'fOMB 17. OWD.
4:11
TOMB ". OWEN. (CIm&U Court, IC. D. Mf.chf.gcm. June
e, lllOL)
No.8,2S7. L Om01l1'l' CoUBT!-JUBJSDJCTI01'l'-CONSTRUCTION (W WILL. Where the neCessary diversity of citizenship exists. the c1rcuit court b.. juri.. cUction of a suit for the construction of a will, the execution, validity, and probate of which are recognized, there having been no construction of the will, and no adjUdication of complainant's rights thereunder, either by the probate court in which the settlement of the estate is pending, or by any other tribunal haVing jurisdiotlon of the subject and the parties. Colton v. Colton, 8 Sup. Ct. Rep. 11M, 121 U. B. 301, 308. followed. Broderlck's Wttl, 21 WalL 508, distinguished. L DBED-DELIVIllRy-EvIDENCB. A husband used moneys of his wife in settling his own debts, and thereafter had the use of her funds, without ever accounting. He subsequently conveyed to her all of the property then po.sses.sed by him by a deed, reciting a consideration of 150,000, and reserving a life use of the property. The deed. exeouted with all due formalities, was found after his death in his office safe, in an envelope containing other valuable pa.pers which belonged to his wife, an.d of which he had Charge.; and in a will made shortly before his death he formally deolared that he had "executed and delivered" to his wife suoh a conveyance. He1A, that these facts were sufficient to establish the delivery of the deed.
L
By the second clau!!e of his will, the husband, after stating that his reasons for. the will were to avoid all questions that might arise about the previous deed to his wife, and to express his wishes as to the use and disposition of the property conveyed to her, devised and bequeathed to her all the real and personal prop.erty of which he died seised or possessed; and by the fifth clause he expressed his desire that his wife "should make free use of all the property so cOllveyed and devised to her for her own use or lor charitable purposes, knowing that-in case any of my immediate relatives or her sister should. by misfortune or otherwise, neel1 any assistance, she would generously share with them; and therefore I feel nb hesitation in leaving with my wife the power to catTJ: out the wishesas.expressed herein." Held, that no enforceable trust was created, for the desire of the testator was not imperative, as it left with the wife the power to judge both when aid was needed and the amount thereof. . 4.. BAMB. By the sixth clause testator provided that "it is my wish that snch property .. my wife may have remaining undisposed of ·at her death that she should previously will the same to her si!lt,er, and to my brothers and sisters, in equal proportions,leaving it entirely with her to make such disposition of her property by will as her judgment shall dictate, merely expressing my desire in the premises; and, should she prefer to retain or dispose of the property!lo conveyed .and devised to her in a manner different from my wishes as herem expressed, she is at full liberty to do so, without having her right or motives for so doing called in question." Held, that no trust was created in favor of the brothers and sisters of testator enforceable apinst the estate of the wife, who died intestate, as the power given to her wu duwretionary.
WlLLs-CONSTRUCTION-CREATION OF TRUST-INTENT OJ' TESTATOB.
In Equity. Bill by Joel P. Toms against Julia Frances Owen for a construction of the will of Robert P. Toms, deceased. Bill dismissed. C. 1. Walker, (Charles A. Kent, of counsel,) for complainant. Wm. J. Gray, (Otto Kirchner, of counsel,) for defendant. JACKSON, Circuit Judge. The complainant seeks by his bill to obtain a construction of the will of his brother, Robert P. Toms, deceased, and to set up, a?d have in his favor a trust in and to such property as was deVIsed to the WIfe of the testator, and remained undisposed of at her death. The defendant, as the heir at law of Mrs. Sarah Caroline v.52F.llO.5-27
yolo 52. Toms, wife and devisee of said Rob'ert P. Toms, in and by her answer the,..wir;l1 of the testator in complaindenies that any trust was ant's favor; claims that the testator in September, 1875, before the execution of his wilk hll;tJ all. Ph the property referred to and described in his wiII to his wife; and also questions the jurisdiction of this court to entertain the suit, and afford the relief sought, inasmuch as the settlement and administration of the estate of Rober,t '!'laid Satllh Caroline Totrls are pending '. in the proper the state o'fMichigan, ofwhich state said Robert P. and were residElnts and citizens at the times of their respectivede',;,ths. We thinkthisohjection to the jurisdiction of the court is notw,eU taken. It is not the oqject or pufpose of the bill either to amend or affirm the probate ofthe wiII of Robert. P. Toms, or ill, way to intel'ferewith the proper jurisdictionaf ,the probate court, and its proceed'hig$;' iloas to. bring the Case withintha rula laid down in Broderick'8 .Wul,21 WalL 508, and subsequent casas, holding that the pnited as courts of equitYihave no genera] jurisoCa will. The complaindiction ant asserts 'rights under a will whoseexecution;:validity, and probate are recognized,and,having the ,requisite diverse citizenship, he may. see,k in tJ:1iJ:j court; ,there having been no construction 9f the wiII, and, no adjudioationof his rights thereunder, by ant tribunal having jurisdiction of parties.:. This is settled by the qase of Colton v. Colton",127 U. S. 801, 808, 8 Sup. Ct. Rep. 1164. The will of Robert P.Toms, which it is claimed charged his estate, or so much there()f as remained undisposed of at the death of his wife, with favor of complainant, provided as follows: . "In the nime of God, amen. I, P. Toms, oftlie,'aity of Detroit, being of sound mind and disposing memory, do make, publish, and declare this to be my last will andtestal1lent, in :manner following, to wit: First. 1 do WiI,l and, ttbat all mT justdeJ:Jts,', .funeral expenses of administerihgw,y. estate paid, as soon. as practicable Mter my death, out of my personal estate. Second. I have, heretofore executed and delivered to my belovedwif&,'Sarah Caroline Toms, a conveyance of all the property of Which I orpolll!essed; to avoid all accidents or questions the purpose of giVing expression. to my wishes as to that may oNhe property so conveyed to her, this will is made, her use and and 1 do therefore devise and bequeath to my beloved wife all the real and personal property, of every name and nature and wheresoever situated, of which 'I shall Third. RislDY wish and desire that all my and apparel, w:atch, guu, and fishing tackle, should be given by my bl1loved wife, to my dear brothers, or to the survivor of them, as sooll, after my as practicable. Fourth. Ip is my. wish and desire that my tie\oved wife Shall give to 'William J. Gray aM Robert Toms my dearest and best beloved friend, William Gray, Esq., my Gray, law furniture, and all things connected with my office as .bopesof thai): becoming partners whena.dmltted to the used by me, in bar, so division shall become necess/ilry of the that she will attend to tlle'education of Robert ',roms Gray,furniship.g him with a suitable sum ,tor his clotlling and expenses, and for his coUegiataeducation, and until he'shall be admitted to the bar. Fifth. It is my wish and desire
TOlllS V. OWEN.
419
that my beloved wife, who has 'always been kind, affectionate. and devoted to me, should make free use of all the property so cODveyedand devised to !or her, own use or for kllowing that ,in case any of mnmmedlate relatives, or. her sister, Julia Frances Owen,. who has always been a kind sister and devoted friend, should, by misfortnne or otherwise, need or req uire any aid ora$sistance, that she. would cheerfully and generously share with them; and therefore feel ·no hesitation in leaVing with my Wife the power to carry out the wishes as expressed herein. Sixth. As I have no children to inherit my property, it is my wish that such property as my wife may have remaining undisposed of· at her death, that she should pre. viously will and devise the same to her sister, and to my surViving brothers and sisters, in equal proportions, leaving it entirely with her to make sU,ch use and disposition of her property by will as her kind heart and good judgmentshall dictate, merely expressing my desires and wishes in the premises; and ifohangeoffortune, or other causes, shall, in her judgment, make it unwise to carry out anyor all of the foregoing wishes or requests, she is absolved from carrying out the same, as my wish to suitably provide for her care and comfort surpasses all other considerations: and, ihouldshe prefer to retain or dispose of the property so conveyed and devised to hel' in a manner different from wishes as herein expressed, she is at full liberty so to do. without haVing her right or motives for so doing called in question by my executors, Or by any person or persons. Seventh. I do hereby nominate and appoint my friends, Geo. H. Lothrop, Esq., and William J. Gray, Esq., to be the eKecutors, and my beloved wife to be the executrix, of this, my last will and testament; and, having the fullest confidence in them, I direct that no bonds or other security be reqUired of them for the faithful performance of their duties. In witness whereof I have hereunto set my hand and seal this fourteenth day September, 1877." The deed referred to in the second clause of the will bears date August 7, 1875, and for the reCited consideration of $50,000, to the grantor paid by his wife, (Mrs. Toms,) grants, bargains, sells, releases, and forever quitclaims to her, her heirs and assigns, forever, "all the estate, real, personal, and mixed, of every name and nature, whatsoever and wheresoever situated, belonglng" to the said Robert P.Toms, or in which he has any interest, "subject only to the right of said party of the first part to use, occupy, and enjoy the same for and during the term of his natural life." It purports to have been sealed, and delivered in the presence of his subscribing witnesses. The complainant charges in his bill that this conveyance was never in fact delivered to the grantee, and was therefore inoperative to vest her with the estate then owned by her husband. This is denied by the answer. Robert P. Toms died on March 10, 1884. Shortly after his death said deed was found in his office safe in an envelope, which contained valuable papers of his wife, as well as papers of his own; and on 28th of November, 1884, it was duly recorded in the proper register's office of the county. Mrs. Toms died intestate in June, 1888, before the institution of the present suit, having in her possession and claiming as her own absolutely the property covered by said conveyance, as well as that subsequently acquired by bel' husband and disposed of by his will. Robert P. Toms was a lawyer of large practice and experience. In 1857 a banking firm of which he was a member failed for about $400,000, for the payment of which he was personally liable. In 1859 he made
420
FEDERAL REPORTER,
vol. 52.
a general assignment for the benefit of his creditors, and for about 10 years thereafter he was engaged in compromising, buying up, and getting'releases of the banking firm's debts for which he was liable. Those liabiliti.es'were settled and discharged some time about 1869. His wife of her own derived from the estates of her father and mother, which,as appears from the evidence, were used by saidRobert P. Toms in settlIng up the liabilities against him growing out of the failure of his banking firm. It is also shown that after being relieved of his embarassmentshe had the use of his wife's funds. It does not appear that he ever accounted to herior the funds so used, and it may be fairly assumed that he was her debtor, or so considered himself, on August 7, 187.5; when the conveyance aforesaid was executed, and that its purpose was to repay or refund to the wife what he regarded as equitably due her, This deed, after being duly executed, was deposited in the safe where the wife's valuable papers were habitually kept, and was found in an envelope containing other valuable papers and securities belonging to her... There is no fact or circums.tance disclosed by the evidence that fairly or necessarily negatives the presumption arising from the formal exec1,ltionofthe conveyance, and its being deposited with, and found among, other valuable papers of the grantee, that the deed was never deliv<erea' so as to become operative in the lifetime of the grantee. Again. his will;. executed about two years later, expressly declares in the second cla1,llleJllereof that he had previously, not only executed, but" delivered," to his wife a conveyance of all his property; and in other clauses of the to the property "so conveyed to her." Robert P. Toms being a should be assumed that he.knew the force and Of the terms 11e in reference to that conveyance. When declared in his will that he hall "executed and delivered" to his wife such a conveyance; the language should be given its natural force IPeanlng;, and, in view of the other facts and stances above atated,shf;luI,d be held sufficient to establish the delivery of the. deed. ''rhe secondclll:use of the will, and the other facts of the case the execution of the deed, and its being found with and ainongtbevalullble papereof the grantee, certainly do not tend to establish the of the bill that said conveyance "was never delivered." The deed, to make it operative, is largely a question of intention on tbe of the grantor. It is not essential to its validity that the. instru.rpentsbould pass into the exclusive manual custody or possession of the grantee. It may become operative even while the manual necessary to repossessioq is retained by the grantor. It is not view the authorities on this subject. They are perhaps so conflioting as not to be recoBciled. Each case must depend largely, if not entirely, upon its. specia.t facts and circumstances. In the present case, the grantor, as l;lusban4, was the custodian of the grantee's securities and valuable papers, which were kept in his office safe. After formally executing the dee.d, it is deposited, either by himself or his wife, (the proof does not estabUsh which,) in the same place where her other valuables are kept, and two years thereafter the grantor by his will solemnl)' de-
'TOMS V. OWEN.
421
clares that he had not only executed, but had "delivered," the conveyance. This formal declaration, in connection with the relationship of the parties, the way in which the wife's valuable papers were kept, and the place in which the deed was deposited and found, establishes with sufficient certainty that said conveyance of August 7, 1875, was duly delivered, and operated to vest the wife of the grantor with the title of the estate, real and personal, of which he was then seised and possessed. The will subsequently executed could, of course, create no trust in complainant's favor upon or in respect to the property thus conveyed to the grantee. It appears, however, that Robert P. Toms, after the date of said conveyance, and before his death, in 1884, acquired other property, real and personal, to the value of about $100,000, which was devised and bequeathed by his will to his wife; and the question which remains to be considered is whether the wife, under the provisions of the will, took this after-acquired property absolutely in her own right, or whether she took it charged with a trust in favor of complainant in respect to so much or such portions thereof as should remain undisposed of at her death. The general rules for the construction of wills are admirably set forth in Smith v. Bell, 6 Pet. 68, and in Colton v. C{)lton, 127 U. S. 301,8 Sup. Ct. Rep. 1164. It is settI.ed that the intention of the testator, as expressed in his will, is to prevail, when not inconsistent with rules of law; that in arriving at the testator'8 intention the whole will is to be taken together, and is to be so construed as to give effect, if possible, to the whole; and that in expounding doubtful words, and ascertaining the meaning in which the testator used them, it may be proper to take into consideration the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property. such as the ties connecting him with the legatees and devisees, and the affectionsubsisting between them. It is insisted on behalf of complainant that, applying these rules of construction to the will of Robert P. Toms, who had no child or children when his will was executed, and did not expect any, whose wife possessed property in her own right, and whose brothers and sisters were in moderate circumstances, and between whom and himself friendly family relations existed, there is from the whole inBtrument, taken together, clearly manifested an intention on the "part of the" testator to create a trust in favor of the testator's surviving brothers and sisters, which complainant, to the extent of his interest, may enforce in equity against the defendant, who, as heir at law, has succeeded to the property which Mrs. Sarah Oaroline Toms took under the will, and left undisposed of at her death, in 1888. It is not, and cannot be, questioned that words of recommendation, entreaty, wish, or request, addressed by a testator to a devisee or legatee, will ordinarily make him a trustee for the person or persons in whose favor such expressions are used, unless the actual intention appear different. But it is settled by the authorities that, in order to the creation of such a trust enforceable in equity, three conditions must concur: (1) There must be such certainty of the subject-matter as to be ca-
422
FEDERAL, REPORTER,
-pable,:of.execrttionby the court; (2} there must be certainty as to the objects of the intended ·trust; 'and(3) the expressed wish, J.1eqllestj::.Qr,desil'eoftpe testfl.tornjUst be imperative in its character, and Iiot oe 1efksodependent 'upolHhe general devisee as to ,be .incapable of execution without superseding or controlling that discretion.' ; , In StoIl'Y,Eq.: Jur. § 1070, the general result of the authorities is thus summarized: " "Wherey.en,4berefore. the objeets of the supposed tecommendator,Y trusts are not certain or definite; wherever the property to which it is to attach is not certain or definite; wherever tn clear discretion lIud choice, to act, or not to act, is wherever Jlriol' dispositions of the property Import abHolute and uncOntrollable all such cases. courts of equity will hot create a' trust ftom words i,)f this character. In the nature of things, there isa wide distinction between'll power and a trust. In the former, a party mayor may not actin his discretion; in the latter, the trust will be executed,notwithstanding his omission to act." To the same effect see 2 Porn'. Eq.Jur. §§ 1014-1017, and notes. In Brigg8 v. Penny, 3 Macn. I&G.546-554, the lord chancellor said uporithis SUbject: "I conceive the rUle of be that words' accompanying a gift or ve of con Mance or belief or ,desire or hope that a particular application wjJI be made iofs;uchbequest, will be deemed to import a trust upon these that they are so used as to exclude all option or discretion in L.ie party who is to act, as to her acting according to them or not;.'secondlll, the subject must. bE! certain; and thi1'dlll,tbe objects expressed must not be too vague 91' to be enforced. " In W'illi4ms v. 'Williams, 1.Sirit. (N. S.) 358-369, it is said: "'ihe to be these cases is whether, looking at the to impose an obligation on whole context of the will, the wishes into eq:ect, or whether, his It'gatee (Or devislle) to carry his having expressoohis' Wishes, he has meant to leave it to the legatee to act on them or not, at bis discretion." !
It is further said that itis doubtful;"";' "If there can ,exist any formula for b.finging to a direct test the question whether words of'request prbope or recommendation are or are nut to be , construed as obligatory." " In the well-considered case of Knight v. Knight, 3 Benv. 148; it was said I$y the master of the rolls (Lord LANGDALE) that"If the giver (or testator) accompanies his expression of wish or request by other words, from which it is to be collected that he did not intend the wish to be imperative, or it it appears from the context that the first taker was to have a discretionary power to withdraw any part of the Subject from the wish or request, -it has been beld that no trust was created." In Wa1"l1er v. Bates, 98 MasB.274-277, Chief Justice BIGELOW, speakingfor the court, said that the difficulties which are inherent in the subject-matter""':' ' "Can always be readily ovetcomeby bearing in mind and rigidly applying in aU such cases the test that, to create atl'Ust, it must clearly appear that the intended to govern and control the conduct of the party to whom the
TOMS V. OWEN.
423
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 a discretion which he intended to repose i/n the legatee or devisee. If the objects of the. supposed trus.t .are certain and definite; if flw property to which it is to attach is clearly pointed out; and, above all, if tIle recommendatory that it was deor precatory clause is so expressed as to wanant the signed to be peremptory on the devisee,-the just and reasonable interpretation is that a trust is created which is obligatory and can be enforced in equity against the trustee by those in whose behalf the beneficial use of the gift was intended." In the later case of Hess v. Singler, 114 Mass. 56-59, after recognizing the general rule for the interpretation of wills that the intention of the testator, as gathered from the whole wil1should control the courts, it is said that"In order to create a trust, it must appear that the words were intended by the testator to be imperative; and, when the property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence." The foregoing authorities, and the rules therein laid down, W'ere cited with approval by the supreme court of the United States in the cases of Howard v. Carusi, 109 U. S. 725-733,3 Sup. Ct. Rep. 575, and Colton v. Colton, 127 U. S. 313-315, 8 Sup. Ct. Rep. 1164. In the latter case Mr. Justice MATTHEWS, speaking for the court, says: "The question of its [a trust] existence, after all, depends upon the intention of the testator as expressed by the words he has used, according to their natural meaninK, modified only by the context and the situation and circumstances of the testator when he used them. On the one hand, the words may be merely those of suggestion, counsel, or advice, intended only to influence, and not to take away, the discretion of the legatee grOWing out of his right to use and dispose of the property given as his own. On the other hand. the language employed may be imperative in fact, though not in form, carrying the intention of the testator in terms equivalent to a command, and leaving the legatee no discretion to defeat his wishes, though there may be no discretion to accomplish them by a choice of methods. or even to define and limit the extent of the interest conferred upon his beneficiary." In the present case the subject-matter and the objects may be regarded as sufficiently definite and certain to meet two of the conditions requisite to the creation of an enforceable trust. The controverted question is whether the wish expressed by the testator that such property as his wife might have remaining undisposed of at her death should be by her previously willed and devised to her sister, and his surviving brother and sister, in equal proportions, etc., imposed an imperative duty or obligation upon her to make such disposition thereof, or created an enforceable trust in favor of the surviving brothers and sisters in respect to the property which Mrs. Toms took by the will, and which remained undisposed of at her death. The testator's will was executed September 14, 1877. Whether had acquired any property between the 7th August, 1875, when he conveyed all his property to his wife, and September 14, 1877, when the will was executed, does not appear. He died seised and possessed of property, real and personal, other than that
424
FEDERAL REPOR(.fER,
convey:edto his wife by the deed of August 7, 1875, alld .which was disposilQ of . wilL But whether such additional property was acquired be(oreor after the date of the will's execution does not appear. It is perfecQ,y manifest that the wi!3hes expressed by the testator as to the wlJe1s gl.sposition of ('her property" applied andha-d reference as well to thatwbicb had been conveyed to her by the deed of August 7, 1875, as ,to what might pass by the will. If in September, 1877, he haClacquired no other property, the natural and obvious meaning of the words employed by the testator in the will, read in the light of his uation and circumstances when he used them, imports and expresses nothing more than a suggestion or wish, intended only to influence, and not to control, his wife's disposition ofproperty already belonging to her. But assume that the testator was seised and possessed of property of his and expected to acquire additional own when: .the:will was property, which would pass by the will at and as of the date of his death, his expressed wish, as to how his wife should dispose of such property as she might have remaining undisposed of ather death, was not limited and confined to the property she took by and under the will. His wish tela ted as much to the property she had acquired by the deed as to thatshetoolt under the will. As to the former, his wish was not, and could not be, imperative, but only and merely an expression of his desire, intendeddo influence, by way of suggestion or advice, his wife's disposition of her own property, and as to which she had full discretion andunlimiwdauthority. As to the property which passed by the will, is the wish, inreferenMto that, expressed in the same language and same connection as that relating to the wife's own estatE', to be construed as imperati've or as creating a trust? . When a testator expresses pre()isely the to his devisee's or legatee's own property as he en1ploys in r:eferellce to that devised or bequeathed by himself, can his language be properly construed as indicating an intention to crearea trust as to the' latter, when no such trust was intended or could be crein respect to thefprmer? such circumstanated by the ces, can it be properlysaicl that the expressed wish afthe testator is any more imperative in the one case tbanin the other? He certainly has the right and power of disposition in the one case, which he does not possess in the other. But when he expresses the same wish in respect to property .previously conveyed by deed to the devisee which he expresses in reference to that which the devisee takes by the will, it is straining the .rules of c<)Qstruction and interpretation to hold that the testator intended to create a trust as to the property devised, when the same language was not intended to and could not impress any such trust upon the devisee's property to which such wish equally related and applied. By the second clause of the will, after reciting the execution and delivery to his wife ora conveyance of all the proijertyof which he shoJlld die seised and possessed, the testator proceeds to say: . "And to avoid 'all accidents or questions that may arise, and for the purpose of giving expression Jo ill)' wishes as to ,the use and disposition of the
425
property so conveyed to her, this will is made, and I do therefore devise and bequeath to my beloved wife all the real and personal property, of every name and nature, and wheresoever situated, of which I shall die seised or possessed." It thus appears that the testator's intention in executing the will was twofold: First, to avoid all accidents or questions that might arise in reference to the previously executed and delivered conveyance to his wife; and, secondly, to give expression to his wishes as to the use and disposition of the property so conveyed to her. But if we leave out of view the conveyance made to Mrs. Toms in August, 1875, which, being considered in connection with the language of the will, leads strongly to the conclusion, if it does liOt establish the fact, that no trust was intended to be created by the testator, and consider the question solely on the provisions of the will itself, can the proposition be successfully maintained that a trust was created in favor of the testator's surviving brothers and sisters as to the property devised, and remaining undisposed of, by the devisee, Mrs. Toms, at her death? The fact that she carried out the wishes expressed by the testator in the third and fourth clauses of the will throws little or no light on the subject, and in no way goes to establish the existence of the trust as claimed and sought to be enf()rced by complainant. She was advised that under the will of her husband she took the property devised to her absolutely, and was under no legal or equitable obligation to carry out the testator's wishes in respect to the same. The fact that she did voluntarily comply with his wishes expressed in the third and fourth clauses of the will, relating to a portion of his personal effects of comparatively little value, has no material bearing on the question under consideration. The fifth and sixth clauses of the will are mainly relied on to establish the trust sought to be enforced. These clauses must, of course, be read and considered in the light of, and in connection with, the second clause, which discloses the testator's reasons for making the will to have been to avoid all accidents or questions that might arise about the antecedent conveyance to his wife, and to give expression to his wishes as to the use and disposition of the property so conveyed to his wife. Such being the avowed purpose and object in making the will, the fifth clause expresses the testator's wish and desire that his beloved wife "should make free use of all the property" so conveyed "and devised to her for her own use or for charitable purposes, knowing that in case any of my immediate relatives, or her sister, Julia Frances Owen, * * * should, by misfortune or otherwise, need any aid or assistance, that: she would cheerfully and generously share with them, and therefore feel no hesitation in leaving with my wife the power to carry out the wishes as expressed herein." There is clearly nothing imperative in the wish and desire thus expressed. The subject of the wish or property to which it is to attach is not certain or definite, but is left to the wife's generosity. The testator knowing that, if the designated objects should by misfortune or otherwise need any aid or assistance, his wife would cheerfully and generously share with them, she is left with the power both to judge when aid or assistance might be needed, and the quantum or amount
426
thereof',to begi....EJU according to hetollVnigenerositY'·. · Her "power" to carry iO Ill., the"w'ishexipl'essed ;wasle'ftt6her own Slihse 'of generosity , which implied 'the discretibn'to ad or not tO'act in the event the Qbjects 'named· needed assistance, of misfortune or wise."Notl'ustarises from a wish thuS expressed. It ig'urged; with more confidence and 'plausibility, that a trust is created in favor' of the testator's .surviving brothers and sisters by the sixth clause,iwhichsays: ' !tAg lbave no children to Inherit ni(Y property, it is my wish that such propetty as my wife may have reml\ining undisposed.. of at her death, that devise· t]18 .88;me to her sister, and to my surshe shou'llJprevious)y will. viving bn>thers and sisters; in equal it entirely with her .·4ch use and of hllr property, by w.iU as l)/lr kind heart and to judgmedt'snall Gictate, merely expressing mydesire and wishes in the premises;·andif change of fortune or other cauBes shall, in her judgment, make it unwise tocatry out any' or all of. the foregoing wishes or ,requests, she is absolved.frolD cal'rying 'out ,tM same,':88 my' wish to suitably provide for her Care ap4·, [jol,UfO;rt surpasses, other and shouldsbe prefer to <;If the pr(l,pertY and devised to her in a lUanner diffll,rebHrommy ",isbas 89 herein exprjlssed, she is at fuU liberty so to do, ht'J' right or motives foJ'so doing called in queStion by my execulorlitorby any person ot persons." 'i .c'.
It will balnoticed tha.tthe. ;first sentence of this clause expresses the wish, not, thll.ttbe designated objects should take, under the testator's will, euchproperty as he: :bad devised to his wife and remained undisposedQf ather 'death, but that she ,should previously(to her death) she might have remaining undiswill and devise such posed of at her deaUi.. His wish is that the designated objects should succeed to. the. property of ,the wife J'emaining undisposed of, by and through he!;' :will oother than his own. ,But, while expressing this wish, the testator in the next sentence proceeds to say fl1at he leaves "it entirely withber to make such usea,nd disposition of her property by will as her kindbe9J't and judgment shall dictate, merely expressing my desire and· wishee in the premises." If. the or property to which the wish related passed to the wife. by the will, does not this sentence immediately following, and qualifying or explaining the testator's wish,conferaclear discretion and chqice upon his wife to act or not to act? Is .liQttbeexpressed wish accompanied or followed by language which clearly implies that he did not intend the wish to be imperative? Can it be said, that, in view of such anexpll:lnation of his wish, the testator meant or intended to .·impose an obligation on his wife to make a will in favor of the designated objects, or that she should hold or dispose of the, property forthair benefit? Having expressed his wishes, the context shows that the:testaton meant to leaveit to his wife to act on declared, after them or not, at her discretion; being' willing; merely expressing his. wishes in the premises, that it.. should be left entirely with ,her to make such :use and disposition of her property by will as her kind heart and judgment might dictate.. No trust can arise under such language. But the subsequent selltences and expressions of
427
this sixth clause leave the subject free from any reasonable doubt. The testator further says, in explanation and qualification of his wish first expressed: "And if change of fortune or other causes shall. in' her judgment. make it unwise to carry ont any or all of the foregoing wishes or requests, she is absolved from carrying out the same, as my wish to suitably provide for her care and comfort surpasses all otber considerations." How can the wish of the testator which his wife is expressly" absolved" from performing, if from any cause it is'"unwise" "in her judgment" to carry out the same, be deemed, under the authorities above cited, to exclude all option or discretion on her part as to her acting according to such wish or not? The testator does not; however, allow his intention to rest upon the foregoing declarations, but proceeds to say: " And tlbould she prefer to retain or dispose of the property so con veyed and devised to her in a manner different from my wishes as herein expressed. she is at full liberty so to do, without having her right or motives for so doing called in question by my executors, or by any person or persons." This language,conferring, as it does, upon his wife" full liberty 'I to either "retain or dispose" of the property so conveyed and devised to her in a manner different from the expressed wishes of the testator, without having her right or motives for so doing called in question by anyone, is utterly inconsistent with the idea that he intended his wishes or requests to be imperative. On the contrary, it clearly appears that the wife was to have a discretionary power and authority to withdraw all or any part of the subject from the wish, that the testator did not intend to govern and control her conduct in respect to the property conveyed and devised to her, and that his wishes were merely designed as an expression or indication of that which he thought or considered would be a reasonable exercise of an unrestrained discretion and judgment on the part of his wife, and which he intended'to repose in her. Under such circumstances, the authorities, almost without exception, hold that no trust is created; and the conclusion of the court is that the will of Robert P. Toms created no trust in favor of the complainant as one of his viving' brothers. · This conclusion being reached, it is not deemed necessary to consider whether Mrs. Toms' verbal request to the defendant to payor donate $10,000 each to the testator's surviving brothers and sisters, and the representatives or children of a deceased sister, and which the defendant duly complied with and performed after the death of Mrs. Toms, was not an execution, in whole or in part, of any obligation resting upon Mrs. Toms or her estate,even if a trust had been created by the will of her husband. Nor is it necessary to discuss the question whether, if Mrs. Toms was vested with the devised property absolutely or with full and unlimited power of disposition over the same for her own use, a trust could be limited thereon. The cases of Jonea v. Jones, 25 Mich. 401, followed and recognized in later Michigan decisions, and of Howard v. 0lT'U8i, 109 U. S. 725-732, 3 Sup. Ct. Rep. 57.5, seem to hold that a valid trust could 110t be (lreated under such conditions. But we do
428
FEDERAI.. REPORTER,
deem i,tnec,es!lary to pass upon this point, as we hold that the will of l\'Ir. Tomi!lcr(l&ted no enforceable trust in favor of the complainant, whose bill is therefore dismissed, with costs to be taxed. A decree will be entered accorqingly.
NOR'1'HERN PAC.
R.
CO. 'lJ. CITY OF SPOKANE
et ale
(OircuU Oourt, D. Washinl.Qton, E. D. September 15, 18119.)
NO. 115.
1. ,
'll!lIUNO'l'ION-'PRIlLIMINABY ORDIlR-'QUIliSTION8 Oil' TITLE.
A court of equity cannot. upon the hearing of an application fora preliminary injunction in advaI\ce of, tqe of,e.vip,ence, elecidequestions of title adversely to a party. in otreal property shoulel be protected from injury by his' opponent during the'hearing of the controversy. . RIGBT8;-CITl'. O;aDIN+FwlI·
2.
.,
A city claimed the right to deiltroy a wooden building it was maintained in defianceota olty·ordinance and'in derogation of the terms 'of the permit granted by the city. for its erection. t\1atthe city government had no power to en· force the terms (it the permit by ijestroying the building without process of law. and a restraiJiirig oreier snoulel not be vacateel.
8·. S"'MIl.. . : .. ·. An oreler restraining a cit}" from preveI).ting the erection of a n.ew elepot by a 'railrolldon the' slta'of an olel one pendente lite gives the railroael too great an lid· ,'. vantage while the title is in dispute,anel should Ilot be granted.
In Equity.)3ill by Northern.;PacificRailroad Company to restrain the city of Spokane and others from destroying an existing depot, and from, preventing the building of a I).eWOne. A preliminary restraining order was granted. Heard on motion ,to vacate the order. Granted in part. J. M. A8ktQnanliAlbert Allen, for plaintiff. (Jea. Turner and P. P. Quinn, fo!' defendants. HANFORD, District Judge. The complainant, for the transaction of i.ts freight busi,ness at the city of Spo,k:au¢, has in use a cheaply consf,l:upted wooden. warehouse, situated witbin the limits· of its right of way. Tbjs istructurewa$, designed fOr use, and ,was hastily built i:w.:mediatelyafte,r confl&gration, which occ.urred on the 4th of Auupon the site .of the freight deppttheretofore in use, f/.p.p. ;which wascQJ;lsw:n.ed in said. cQnflagration. There isa controversy l:wtlveen theraiJrqad company and the city of Spokaoeas to the title to part ,of: the gJ'Qun.<:l.covered by warehouse, the railroad company that ita title is perfect, an4 the citY' that, by act of U16<!il'ailroad company, part of thegropndcovered hy..it was dedicated t01thE! public for a··streetj that it isa.n;obstructionof apoblic ;street, and therefore a nuisance,and on that ground the officers of the city. propolle to tear. it down, and also to prevent the railroad company from erecting a llew fmight c1epotclwering allY part of the ground within the