In Re Estate of Lee

California Court of Appeal Feb 11, 1930 No. Docket No. 7254.Published

Before: Nourse

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Holding. The court held that the testator's precatory language directing his brothers and sisters to "take care of Brother Will" did not create a binding trust, as it lacked the clear and distinct intent required to limit an unconditional devise.

Issues

Whether the precatory words "take care of Brother Will" created a trust in favor of the brother over the estate assets devised to the other siblings.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is the settled law in California that precatory words are not to be regarded as creating a trust unless it appear that the testator intended to impose an imperative obligation and to exclude the exercise of discretion”

“A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct.”

NOURSE, Acting P. J.

Written objections to the petition of the executor of the last will and testament of Milton A. Lee for the final distribution of the estate were filed. The probate court sustained a demurrer to these objections and this appeal is taken from that order.

[16]

The will, which was holographic in form, reads as follows:

“San Francisco, 4/1/1925.

“I, Milton A. Lee, do make this will in my own handwriting. At my death I leave the following to each named. Minnie Lee Earnest Lee James Lee Maud Larkins Hattie Larkins my wife one fifth of my estate. “ brother one fifth of my estate. “ brother one fifth of my estate. “ sister one fifth of my estate. “ sister one fifth of estate.

“Instructions to Brothers & Sisters.

Take care of Brother

Will.

“I appoint as administrator the Master of my Lodge Oriental #144 F. A. M.

“Sig. Milton A. Lee.”

The sole question involved on this appeal is whether the precatory words addressed to the brothers and sisters of deceased—“take care of Brother Will”—are such that they would create a trust in favor of Will over the four-fifths of the estate devised to the brothers and sisters named in the will. The subject of precatory trusts is fully discussed in an elaborate note found in 49 A. L. R., pages 10 to 103, wherein it is said (p. 22) : “The crucial test, then, is whether the wish, desire, or recommendation expressed by the testator, is meant to govern the conduct of the one 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 such person, leaving it, however, to the person to exercise his own discretion. Where a bequest is given, coupled with precatory words which leave the legatee free to act or not to act, such words are to be treated as an appeal to the conscience and affections of the legatee, and nothing more.” In the same note reference is made to the history of the two rules—the early English rule, which has been followed to some extent in the courts of this country, held that mere precatory expressions were deemed to raise a trust unless it appeared from the context to be to the contrary. In other words, the use of precatory words was held to create a presumption that a trust was intended. This rule, it is explained, is based upon the historical fact that all trusts, no matter how expressed, were only of precatory force and imposed no binding obligation. The

In Re Estate of Lee

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