
    Walter B. Lucas vs. Lockhart, Fearne and Donnegan.
    Although the language of a will may make an absolute gift, yet if other appropriate expressions be used which show with sufficient certainty, that but a qualified gift was intended, a court of equity will look to the clear intention of the testator, and raise a constructive trust where none has been declared.
    But the words of recommendation or of hope used by the testator, must be certain, 1. as regards the objects to whom such terms are applied; 2. the subjects of property given must also be certain; the words are then imperative and create a trust.
    L., by the first clause of his will, devised his whole estate, real and personal, to his wife during her widowhood; by the fourth clause, he declared that “during my wife’s widowhood, she is to have the entire use, profits and control of my estate, and to her discretion do I intrust the education and maintenance of my children during that time; ” and this clause further proceeded to provide for the maintenance and education of the children “ out of the profits ” of his estate, in case of the death or marriage of his widow: Held, that the language of the will imperatively commanded that the children should be educated and supported, and set apart a specific fund for that purpose; the widow, therefore, took the estate coupled with this trust, and, in consequence, it was not liable while the children lived, to he sold to satisfy judgments against the widow.
    In such case, if the widow will not protect the property of the estate when levied on under execution against her for her own debts, it is the duty of the administrator with the will annexed, to do so; the property being still the estate of the testator, subject to a charge in favor of his heirs, the administrator being the representative of the estate, is a joint trustee with the widow, and may interpose his claim by trial of the right of property to prevent the trust from being defeated.
    In error, from the circuit court of Noxubee county; Hon. A. B. Dawson, judge.
    Lockhart, Fearne and Donnegan obtained a judgment on the 21st of October, 1844, against Mary A. Longstreet and Hutchinson Dent; an execution thereon was levied on certain slaves as the property of Mary A. Longstreet; Walter B. Lucas, administrator de bonis non with the will annexed of James Longstreet, interposed his claim to the property; an issue was made up to try the right.
    On the trial, it rvas proved by the plaintiff in execution, that all the slaves levied on, except two, had been in possession of Mrs. Longstreet for ten years anterior to the judgment, those two at the time of the levy were in the possession of Lucas.
    The claimant then introduced a copy of James Longstreet’s will, made on the 4th of March, 1830, and probated in Richmond county, Georgia.
    The clauses bearing on this controversy were in these words;
    “ First. I give my whole estate, both real and personal, to my wife during her widowhood.
    “ Second. Should my wife die before my youngest child now born, or which may hereafter be born, shall attain the age of sixteen years, it is my will that my whole estate be kept together by my executors, until such youngest child shall arrive at that age; and that then my whole estate be divided equally between them; should my wife marry before my youngest child attains the age of sixteen, it is my desire that the estate be kept together, as aforesaid, by my executors, until such child shall reach that age, and that then the whole be equally divided between my wife and such of my children as may be then living, &c., &c.
    “ Third. The bequests hereinbefore made to my wife are understood and intended by me to be in lieu of dower.
    “ Fourth. During my wife’s widowhood, she is to have the entire use, profits and control of my estate, and to her discretion do I intrust the education and maintenance of my children during that time; but in case of her death or marriage before the time appointed for a division, as aforesaid, then it is my desire that my children be all supported, and that the girls under sixteen, and the boys under eighteen be as well educated out of the annual profits of my estate, as they will allow up to the time of division, the profits to be first applied to their support; and in case of a deficiency, then to educate all the children embraced in the last clause, the balance to be applied in educating the younger in preference to the older children.”
    By the last clause, he appointed his wife, Mary Ann Longstreet, his brother, Augustus Longstreet, and his son, William Longstreet, executors.
    It was proved, that the defendant, in the execution, was the widow of James Longstreet, still unmarried, that there were children of James Longstreet living; that the slaves levied on were the property of Longstreet at his death; and that Lucas had duly qualified as his administrator.
    This being all the proof, the claimant asked the court to instruct the jury;
    1. That the will of James Longstreet does not provide and vest in Mary A. Longstreet any estate in the property embraced in it, which is subject to be seized and sold under execution at law.
    
      2. That if Mr. Longstreet 'had an interest or estate which might be taken and sold in execution at law, after it had vested, yet the plaintiffs in execution were bound to show, that distribution and delivery of the property had been made by the executors or administrators before the levy was made; until this is done, the executors or administrators had a right to hold the property in administration and for administration.
    
      3. That the property named in the will could not be levied upon on execution against Mrs. Longstreet, and held against the administrator, unless it were shown that the property had gone into her hands by distribution, or with the administrator’s consent.
    These instructions were refused and exceptions taken.
    The jury found for the plaintiff in execution; and the claimant prosecuted this writ of error.
    
      A. W. Dabney, for appellant,
    contended,
    1. That an estate, during widowhood, in slaves, could not be sold under execution at law; to allow it, would often result in entire loss of the property to the remainderman. The proper mode would be, to subject it in chancery.
    2. By the first and fourth clauses of the will, Mrs. Longstreet had only a qualified interest in the property, clothed with the trust to support and educate the children. The title is not in her, but in the executors, or, since their resignation, the administrator, c. t. a., whose duty it is to protect the estate. Hall v. Cushing, 9 Pick. R. 395-408; Langley v. Hall, 11 Pick. R. 120 -124; Carenhaven v. Schuler, 2 Paige, 132; 2 Sto. Eq. 413.
    3. It is immaterial whether the legal title be in the claimant, as administrator, or in Mrs. Longstreet, as trustee, the rights of the children are the same; the burden of proof is on the plaintiff to show the property, subject to the execution. Thornhill v. Gilmer, 4 S. & M. 153.
    4. The instructions were improperly refused-; a legacy, whether general or specific, does not vest without the assent of the executor. 2 Lomax on Ex. 128.
    
      A. C. Baine, for appellees,
    1. As to the true construction of the will, cited and commented on 2 Black. Comm. ch. 3, marg. p. 19; lb. p. 41; Jones v. Col-beck, 8 Tes. 42; Chilton on Prob. p. 108, § 4.; and contended, that in any construction of the will the legal title was in the widow, no title whatever in the administrator, and he could not be heard to interpose his claim.
    
      
      2. Admitting the slaves were held, coupled with a trust, they were still subject to the execution. Mr. Baine cited Thornhill v. Gilmer, 4 S. &■ M. 153, and reviewed it and contended that it was not law, and was overthrown by 1 Porter (Ala.) R. 175-184, and Talbot v. Melton, 9 S. & M. 9. The claimant who has made a false claim, and in fraud, should not be permitted to set up an outstanding title in another.
    
      Henry Gray, on same side.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

This case originated out of a trial of the right of property, in which the jury found the issue for the plaintiffs in execution, who are defendants in error. The claimant predicates his right on the provisions of the will of James Longstreet, on whose estate he is administrator, with the will annexed. The execution was against the widow of James Longstreet, and Hutchinson Dent. If by the will Mrs. Longstreet had an absolute life estate in the slaves levied on, the judgment must stand; but if the property was subject to a trust or charge in favor of the children of Longstreet, then it cannot be reached by an execution at .law.

The -clauses of the will which raise the question are the following: “First, I give my whole estate, both real and personal, to my wife during her widowhood.”

“Fourth, during my wife’s widowhood, she is to have the entire use, profits, and control of my estate, and to her discretion do I entrust the education and maintenance of my children during that time; but in case of her death or marriage before the time appointed for a division as aforesaid, then it is my desire that my children be all supported, and that the girls under sixteen, and the boys under eighteen, be as well educated out of the annual profits of my estate as they will allow up to the time of division, ,the profits to be first applied to their support, and in case of a deficiency, then to educate all the children embraced in the last clause, the balance to be applied in educating the younger in preference to the older children.”

The second clause provides, that in case of the death of the wife before the youngest child should arrive at the age of sixteen, the property should be kept together until that time, and then divided.

The first clause makes an absolute gift to the wife, but the subsequent clauses make it manifest that the testator intended that the gift should be a qualified one, and that the profits should be appropriated to the support and education of his children. He evidently gave the wife, so long as she might remain unmarried, “ the entire use, profits, and control ” of his estate in confidence, that she would properly appropriate such profits for the maintenance and education of his children. And that object was so prominent in the mind of the testator that he provided for its accomplishment in the event of the wife’s death. The absolute gift to her is complete with a specific purpose. Although the language of a will may make an absolute gift, yet if other appropriate expressions be used which show, with sufficient certainty, that but a qualified gift was intended, a court of equity will look to the clear intention of the testator, and raise a constructive trust when none has been expressly declared. But the words of recommendation, or of hope used by the testator must be certain; first, as regards the objects tó whom such terms are applied, and second, the subjects of property given must also be certain. The words are then considered imperative and create a trust. This, says Judge Story, is the result of the cases on that subject. Story’s Eq, Jurisp. 452, § 1068, 4th ed.

In the case of Knight v. Knight, 3 Beav. R. cited in Story’s Eq. Jur. 456, the rule is thus laid down: That when property is given absolutely to any person, and the same person is, by the giver, who has power to command, recommended, or entreated, or wished to dispose of that property in favor of another, the recommendation, entreaty, or wish shall be held to create a trust. First, if the words are so used, that, upon the whole, they ought to be construed as imperative; secondly, if the subject of the recommendation or wish be certain; and thirdly, if the objects or persons intended to have the benefit of the recommendation, or wish, be also certain. The examples given in illustration of the rule, are very much like the present case, and certainly reach it in principle.

In Wright v. Atkins, 1 Turn. & Russ. 157, Lord Eldon said, that in order to determine whether a trust of this sort is a trust, the words must be imperative, the subject must be certain, and the object must be as certain as the subject.

We think the 4th clause of the will comes within the rule. Taken altogether, it is clear that the children were the objects of the testator’s bounty. An unconditional gift of the profits of all the property to the wife, would of course defeat the subsequent appropriation to the maintenance and education of the children. The subsequent declaration, therefore, that they were to be supported and educated out of the profits, is a condition annexed to the previous words of gift. And the appropriation of the profits to that purpose in case of the death of the wife, shows that he had confidence that she would so apply them during her life. The first clause of the will contains an absolute gift, but that was not intended. It is entirely inconsistent with the subsequent provisions for a division of the property, and the appropriation of the profits. The whole structure of the will shows that the disposition, in favor of the wife, was made in confidence that it would result to the children. To prove this, let us suppose that the testator had nothing of the kind in view; then, by the first clause he gave his wife the entire estate during her widowhood. This would have carried the profits. Then in the fourth clause, he gave her the profits. The children, then, were left without the means of support or education. ■ Such a result is entirely inconsistent with the declared purpose of the testator, contained in the conclusion of the fourth clause, where he expressly declares that the profits shall be applied to the support and education of the children. The language employed seems to leave no room for doubt. “ During my wife’s widowhood she is to have the entire use, profits, and control of my estate, and to her discretion do I entrust the education and maintenance of my children during that time.” Now if he had said, “I give the profits of my estate to my wife, and therefore entrust the education and maintenance of my children to her,” no one would have doubted that he looked to the profits as a fund so to be applied. And the language used in effect amounts to this. It amounts to an imperative command that his wife should support and educate the children. The manner of educating and supporting was left to her discretion, but nothing more. We have, then, language which imperatively commands that the children should be educated and supported, and a specific fund set apart for that purpose. The words are imperative, the subject certain, and the objects equally certain. Hence we conclude, that the will created a constructive trust in the profits of the estate for the support and education of the children, and that the wife, as trustee, is bound to carry out the trust. The property cannot be sold for her debts, for that would cut off the profits and defeat the trust.

The court charged the jury, that by the will such an estate vested in Mrs. Longstreet as was liable to execution against her, and that she was entitled to, and not bound to account for the profits. In this there was error, as it was in proof that there were children living.

But it is objected that the administrator is not a proper party; that Mrs. Longstreet should have been the claimant. The answer to this is obvious; this trust was to be executed by the executors in case of her death, who are now represented by the administrator. If the widow will not protect the property, then it is the duty of the administrator to do so. It is still part of the estate of Longstreet, and subject to a charge in favor of his heirs.- The administrator is the representative of the estate, and he really had possession of part of the property. He is a joint trustee with the wife, and may interpose his claim to prevent the trust from being defeated.

Whether the party, who is seeking to subject this property, will be entitled to a remedy when the trust is fully executed, we need not now determine.

Judgment reversed and cause remanded.  