That particular clause of the will of Edward Speairs from which, it is claimed, arises a precatory trust in favor of appellant, is as follows:
“ I give and bequeath to my beloved wife, Catharine B. Speairs, all my personal property of every kind; also the remainder of my said tract of land, containing two hundred and seventy-seven acres, more or less, to dispose of as she may please, requesting her that she will so dispose of her property at her death as to make my youngest son, Samuel Stillman Speairs, an equal legatee with the balance of my children.”
It is said by eminent American authors on wills that the tendency of the decisions of the American courts is to limit and restrict the English chancery rule with respect to the enforcement of precatory trusts.
In the case of Gifford v. Choate, 100 Mass., 346, it is held that an absolute power of disposal in the first taker renders a subsequent limitation repugnant and void; while Chief Justice Parsons, in Ide v. Ide, 5 Mass., 500, says: “ Whenever, therefore, it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void because it is inconsistent with the absolute property supposed in the first devisee.” This doctrine is fully sustained in Bamforth v. Bamforth, 123 Mass., 27; Gibbins v. Shepard, 125 Mass., 543, and in Jones v. Bacon, 68 Me., 36, etc.
It will be observed that, by the terms of the will, an absolute -power of disposal is given to Catharine Speairs, and if it could be said that the testator attempted to create a limitation over in favor of the appellant, then under the rule above cited such limitation would be declared void.
We think, however, that the language of this clause, when considered in connection with the contest of the will, and the circumstances attending its execution, fails to show that Edward Speairs intended thereby to create a precatory trust in favor of appellant. From the terms of the will and the allegations of appellant’s original and amended petitions, it appears that Edward and Catharine Speairs were husband and wife, with grown children living near -them, at the time the will was made, and that the property bequeathed by his will constituted all of the property belonging to both. The presumption is that it was the common property of the husband and wife, and that in truth the husband willed to the wife nothing more than she was entitled to by strict legal right. She is not requested to make appellant equal to the other legatees out *236of the property bequeathed, but she is requested to do so out of her-property.
In our opinion no trust was created by the will of Edward Speairs in favor of the appellant, and that the judgment of the court below ought to be affirmed.
Affirmed.
[Opinion approved April 17, 1883.]