Price v. Barski

CRAIG, J. In a contest by the executrix of the estate of Thomas Price, deceased, to á petition to determine interest, judgment was rendered adversely to said contest and she appeals therefrom.

It appearing from the proceedings in probate that the testator’s wife had left a will wherein she gave to him all her property, real and personal, “with the earnest request that he provide and maintain a home for my aunt (Ella L. Barski) (who has been so like a loving mother to me) during her lifetime”; that thereafter he had remarried, leaving a will wherein his second wife was named as executrix; that a final account and petition for distribution of his estate had been filed and that Mrs. Barski thereafter filed a petition to determine interest therein. Upon a hearing oral evidence was admitted over objections of appellant’s counsel for the purpose of showing “the circumstances surrounding” the request above mentioned, which evidence consisted of statements by the testatrix to the petitioner that the former had made a will providing for her in accordance with a previous promise in consideration of companionship and care shown her by Mrs. Barski, and was handing the same to her to keep. Findings of fact and a conclusion of law were made, reciting that the latter was a dependent of the testatrix and a natural object of her bounty, that “an obligation was present to decedent’s mind when she made her will and was among the circumstances under which said will was made”, and that said decedent “by the terms of her will duly admitted to probate herein left all her estate to Thomas Price in trust to provide and maintain a home for Ella L. Barski during her lifetime”.

Serious exception is taken to the ruling admitting evidence tending to show an agreement or obligation, citing Probate Code, sections 103, 104, 105 and 106. While all of the courts seem to have agreed that each instrument must be read in the light of its own language and circumstances, none seems to have extended the rule of evidence allowing the introduction of oral testimony unless, as prescribed by [464]said sections of the code, the language be doubtful or ambiguous as to circumstances necessary to determine interest. It was early decided that if a mere desire be expressed, without a devise for a purpose, or if a bequest so depends upon the discretion of the general devise as to be incapable of execution without superseding that discretion, there can neither be a trust nor a charge. (Lawrence v. Cooke, 104 N. Y. 632 [11 N. E. 144].) A will giving an entire estate to the wife of a testator with “request that she, my said wife, shall assist any of my brothers and sisters, if they should be in need”, was held a gift to the wife of absolute title which did not create a directory trust. (McDuffie v. Montgomery, 128 Fed. 105, citing Warner v. Bates, 98 Mass. 274, and Mills v. Newberry, 112 Ill. 123 [1 N. E. 156, 54 Am. St. Rep. 213].) In Holmes v. Dailey, 192 Mass. 451 [78 N. E. 513], it was held that the expression following a bequest that it was the wish and desire of the testator that the devisee appoint a share to his daughter and grandchildren, was merely an expression of a hope and belief, and that it did not create a trust. In Hillsdale College v. Wood, 145 Mich. 257 [108 N. W. 675], a will giving all of the testator’s property to his wife, providing that she should survive him, otherwise to certain legatees, with the request that she provide by will for said legatees should she predecease him, was said' to have been insufficient to create a trust.