
    JOEL W. CONDIT, PLAINTIFF IN ERROR, v. DAVID REYNOLDS, DEFENDANT IN ERROR.
    Argued March 11 and 12, 1901
    Decided June 17, 1901.
    A testatrix devised and bequeathed to her husband a life estate in her property, and then directed as follows: “Tlwrd. Upon the death of my said husband I give, devise and bequeath all my said hereinbefore mentioned estate in such manner as he may, by his last will and testament, or by an instrument in the nature of a last will and testament, devise and bequeath or appoint to receive the same, trusting entirely to his discretion to carry into execution such charge and instructions as I may, during my life, have expressed to him in regard thereto.” By subsequent clauses she devised and bequeathed the remainder of her property, in the event of her husband dying without executing the power, and she appointed her husband her executor. Held—
    1. That the intention of the testatrix was to confer upon her husband not an absolute, but a fiduciary power.
    2. That as the persons or objects to be benefited by the exercise of the power were left indefinite by the will, and were not afterwards defined by any instrument executed as a will, the trust accompanying the power was incapable of judicial enforcement, and therefore the power failed, and the subsequent devises and bequests of the will took effect.
    On error to the Essex Circuit Court.
    For the plaintiff in error, Joseph A. Beecher, Cortlandt Parker, Jr., and Chauncey G. Parker.
    
    For the defendant in error, Robert H. McCarter and Philemon Woodruff.
    
   The opinion of the court was delivered by

Dixon, J.

This writ of error brings up a judgment of the Circuit Court of Essex county in an action of ejectment, wherein the plaintiff claimed under the fourth clause of the will of Mary H.'Bishop and the defendant claimed under the third clause. The will is as follows:

“In the Hame of God, Amen. I, Mary Harrison Bishop, of East Orange, in the State of Hew Jersey, being of sound and disposing mind and memory, and considering the uncertainty of human affairs, do make, ordain, publish and declare this my last Will and Testament, as follows:

“First. I direct my executor hereinafter named to pay all my just debts and funeral expenses.
“Second. I give, devise and bequeath all the rest, residue and remainder of my property legal and equitable, vested or contingent, of which I may be seized or possessed at the time of my decease, whether I now own or may hereafter ■ acquire the same, to my husband Horace S. Bishop for his exclusive use, benefit and enjoyment for the full term of his natural life.
"Third. Upon the death of my said husband I give, devise and bequeath all my said hereinbefore mentioned estate in such manner as he may by his last Will and Testament or by an instrument in the nature of a last Will and Testament devise and bequeath, or appoint to receive the same, trusting entirely to his discretion to carry into execution such charge and instruction as I may during my life have expressed to him in regard thereto.
"Fourth. In the event my said husband shall die intestate or without executing the power hereinbefore conferred on him, I devise and bequeath all my said estate to such person or persons as by law would be entitled to receive the same had I lived until the time of the death of my said husband and at that time died intestate. The said property to be divided between them in such proportion as it would have been by law had I at that time died intestate as aforesaid.
"Fifth. I hereby make, constitute and appoint my said husband, Horace S. Bishop, sole executor of this my last Will and Testament. I authorize and empower him to mortgage, sell, convey, exchange or lease any and all real estate of which I may die seized or possessed, and to execute any and all proper instruments therefor.”

The plaintiff contends that the third clause is invalid, because it attempts to confer a power in trust without defifiing the objects of the trust with such certainty as will enable the courts to enforce the execution of the trust, and because it attempts to reserve to the testatrix a right to make a testamentary disposition of her property without compliance with the statute of wills. The Circuit Court, however, held that the power given to the husband of the testatrix was not coupled with a trust, but was absolute, and thereupon decided in favor of the defendant. On that decision an exception was sealed, and error is now assigned.

We think the intention of the testatrix was to confer upon her husband a power coupled with a trust Several features of the will support this inference.

In the first place, the donee of the power is appointed executor, an office which implies a trust to effectuate the purposes manifested by the will.

In the next place, the testatrix, by the second clause of her will, had defined the rights which she intended her husband to take in her property for his own benefit, and had limited them to a life estate. As the power contemplated in the third clause was to operate on the remainder' after his death, a strong presumption arises that the power was not intended to be absolute, for the benefit of the donee, but was meant to be exerted only for the benefit of others. A life estate, joined with an absolute power to dispose of the remainder by will, is so nearly equivalent to a fee-simple that, if such a union of estate and power were really designed, a fee-simple would probably be given.

But the controlling indication that the power was designed to be fiduciary is found in the explicit declaration of the testatrix that the purpose of the grant was "to carry into execution such charge and instruction as I may during my life have expressed to him in regard thereto” (i. e., in regard to the disposition of her estate after her husband’s death). These words, “charge” and “instruction,” express more than hope or wish, or advice or recommendation; they have an imperative significance which may not rightfully he resisted. Their inherent force is not impaired by her expression of entire trust in her husband’s discretion to carry out her injunctions, for that trust had ample scope, without affecting his duty to fulfill her purposes. She probably foresaw that her directions, which her husband was to embody in his will, would be expressed in terms more or less general and subject to modification by circumstances arising after her death, and in these respects she reposed entire trust in the discretion of her husband. ' The fourth clause of her will also suggests that she provided for such a change in conditions between her own death and that of her husband as would render it impossible for him to comply with her charge and instruction, and if, for that or any other reason, the power should not be executed, she directed, by the will, how her property should pass. But we discover nowhere in the instrument any indication of a design to empower her husband to dispose of her property otherwise than in accordance with the charge and instruction which she should express to him.

It is further argued by the defendant that, because the objects to be subserved by the execution of the power are undefined, therefore the power was not meant to he fiduciary; and many cases are cited which hold that the failure of the donor to define the objects of his supposed bounty is a sign that no bounty was intended. These cases rest upon the reasonable doctrine that, when something is given to a person which may be beneficial to him, but the terms in which the gift is made are capable of meaning that the donee is not to he the beneficiary, then the failure to point out any other beneficiary than the donee is a significant circumstance in his favor. But this doctrine is inapplicable when the thing given cannot be used for the benefit of the donee, or the terms of the gift show that it was not to be so used. In such cases the failure of the donor to designate the beneficiary will not enure to the advantage of the donee. Briggs v. Penny, 3 McN. & G. 546; Nichols v. Allen, 130 Mass. 211. In Thomson’s Executors v. Norris, 5 C. E. Gr. 489, where a testator had given to his widow'the income from a fund during her life and power to bequeath the fund among certain of his relatives “in such proportions as she might think proper,” this court held that the widow could not exercise or release the power for a consideration of benefit to herself. “The principle which I regard as established,” said Chief Justice Beasley, “is that the donees of such a power shall gain no profit by force of their position.” Thus the nature of the gift itself, as well as the terms in which it was made, imply that the power was not intended to be absolute, but was fiduciary.

The next question is whether, as a fiduciary power, it is valid.

The settled rule, both at law and in equity, is that, when either an estate or a power is given in trust, and the purposes of the trust are too indefinite for judicial execution, then the gift cannot take effect. Norris v. Thomson’s Executor, 4 C. E. Gr. 301; on appeal, 5 Id. 489. If the power to be executed is so uncertain as to its objects that a court of equity cannot say what particular person or persons, or class of persons, are to take an interest under it as a trust, it will be considered a mere power which cannot be carried into effect. 1 Perry Trusts, § 253; Stubbs v. Sargon, 3 Myl. & C. 501; Wheeler v. Smith, 9 How. 55.

The persons to be benefited by the exercise of the power now under consideration were not at all defined by the will, but were to be ascertained by the subsequent directions of the testatrix. According to the doctrine established in this state by the decision in Smith vi Smith, 9 Dick. Ch. Rep. 1; on appeal, 10 Id. 821, she could not lawfully ascertain them unless she did so by a writing executed in conform-’ ity with the requirements of the statute of wills, and this she never did. In deciding the case just mentioned, Chancellor McGill quoted, with approval, the language of Chief Justice Gray, in Olliffe v. Wells, 130 Mass. 221, where the will sub juclice was, on this point, as nearly parallel with the present as two independent .private writings are likely to be. The clause there was: "To the Rev. E. M. P. Wells, all the rest and residue of my estate, to distribute the same in such manner as in his discretion shall appear best calculated to carry out wishes which I have expressed'to him or may express to him.” Having determined that Mr. Wells took no beneficial interest under the devise, the court held that the trust, on its face, was too indefinite to be carried out; that it could not lawfully he rendered definite, except in accordance with the statute of wills, and that the heirs nr next of kin took by way of resulting trust.

On -this principle the attempt to confer the power mentioned in the third clause of the present will failed, and consequently the devises and bequests intended by the fourth clause took effect.

The judgment of the Circuit Court should be reversed.

For affirmance■ — Van Syckel, Garrison, Gtjmmere, Garretson. 4.

For reversal — The Chiee Justice, Dixon, Collins, Port, Hendrickson, Bogert, Adams, Voorhees, Vroom. 9.  