In re CONNESS' ESTATE.
FIRST NAT. BANK OF ARIZONA et al MOHAN et al.
Rehearing Denied April 3, 1952.
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, and Westover & Mansfield, of Yuma, for appellants.
Byrne & Green and A. J. Eddy, of Yuma, and Daniel McMullen, of Streator, Ill., for appellees.
Udall, Chief Justice. Stanford and Phelps, JJ., concurring. De Concini, Justice (dissenting). La Prade, Justice (dissenting).
Udall, Chief Justice.
[73 Ariz. 217] Benjamin J. Conness, a resident of Yuma county, Arizona, died testate, February 3, 1946, in Los Angeles, California. He left no direct descendants but was survived by a brother Luke E. Conness, and some twenty-one nephews and nieces, the children of his brothers and sisters, to all of whom he made specific bequests as well as to some grandnephews and nieces.
This appeal primarily involves the construction and interpretation of the "Fourth" paragraph of the will which provides in part as follows: "Fourth: I direct that my executor sell as soon as possible all of my real property in Yuma County, Arizona, in Beach, Golden Valley County, North Dakota, in Yankton, Yankton County, South Dakota, in Illinois, in Oklahoma, and at 163 West Jefferson Street, Los Angeles, California, and any other real property which I may own at the time of my death. It is my will and desire that the said real property, be converted into cash, in order to pay the specific bequests hereinafter contained in my will in paragraph Fifth following. In the event the proceeds of sale or sales of said real property are more than sufficient to pay the said specific bequests, then and in such event, such excess shall be used for the education of my brothers' and sisters' children so far as possible commensurate with the amount of such excess; * *" (Emp. Sup.)
At the time the testator executed his will, in November of 1945, the youngest living niece or nephew to fall within the above paragraph was thirty-eight years of of age, and several of them were college graduates.
The real property was liquidated by the executor as directed and after paying the specific bequests, $ 128,584.00 remained to be distributed under the above paragraph of the will. No general residuary clause was contained in the will and as to the testator's personal estate it passed per stirpes to his heirs-at-law as intestate property.
Appellants contend (a) that the "Fourth" paragraph, supra, sets up a trust of the excess from the sales of the real property in favor of the children of the deceased's brothers and sisters, but that it fails for uncertainty, or (b) if it is a specific bequest then it fails because it is [73 Ariz. 218] too vague and indefinite and urges that the property be distributed according to the law of descent and distribution. The lower court held there was no intention to create a trust, that the words "for the education * * *" were precatory and this was a valid specific bequest to a class which was ascertainable as of the date of death of the testator and ordered the property distributed per capita.
It is left to the courts in doubtful cases to ascertain from the language used and surrounding circumstances the meaning attributed to the words by the testator. It is the duty of the courts to say what was intended when he executed his last will and testament. In discharging this responsibility the courts are not left completely in the dark as there are some general rules of construction to guide us. The controlling factor is the intention of the testator which is gathered from a reading of the whole instrument, not just the doubtful clause, and when so ascertained it will be given effect. Newhall v. McGill, 69 Ariz. 259, 212 P.2d 764. Once the will is established the courts liberally construe the language so as to carry out the intention of the testator and where two constructions are possible the one favoring testacy is preferred. In re Estate of Sullivan, 51 Ariz. 55, 74 P.2d 346; Newhall v. McGill, supra.
We agree with appellants that if an express private trust was intended by the "Fourth" paragraph that it would fail for uncertainty. Our first question then is, did the testator intend to create a trust thereby?
This court in Newhall v. McGill [69 Ariz. 259, 212 P.2d 766] quoted with approval from Fields v. Fields, 139 Or. 41, 3 P.2d 771, 773, 7 P.2d 975, the following from 40 Cyc. pp. 1734, 1735: "The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator's intention to create an express trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust declared in the ordinary manner."
We are of the opinion that no clear intent to create a trust is manifested by the language used in the "Fourth" paragraph, hence if one is established it must be by judicial construction alone. There is no provision for a trustee, or language from which a command or directory for establishing a trust may be drawn. The circumstances surrounding the execution of the instrument, i. e., a formal witnessed will drawn by an able and experienced attorney (who doubtlessly would have made the trust specific and the intent clear, had that been the purpose of the testator), lend further assistance in arriving at his true intention. Some of the testator's other provisions in the will are: "I give and devise to Mrs. Alice Whalen, the sum of [73 Ariz. 219] $ 3,000, which sum shall be used for the purpose of purchasing a home"; "I further give and devise to Luke Quinn * * the sum of $ 3,000, to be used for his education"; "I further give and devise to * * * Miss Lilly Mohan * * * the sum of $ 3,000 to be used by her for the care of John Mohan", and in paraphrase his language in another place is "I give a ranch to my nephew, and direct that he keep the ranch thrifty in appearance, and that he retain it as long as possible in the Conness name." These specific bequests are clearly followed by precatory words yet no one would contend they establish a trust.
We agree with the trial court that at most this was only an expression of a wish or desire on the part of the testator to the legatees as to how they should use the bequest. They form a strong moral duty on the legatees to follow his wishes but ...