
    Mary B. Phillips, Resp’t, v. Albert C. Phillips, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    1. Will—Construction of.
    The will in question by its terms gave to the testator’s wife the whole of his property, real and personal, naming her as executrix, and then proceeded as follows: “ If she find it always convenient to pay my sister Caroline Buck the sum of $300 a year, and also to give my brother Edwin W., during his life the interest on $10,000 (or $700 per year), I wish it to be done.” It was admitted that the financial condition of the widow during the years of her retusal to pay to the brother was such that it was entirely convenient for her to pay the disputed allowance. Held, that it was testator’s purpose to charge the annuities upon the gift to his wife provided that the payment should'not occasion her inconvenience. That he did not mean to make the payment of the annuities depend upon the mere choice or will of his wife, but upon her ability to pay them without inconvenience to herself.
    ¡0. Same—Precatory words.
    Words expressive of a wish or desire may in given instances create a' trust or impose a charge. The primary question in every case is the intention of the testator, and whether in the use of precatory words he meant simply to advise or influence the discretion of the devisee, or to himself control the direct disposition intended. In such cases the whole will so far as it bears upon the inquiry, must be looked to.
    Appeal from a judgment of the supreme court, general derm, fourth department, affirming a judgment of the trial ■court in favor of the plaintiff.
    
      Louis Marshall, for app’lt, A. L. & E. O. Johnson, for .resp’t.
    
      
       Reversing 45 Hun, 593, mem.
      
    
   Finch, J.

The will to be construed was written by the testator himself, and while extremely brief and simple, presents a problem not altogether easy of solution.

Its terms give to the testator’s wife the whole of his property, real and personal, name her as executrix, and then proceed as follows: “ If she find it always convenient to pay my sister, Caroline Buck, the sum of $300 a year, .and also to give my brother, Edwin W., during his life the interest on $10,000 (or $700 year), I wish it to be done.” The widow has paid the annuity to the sister regularly, but that to the brother for a single year only. During the .years succeeding no payment was made, and this action is brought by the executrix for a construction of the will, and to determine whether she is bound to make the payments withheld. It is admitted by formal stipulation that the contingency described in the will has in fact happened during the three years after 1883, and that the financial situation of the widow during the years of her refusal was such that it was entirely convenient for her to have paid the disputed allowance, and that she refused payment not on that account, but from motives of her own, with which she claims the courts have no concern, and about which they are not at liberty to inquire. The general term has sustained her" contention, upon an opinion of the trial judge, very patiently and' carefully prepared, and from; which we depart only upon convictions that we are unable to resist.

The real intention of the testator was one of two things. He meant to make the annuities to his brother and sister dependent upon the existence of a specific fact, or upon the choice and will of his devisee. If they rest upon the former, they become a gift from him; if upon the latter,, they have no existence outside of the choice of the widow. The substantial argument in her behalf is, that a devise- and bequest of the whole property, sufficient in its terms-to carry the absolute ownership, will not be cut down by a later provision, unless that it is clear and definite and manifests such purpose and intention; that the words: “I wish it to be done,” are not a direction or command, but the mere expression of a desire intended to influence though not to control the action of the wife in dealing with what', is absolutely hers. The whole strength of this argument lies in the use of the word “wish ” by the testator.

It is claimed to be not sufficiently imperative or unequivocal to master the discretion involved in the absolute ownership previously given, and to rise only to the levél of a request or suggestion. But the word “ wish ” used by a testator is often equivalent to a command. If in this will he had said, I wish all my property to go to my wife, and,, naming her as executrix, had ended his will, neither she nor we would have questioned that the devise was effectual. We gave that force to the word in a case involving: other circumstances which left little room for doubt.. Bliven v. Seymour, 88 N. Y., 469.

It is true that in both the supposed and the decided case no-other meaning could be given to the word “wish’’than-that of “will” or “ direct,” while here the narrower and-less imperative interpretation is possible; but that fact, only makes more difficult the duty of determining in which sense the word was employed in the will before us, and of ascertaining the purpose and intent of the testator. He left no children. His duty, as it is evident he understood it, was first and primarily to his wife, and next to his sister and brother. He left an estate worth. one hundred thousand dollars, and knew that his wife possessed in her own right forty thousand dollars more. The primary duty to his wife he met by giving to her all his property; the duty to those of his own blood he performed either by a bequest of the annuities to them charged upon the gift to his wife so long as that charge, should prove no inconvenience to her; or by leaving those annuities wholly to her discretion himself, merely seeking to influence but not to control her choice. And so we are to ascertain, if we can, which is the truth, or that there is such doubt as to make the general devise conclusive.

One suggestion made on behalf of the appellants is that the framing of the condition or contingency shows that the provision for the brother and sister was not meant to be dependent upon the absolute and uncontrolled choice of the wife. If that had been testator’s purpose the condition interposed was both needless and misleading. Without it, she would be left to give the allowance or not as she pleased, and could suffer no inconvenience at the hands of the testator. But with it the inference is that the contingency provided for was the only one intended to excuse payment.

That contingency was an actual fact to happen or not to happen along the line of the future, and independent of the mere volition or choice of the general devise. “If she •finds it always convenient ” are the words. “If she finds it,” that is, if experience shows it; if the facts at the time of payment prove to be such; if her financial condition, as it shall then exist, enables her to pay easily. The expression contemplates, not her choice or preference, but her pecuniary situation after the experience or management of one or more years, and it indicates his purpose to have been to charge the annuities upon the sweeping gift to his wife, provided and provided only that in her experience of the future it should turn out that the payment of those charges would occasion her no inconvenience. “If she finds it always convenient, ” that is, on each occasion, at the date of every payment. The use of the word “ always ” implies a conviction in the testator’s thought, which would quite naturally exist, that in view of the large estate he had given his wife, and her own ample fortune, it would usually and ordinarily, when the time of payment came, prove to be easy and convenient for her to spare the money for that purpose, but that such a state of facts might not .always, and upon every occasion, exist; that in her management of the property there might come misfortune reducing or destroying income, or some exceptional increase of expenses due to an under estimate of incurred expenditure, and if that happened at any one or more of the times of payment, he desired that not she, but his sister and brother should bear the consequent inconvenience.

In these words of the testator, his purpose and intention I think is sufficiently disclosed. He did not mean to make-the payment of the annuities dependent upon the mere-choice or will of his wife, but upon her ability to pay them without inconvenience to herself. Given that ability he-says, “I wish it to be done.” The words are not, I wish her to do it, or I hope she will feel it to be her duty, or I trust she will see the propriety of such payment to be made, but I, the testator, dealing' with my own bounty to-her, “I wish it to be done.” It is my wish, not hers, that I put behind the annuities.

It is observable, also, that in the gift to his wife he does: not add words that could seem inconsistent with a subsequent charge upon it, as, for her own use and benefit, or-to her and her heirs forever, but leaves the path or a trust, or a charge unobstructed'so far as possible.

It is perfectly well settled that what are denominated precatory words, expressive of a wish or desire, may, in given instances, create a trust or impose a charge.

Without a detailed consideration of the cases it is quite-clear that, as a general rule, they turn upon one important, and vital inquiry, and that is whether the alleged bequest is-so definite as to amount and subject-matter as to be capable of execution by the court, or whether it so depends upon the-discretion of the general devisee as to be incapable of execution without superseding that discretion. In the latter-case there can neither be a trust or a charge, while in the former there may be and will be if such appears to have been the testamentary intention. The distinction is clearly drawn, and was acted upon in Lawrence v. Cooke (104 N.Y., 632; 6 N. Y. St. R., 772). The word there used was “ enjoin,”' in itself a more imperative word than .“wish;” and yet a, trust or charge was denied because by the terms of the command the payment to the grand-daughter was placed wholly within the discretion of the residuary devisee, and could, not be touched by the court without its utter destruction. The provision to be made was, at such times, in such manner, and in such amounts as the devisee should judge to be-expedient, and controlled only by what her own sense of justice and Christian duty should dictate. It was added that if she had been enjoined to make suitable provision out. of the residuary estate, a charge would have been created; for what would be “ suitable ” could be determined as a. fact, and would be independent, and outside of the mere.choice or whim of the devisee. If the word had been “ wish,” instead of “ enjoin,” the result could not have been different upon either branch of the conclusion. The doctrine is clearly and strongly stated in Warner v. Bates (98 Mass., 277), and had an early illustration in Malim v. Keightley (2 Vesey, Jr., 532). I have examined the cases in, our own court prior to Lawrence v. Cooke, and. have found in none of them a departure from the doctrine there asserted, or a judgment in hostility to it. The primary question in every case is the intention of the testator, and whether in the use of precatory words he meant merely to advise or influence the discretion of the devisee or himself to control or direct the disposition intended. In such a case we must look at the whole will so far as it bears upon the inquiry, and the use of the words “ I wish,” or, I desire,”' is by no means conclusive. They serve to raise the question, but not necessarily to decide it. We are convinced that in the present case the testator meant to charge upon, the gift to the wife the annuities to his sister and brother, provided only that their payment should not occasion her inconvenience. The legacy to the brother should be computed at $700 per year.

The judgment should be reversed, and judgment rendered' for the defendant, construing the will in accordance with this opinion, with costs.

All concur, except Huger, Ch. J., not sitting.  