
    CASE 81. — ACTION INVOLVING A CONSTRUCTION OP THE WILL OP DAVID IRVINE, DECEASED.
    December 12, 1909.
    Igo v. Irvine.
    Appeal from Madison Circuit Court.
    Judgment holding that the devisee was vested with a fee simple title to the land.
    Wills — Trusts.—A testator devised bis, estate to bis four children absolutely, but in a 'subsequent clause of the will expressed a request that either of his children dying without issue would devise hi® share to the survivors .or to the children of any who might be dead. The question involved on this appeal isi whether one of the children, -ais- devisee, 'had authority to sell his land and invest the purchaser with a fee-simple title. Held, that the devisee obtained a fee-simple title under the will, and is not charged with any -trust, and could vest his vendee with a fee-simple title. .
    J. A. SULLIVAN -for appellant.
    R. W. MILLER for -appellee.
   'Opinion op the Court by

Judge Burn am

Affirming.

This appeal brings before ns the will of David Irvine for construction. It was probated in the Madison County Court on the 15th day of August, 1872, and divided a large landed and personal estate between his four children, two sons and two daughters. The special question which we are asked to determine upon the appeal is whether his son, David W. Irvine, takes under it a fee simple title to a tract of 222.89 acres of land, which he has contracted to sell to the appellant B. M. Igo, or whether he takes it charged ■with a trust inforcible in equity in favor of the surviving children of testator or the issue of those who may be dead, in the event of his death without legal issue. The fourth clause of the will of testator is as follows:

“I will and bequeath to my son, David W. Irvine, my tract of land lying and being in Madison county on the Richmond and Lexington turnpike road, known as the Dudley place deeded to me by Waller and William Chenault, containing about 180 acres. I also will and bequeath to my son, David W. Irvine, forty-five acres of the Newland land, reserved out of that tract and not willed in the third clause to I. Shelby Irvine. Said forty-five acres to be laid off on the Richmond and Lexington turnpike road along the north line of the Dudley tract above mentioned to the Shackelford road, in such manner as to suit the land herein willed to my son, Isaac Shelby Irvine.”

It is contended that the title conveyed by this clause of testator’s will is limited by a subsequent clause, which reads as follows:

“I make it as a request of my children that if any of them should die without issue that in so far as they may have received any estate from me, that at their death they ‘will’ the same to my surviving children or the issue of those that may be dead. I think this is but a reasonable request, and I have confidence that it will be complied with by my children. ’ ’

This doctrine of implied or precatory trusts was. carried to great lengths by the early English and American cases. Thus, if a testator made an absolute gift to the person in his will and accompanied the gift with words expressing a desire, will, request, wish, hope, or recommendation, have been held sufficient to raise a trust where the subject and object are sufficiently certain. See Perry on Trusts section 112, and authorities there cited. 'But the later English and American cases have departed from the doctrine of the early cases and have inclined toward the doctrine of giving precatory words and expressions only their natural force. See Hill on Trusts, section 71. The existing law on this question is well stated by Judge Gray in Hess v. Singlar 114 Mass. 56, and it is quoted with approval in Colton v. Colton, 127 U. S. 300, as follows:

“It is a settled doctrine of courts of chancery that a devise or bequest to one person, accompanied by words expressing’ a wish, entreaty, or recommendation, that he will apply it to the benefit of others, may be held to create a trust if the subject and objects are sufficiently certain. Some of the earlier English cases had a tendency to give this doctrine the weight of an arbitrary rule of construction. But the later cases in this, and all other questions of the interpretation of wills, the intention of the testator as gathered from the whole will controls the court; in order to create a trust it must appear that the woiMs were intended by the testator to be imperative and when property is given absolutely and without restriction a trust is not to be lightly imposed upon by mere words of recommendation and confidence.”

And the question was very fully considered by this court in Major v. Herndon, 78 Ky. 123, and in Bohon v. Barrett’s Admr, 79 Ky. 378.

Testator placed no restriction on appellee’s right to sell and convey the tract of land in controversy in the fourth clause of the will, and the words quoted above, which appear in a subsequent clause of his will were not in our opinion intended by the testator to be imperative. They do not refer to any special properly, but are general and amount to a mere request that bis children dying without issue will give, to their surviving brothers and sisters and their descendants, property in the aggregate equal to that received by them under the provisions of testator’s will. We are of the opinion that appellee, David W. Irvine, was vested with a fee simple title to the property in controversy and that Ms deed conveyed the same character of title to appellant.

For reasons indicated the judgment is affirmed.  