
    Samuel S. Speairs v. T. H. Ligon.
    (Case No. 4070.)
    1. Will — A husband willed 1» eaeh of four grown children one hundred and fifty acres of land and $1,600, and then gave and devised to his wife all “ my per-, sonal property of every kind; also the remainder of my said tract of land, containing two hundred and seventy-seven acres, more or less, to dispose of as she may please, requesting her that she will so dispose of the property at her death as to make my youngest- son, Samuel Stillman Speairs, an equal legatee with the balance of my children.” In an action by the youngest son against the executor of the mother, who he claimed had not in her life-time discharged the trust, held, that the presumption is that the will attempted to convey to the wife nothing more than she was entitled to under the statutes of descent, and a- demurrer to the petition was properly sustained.
    2. Same.— Whenever it is the clear intention of a testator that the devisee shall have an absolute property in the estate devised, a limitation over, being inconsistent with the absolute property intended to be conveyed, cannot be enforced.
    Appeal from Lamar. Tried below before the Hon. It. It. Gaines.
    Appellant brought suit against appellee, as executor of the last will of Catharine Speairs, deceased, August 9, 1877, to have declared and enforced a precatory trust against the estate of Catharine Speairs, mother of appellant, claimed to be created by the last will of his deceased father, Edward Speairs. He claimed that by the terms of his father’s will certain bequests were made to the mother, with such requests as created in favor of appellant a trust in the property to the amount of $1,600. That the mother recognized the trust, but in her will she had falsely stated that she had paid appellant the amount in full.
    A general demurrer was sustained to the petition and trial amendment, and this appeal was taken. The error assigned, and relied on for reversal, was the sustaining of the demurrer and dismissing the suit.
    It is proper to state, in addition to what is contained in the opinion, that the will of the deceased father, which, it was claimed, created the trust, gave to each of four children one hundred and fifty acres of land and $1,600, and then gave to the plaintiff one hundred and fifty acres of land, following which was the bequest to his wife quoted in the opinion.
    
      John C. Easton, for appellant,
    cited 2 Redfield on Wills, pp. 426-429; Collins v. Carlisle, 7 B. Mon., 14; 2 Redfield on Wills, p. 410 and note 9; id., 413, 414, note 14; also p. 416 and notes; Roper on Legacies, p. 297; Williams on Executors, p. 88, and especially note v; 1 Perry on Trusts, pp. 112-119.
    
      W. B. & G. G. Wright, for appellee,
    cited 2 Story’s Equity, secs. 1069, 1070; 4 Kent, marg. p. 270; Jones v. Bacon, 68 Me., 34; Gifford v. Choate, 100 Mass., 346; Hale v. Marsh, id., 468; Gibbins v. Shepard, 125 Mass., 541.,
   Watts, J. Com. App. —

That particular clause of the will of Edward Speairs from which, it is claimed, arises a precatory trust in favor of appellant, is as follows:

“ I give and bequeath to my beloved wife, Catharine B. Speairs, all my personal property of every kind; also the remainder of my said tract of land, containing two hundred and seventy-seven acres, more or less, to dispose of as she may please, requesting her that she will so dispose of her property at her death as to make my youngest son, Samuel Stillman Speairs, an equal legatee with the balance of my children.”

It is said by eminent American authors on wills that the tendency of the decisions of the American courts is to limit and restrict the English chancery rule with respect to the enforcement of precatory trusts.

In the case of Gifford v. Choate, 100 Mass., 346, it is held that an absolute power of disposal in the first taker renders a subsequent limitation repugnant and void; while Chief Justice Parsons, in Ide v. Ide, 5 Mass., 500, says: “ Whenever, therefore, it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void because it is inconsistent with the absolute property supposed in the first devisee.” This doctrine is fully sustained in Bamforth v. Bamforth, 123 Mass., 27; Gibbins v. Shepard, 125 Mass., 543, and in Jones v. Bacon, 68 Me., 36, etc.

It will be observed that, by the terms of the will, an absolute -power of disposal is given to Catharine Speairs, and if it could be said that the testator attempted to create a limitation over in favor of the appellant, then under the rule above cited such limitation would be declared void.

We think, however, that the language of this clause, when considered in connection with the contest of the will, and the circumstances attending its execution, fails to show that Edward Speairs intended thereby to create a precatory trust in favor of appellant. From the terms of the will and the allegations of appellant’s original and amended petitions, it appears that Edward and Catharine Speairs were husband and wife, with grown children living near -them, at the time the will was made, and that the property bequeathed by his will constituted all of the property belonging to both. The presumption is that it was the common property of the husband and wife, and that in truth the husband willed to the wife nothing more than she was entitled to by strict legal right. She is not requested to make appellant equal to the other legatees out of the property bequeathed, but she is requested to do so out of her-property.

In our opinion no trust was created by the will of Edward Speairs in favor of the appellant, and that the judgment of the court below ought to be affirmed.

Affirmed.

[Opinion approved April 17, 1883.]  