a part of said joint will. This clause of said will to become effective in case of the death of both J. Cass Olds and Charles Willard King prior to the death of the survivors of said decedents.
In the case of Wemme v. First Church of Christ, Etc., 110 Or. 179 (219 P. 618, 223 P. 250), Mr. Justice RAND declares the law pertaining to precatory trusts as follows:
"In order to raise a precatory trust, it is necessary that there be a gift of property to one person for the *Page 643 benefit of another. Precatory words are words of recommendation, entreaty or the like, accompanying a gift and implying a desire or wish on the part of the donor that the property given should be used for the benefit of some designated person or be applied to some designated purpose. Precatory words are not imperative in form as that would result in a contradiction in terms. They are words of recommendation, entreaty or wish, and it is sufficient to make them imperative if it appears that they were intended to create an obligation.
"The doctrine of precatory trusts was announced by Lord Langdale in Knight v. Knight, 3 Beav. 148, in these words:
"`As a general rule, it has been laid down that when property is given absolutely to any person, and the same person is, by the giver who has power to command, recommended, or entreated, or wished to dispose of that property in favor of another, the recommendation, or entreaty, or wish shall be held to create a trust: 1. If the words are so used that, upon the whole, they ought to be construed as imperative; 2. If the subject of the recommendation or wish be certain; 3. If the objects or persons intended to have the benefit of the recommendation or wish be also certain.'"
In the case at bar, the writer thinks the words referring to the wishes of the decedents in reference to the disposition of the property to the survivors are so used that upon the whole they ought to be construed as imperative. The writer is of the opinion that the trustee is in no position to claim the right to the entire estate for himself and for himself alone in view of the language employed in this clause of said will. The writer also believes that by taking the allegations of the complaint to be true, as we must when testing it by demurrer, the subject of the recommendation contained in said clause of said joint will is certain and that the persons intended to have the benefit of said recommendation or wish are also certain. *Page 644
The writer is not unmindful that there are cases holding that no trust will be implied from the use of precatory words where the testator expressly declares that such is not his intention. Cases of this character are cited in note 62 at page 36 of the annotation upon the subject, Precatory Trusts, in Volume 49, A.L.R., beginning at page 10, as follows: In re Purcell'sEstate, 167 Cal. 176 (138 P. 704); Enders v. Tasco, 89 Ky. 17 (11 S.W. 818); Gross v. Smart, 189 Ky. 338 (224 S.W. 871);Bacon v. Ransom, 139 Mass. 117 (29 N.E. 473); George v.George, 186 Mass. 75 (71 N.E. 85); In re Keleman, 126 N.Y. 73 (26 N.E. 968); Wood v. Seward, 4 Redf. (N.Y.) 271; Re Haven'sEstate, 6 Dem. (N.Y.) 456, 2 N.Y.S. 639; Fellowes v. Durfey,163 N.C. 305 (79 S.E. 621); Tabor v. Tabor, 85 Wis. 313 (55 N.W. 702); McCormick v. Grogan, L.R. 4 H.L. Eng. 82, 17 Weekly Reporter 961.
These cases are distinguishable from the case at bar. Most of them are determined only from the language of the will alone without reference to any extrinsic facts. Those wherein extrinsic evidence is considered differ in reference to the facts so considered very materially from the instant case.
The contrary doctrine is announced in the two cases cited in note 61 of said annotation. These cases are Bohon v. Barrett,79 Ky. 378, and Bouknight v. Brown, 16 S.C. 155.
In the instant case, the joint will was executed on September 2, 1911. On April 20, 1914, Lillian Cooke Olds died, and this will was admitted to probate. It is obvious that defendant herein must have been aware of the terms and provisions of said will for a period of more than 20 years prior to the death of William Parker Olds, which occurred on February 8, 1935. *Page 645 Assuming that the facts are as stated in the complaint, silence on the part of defendant for 20 years concerning the course he proposed to pursue with reference to the wishes of decedents as set forth in said will indicates his assent thereto and a willingness and intention to carry out such wishes.
If, on the other hand, at any time during that period, defendant had given notice to the surviving testator that defendant would disregard and decline to conform to the decedents' wishes, as expressed in said joint will, such surviving testator, in equity and fairness to his dead wife, should have revoked defendant's appointment under the will and substituted an executor, who would confrom thereto. Moreover, if the surviving testator had modified said joint will by a subsequent will or by a codicil to the effect that defendant should not carry out the wishes expressed in said clause of said joint will, such action on said surviving testator's part would have been a breach of the contract alleged in plaintiffs' complaint. The refusal on the part of the defendant, as executor, to conform to the wishes of the decedents is in effect no less a breach of the terms of said contract as extended by and incorporated in said joint will.
The complaint alleges that decedents accumulated a substantial estate. This dissipates the conclusion which otherwise might be drawn that the amount thereof is too small to render the payment of said annuities practicable. Upon oral argument, it was stated that the appraised value of the estate is approximately $400,000, and this statement was not controverted.
If, as contended by plaintiffs, decedents intended that plaintiffs, who are the surviving sisters of Mrs. Olds, should receive annuities as claimed, and by reference *Page 646 to their wishes in said will indicated a desire that defendant should pay the same, the writer thinks that defendant, who is a surviving half-brother of Mr. Olds, ought not to deprive plaintiffs of such annuities by retaining the entire estate for himself.
If the facts are otherwise than as reflected in plaintiffs' complaint, the trial court would be governed by them.
Holding these views, the writer believes that the order sustaining the demurrer of defendant to plaintiffs' complaint and the order and decree of dismissal were erroneous; and for that reason he dissents.
CAMPBELL, C.J., and BEAN, J., concur in dissent.