In re the Estate of Mitchell

This is an appeal from a decree of final distribution of the estate of Susan G. Mitchell, deceased.

The trust is not expressly declared, but is created, if at all, by a certain precatory clause in the will. The subject of precatory trusts was carefully considered by this court in Estate of Marti, 132 Cal. 666 , [ 61 Pac. 964 , 64 Pac. 1071 ], and Kauffman v. Gries, 141 Cal. 295 , [ 74 Pac. 846 ], and certain principles governing such cases were thereby established. The primary rule is stated in both eases as follows: “The cardinal rule for the construction of all wills is to ascertain the intention of the testator; and this intention is to be ascertained from the words of his will, taking into view, when necessary or appropriate, the circumstances under which it was made,” if there is an uncertainty in its language. (Civ. Code, sec. 1318.)'

The estate of the testatrix was of the value of about two hundred thousand dollars. She left no descendants, except one daughter, the respondent, Lucie M. Lambourn, and the appellant, Lucille R. Bedford, who is the child of Eileen G. Bedford, a deceased daughter. The first three items in the will give to Lucie M. Lambourn: 1. The residence of the testatrix; 2. The furniture therein and the clothes and jewelry, and 3. Certain shares in a corporation which the appraisement .states to be of no value. The alleged trust arises, as it is contended, from the provisions of items 4 and 5, which are as follows:—

“Item 4. I bequeath unto my granddaughter, Lucille Richmond Bedford (christened Lucille Toland Bedford), child of my deceased daughter, Eileen G. Bedford (nee Mitchell), the sum of $5.00, and I rely upon my daughter, Lucie M. Lambourn, to make further and suitable necessary provision for my said grand-daughter. It is the intention of my daughter to adopt my said granddaughter as her own child, in the event that the consent thereto of the father of my said granddaughter (Charles A. Bedford), can be obtained. In which event, as her own child, I am sure my daughter would adequately provide for my granddaughter Lucille. In the event that

“Item 5. I devise and bequeath to my said daughter, Lucie M. Lambourn, all the rest, residue and remainder of my .estate of whatsoever nature and wherever situated, to be held and owned by her in her own absolute right.”

Taking up first the .question of the effect of these provisions as found from the language alone, without aid from the attending circumstances, we find the general rules of interpretation laid down in the Estate of Marti, 132 Cal. 666 , [ 61 Pac. 964 , 64 Pac. 1071 ], after a full consideration. This case was followed in Kauffman v. Gries, 141 Cal. 295 , [ 74 Pac. 846 ], and we see no reason for departing therefrom. They are thus stated: “Precatory words may or may not create a trust, according as they are used, and whether, in any particular will, they have been used for this purpose will depend upon the construction to be given to that'will. The question for determination is, whether the devisee or legatee is the beneficiary, or merely a trustee for others, of the gift bestowed upon him; whether the wish or desire or recommendation that is expressed by the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of that party, leaving it, however, to the party to exercise his own discretion. In order to make him a trustee, it must appear that the testator intended to impose an imperative obligation upon him, and for that purpose has used words which exclude the exercise of discretion or option in reference to the act in question. Mr. Bispham says (Principles of Equity, sec. 71): ‘The English rule now is, that precatory words are not to be regarded as imperative, unless it is plain from the context that the testator so intended them.’ ‘When property is given absolutely, and without restriction, a trust is not to be lightly imposed, upon

Appellant’s counsel rely upon the decision of the supreme court of the United States in Colton v. Colton, 127 U. S. 300 , [ 8 Sup. Ct. 1164 , 32 L. Ed. 138 ]. If that decision was in any particular inconsistent with our own decisions on the subject, it would not be binding authority. The interpretation of wills is not a question upon which the federal courts control the state courts. But we do not find it inconsistent. The same rules are stated in that decision, as in our own. The court says: “It must appear that the words were intended by the testator to be imperative.” And, quoting from Warner v. Bates, 98 Mass. 277 , the court says that the difficulties of interpretation “can always be overcome by bearing in mind and rigidly applying in all such cases the test, that to create a trust it must clearly appear that the testator intended to govern and control the conduct of the party to whom the language of the will is addressed and did not design it as an expression or indication of that which the testator thought would be a reasonable exercise of the discretion which he intended to repose in the legatee or devisee.”

The language in this will cannot reasonably be understood to indicate an intention to create a trust or to direct or control the residuary devisee as to the manner of her use and enjoyment of the property devised to her. On the contrary, taking the provisions as a whole, there clearly appears an intention to leave everything concerning the welfare of Lucille to the judgment, discretion, and affection of the daughter Lucie. The words chosen indicate confidence and faith in her daughter’s kindly disposition, rather than an intent to control and direct her. There is nothing which shows an intent to place a limitation or charge upon the estate given to her. She says: “I rely upon my daughter” to make suitable provision, believing that she will give to Lucille the love and care of a mother and

The surrounding circumstances do not require a different construction or indicate a different- intent. The case was submitted and decided upon a demurrer to the contest or claim of the appellant, so that, for the purposes of this decision, the facts alleged therein must be considered as true. The will was made on October 9, 1907. Lucille was then about three years of age. Her mother had died the previous April. In 1901, the testatrix made a will giving to Eileen, appellant’s mother, a certain tract of land, and the income of one half of the residue of her estate. The testatrix at that time believed that she owned said tract of land in fee, and, it is alleged, although the allegation appears to be without significance, that she held one half thereof in trust for the use of Eileen. No facts are alleged which would be sufficient to create such a trust. In May, 1907, after Eileen’s death, the testatrix made another will giving to the respondent, Lucie, the same specific legacies as in her final will, and the residue to Lucie and Lucille, in equal parts. On August 9, 1907, she made a third will, the same as that of May, 1907, excepting that the one half- of the residue, given in the former will to Lucille, was given to a trustee in trust for Lucille. After March, 1906, Lucille always remained in the custody of the testatrix ,who desired to adopt her, but was prevented from doing so by her own illness and the absence from the state of Lucille’s father. Before the death of Eileen the testatrix had sold the whole of the land above mentioned as having been once devised to Eileen, for the sum of fifty-one thousand dollars. It is alleged that on October 9, 1907, when she made the will here in controversy, the testatrix believed that she had owned said land in fee, and that she believed that one half of the proceeds

The fact that the testatrix made so many wills and that the one of August, 1907, disposed of one half of the residue to a trustee in trust for Lucille, showed that she had some' knowledge about wills, and understood the nature of trusts and something of the forms of expression used in creating them. So far as these facts have any bearing, they would seem to point to a design not to establish a trust in favor of Lucille, since the testatrix must have been familiar with the proper form of words to create a trust and could easily have done so if she had so desired. There is no attempt to allege an intention by the testatrix to make the provision which it is claimed constitutes a declaration of trust, a substitute for the supposed trust fund aforesaid. So far as appears, the giving to Lucille of the trust which she claims under the will, would not prevent or estop her from claiming the trust fund also. It does not appear that she had in fact any right to such trust fund and there is no equity shown in her, in the nature of a property right, which could in any way affect the interpretation of the will. The circumstances alleged are clearly insufficient to convert that which, upon its face, appears to be merely an expression of a preference and of confidence and reliance on the fidelity and affection of her daughter toward Lucille, into an express or implied command or direction to her with respect to the use by her of the property given to her by the will “in her own absolute right,” as it declares.

The appellant argues that item 5 gives to Lucie in terms only the “residue and remainder” of the estate, and that, as it does not precede, but follows, item 4 containing the alleged precatory trust, and as the specific legacies, except the five dollars to Lucille, are all given to Lucie, there is a necessary inference that the testatrix believed that the precatory clause

The decree of distribution is affirmed.

Sloss, J., and Angellotti, J., concurred.