Sarah A. Lines, Appellant, vs. Henry D. Darden, and Eloiza Darden, his wife, Appellees, 5 Fla. 51

SEMMES, Justice, delivered the opinion of the Court. The question presented in the argument on the demurrer, and on that part of the decree granting relief to two of the defendants, Goldwire and Poindexter, it is unnecessary to consider, inasmuch as they will be disposed of by one decision on the merits of the case. The whole controversy arises out of a construction of the will of Jonathan Robinson, deceased-; and in the consideration of this question, it is scarcely possible to travel through -the numerous authorities commented on by counsel, and which have been pressed upon this Court with great ability.

We must content ourselves with a reference to a few of the leading cases, in support of the conclusions at which we have arrived, after a careful review of them all.

The second clause of the will is in the following words : — •“ X “ give and bequeath to my beloved and only daughter, Sarah u Ann Lines, all my estate, both real and personal, during M her natural life, with the exceptions and restrictions hereil inafter mentioned ; and at her death, I hereby direct the M same to be equally divided among her children, share “ and share alike.” Then follows a devise of this estate, in the event his daughter’s marrying, unto Joseph Austin, « in 'trust for her own sole, separate and exclusive use.” ■ .

The third clause, and under -which the complainants claim, is as follows :< — “ Should either of my grand-sons ar- “ rive at the age of twenty-one years, or any of my grand- “ daughters marry previous to the time of final distribu- “ tion, viz: before the death of my daughter,' Sarah Ann u Linos, then, in that case, my will and desire is, that such grand-son so arriving at the age of twenty-one ‘ years, or “ such grand-daughter so marrying, as aforesaid, shall re- “ ceive a portion of the estate as a loan, to have the m&n- “ agement, and receive the benefit of the same, until the “ final distribution shall take place, and then to return the “ same to be equally divided with the rest of niy estate.’5 In behalf of the óomplainant, it is contended that the life estate created by the will in favor of Mrs..

Lines, was subject to a trust in favor of the grand-children, to be executed respectively on the daughters marrying or the sons arriving at age; that the language of the will creating this trust is addressed to the executrix, and is imperative, and that complainant, Darden, in right of his wife, by reason of her marriage, is entitled to one-seventh part of said life estate, to be held by him until the final distribution provided for under the will. On the other hand, it is contended that an absolute life estate was created in Mrs.

Lines, without restriction, and that the third clause of' the will vested in her a mere power, to be exercised at her discretion. In the construction of the will before us, we can but reaffirm, without adding to the doctrine, recognized by all legal writers, that the intention of the testator, as expressed in Ms will, shall prevail over all other considerations, if consistent, with the principles of law.

The intention is every thing; and to titis first and great Tule, in the exj)osition of wills, all others must bends, With an anxious desire to secure this leading object, tins Courts fellow no rule of construction of mere words, to control the intention, "but the whole instrument is to be considered, and if possible, effect given to every part of it. The relative situation of tlie parties, the ties and affections subsisting' between them, besides the motive which would naturally influence the mind of the testator, are proper to be considered, in ■expounding the import of doubtful words. 6 Peters S. C. R, 68.

With these well settled principles to guide us, we have had but little difficulty in arriving at what we conceive to be the true

interpretation of this will. It is too manifest to admit of doubt, that the first and leading object of the testator, was to make ample provision, during life, for his daughter, and who it is reasonable to infer, was his only child.

To accomplish this purpose, and prompted ifi the discharge of a high moral duty, by the love and confidence which he felt for this his “ only and beloved daughter,” he bequeathed to her for life, his entire estate, With certain ■“ exceptions and restrictions.” And to guard against every contingency which might impair this provision, he secures the property in the event of her marriage, by the intervention of a trustee, for her sole, separate, and exclusive use. This accomplished, he next provides for his grand-children, by securing to thorn, on the death of their mother, an equal share of the same property!.

Such being the manifest design, and controlling motive, ■of the testator, in the testamentary disposition of his property, the power of this Court is invoked, so to construe the 'third danse of the Will, as to encumber the life estate with ■a trust, which must defeat the former, and leave the tenant for life With a hare pittance for her maintenance and support. In other words, Wo tiro called upon to execute a ¡supposed trust, which, With but a nominal reservation, will invest the remaindermen with the entire estate, they will be entitled to on the death of the tenant for life.

Such could never have been the intention of a father to his child, much less the design of one who clothes his very bequest to her, in language eloquent with feeling and affection. If the intention of the testator was to create a life estate, and by the same instrument, and in the same breath to impair it, as the tenant for life, took the estate cum onere, with the restriction, we would feel bound to carry it out and execute the trust, though a libel on humanity.

But we think it is very clear, that in the liberal bequests made to his daughter and her children, the testator never contemplated a preference of the latter, to the detriment and prejudice of the former. It is contended by counsel, that the words “ exceptions’’ and “■ restrictions,” twice repeated in the second clause of the will, afford evidence from, which the Court is bound to infer that it was in the contemplation of the testator to impose a limitation or restraint on the life estate ; and that this restriction is the trust, in favor of the children.

If there was a trust, the argument of counsel, and his construction of the will as to the latter word, would undoubtedly be true. There is, however, some reason for believing that both words, certainly the former, have reference to the special bequests, and the direction of the testator, contained in the subsequent clauses of the will.

For, in the first item, all the estate, both real and personal, with the exceptions and restrictions thereinafter mentioned, is given to his daughter, and then follows these words, “ at her death, I hereby direct the same,” that is, all the estate, with the same exceptions and restrictions, to be equally divided, &c., evidently showing that at the final distribution, the whole estate was still subject to the same exceptions .and restrictions as the life interest of Mrs. Lines.

We. are rather disposed, however, to apply the word “ restrictions,” to the third clause of the will; for if the loan therein provided, was a mere power to be exercised or not, at the pleasure .of the donee, yet, when exercised, the son or daughter receiving the property, would have the exclusive management, and receive the benefit of it, until the final distribution. And this exclusive use and control, may, without doing any violence in the construction of words, be considered as a restriction on the estate for life.

Be all this as it may, it is sufficient, that if there are to be found no other restrictions in fact, upon the life estate, it is not for the Court to conjecture a trust, in order to make the application. We come now to consider the question, whether a trust is in fact created by the will ? The words “ will and desire,” when addressed to an executor, are as contended, imperative, and it is his duty to carry out the wishes of his testator, if possible, and when consistent with the will. The words are not necessarily addressed to the executor.

The object to be performed will usually afford a safe guide, in determining to whom they are addressed. And when a trust is raised, either by a declaration of the testator, or by intendment or implication of law, and no trustee is appointed, equity will follow the legal estate, and decree the person in whom it is vested, to execute the trust. 2 Story Eq., § 976. In this case, the legal title is not in Mrs.

Lines, as executrix ; for, after the payment of the debts, and the special bequests, her duties as the representative of the testator, had been accomplished, and the legal estate vested in her as the tenant for life. The possession of the property, and the legal title being in her, as legatee, the words of the will axe addressed to her as such; Still, if a trust is raised, she is bound to execute it; if but a power, she can exercise it at her pleasure. If there be a trust, she is bound to give to each child an equal share of the estate, for equality would be equity.

There is no rule by which she would be. entitled, in her own right, to any part of it. The rule to be adopted, must be inflexible in its application, and it is manifest, if she be allowed anything, it would be as a gratuity, not as a right. The very construction of the will, which would allow her anything, would allow her all; and the converse of the rule would be equally true. If we say a trust is created by the will, we arq bound to say it is without restriction in favor of the children.

There is no possibility of escaping this conviction, for she holds the life’ estate for her own use, or for the .exclusive use of these children. To constitute a valid trust, three circumstances must concur: Sufficient words to raise it; a definite subject; and a certain and ascertained objeqt. 9 Vesey, 323. No commendatory terms of a will expressing a “ wish,” “ will,’1 desire,” &c., are sufficient to create a trust, unless there bo certainty, as to the parties who are to take, and what they are to take. Gilbert vs. Chapin, 19 Conn., 342; 1 Russ. R., 509; 1 Simons, 542; 9 do., 320. In the case of Gilbert vs.

Chapin, the Court adopts the doctrine assumed in 9 Simon’s, that the proportion which each child was to take, must first be ascertained. And this would seem to follow from the principle, that a trustee 'lias no right, upon his own discretion, to make a distribution. In Morice vs. the Bishop of Durham, 10 Vesey Ch.

R., 520, one of the leading cases, the Lord Chancellor says, if neither the objects nor the subject are certain, then the words of request do not create a trust, and the property being uncertain and indefinite, it may bo conceded the testator meant to leave it entirely to the will and pleasure of the legatee, whether he would take upon himself that which is technically called a trust. 'Whenever the subject to be administered as trust property, and the objects for whose benefit it is to be administered, are to be found in a will, not expressly creating a trust, the indefinite nature and quantum of the subject, as well as the indefinite nature of the objects, are always used by the Court as evidence that the mind of the testator was not to create a trust.

And the difficulty that would be imposed upon the Court to'say what should be so applied, or to what objects, has been the foundation of the argument that no trust was intended. ■ It is upon the same well recognized principle — that where the intended subject matter of disposition consists of an indefinite part or quantity, the bequest fails for uncertainty — ■ that gifts of a “handsome gratuity,” “some of my best linen,” “a part of my land,” and numerous other gifts of similar import, have been held void. 9 Hump. R., 302; 1 Term., 130; 2 P. W., 874; Jarm. on Wills, 317.

The words “ will and desire,” are not necessarily mandatory, nor does the question turn upon their grammatical construction. They would be sufficient to raise a trust, if they were not coupled with words inconsistent with such construction. Their import and signification depends not so much as to whom they are addressed, as the intention of the party using them, the act to be performed, and the certainty of the subject matter.

If in this case, (the object and the fund being certain,) the portion .each grand-child was to take was clearly defined, the Court could act on the desire expressed, and then it would be that the words would become imperative on the person to whom they were addressed, or the Court whose duty it is to expound the will. But can we supply by conjecture what the testator has failed to indicate in his will ?

It is true, that mere words of recommendation have been held by the English Courts to create a trust in the immediate legatee, and, by some of the earlier decisions, such terms were construed to raise a trust where the persons who were to'take and the property devised were doubtful. See 1 Vesey R., 336; 19 do., 29. In these cases, the Court lost sight of the rule of construing the will by the instrument itself, and adopted a principle as uncertain in its application as the subject they were dealing with.

The, effect of these decisions was to substitute the Court in the jfiace of the testator; to raise a trust where none was contemplated, and to dispose of the estate without giving effect to the will. Judge Story says the doctrine of thus construing expressions of recommendation, “wish” and “ desire,” into positive and peremptory commands, is not a little difficult to be maintained, upon sound principles of

interpretation of the actual intention of the testator. It can scarcely be presumed that he should not clearly understand the difference between such expressions and words of positive command, and that, in using the one and omitting the other, he shorrld not have had a determinate end in view. 2 Story’s Eq. Juris., § 1069. The first case, it is said, that construed words of recommendation, &c., into a command, made a will for the testator.

The current of decisions of late years, has been against converting the legatee into a trustee; and the English Courts have manifested a strong disposition to retrace their steps, and restrict the doctrine of recommendatory trusts, by giving to the words of a will their ordinary sense, unless it is clear they were designed to be used ■ as peremptory, (Jarm. on Wills, 338,) in which case, though precatory in form, they become imperative in fact. There can be no doubt but that words of recommendation will create a trust, provided all the requisites are to be found in the will concurring for that purpose.

They are held in many cases to import an imperative devise, and will so operate, if there is nothing in the will inconsistent with such a construction. The true question, in every case, is, whether the intention of the testator is manifest and mandatory in favor of the object of the bounty, oris merely suggestive and advisatory to the first taker ? If the tes- ' tator in this case designed to determine the specific amount which his daughter should loan to her children, why should he not have said so in his will ?

Why leave a matter of such importance to speculation and inference, and that, too, of the most doubtful character ? By the terms of the will, & portion of the estate is to he loaned the children, but it cannot be ascertained in the will what that interest is.- 'We have no means of defining the extent, and we know of no rule by which it can be estimated.

It is insisted that the statute of distributions should be adopted as a rule, by which the specific interest of each grand-child can be ascertained ; and this, we understand, is the basis on which the decree of the Court below rests, and by which one-seventh of the estate was allotted to each child. If this rule which is invoked be adopted to ascertain theportion a child would take, then dehors the will, Mrs. Lines would be entitled to the whole estate. If we force the application of the rule to the portion the grand-children are to take, then its effect is to disinherit the daughter, the heir at law.

But we believe no case can be found where the statute of distributions has been adopted as a rule to determine the extent o,f a legatee’s interest. In cases which have arisen in the English Courts, where bequestshave been inade to the testator's family, or relations, the statute has been adopted to determine tbe object of tbe bounty, never the extent of the subject matter. , The cases relied on by complainant’s counsel, do not support his argument. . In the case of Pierson vs. Garnett, 2 Brown C.

R., 38, and which created great interest at the time, the difficulty was who were the descendants, and how they were to take, in case of no disposition, lord Kenyon was of opinion it was a power to distribute in such manner as the party thought fit; likewise, a power to give, which the Court could not control; but if he did not give’ tot all, the Court would give for him, to such descendants .as should be entitled. In the case of Brown vs. Higgs, 8 Vesey, 573, the question was, who were the relations of the testator ? The Court refers with approbation to the cases of Pierson vs. Garnett and Harding vs.

Glyn, 1 Atk., 479; and, in adopting the statute of distributions, says it is a safe rule to go by; and, as- equality is a principle of equity, the estate shall go to such of the testator’s next of kin as were alive at the death of his wife, who held the trust estate. The cases referred to in 1 Russ. R., 59, 23 Eng. Ch. R., 445, 34 Eng. Ch., 608, 617, fire notin conflict with the doctrines we have adopted.

They were cases of maintenance, and the Court has ever held that a direction in a will to provide maintenance, support or education for children, created a trust for the objects; and the fund out of which the provision was to come being defined, the extent of the bounty could be easily ascertained, by reference. Certum est quod eerimm, reddi potest. If a reference was made in the case, the Master could adopt no rule in aid,of his judgment, unless an arbitrary one, and there would be no guide to his discretion.

There is a numei*ous ’class of cases where no trust existed, and where there could be no distinction between the force of peremptory and precatory words, but where the contemplated testamentary benefit was direct^ the object certain, and the intention of' the testator to give manifest from the will; and yet the bequest failed, for want of certainty in the subject matter. One case will serve to illustrate the principle. In Jones and others vs. Hancock, 4 Dow’s Parlm. R., 145, an estate was given to a daughter, on conditions, with a devise over.

The specific portion or share so given over not appearing on the face of the will, and there being no means of ascertaining it, the House of lords, concurring in the unanimous opinion of the Judges, held the devise over void for uncertainty. In that case, the intervention of a trustee would have been unavailing, for, however mandatory the words, the interest was too indefinite for the operation of a trust. The authority relied on by one of the counsel for complainant, in the case of Malim vs. Keighly, 2 Vesey Jr., 334, is clearly misapprehended.

The Master of the Bolls says, that to create a trust, the will should point out the object, the property, and the way it should go. Applying this authority to the case before us, it is insisted that the property is clearly pointed out in the will of Bobinson. But it is not the property or fund out of which the portion is to he carved, but the extent of the portion itself, to which the Court refers ; otherwise, it would be at variance with every other authority on the subject.

The fact of leaving the interest indefinite, is strong evidence from which it may reasonably he inferred that the testator designed to leave the extent of the loan, if not the loan itself, to the discretion of Ms daughter, ■ limiting the exercise of it to the contingencies provided for in the will. The words themselves, independent of the context, imply a mere power, as contradistinguished from a declaration of trust. This construction derives additional weight when the situation of the parties, and the relationship, is considered.

She was the mother of these children, and whatever solicitude he may have felt for their welefare, during her life, he could not have entrusted his power in safer hands, .or had a more sure guarantee for her good faith and fidelity. To her maternal care was confided the education and maintenance of these children; and it is not to be presumed that their change of position in after life, would sever the ties which subsisted between them. Upon her affection ■for her own .children, the testator could safely rely, and in her judgment and discretion he was willing to confide.

We do not feel the force of the argument in reference to the trust estate being in Joseph Austin. It is true, that upon the marriage of Mrs. Lines, the legal title, by the will, passed to him, but in trust for the use of the cestui que trust, aud for the purpose of protecting her life interest from the debts of her husband. It is equally true that, upon her divorce from her husband, the temporary puiv pose of the trust haying been .accomplished, the estate reverted back to her. 1 Kelly Geo. R., 390.

But indepem dent of the- divorce, .(and that of itself should not affect the jnerit of th@ argument,) the trust created in Austin was a limited one, aud for a special object, restricted to the exclusive use and enjoyment of the estate by Mrs. Lines. The trust could not affect the construction' of the will, or enlarge or modify its terms, by which she became the tern-ant for life, and during the term the absolute owner, and .as a consequence, no change could be created on the life estate by the operation of the trust.

This being a power vested in Mrs, Lines, the question now recurs, how far its exercise can be controlled by this Court ? But little need be said upon this subject; for if a mere power, and which seems to result from what we have said, the question gives its own answer, and that answer is conclusive. There is a clear distinction between aiding a power,- and compelling its execution.. The one assists, the other controls, the discretion of the donee, and in doing that, overthrows the intention of the party creating the power.

In the non-execution of a power, a Court of Equity assumes no jurisdiction, and should never interfere. But it will aid a defective execution, unless it - be inequitable to other persons. Before the aid of a Court can be extended in any case, the party wbe seeks relief must show, in himself, some superior equity to him against whom it is asked. If the equities are equal, the Court will not compel the donee to do that which he will not do for himself, but will remain silent and passive.

And for this reason, equity will not even aid a defective execution of a power, to the disinheritance of the heir at law. 1 Story’s Eq., § 176-7. The utmost limit to which a Court can consistently go in its construction of a mere power, is to execute what the donee wished to do, but failed to accomplish. In the case of Brown vs. Higgs, 8 Vesey R., 574, the Lord Chancellor says, that where there is a mere power of disposing, and that power is not exercised, a Court cannot interfere.

If it be true, as contended, that the testator, Eobinson, placed himself in loeo parentis towards his grand-children, no presumption can be drawn from the fact, to the prejudice of his daughter, for there was a higher obligation on his part, and a paramount equity in her favor. The case of Withers vs Yeadon, Adm’r, 1 Rich. Eq. R., 325, is relied on as a recent case, in support of the argument for complainant. The opinion of the Court, it is true, has some strong expressions, in regard to -the execution of powers, and if they were intended to apply to powers in general,-they are subject to many qualifications.

It is to be presumed, however, that their application was designed to be restricted to cases similar to the one before the Court; otherwise, there would be no distinction between a mere power of appointment, and a power coupled with a trust. By the will in that case, the testator gave to his son his estate, upon the special trust, for the benefit of his family, &c., and that he would devise the same “ to all, or any child, or children of his,” &c., as he might see fit. The legatee died without making the appointment.

It cannot be doubted, that though there was an express trust, yet the power of selection, as to the objects, was left to the discretion of the legatee, and in the exercise of this undoubted discretion, had he left the estate to one child, the devise would have been good, and no Court could have disturbed it. It would have been within the principle recognized in Kemp vs. Kemp, 5 Vesey, 856; Thomas vs. Thomas, 2 Vern., 443; 1 P. Wm., 149; 1 Atk., 389; 5 My. & Cr., 72.

The Court, by its decree, distributed the estate equally among the children, upon the principle (it is to be supposed) laid down in the above authorities, that when there appears a general intention in favor of a class, and a particular intention, in favor of individuals of a class, to be selected by another person, and the particular intention fails fro,m that selection not being made, the Court will carry into effect the general intention in favor of the class. § 2 White & T. Lead. Cases, 345.

Nothing can be extracted from this case which we have been induced to notice, beyond a mere obiter dictum, of the Chancellor, in favor of complainant. But it is contended by one of the counsel, that the portion of the estate loaned by Mrs. Lines to complainant, is illusory, and that it being an improper execution of the power, the Court will control it.' The leading cases relied on in support of this position, are Kemp vs. Kemp, 5 Vesey, 556, and Gower vs. Mainwaring, 2 Vesey R., 87. If this estate was given to Mrs.

Lines for life, with the power to “ devise it to her children as she should think proper,” as in the first case, and the question was, as to the exercise of this power, it would present a very different case from the one before us. The devise would be mandatory according to the English Courts, and we might feel bound to consider it a trust, for the benefit of all the children, and a gift to one, of a nominal amount, would be illusory.

They would be entitled to a substantial, if not an equal share; first, because there would be no counter equity, to repel such a disposition, but a superior equity in favor of it; second, the devise should be executed in good faith, with equity and good conscience, and in that case equity would be equality. It is upon this principle, that the execution of powers, when coupled with a trust, as in both the cases referred to, as well as Knight vs. Yarborough, 1 Gilmer’s Va. R., 27, have been held by the Courts to be illusory. But in all these cases, the execution of the power was suspended by a life estate.

While in the case before us, the power to be exercised is to take effect, if at all, during the existence of the life estate, and to its destruction. It cannot be denied, but that the English Courts have assumed jurisdiction even over discretionary powers. And in this viewjthere is nothing in this doctrine of illusory appointment, which commends itself to the favorable consideration of this Court, and we feel but little disposition to adopt a rule which is never mentioned, but with distrust, as to its soundness, and regret that it ever was established. Butcher & Gooday vs. Butcher, 9 Vesey R., 381-391.

It is a mistake, that the doctrine flows from a trust, or is connected with it. In' the case of discretionary powers, there is no principle to guide a Court, in determining when an apjDointinent is illusory, and when it is not. The rule itself is founded upon no principle. It is an arbitrary one, subject to no restraint or limitation. It is going very far,’ to say that the exercise of the power, which a testator has reposed in the honesty, good faith, and discretion of another, shall be controlled by the Court.

It is fair to conclude, that the testator had no fixed puiv ■pose of his own, and to control the judgment of the donee, is to do violence to the intention of the testator, and leave the execution of the power, to the discretion of the Court who tries the case ; and that of itself, is a sufficient answer •to the soundness' of the doctrine. See Fronty vs. Fronty, Bai. Eq. R., 517. The Court cannot shut its eyes to the fact, .that in the exercise of this power, Mrs. Lines has loaned property to the •complainant and wife, and offered to extend to them ad.ditional aid.

This was declined by the complainant in thp first instance, because he did not require it. When he became embarrassed, and the offer was renewed, he refused all assistance less than his full portion, but which he did not define, claiming as a right, what he was entitled to as a favor. . In every aspect of the case, wre arc satisfied the decree of the Court below is erroneous, and that the testator -intended to repose in his daughter a discretionary power, as to any advancement to be made to her children — that they are bound by an exercise of that discretion, and that this Court cannot control it. Per ouriarn.

Let the decree of the Court below be reversed, and the bill be dismissed. Note. — A petition for a rehearing was filed by the appellees in this cause, but because of the incompoteiioy of one of the Judges to sit on the motion, it was .continued until the next term.