The will of Miss Sanford bequeathed to her sister, Mrs. Black, $15,000 absolutely, "but with the hope and expectation and perfect faith that she will expend so much of the income and principal thereof, if it should become necessary, in the carrying on of a certain charity."
In a letter of Miss Sanford to her sister, written shortly after the execution of her will, the object of the charity is specified and its purpose so expressed as to make its meaning unmistakable, and the reason for not naming in her will the object of her bounty is stated.
One claimant to this fund, All Saints Memorial *Page 521 Church, agrees that this clause of Miss Sanford's will, coupled with the letter, creates a lawful precatory trust, and we do not understand that the other claimant, the guardian of David C. Sanford, Jr., dissents from this view.
Under our decisions the letter cannot, for any purpose, be regarded as a part of the will of Miss Sanford; it cannot be used to create nor to aid in the creation of a precatory trust. In those jurisdictions where the doctrine of incorporation by reference prevails, two conditions at least, must exist: (1) that the paper was in existence at the time of execution of the will; (2) that the reference in the will must describe the specific paper. Neither of these conditions exists in this instance, and hence this doctrine, as applied to this case, would have no application even in those jurisdictions.
In this jurisdiction we hold that a letter, whether written at the time of the execution or not, cannot operate as a declaration of trust, since this would, in effect, make a testamentary disposition of property by an instrument not executed in conformity with our statute of wills. Such an instrument may be used to help interpret the doubtful language of a will, to identify a devisee or legatee, or the property described in the will; it cannot be used to show an intent not expressed in the will, nor to insert in the will a devise or bequest not there found. Bryan v. Bigelow, 77 Conn. 604, 614,60 A. 266.
In this clause we find: the words of expectation follow an absolute bequest; the beneficiaries are not so named or described as to be capable of identification; there is nothing in the body of the will, nor in the context and surrounding circumstances, indicative of an intent to create a trust, and the language used is neither that creating a trust, nor that of command. Considerations of this nature not only make uncertain the intention to *Page 522 create a trust, but they make the intention of the testatrix not to create a trust, very clear. The language of expectation of, and confidence in, the use the testatrix hoped Mrs. Black would make of this fund, expressed her reason for making the bequest, but did not change its absolute character. It imposed upon Mrs. Black no obligation; it left to her discretion the use of the fund for an unnamed charity. In effect it gave the fund to her in the confidence that she would use it for an unnamed charity.
Three requisites were needed to convert these words of expectation into a valid precatory trust: (1) A clear intent to make the expectation of the testatrix imperative upon Mrs. Black; Hughes v. Fitzgerald, 78 Conn. 4,7, 60 A. 694; (2) the subject-matter of the testatrix's expectation certain; (3) the object of her bounty certain.Bristol v. Austin, 40 Conn. 438, 447; Gilbert v. Chapin,19 Conn. 342, 347; 3 Pomeroy on Eq. Jurisp. (3d Ed.) § 1016, p. 1927. This clause discloses an "uncertainty indicative of the absence of an intention to create a trust," and it discloses "an uncertainty in the object to be benefited and the subject to be affected." It follows that no precatory trust was created by this clause of Miss Sanford's will; under it Mrs. Black took an absolute title to the fund.
Mrs. Black, in her will, says she regards this fund received from her sister as a sacred trust to be administered in accordance with her sister's desires as expressed to her for the purpose of carrying on certain charities. So regarding, she bequeathed that part of the fund remaining to the plaintiff, Mr. Seymour, "who was likewise acquainted with the wishes of my beloved sister in reference to the disposition of said sum," having full faith and confidence that he would carry out her sister's wishes, and in case of his decease providing that the fund, if any remain, be devoted to the object of the *Page 523 trust. Upon the accomplishment of the purposes of the trust the testatrix directs that the remainder of the fund be paid to All Saints Memorial Church.
It requires no argument to show that the bequest to Mr. Seymour was not in any degree an absolute one, but one wholly in trust, since the bequest to All Saints Memorial Church was a valid gift in trust; he had no control over the disposition of the fund, but must do with it as the testatrix willed. There is no uncertainty in Mrs. Black's intent to make Mr. Seymour her trustee. But when we examine this clause of the will we find the subject-matter of the first trust is not described, nor is the beneficiary named or described. There is, then, uncertainty in the subject-matter and object of the intended trust. Thus two of the prime requisites of a precatory trust are absent. It is said that these omissions are supplied in the oral statements made by both Miss Sanford and Mrs. Black to Mr. Seymour. The statute of wills is an unsurmountable barrier to this attempt to add to this clause of the will the purpose of the unnamed charity, and its beneficiary. This clause was ineffective to create a precatory trust for the benefit of Mr. Crockett. The agreed facts recite that both Miss Sanford and Mrs. Black orally informed Mr. Seymour that if the entire income of said fund was not needed for the support of Mr. Crockett, they desired that any surplus might be expended for the education of their grandnephew, David C. Sanford, Jr. If no trust was created for Mr. Crockett, it is difficult to see how a trust could be created for the grandnephew. If we assume that this clause did create a trust for the benefit of Mr. Crockett, this is an attempt to add to the beneficiary of the trust by oral declaration of the testatrix. It is a legal impossibility to create a trust under a will, or to add to one in existence for the benefit of an unnamed beneficiary, by mere oral declarations. *Page 524 Dennis v. Holsapple, 148 Ind. 297, 300,47 N.E. 631. The statute of wills is an all-sufficient reason why such an attempt must fail; in this instance there are other valid reasons.
The oral statement, at the most, expressed the wish that the surplus of the income not needed for the support of Mr. Crockett should be expended for the education of the grandnephew. This referred to the surplus arising in the lifetime of Mr. Crockett. Since he is now deceased, the contingency attempted to be provided for has passed. Miss Sanford never, so far as the admitted facts disclose, expressed to Mrs. Black her desire to have the purpose of the fund and the object of its bounty added to, and Mrs. Black never knew of her wish in this particular. That Mrs. Black did not in her own will carry out her wish as to her grandnephew, is not without significance. She could not give him any part of this fund until the decease of Mr. Crockett, since it could not be known what part of income and principal his care might require, nor could it be known how long he would live, nor whether any part of the fund would remain at his decease, nor whether the grandnephew, at the decease of Mr. Crockett, would not be beyond the age for education in the schools. It may be that Mrs. Black did not, at the time she expressed to Mr. Seymour her wish regarding her grandnephew, clearly have in mind that under the trust, if his necessities required, the entire principal as well as the entire income of the fund must be devoted to the care of Mr. Crockett. One purpose Mrs. Black made transparent. The "sacred trust" committed to her keeping by her sister was never intended by her to be subordinated to the education of her grandnephew; nor the fulfillment of that trust, perhaps in the later years of Mr. Crockett's life, inadequately met by the disposition of the surplus income of the earlier years *Page 525 when the entire income was not needed for his care. We cannot assume that it was Mrs. Black's imperative wish that this fund should be used in violation of her attempted trust for Mr. Crockett. We do not know when Mrs. Black expressed this wish to Mr. Seymour. It may have preceded the will or been subsequent to its making.
That the will of Mrs. Black refers to charities and purposes is claimed to show her intent to include more than the single object, the care of Mr. Crockett. Miss Sanford provides for the carrying on of a certain charity; Mrs. Black for the carrying on of certain charities. We do not think this language is definitely persuasive that Mrs. Black referred to more than the single charity of her sister's trust. The clause itself refers indifferently to the charities and purposes of the fund, and to its object, now using the plural and then the singular. If the oral wish expressed to Mr. Seymour by Mrs. Black, that she desired the surplus income not needed for the support of Mr. Crockett to be expended for the education of her grandnephew, could be regarded, it does not make it clear that Mrs. Black intended that the precatory words of the twenty-third clause were used in an imperative sense.
Finally, the guardian insists that while the court cannot direct the plaintiff to expend the income for the education of the grandnephew, it can and should leave this to his conscience, where Mrs. Black committed it. Counsel for the guardian does not develop the legal theory upon which he rests his claim. We assume the theory must be that Mr. Seymour as to the grandnephew was a donee vested not with a power in trust, but with a mere power of discretion over the surplus which he could use for the education of the grandnephew, or withhold at his pleasure. Therefore the guardian's position is: at the same time, by the same instrument and in the *Page 526 same manner Mr. Seymour becomes a trustee for Mr. Crockett, he becomes a donee of the unexpended surplus with the discretionary power of use for the benefit of the grandnephew, — a power which he may not delegate and which dies with him, though the trust may live. These positions seem inconsistent. The second would defeat a part of Mrs. Black's intention to give Mr. Crockett the entire income and principal if necessary. In reality this claim is nothing less than an attempt to create or aid a claimed power under a will by oral declarations made perhaps before and perhaps after the execution of the will. This cannot be done without first repealing the statute of wills.
The Superior Court is advised that it enter its decree that no part of the said principal sum and income can be paid to, or for the benefit of, said grandnephew, the defendant David C. Sanford, Jr.; that the plaintiff, said Morris W. Seymour, trustee, pay over forthwith to All Saints Memorial Church of New Milford, Connecticut, said principal and income, together with any increase thereon less the costs, expenses and charges of the said trustee as shall be allowed, and such reasonable sums as shall be allowed to the several parties hereto for their expenses and counsel fees, by the court out of said trust fund.
No costs will be taxed in this court.
In this opinion the other judges concurred, except HALL, C. J., who concurred in the result, but died before the opinion was written.