(dissenting).
I agree with the majority opinion that paragraph four of the will does not create a trust. The authorities cited in the opinion support that theory. Quoting the contested clause from Newhall v. McGill, 69 Ariz. 259, 212 P.2d 764, 765, cited by the majority opinion: “I give, devise and bequeath to my sister, Sarah Campbell McGill all my real and personal property to be cared for and disposed of according to my personal directions to her.” It is clear in that case that there was no trust, and the very lack of a trust would indicate only one logical conclusion and that is, a *221direct devise, by the use of the words “give, devise and bequeath”.
Such are not the conditions in the case at bar. The fourth paragraph reads in part as follows:
“I direct that my executor sell as soon as possible all of my real property * *.
“It is my will and desire that the said real property, be converted into cash, in order to pay the specific bequests hereinafter contained in my will in paragraph Fifth following. * * *”
Agreeing with the majority opinion that no trust was 'created, the remaining question is whether the fourth paragraph was a direct bequest to the deceased’s brothers’ and sisters’ children. It is more reasonable to assume that he was attempting to provide for the education of his brothers’ and sisters’ grandchildren rather than their children because the latter were between the ages of 38 and 57. Such being the case, paragraph four falls by its own weight, first because there is no trust, second because there is no direct bequest to anyone, and third, if a direct bequest was made, surely it must go to those that the deceased had in mind, to wit, the grandchildren, and not those to whom he made other specific bequests. • The majority opinion gives it to the children in spite of the fact that it says in effect that it could not go to them under the trust theory because they were not the persons the deceased had in mind to educate because of their respective ages. Therefore, with no trust created and the beneficiaries named being uncertain, paragraph four fails and the proceeds from the real property must go by descent and distribution.
The majority opinion construes the following words from paragraph four as precatory: “ * * * such excess shall be used for the education of my brothers’ and sisters’ children * * Precatory words are words of request, recommendation, suggestion, or expectation. 54 Am.Jur., Trusts, section 54, page 64. The words used by the testator, above quoted, are in a form of a positive command to the executor, and therefore are not precatory. While it is true that trusts may sometimes be created by precatory words, yet we are not here concerned with them because this trust failed for the reason that the beneficiaries failed, that is, it is unreasonable that the deceased meant to educate persons between the ages of 38 to 57, a number of whom were college graduates.
There is no question that the testator attempted to create a trust. Admitting that the words are “precatory” (which in my opinion they are not), when such words are directed to the executor as they were in this case it indicates in the mind of the testator the objects of a trust. Newhall v. McGill, supra.
As above stated, the trust failed; the words were directed to the executor and not to the devisees, therefore I can see no *222intent on the part of the testator to make a direct bequest.
From an examination of other portions of the will there is disclosed 29 specific bequests, most of those bequests going to the very persons mentioned in paragraph four. To me it is unreasonable to believe that the testator intended paragraph four to be a direct bequest to the children mentioned when he did not use any words such as “give”, “devise”, “bequest”. A further examination of the will reveals that while most of the specific bequests to the class mentioned were for the sum of $3,000, one of them, Emmett Conness, received $10.00.
In view of the fact that the deceased did know how and actually did make many specific bequests in various amounts, suitable to his liking, it is an unreasonable conclusion to say that paragraph four was a direct bequest to those of that class.
While I agree with the general proposition that the law1 favors testacy, yet I believe that rule must be applied with the intentions of the deceased in mind. His intentions would have to be revealed from the document as a whole and not paragraph 'four standing by itself. 57 Am.Jur., Wills, section 1136, page 732. But in construing paragraph four by itself one can see a trust was intended but is void for want of certainty of the beneficiaries. See 57 Am.Jur., supra.
Where a will is not ambiguous and is reasonably susceptible of only one interpretation, that interpretation must be accepted even though it may defeat the will. Lowell v. Lowell, 29 Ariz. 138, 240 P. 280.
The majority opinion quotes extensively from the trial court’s decision, which in part, is as follows: “The inference, not a strong one, but rather a straw in the wind, is that the term ‘used for’ implied in the mind of the testator * * Again, “ * * * The balancing of the two contingencies raises an inference, if but a weak one, of the intent that the surplus * * And, “It is with no feeling of dogmatic certainty that I state this as a correct construction.” Thus it can be seen that the trial court based its decision on an admittedly weak “straw in the wind” and a further “weak inference” by balancing the two contingencies.
It strikes me that this court should not rely on “weak inferences” or a “straw in the wind” but should, rather, give an interpretation that is commensurate with the whole will, so the decision would be with a positive assurance that it is correct, rather than have it rest on a weak “straw-' in the wind”.
Paragraph four having failed to create a trust for the persons mentioned therein, the property should be inherited according to the laws of descent and distribution. Section 39-108, A.C.A.1939. ■
“ * * * the law favors that construction of a will which conforms most nearly *223to the general law of inheritance.; * * * 57 Am.Jur., Wills, section 1125, page 719.
The judgment should be reversed.