Smullin v. Wharton

The following opinion on rehearing was filed January 3, 1906. Reversed with directions:

Holcomb, C. J.

In tbe opinion heretofore filed will be found a full and accurate statement of the case, and but little need here be added in order to intelligently understand the controverted points and the course of the discussion to follow. Smullin *692v. Wharton, ante, p. 667. The suit was begun for the purpose of having declared and established a trust in favor of the plaintiffs, appellants here, in the property devised to the defendant Ida M. Wharton, formerly Ida M. Boggs, appellee. The trust sought to be fastened on the property rests in parol, and one of the vital questions for determination is whether the words spoken by the testator when he executed his last will, whereby the property was devised to the appellee Ida M. Wharton, are to be construed as mandatory, and sufficient under the circumstances to raise a constructive trust in favor of the appellants, or were merely precatory, leaving to the legatee an uncontrollable discretion as to whether she would comply with the expressed wishes and desires of the testator made at the time of the execution of his last will. In the former opinion the issues were generally determined in favor of the contention of the appellants, but the trust sought to be fastened on the property, it was held, must fail because of the lack of certainty and definiteness of the subject of the trust, the property embraced within it, or on which it would operate, and, for that reason alone, the alleged trust was declared indefinite, uncertain and incapable of enforcement. Upon further consideration of the case, and after listening to able and exhaustive arguments of counsel, and considering the subject with the aid of printed briefs thoroughly covering the case in all its phases, with numerous citations of authorities, we are not disposed to recede from anything said in the former opinion as to the plaintiffs’ contention being well founded in all respects in so far as these contentions were upheld. We purpose now to address ourselves more directly to the question of whether the trust sought to be declared and established ought to fail because of a lack of certainty as to the property embraced in an otherwise valid and enforceable constructive trust arising in favor of the appellants. In order to gain a somewhat clearer idea as to what the testator intended regarding the ultimate disposition of his property, and what his directions were in respect thereto, and how his lan*693guage should he construed, both spoken and written, it may be of benefit to note some of the indisputable facts established by the record. The controversy is between Ms near blood kindred, his brothers and sisters and their issue on the one hand and his surviving wife on the other. He and his wife had passed the meridian of life and were childless. He was devoted to her, and had the full measure of love and affection for his near relatives, who were in comparatively poor circumstances. He had been more successful and during his life had accumulated a competence; his estate at the time of his death being of the approximate value of |250,000 or upwards. He died June 1, 1895. In November, 1883, he wrote his own will, giving his wife one-half of the whole of his real and personal estate, and to his near blood relatives the other half. In March, 1893, he executed a new will whereby he gave to his wife absolutely and unconditionally, to have and to hold, all of the same absolutely and unconditionally in her own right, his home property, consisting of two lots in the city of Omaha, and in addition thereto the undivided one-half of all his other real estate, and also absolutely and unconditionally all his personal property of whatsoever nature of which he might die seized and possessed. The remainder of his real estate was devised to Harry A. Westerfield as trustee upon the following trusts: (1) To pay out of the same all the expenses of maintaining the same and administering the said trust. (2) To deposit in bank to the credit of his wife for her own use the net rents, issues and profits thereof. (3) On the request in writing at any time of his said wife to sell any part thereof and to deliver to her for her own use absolutely the proceeds of such sale, or otherwise invest the same in the name of the trustee and for the purposes herein specified, as she may direct. (4) Upon the decease of his said wife his trustee was directed, without unnecessary delay, to divide whatever of his said estate as should then be remaining in this trust equally, share and share alike, between his brothers and sisters and the issue of deceased brothers and sisters, *694if any, such issue to take the share of the deceased parent. The will as thus executed, it is manifest, was not entirely satisfactory to the testator, and he, a short time before his death, more than once spoke of having it changed. On the 16th day of May, 1895, and within a few days of his death from an illness he knew must shortly terminate fatally, a third will was drawn by his lawyer and duly executed, and by which he died testate, in which there were no substantial changes from the provisions contained in the second except that, as to his real estate, his wife was given absolutely and unconditionally in her OAvn right the home place and one certain other lot situated in the city of Omaha, all the remainder of his real estate being devised in trust in the identical language, and under the same provisions, contained in the second will. In all other respects the latter two wills Avere similar in their wording and terms. It is obvious that the testator, when the last will was executed, and when impending dissolution Avas near at hand, was desirous that his near kindred should share in his bounty, else Avhy did he place the bulk of his property in trust with the trustee named, and provide so minutely for its final distribution, -or AAdiat was left of the trust estate, to them in the manner expressed in the will? It is apparent from the record that the testator had some misgivings regarding the terms of the will as last drafted, for it is in evidence that during the reading of the provisions relating to the trust estate the testator inquired of his lawyer, who drafted the will, if that could not be changed, and that, in substance, the reply was made that his wishes were expressed as well as they could be in any other way. And it is in evidence also that in the conversation following between the testator, his wife, and his laAvyer, the latter said to him in substance, that AAdiatever was given to the wife should be given'out and out; that the testator did not want to give her anything “with a string tied to it,” and added, “I know Mrs. Boggs, and she is disposed to do the fair thing, and I know that she will carry out your wishes.”

But one inference can be drawn from the remarks to *695which we have alluded, and that is, that the testator was gravely concerned about his relatives and the certainty of their becoming the beneficiaries of his bounty, as he clearly intended and desired that they should. His wife was provided for to the full extent of his ability beyond peradventure of doubt, but the status of his relatives, those named in the express trust provisions, was not clear to him, and whether or not, perchance, they might receive nothing was what led to his inquiries of his counsel, and expressions of desires and directions to his wife, and fully accounts for the conversation between them out of which a constructive trust, if one exists, must arise. The former opinion treats fully of this phase of the case and we need not undertake to review the transaction in detail. Suffice to say that in these verbal requests and directions on the part of the testator to his wife as to the ultimate disposition of his estate, which she assented to and expressed herself as perfectly willing to carry out in the utmost good faith, ■ the substance was that he wished his wife to enjoy the use of the property, or such portion thereof as might be found necessary to support and maintain her in the same comfort and style of living they wore accustomed to, and that the surplus, if any, of the net annual income of the estate1 devised in trust should be divided between his relatives mentioned in the will, and that such of the estate as remained at her death should likewise pass to the same persons or, in the event of the death of any of them, to the' children of such deceased person. It is upon these oral statements, assented to by the wife, and her promises and agreement, resting in parol, as they do, and refusal to comply with them, that appellants ask that a constructive trust be established and decreed in favor of such heirs upon all of said estate and the net income therefrom, above that required to maintain the wife during her lifetime, and her right to bestow for charitable purposes a sum not exceeding ten thousand dollars.

Soon after the execution of the will the wife, it appears, became alarmed lest the will should be contested, and *696desired to know of the testator what she should do in the event her fears were realized. The testator, while expressing confidence that no contest would be instituted, advised her to resist if one were begun. This conversation, as we view the record, explains why the testator, after the execution of the will and before his death, conveyed and transferred absolutely and unconditionally, by duly executed deeds of conveyance and instruments of assignment, all of the real estate mentioned and described in the will as passing to her directly, and substantially all the personal property, the instruments of assignment covering specific property, AVhile by the will all his personal property Avas bequeathed to her. By these' instruments, if they are effective, Avith the exception of a small amount of personal property, the trust estate alone Avas left to be administered upon under the terms of the Avill. In the opinion heretofore prepared by the commissioner and adopted by the court, it is held that a constructive trust in favor of the appellants was created by the oral requests and directions of the testator, the assent of the wife thereto, and her attempted Repudiation of the obligation she assumed regarding the final disposition to be made of the estate of the testator, but for the fact that the subject of the trust, that is, the property on which it was attempted to be fastened, and on Avhich it was to operate, was too indefinite and uncertain, the trust therefore failing because incapable of enforcement. It is to this latter conclusion that complaint is made in the motion for a rehearing, and for the further consideration of which oral arguments on the motion Avere requested.

It is manifest, we think, that the testator intended to provide for the comfort, care and support of his Avife during her lifetime to the extent, if required for that purpose, of the whole of his estate, and undertook to accomplish this purpose in such a way as that no future contingency or misfortune should result in a miscarriage in the bestowal of his bounty on her, the first and principal object of his solicitous care and loving affection. It is equally *697manifest, as it seems to us, that after his wife had been surely and certainly provided for so that she might live as they had lived in the past, the remainder of his estate should go to the children of his own father and mother and their children, rather than to her heirs or to strangers. In reaching this conclusion we have ever kept in view the indisputable evidence of his intentions, as disclosed by the several wills by him executed, in connection with the more or less uncertain and unsatisfactory testimony of the several witnesses concerning the transaction and conversation between him and his wife occurring at the time of the execution of the last will. These written documents,, when considered alone, furnish substantial evidence disclosing an intention on the part of the testator in disposing of his property to bestow a portion of.it on his own kindred, unless required by his wife for her own support and living according to their station in life. It is to be observed that in the first will the property was divided equally between his wife and his collateral heirs, and in the second and third it was divided into two portions, one of which was given to his wife absolutely and unconditionally in her own right, and the other portion was devised to Westerfield in trust and upon different terms than that devised directly to the wife. In the trust provisions it was not mentioned that the wife should become the unconditional and absolute owner. The power of alienation given her was, it is true, for her own use absolutely. That is, in the' one case the property passed to her in her own right absolutely, while in the other the power of disposition was restricted “for her own use absolutely,” the remainder, if any, to be among the other objects of his bounty as therein named. The testator manifestly had a purpose in thus providing for the devolution of his property, and to ascertain that purpose we need not, as we view the record, search in vain. There was certain of his property he desired should pass to his wife directly, unconditionally and absolutely in her own right. Other property he preferred to place in trust, with the right to *698his wife to its use for her maintenance and support during her life, the remainder to go to and be divided between his relatives as therein mentioned at her death. We are not to be understood as saying that the wife’s title to the trust property was legally charged with an express trust in favor of the other devisees mentioned, and yet it is not altogether clear that such a result may not legally flow from the provisions of the express trust. It would seem that there would be merit in the argument that she would not in equity be permitted to dissipate this trust property, use its proceeds extravagantly, nor, for the same reason, transfer it to third parties merely to convert the property to her own right and ownership, and thus deprive the other devisees of any share in the estate. When the testator made provisions for the expenses of maintaining this trust, and of selling and reinvesting the proceeds, and of distributing the remainder at the death of his wife to his near kindred, it is obvious that he contemplated that there would be property to be thus administered in trust during the whole of the lifetime of his wife, and ultimately divided between those Avho were undoubtedly the objects of his bounty second only to her.

Passing this point, however, and treating the wife, as we do, as the general OAvner of, and with poAver to acquire the legal title to, the property covered by the express trust, and construing the poAver of alienation therein given her as being inconsistent Avith a gift over to the other beneficiaries therein mentioned, and therefore free from a trust arising in their favor subject to her right to use what is reasonably necessary to support her during life, it must, we think, follow, as expressed in the former opinion, that the oral requests and directions of the testator made at the time of the execution of the last will, and assented to by the wife, raise a constructive trust in their favor as to all such property, and the wife should be held with reference thereto as a trustee ex maleficio. To hold otherwise is to ignore the expressed will and manifest desire of the testator, and the effect would be to per*699mit the devolution of this property to the heirs of the wife and to strangers, where it is obvious he never intended it to go and was especially anxious and desirous that it should not go. To alloAV the wife to take this property unconditionally in her oaaau right, to do with it according to her uncontrolled discretion, is, as it seems to us, to thAvart the testator’s clearly expressed intentions, and to authorize the accomplishment of Avhat he made an earnest effort to avoid, and would have, beyond doubt, avoided in no uncertain way or ambiguity of expression, were it not for his settled determination to provide for his wife’s support and maintenance to the utmost extent of his power so to do, and the absolute confidence he reposed in her that she would carry out his known wishes by giving to his oavu near kindred that portion of his estate devised in trust, and not required for her OAvn support in maintaining her in comfort and according to the. style of living they had been accustomed to. It is believed that a consideration of the matters contained in the several wills and the manner of their execution lend confirmation and added emphasis to these views. We are of the opinion that the oral requests and directions of the testator, and the assenting thereto by the wife at the time of execution of the last will, Avhen, Avhile the shadow of death was creeping over him, he was attempting to make satisfactory arrangement and final disposition of his earthly affairs, place the matter of a constructive trust arising in favor of the collateral heirs beyond the pale of serious controversy. To now construe the will, and the parol agreement in relation to the property, as authorizing the wife to take the property absolutely and unconditionally, would result in a fraud on his right of disposal of his property and on the rights of those who were the objects of his bounty after his wife was provided for. It would be by her own wrong that she obtained the possession of and right to this property, and equity will not permit her to do that. When the testator expressed the desire that the “bulk of his estate (the bulk of) his entire estate,” should *700go to his own people he was, as we view his language and surrounding circumstances, evidently speaking of the estate charged with the express trust.

We are led to this conclusion because of his separation of his estate into two parts, and of the language used in providing for the disposition of each portion. Relative to that portion passing to his wife directly, he used strong and positive terms, disclosing an intention to bestow such property on her absolutely, without condition and in her own right forever. These words and the terms used are inconsistent with the idea that she took only a life estate, or an estate charged with a trust in favor of his collateral heirs. Furthermore, three or four days afterwards, by the most formal sort of conveyance and written assignments this same property, or substantially all of it, was transferred to his wife as fully and unconditionally as it is possible to transfer the highest and most perfect known title to property. The other wills disclose indubitably a disposition on the part of the testator to give a portion of the estate absolutely to his -wife and the remainder to his collateral heirs. Giving due Considerations to all of these evidences as to his intentions, and his verbal expressions made at the time of the execution of the last will, it seems reasonably clear that he impounded a specific portion of his estate, the bulk of it, to be used, first, for the support of his wife, if required, and second, the remainder to go to his heirs as named in the provisions of the express trust found in the will. If from the record the deduction be proper that a constructive trust should be declared and established, as is held in the former opinion, except for a sufficient description of the property to which the trust attaches, and it be now, upon further consideration, determined that the property embraced in the constructive trust is the same as covered by the provisions creating the express trust found in the will, then it occurs to us that there exists no serious difficulty in ascertaining with reasonable definiteness and certainty what property the trust is fastened upon, and enforcing the trust according to the de*701dared will of the testator. We think it is tacitly conceded in the very able argument of counsel for appellees that if all the other elements of a constructive trust are found to exist, the element of description and certainty as to the property embraced in the trust is not so lacking as to be fatal, or that the trust must fail on that account. What counsel for appellees do argue is that, in determining whether a trust is created, we must look to the written instrument as well as the oral declarations of the parties made at the time, and that, when so considered, the evidence fails to establish the trust alleged. It is contended that the most that is fairly inferable is that the spoken words of the testator are merely precatory, and that it is left wholly to the wife’s discretion whether she will bestow any of the property on those mentioned in. the express trust provisions of the will.

We are not disposed to recede from anything said in the former opinion, save in respect of the question of the certainty and definiteness of the property embraced in the trust resting in parol. If this language be construed, as we think it should be, as applying to the property devised to Westerfield in trust, and as giving to the wife the right to the use of the annual income in so far as it is required to maintain her in the style and comfort she had been accustomed to, and also a like right to the original fund or property devised in trust, if so required for a like purpose, then the matter is resolved into a very simple proposition wherein lies no serious difficulty in the way of the enforcement of the trust. The five or ten thousand dollars to be devoted to charity, if the wife so desires, involves only a matter of mathematical computation, the limit being ten thousand dollars, the limit in other respects being what is required and reasonably necessary for the support of the wife in the style and comfort in which she had been living. The rights of the parties in the main aspects of the case are well summed up in the former opinion, ante, p. 667, in the following language:

“We conclude, therefore, that by the promise made by *702Mrs. Boggs to her husband at the time of the execution of the will, relied upon by him in signing that instrument, and her refusal to carry out her promise, she thereby became a trustee ex maleficio, if the trust was definite and certain enough to be capable of enforcement. Though no fraud was intended by her at the time, yet by the circumstances of confidence and trust arising from the marriage relation, her husband trusted her and relied upon her to carry out his wishes; and her refusal to do so after her promise and after the property was vested in her was such a fraud as will make her, in equity, a trustee, if a trust was created by the language used by Mr. Boggs. In other words, we conclude that the plaintiffs are entitled to be treated in relation to the estate as if the words used by Mr. Boggs had actually been written in the will.”

The ground upon which relief was denied was based upon the holding, which is well supported by the 'authorities, to the effect that “whenever the property to which it (the trust) is to attach is not definite or certain” a trust will not be created. All the other tests as to what is necessary to create a constructive trust are found to be in favor of the appellants.

Accepting, as we do, the correctness of the proposition with reference to the certainty required in describing property on which the trust is to operate, there yet remains the question, does, the description of the property in the case at bar which is embraced in the alleged constructive trust, on account of its indefinite and uncertain character, fall within the rule? It is rightly said in the opinion the declarations of the testator on which the constructive trust rests are to be construed and treated as if they had actually been written in the will. If the testator’s language or the substance of it were incorporated in the will, would the court find any difficulty in construing the words used and give force and effect to their evident intent and meaning? We dare say not. Let us consider what the effect would be. They would naturally, occur after the main provisions for the disposition *703of the testator’s estate. All parts of the instrument, if possible, should and would be given force and effect. They would be inconsistent with and render nugatory the provisions bestowing directly on the wife absolutely and unconditionally in her own right forever certain portions of the estate as therein described. They would be consistent and in perfect harmony with the provisions concerning the trust estate, and would act as a limitation of the terms therein found Avhich apparently pass to the wife the full and unrestricted beneficial interest in the trust estate. They would make clear that as to this part of the estate she had only the right of use reasonably necessary to support and maintain her as she had been accustomed to living. The division of the annual net income from this trust estate is what is unmistakably referred to Avhen he expressed the desire that the surplus should go to his relative». There can be no mistake about- this, and this serves as an explanation as to his purpose to give a portion absolutely to his wife, and reserve, as he did in the last Avill, the bulk of his estate, first, for her use if required, and second, the remainder to go to his own relatives in preference to hers or some one she might select. The wording in the instrument giving the Avife absolute and unconditional ownership in her oavu right forever in one instance, and in the other restricting the right or interest to her use, has, as Ave vícav the subject, a poAverful and over-mastering significance. This vieAv of the matter renders the AAdiole instrument harmonious -in all its parts, effective and enforceable. It, as AAre look at the record, effectuates the purpose and intention of the testator. This latter, the testator’s intention, is the cardinal rule of testamentary construction. It is the great underlying principle that should constantly be kept in vieAv. It is the '' 'pole star’ or the 'sovereign guide’ Avhen referring to this governing principle of testamentary causes; and the doctrine, in one formula or another, is constantly affirmed in the reports. But it is the intention of the testator as expressed in his own Avill which governs; and this intention *704must be discerned through the words of the Avill itself, as applied to the subject matter and the surrounding circumstances.” Schouler, Wills (3d ed.), sec. 466. On the question of uncertainty the supreme court of the United States, adopting the language of Lord Brougham, said:

“We ought not, without absolute necessity, to let ourselves embrace the alternative of holding a devise void for uncertainty. Where it is possible to give a meaning, we should give it, that the will of.the testator may be operative; and where two or more meanings are presented for consideration, we must be well assured that there is no sort of argument in favor of one view rather than another, before we reject the whole.” Home for Incurables v. Noble, 172 U. S. 383.

In Cox v. Wills, 49 N. J. Eq. 130, the legacy was given to the wife “in good faith, believing that she will make a will and thereby distribute so much of the last named legacy among my near relatives as she may not use for comfortable maintenance, and it is my Avill that my said Avife shall make such distribution.” The court said: “PoAArer to expend for comfortable maintenance should be construed, in my judgment, to mean what is reasonably necessary for that purpose, having regard to the previous habits, tastes and style of living of the donee, and the amount of the estate.”

In Cresap v. Cresap, 34 W. Va. 310, the following language was contained in the will: “I give and bequeath to my beloved wife, A. C. C., in trust for her support and maintenance during her life, all my estate both real and personal with full poAver and privilege to sell and convey any, all or so much of my real estate in such a manner as she may see fit, in as full and complete manner as I myself can do, to, sell and dispose of my personal estate, or so much as she may see fit, for her own support, according to her condition in life, and for the benefit of my estate, so far as she may see proper.” These words, it is held, Avill not confer upon the wife either a fee simple in the testator’s real estate or absolute property in his personal *705estate. It is also held that such a provision is not void for uncertainty as to quantity, for the reason that that is certain which may be made certain. In the case at bar we may say, as was said in another case: “If the widow should give away the whole of the estate to strangers, can any one deny that it would defeat the testator’s manifest intentions? The question gives the answer and that answer is decisive.” See also Smith v. Bell, 6 Pet. (U. S.) 68; Mansfield v. Shelton, 67 Conn. 390, 52 Am. St. Rep. 285; Barnes v. Marshall, 60 Mich. 248, 60 N. W. 468; Know v. Knox, 59 Wis. 172; Noe v. Kern, 93 Mo. 367.

Justice and equity require that the alleged trust in favor of appellants found to have been created should be held sufficiently definite and certain in all its essential elements and capable of enforcement, and that effect be given to the expressed intentions of the testator, and a palpable injustice prevented by giving appellants a measure of the relief they are seeking. The former opinion should be accordingly modified, and the trust property held to have vested in the collateral heirs of the testator named in the will, subject to the use of the net annual income and the principal estate by the appellee, Ida M. Wharton, as the same may be reasonably necessary and required to support and maintain her in the style of living she had been accustomed to, and subject to her right to devote not exceeding $10,000 to charity.

The judgment of affirmance is vacated, and the decree of the district court is reversed and the. cause remanded, with directions to enter such a decree in the trial court as will fully conserve the rights of both parties in harmony with tlie vieAvs and conclusions herein and in the former opinion expressed and announced.

Judgment accordingly.