MILLARD, C.J., TOLMAN, BEALS, and HOLCOMB, JJ., dissent. Chester A. Morton died, leaving a will which contained the following provision:
"I give, devise and bequeath unto Robert E.L. Knapp, as trustee, the sum of one thousand dollars *Page 207 ($1,000) to be expended for the building and equipping of Sea Scout Ship No. 60 of Mount Baker Area, Boy Scouts of America, said sum to be expended solely and entirely at the discretion and according to the judgment of said Robert E.L. Knapp, and it is my hope and desire that he shall continue as skipper of said ship, and I suggest as a name for it `Viking.'
"If for any reason which shall be deemed sufficient in the judgment of said Robert E.L. Knapp, the expenditure of said sum of one thousand dollars ($1,000.00) is not feasible for the purpose indicated, he may, at his discretion, use said sum for any cause or purpose which he may deem worthy.
"If no such cause presents itself, then this bequest shall become null and void."
Knapp was named as executor and was made residuary legatee. In his petition for distribution, he alleged:
"That the said boat referred to in said last Will and Testament to-wit: Sea Scout Ship No. 60, is a boat discarded by the United States Navy, said boat being made out of cedar, and is, in the opinion of your Executor, not safe nor sea-worthy, and further, that the sum of $1,000 is totally and wholly inadequate to properly fit the boat out for service as directed in said Will, or to make it in any way serviceable for the purposes of the Sea Scouts; further, that there is no adequate or safe place to keep said boat in the city of Mount Vernon, or the immediate vicinity without great expense; also that the operation and maintenance of said boat would be costly, requiring almost the constant attention of one person at all times with no fund provided for its keep. That this provision of the Will, in the opinion of your Executor, is impractical to carry out, is not feasible for the purpose that the deceased had, and using his discretion in the matter has decided he will not carry out the terms of this provision of said Will, nor does he now believe nor wish to put this money into any other cause as he sees none at the present time that he deems worthy and therefore has decided that this bequest shall become a part of the residue of the estate of said deceased." *Page 208
Mount Baker Area, Boy Scouts of America, a corporation, filed objections to the petition for distribution and prayed for a construction of the above quoted clause of the will. The court held that the provision created a trust and denied the petition for distribution, in so far as it sought to have the fund distributed as a part of the residuary estate. The executor appeals.
[1] There are at least four essential elements to the creation of a testamentary trust: (1) Subject; (2) object; (3) beneficiary; and (4) an imperative command to the donee to apply the subject matter to the object for the use of the beneficiary.
It may be conceded that the first three elements are contained in the provision of the will here under consideration. The last is obviously wanting. Schouler, in his work on Wills, Executors and Administrators (6th ed.), vol. 2, p. 1515, § 1360, says: "Wherever a clear discretion to act or not to act is given equity will not construe a trust." This statement is supported by a veritable host of decisions. In the annotation to Carter v.Strickland, 165 N.C. 69, 80 S.E. 961, Ann. Cas. 1915D, 418, it is stated:
"Departing from the early English rule that the bare presence of precatory expressions in a devise or bequest charged the subject thereof with a trust, the courts now hold that the mere use of precatory words is not of itself sufficient to establish a trust. It must further appear from the testament as a whole that the testator intended the words used to be imperative to the exclusion of any discretion on the part of the devisee and not to be simply indicative of a course which would meet his approval but which can be rejected at the option of the devisee."
Many cases are cited in support of the statement. The following cases, decided subsequent to the annotation, are to the same effect: Norman v. Prince, 40 R. *Page 209 I. 402, 101 A. 126; In re Hamilton's Estate, 181 Cal. 758,186 P. 587; Haight v. Royce, 274 Ill. 162, 113 N.E. 71.
And this was one of the grounds upon which this court declined to declare a trust in the case of In re Williams' Estate,167 Wash. 524, 10 P.2d 219. It was there said: "It [the will] indicates a bestowal upon the trustees of a complete discretionary power to convey or not to convey."
So, in the case at bar, absolute discretion having been bestowed by the testator upon his executor, no trust was created.
The judgment appealed from is reversed.
MAIN, MITCHELL, STEINERT, and GERAGHTY, JJ., concur.