Opinion
12-13-1949
In re KEARNS' ESTATE. MALLARINO et al. v. HAMMERSMITH. Civ. 13860.
In re KEARNS' ESTATE.
MALLARINO et al.
v.
HAMMERSMITH.
Dec. 13, 1949.
As Amended on Denial of Rehearing Jan. 12, 1950.
Hearing Granted Feb. 8, 1950. *
Elmer P. Delany, San Francisco, William A. Sullivan, Martin J. Jarvis and Richard O. Graw, San Francisco, of counsel, attys. for appellants.
Marshall E. Leahy, John F. O'Dea, San Francisco, attys. for respondent Emma Traung Hammersmith, as Exr'x.
Philip S. Ehrlich, R. J. Hecht, San Francisco, attys. for respondent Emma Traung Hammersmith, as sole Devisee and legatee.
DOOLING, Justice.
This is an appeal by Marjorie Mallarino and Lois Graham from an order of the probate court granting instructions to the executrix of the will of appellants' uncle that the words of clause 5 of the will are precatory only and do not create a trust in favor of appellants. The will is holographic. In clause 1 it bequeaths 'to my beloved and devoted finance' Emma Traung Hammersmith * * * all my real and personal property'. In clause 2 it appoints Emma Traung Hammersmith 'executor' without bond. Clauses 3, 4 and 5 read as follows:
'3--I hereby bequeath to my brother, William L. Kearns $1.00 also to my niece Mrs. Marjorie Mallarino G. A. K. $1.00 and my niece Mrs. Lois Graham $1.00 and should any or either of them contest this will it shall avail them nothing.
'4--I hereby direct my Executor, Emma Traung Hammersmith to provide for my brother William L. Kearns, during his life and I depend entirely on her judgment, kindness, honesty and generosity to act as his provider in illness and in health.
'5--I hereby direct my Executor Emma Traung Hammersmith to provide for my nieces Mrs. Marjorie Mallarino and Mrs. Lois Graham as her judgment, kindness and honesty sees fit to do, and likewise to provide for any other kin or close friend which in her judgment warrants same.'
The brother, William L. Kearns, is dead and the provisions of clause 4 need not be construed except insofar as they may throw light on the proper construction of clause 5.
It is the contention of appellants that clause 5 creates a trust in their favor and that the determination of the probate court to the contrary should accordingly be reversed. In determining whether a trust was created the fact that the amounts to be 'provided for' appellants are not specified but are left to the determination of the executrix 'as her judgment, kindness and honesty sees fit to do' is not conclusive against the creation of a trust. 'It appears to be definitely established that no objection can be taken to a trust on the score that the amount to be applied to the beneficiary's use is thus confided to the discretion of the trustees.' 26 Cal.Jur. 975; 25 Cal.Jur. 319; Estate of Marre, 18 Cal.2d 184, 114 P.2d 591; Estate of Smith, 23 Cal.App.2d 383, 73 P.2d 239; Estate of Davis, 13 Cal.App.2d 64, 56 P.2d 584.
Keeping this rule in mind the construction of clause 5 presents no great difficulty. If clause 5 read 'I hereby direct my executor to provide for my nieces Mrs. Mallarino and Mrs. Graham $5 per month apiece' no doubt would exist that a trust had been created. The word 'direct' prima facie imports a command rather than a mere request. Estate of Farelly, 214 Cal. 199, 205, 4 P.2d 948; Collister v. Fassit, 7 App.Div. 20, 39 N.Y.S. 800, 801. The use of the adverb 'hereby' adds further force to the direction. Chambers v. Sharp, 61 N.J.Eq. 253, 48 A. 222, 224. The direction is addressed to 'my executor' and even precatory words addressed to an executor or executrix are ordinarily construed as mandatory. Estate of Lawrence, 17 Cal.2d 1, 7, 108 P.2d 893; Estate of Pfoor, 144 Cal. 121, 128, 77 P. 825; Estate of Marti, 132 Cal. 666, 671, 61 P. 964, 64 P. 1071; Estate of Miles, 72 Cal.App.2d 336, 343, 164 P.2d 546. The further fact appears that the direction is set up in a separately numbered paragraph and thereby given equal dignity with the admittedly dispositive clauses. The meaning of the words 'provide for' in clause 5 is clarified by reference to clause 4, wherein the executrix is directed to provide for the brother 'during his life * * * in illness and in health.'
The fact that in clause 3 each of appellants is given one dollar with the caution 'should any or either of them contest this will it shall avail them nothing' does not militate against the creation of a trust for their benefit by clause 5. Such a trust, discretionary as to amount with the trustee 'as her judgment, kindness and honesty sees fit,' is obviously less valuable than the interest of an heir if the will were successfully contested.
Respondent relies upon the rule announced in Estate of Mallon, 34 Cal.App.2d 147, 93 P.2d 245, and other cases that when an absolute estate has been created in one clause of a will it will not be cut down by subsequent words except such as indicate as clear an intention. The direction to my 'executor' to provide for my nieces is as clear as language can be. The fact that the amount is left to the discretion of the trustee does not, under the cases first cited, make the direction less clear. See, for example, Estate of Davis, supra, 13 Cal.App.2d 64, 56 P.2d 584, where the holographic will provided: 'I hereby leave all of my property to my son William * * * to be distributed to my sons & grandchildren as he deems best * * *'; and cf. Mackenzie v. Los Angeles Trust & Savings Bk., 39 Cal.App. 247, 251-252, 178 P. 557, holding indefiniteness of a provision for payment of income not to invalidate the trust for uncertainty and declaring that an expression to the contrary in Estate of Sanford, 136 Cal. 97, 68 P. 494, must be held either to have been dicta or to have been overruled by later decisions.
The fact adverted to by appellant, that the last portion of clause 5 is plainly precatory, viz.: 'and likewise to provide for any other kin or close friend which in her judgment warrants same', only shows the contrast with the direction 'to provide for (absolutely) my nieces * * * as (not if) her judgment, kindness and honesty sees fit.' 'No will has a brother' Meeker v. Draffen, 201 N.Y. 205, 94 N.E. 626, 628, 33 L.R.A.,N.S., 816 Ann.Cas.1912A, 930, and we must construe the particular will before us. It seems clear to us that the testator intended to create a binding obligation upon his executrix to make such provision for appellants out of the property left to her as her discretion measured by 'her judgment, honesty and kindness' dictate. This gives her a wide discretion, but still subject to the control of the probate court in case of a plain abuse. Estate of Marre, supra, 18 Cal.2d 184, 190, 114 P.2d 586.
The order appealed from is reversed.
NOURSE, P. J., and GOODELL, J., concur. --------------- * Subsequent opinion 225 P.2d 218.