
    THERESA SALOMON v. BRYAN LAWRENCE.
    
      Specific performance of contract for purchase real estate. —Will, construction of—trusts—words “ request ” and “ confidence.”
    A clause in testator’s will read as follows : “I give, devise and bequeath to my beloved wife, Theresa King, all my estate, both real and personal, of every nature and kind whatsoever, and wheresoever situated, to home and to hold the same to her and her heirs in fee, having full confidence that my said wife will make proper and suitable provision for our son, Henry A. King. And 1 request that out of the estate hereby devised to my said wife, she will not only thoroughly educate and maintain my said son Henry A. King, but that upon his arriving at majority, she will establish him in business out of the estate hereby devised to her. I appoint my said wife the guardian of my said son, and of his estate during his minority.”
    
      Held, that whether or not the language creates a trust, it was not the intention of the testator to limit the power of his wife to dispose of the ' real estate devised, but it was his intention that she should have the same power to sell that any owner of property in fee has.
    
      Further held, that defendant’s assignor, having contracted with her to purchase the property, judgment should be in her favor for specific performance.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 1, 1885.
    Submission of an agreed state of facts, under section 1279 of the Code of Civil Procedure.
    Theresa Salomon and one Cohen made a written contract for the sale and purchase of real estate. Theresa Salomon was by it to make a conveyance to Cohen or his assignees, “ of the fee simple of the said premises, free from all incumbrances.” Cohen assigned to Bryan Lawrence. On the day for performance Theresa Salomon tendered performance to Lawrence. Lawrence declined to receive the performance tendered, on the ground “ that under the last will and testament of Anthony King, the said Theresa Salomon did not take, a complete and absolute title in fee simple in and to the premises described in the contract aforesaid ; inasmuch as Henry A. King, had a vested right or interest in said premises, and the same were charged for his proper and suitable provision, education and maintenance, and establishment in business at his majority, and that under the said will a trust arose in favor of said Henry King.”
    The facts to which this objection referred, were as follows : Theresa Salomon, being then a married woman, claimed title under the will of her former husband, Anthony King. Henry King was the only child of Anthony and Theresa. The parts of the will that relate to the controversy are as follows : “I give, devise and bequeath to my beloved wife Theresa King, all my estate, both real and personal, of every nature and kind whatsoever, and wheresoever situated, to have and to hold the same to her and her heirs in fee, having full confidence that my said wife will make proper and suitable provision for our son, Henry A. King. And I request that out of the estate hereby devised to my said wife, that she will not only thoroughly educate and maintain my said son Henry A. King, but that upon his arriving at majority, she will establish him in business out of the estate hereby devised to her. I appoint my said wife the guardian of my said son and his estate during his minority.”
    The court was asked to determine whether there should be judgment in favor of Theresa Salomon, that Lawrence specifically perform the contract according to its terms, or judgment for Lawrence that Theresa is not entitled to specific performance, and also that she pay him §500, an amount paid on the contract at its signing and delivery.
    
      Julius J. & A. Lyons, for Theresa Salomon.
    I. It being a rule of law that any devise or gift which may be repugnant to a former devise or gift must fail and give way to the first devise in fee, the expressions of “ confidence” and “ request,” contained in the said will of Anthony King, do not create a trust in favor of said Henry A. King, nor do they divest the plaintiff of her title to the property devised to her in fee (Parson v. Best, 1 S. C. R. T. & C. 211; Foose v. Whitmore, 82 N. Y. 405; Re Hutchinson, tenant, L. R. 8 Ch. Div. 540; Clark, Exr., v. Leupp, Imp., 88 N. Y. 228; Mackett v. Mackett, L. R. 14 Equ. Cas. 49. See also Campbell v. Beaumont, 89 N. Y. 464; Helmer v. Shoemaker, 22 Wend. 137; Cohen v. Cohen, 4 Redf. 49 ; Jackson v. Bull, 10 Johns. 19 ; Colton v. Stenlake, 12 East, 514 ; Downey v. Bordon, 36 N. J. L. 460 ; McKenzie’s Appeal, 41 Conn. 607; Hurler v. Jenks, 43 Penn. 445 ; Kerbert v. Thomas, 3 Ad. & L. 123 ; Sale v. Moore, 1 Simons, 534 ; Webb v. Wools, 2 Simons N. S. 267; Gebler v. Chapin, 19 Conn. 342 ; In re Pennock’s Est., 20 Penn. 268).
    H. If any trust in favor of Henry A. King was created by the will of Anthony King, we claim it is void, as it is uncertain, indefinite and ambiguous; while the object and purposes thereof may be expressed, the amount or portion of the estate to be so expended for support and maintenance are not. It is not shown whether the income or capital is to be used therefor, and as to the establishment of said Henry in business, there is no direction as to what portion, if not all of the estate, is to be so used. The absence of these necessary directions show that it was not the intention of the testator in any way to limit his wife’s title in fee, for, in both instances where he suggests and requests, he repeats that he has given and devised the estate to her.
    III. Whatever cases there may be when a request has been converted into a trust the former estate has been a life estate, and not one in fee.
    
      John E. Develin, for Bryan Lawrence.
    The words in the devising clause of the will, viz.; “ having full confidence that my said wife will make proper and suitable provision for our son Henry A King, and I request that,” limit the general words of the gift and devise to her, and engraft a trust upon it. (a) The cases are numerous in which the words “having confidence,” “I request,” or words similar in substance, following a devise, have been held to create a trust (1 Jarman Wills, 680 ; Perry Trusts, § 112; Story’s Eq. Juris. §§ 1068-1068 (a) ; Wright v. Atkyns, 17 Ves. 255 ; Vandyck v. Van Beuren, 1 Cairnes, 84; Massey v. Sherman, Amb. 520). (6) To give effect to a direction of this description all that is required by law is that the language employed to express it shall indicate it to have been the intention of the testator that it should certainly be observed and carried into effect (Lawrence v. Cooke, 32 Hun, 126). (c) Added to this, it may be said that the person and object of the trust should be certain (Wright v. Atkyns, supra; Burt v. Herron, 66 Penn. 400).
    II. Both the person and object are here plainly pointed out. The person was his son, the object, the education and maintenance of this son, and his establishment in business after arriving at age. The latter object may or may not be too general, but the former (education and maintenance) are direct and certain and could be enforced by the court. Every implication is in favor of the heir, and all parts of the will, even where some may be invalid, are to be taken and considered together, to facilitate its interpretation and ascertain the intention of the testator (Van Kleeck v. Dutch Church, 20 Wend. 469 ; Tucker v. Tucker, 5 N. Y. 408). ■ The confidence and request do not form an independent clause inconsistent with, but give direction to the devise. They form part of the substance of the devise, and the case is thus taken out of that class of decisions which hold that an absolute devise in fee may not be diminished or limited by subsequent clauses in the will which merely cast a doubt upon it, such as Clark v. Leupp, 88 N. Y. 228, 231 ; Campbell v. Beaumont, 91 Ib. 464, 468 ; Freeman v. Coit, 96 Ib. 63, 69. The case under consideration does not differ from a will by which an estate is devised in fee with the additional and positive words immediately following: “In trust nevertheless,” &c. Here, instead of formal words being used, the trust is created by informal but sufficient words (1 Perry Trusts, §§ 83, 112, 114). The words of the will, the surroundings of this case, of the reason and of the object of the testator’s “ request,” his duty to his offspring as well as his natural affection, and the implication of law in-favor of the heir and against his disherison, all unite in bringing the case within the decisions, which hold that the phraseology here used creates a trust.
   By the Court.—Sedgwick, Ch. J.

In such cases, when the determination depended alone upon the force of the use of the words “ confidence ” and “request,” it has been held that they impose an obligation upon the devisee as to the property devised, in favor of the person contemplated by the testator. There are several matters in the present case, that tend to such a result. Henry King was the only child of the testator, whose will made no other provision for him than is made by the provisions now under construction. It is, moreover, within the range of the considerations appropriate to such a case, to inquire whether the testator, in referring to the “ estate ” of his son, of which, during his minority, he made the mother and devisee the guardian, did not refer to such an estate as the son might have if the devisee responded to the confidence and performed the request of the testator. Of course, before finally determining that there was what is called a trust, it would be necessary to examine other things which look in a different direction. Arguments that by themselves are favorable to the position that there is a trust for the son, have been alluded to to prevent any supposed implication from this decision of an opinion that the son has no interest in any form ; and on the other hand there is no intention to intimate what is the nature or form of that interest, if it exists, excepting so far as it may be. necessary to say, that whatever it is, it is not inconsistent with the capacity of Theresa Salomon to convey a fee of the real estate. Such a result would follow an ascertainment that the testator intended that in keeping his confidence and performing his request, the wife should have legal capacity to sell the fee.

The testator did not describe the method of applying the property to the advantage of the son in the respects specified by the will. Generally, where there is a trust created by giving the legal title of property to a trustee for a cestui que trust, there is a provision made for selling the specific property, and substituting in its place the proceeds. If such a provision were not made, the result would be, that only the property itself or the income from it, could be applied to the benefit of the cestui que trust. To give the power to sell it is not necessary that express words be used. It may be implied from circumstances, and the object of the exercise of the power (1 Hill on Trusts, 686 ; 2 Spencer Eq. 366 ; Morton v. Morton, 8 Barb. 18 ; Dorland v. Dorland, 2 Ib. 63 ; Bogert v. Hertell, 4 Hill. 492).

The object of the favorable intention of the testator in reference to the son, could be accomplished without making the estate in fee in the devisee inalienable. So far as the expression went, it could be accomplished by devoting a necessary part of the personal estate, or the proceeds of a sale of the real estate. Whatever might be supposed to be the interest of the son as to any part of the estate, the devisee had an absolute fee simple in the rest, unincumbered with any trust. The devisee would, from the nature of the acts expected of her, towards her son, be meant to have some discretion, as much as a parent would have in applying her means to the education and maintenance, and the setting up in business of a son. The kind of disposition of the estate to the 'wife, implies that she was not to be limited to keeping the property devised to her in fee, in the form in which it was upon the testator’s death.

I am, therefore, of opinion that it was not the intention of the testator to limit the devisee’s power of disposition, and it was the intention that she would have the same power to sell that any owner of a fee has.

The judgment should be in favor of Theresa Salomon for specific performance. The form of the judgment is to be settled upon notice.

Freedman and Truax, JJ., concurred.  