Opinion
Docket No., 80, Calendar No. 38,598.
Submitted October 15, 1935.
Decided January 6, 1936.
Appeal from Kent; Brown (William B.), J. Submitted October 15, 1935. (Docket No., 80, Calendar No. 38,598.) Decided January 6, 1936.
The will of Alice E. Stuart was presented for probate. From order of probate court ordering payment of bequest to John and Albert Cederlund in trust for American Board of Missions to the Jews, Incorporated, John Slingerland, administrator of the estate of Fannie Slingerland, appealed to circuit court. Judgment affirmed. John Slingerland appeals. Reversed and remanded.
Dunham Sherk, for appellant.
Norris, McPherson, Harrington Waer, for appellees.
The question is whether the court erred in holding that the following paragraph of the will of Alice E. Stuart created a "precatory trust" in favor of American Board of Missions to the Jews or made an absolute gift to Fannie Slingerland.
"Paragraph 3. I give and bequeath to said Fannie Slingerland, if living, the sum of $3,000, and if she is deceased, I give and bequeath the same to John Cederlund and Albert Cederlund, and to the survivor of them, with the earnest request that the recipients of this fund use the same for religious work among the Jewish people, the same to be paid to the American Board of Missions to the Jews, Incorporated, of 27 Thropp avenue, Brooklyn, New York."
Construction of the will must be had from its four corners, with no extraneous facts presented except that Fannie Slingerland was a first cousin of testatrix, was her only blood relative mentioned in the will, and the purpose of the American Board of Missions to the Jews is to spread the Christian gospel to the Jews.
The rest of the will becomes important. Paragraph 1 directs the payment of debts and funeral expenses. Paragraph 2 reads:
"Paragraph 2. I give and bequeath to Fannie Slingerland of Spring Lake, Michigan, my household goods, furniture and furnishings, including my books, pictures, linens, my watch, jewels and jewelry, bric-a-brac, wearing apparel and kindred articles, and if she does not survive me, I give and bequeath the same to Mrs. August Cederlund and John Cederlund, of Grand Rapids, Michigan, and the survivor of them, with the earnest request that Fannie Slingerland, if living, or if she is deceased, then Mrs. August Cederlund and John Cederlund distribute my bric-a-brac among my friends, as they or the survivor of them shall deem advisable."
Paragraph 4 gave and bequeathed $1,000 to Mary Cederlund, if surviving, and $1,000 to her son, John, with the mother to take John's gift if he were deceased.
In paragraph 5, testatrix made 12 gifts in order, beginning with $3,000 to Fannie Slingerland, $1,000 to Mrs. August Cederlund, $1,000 to John Cederlund, $1,000 to Aloys (Ladd) Slingerland, $500 to City Rescue Mission, of Grand Rapids, $100 each to First Presbyterian Church Missionary Societies of Grand Rapids and Spring Lake, and $100 each to other persons, all dependent upon surviving testatrix. The paragraph provides:
"Memo. I direct that these bequests be paid in full in the order that they appear in the above list, beginning with the first thereof, to the extent that my estate will permit."
Paragraph 6 begins:
"Any and all residue and remainder of my estate, after the instructions in the preceding paragraphs are complied with, I give, devise and bequeath to the Grand Rapids Trust Company, a corporation, of Grand Rapids, Michigan, in trust, however, for the following uses and purposes:"
It confers on the trustee the usual powers and duties of management, sale, investment and reinvestment, according to its judgment and with full authority. It provides that the income be paid to the City Rescue Mission unless and until it cease to exist or, in the trustee's judgment, shall discontinue active religious and charitable work in Grand Rapids, whereupon the income shall be paid as the Grand Rapids Foundation from time to time shall direct. Paragraph 7 names the Grand Rapids Trust Company as executor, with full power of sale and conveyance.
"The essence of the doctrine of precatory trusts is that the words creating them, while in form the expression of a request, wish, or recommendation on the part of the testator, are, in fact, intended by him as a positive direction or command obligatory on the person to whom they am addressed." Trustees of Hillsdale College v. Wood, 145 Mich. 257, 263.
"A wish directed to a beneficiary is generally regarded as precatory, unless clearly the words express the testator's intention to the contrary." 69 C. J. p. 79.
Counsel have cited a large number of cases, including several from this State, but none is in point on the facts and, therefore, they are of interest only as illustrative of the reasoning of the courts. In 49 A.L.R. 10 and 70 A.L.R. 326, the authorities have been collected and particular provisions or incidents in wills which have had influence or persuasive force in holding precatory words imperative are set up. None of them, however, rises to the dignity of a general rule of construction but each was given force with relation to the balance of the will. All the cases recognize that such provisions and incidents are merely aids to construction and that, ultimately, the province of the court is to ascertain the intent of the testator from the whole will and such surrounding circumstances as bear upon ambiguities. It is also pointed out that, contrary to the early English view, American courts are reluctant to give precatory expressions the force of commands. 49 A.L.R. 20.
Defendants' contention that paragraph 3 established a trust finds support in the facts that while it uses the discretionary words "earnest request," found in paragraph 2, it omits the further discretionary words therein "as they or the survivor of them shall deem advisable;" that the bequest and request are coupled together in the same paragraph and cover a single amount; that the subject and beneficiary of the claimed trust are certain; that the legatee is not required to do anything as a condition of payment to the board; that the words "to be paid to" have an imperative ring; and that elsewhere in the will other bequest is made to Fannie Slingerland unconditionally. These incidents are recognized by the courts as of force in finding a trust from precatory words.
On the other hand, the use of the word "request imports a plea rather than a command; the repetition in paragraph 3 of the term "earnest request," used in a discretionary connection in paragraph 2, carries an implication of similar discretion in paragraph 3; the fact that the legatee is requested to "use" the fund for religious work implies personal discretion in its disposition and is inconsistent with a mandate that it be paid to the American Board of Missions to the Jews; and testatrix made outright gifts to another legatee, John Cederlund, in different paragraphs of the will.
When the will is read as a whole, it demonstrates beyond doubt that testatrix, or the scrivener who put her wishes into writing, knew how to provide a direct bequest, for survivorship, for priority in legacies, and to establish a trust. These things were done by appropriate words. Paragraph 3 operates on a single specific sum of money, imposes no trust duty on a legatee and, if it creates a trust, the legatee is merely a conduit for passage of the money and the paragraph amounts to a direct bequest to the American Board of Missions to the Jews. If the will had been prepared by a person uninformed in legal terms or it demonstrated a careless use of language, defendants' claim would have much force. But the nicety and precision of bequests which characterize the will appear to us to be conclusive that the use of the term "earnest request" in its ordinary sense was intentional in the third as well as the second paragraph, to convey the idea of a plea and not a command.
We, therefore, hold that the will did not establish a precatory trust but that paragraph 3 made an unconditional bequest to Fannie Slingerland.
Reversed, with costs, and remanded to the circuit court for entry of proper order in accordance with this opinion.
NORTH, C.J., and WIEST, BUTZEL, BUSHNELL and POTTER, JJ., concurred. EDWARD M. SHARPE, J., did not sit.
The late Justice NELSON SHARPE took no part in this decision.