
    Charles Brigham & another, Executors vs. William H Wheeler & another.
    A testator, by his will, gave real and personal property to the children ot ms nephew, and their heirs and assigns forever, and appointed their father to be their guardian, without giving bonds, a for the purpose of receiving and managing said property so given.” Held, that said appointment of a guardian was void, for want of authority in the testator $ and that the will could not be so construed as to vest an estate in trust in the father of the children.
    Appeal from a decree of the judge of probate.
    The parties submitted the case to the court upon the following facts: Jonathan Wheeler, of Grafton, by his last will, (which was duly proved and allowed,) after disposing of part of his property, made this provision ; to wit, “ the residue and remainder of my estate I order divided into two equal shares, and give and devise the same as follows, viz. one share or half to the child or children, now born or hereafter to be born, of my niece, Hannah A. Mills, (wife of Lewis Mills,) their heirs and assigns forever; and the other share or half to the children, now born or hereafter to be born, of my nephew, Jonathan D. Wheeler, their heirs and assigns forever. And I hereby appoint the said Lewis Mills, and the said Jonathan D. Wheeler, to be guardians of their respective children, without giving bonds, for the purpose of receiving and managing said property, so given to their respective children.”
    Said “ residue and remainder ” consisted of real and personal property, and money. The executors of said will (the appellants) presented to the judge of probate the first account of their administration, and therein charged the sum of $ 500, paid to Jonathan D. Wheeler, as guardian or trustee of his minor children, under said will. The judge appointed for said children a guardian ad litem, to appear in their behalf, and, after a hearing, disallowed said charge. The executors thereupon appealed to this court.
    It was agreed by the parties, that if said executors could .awfully pay said money to said Jonathan D. Wheeler, and if his receipt therefor would be a good discharge to them for said sum, the decree of the judge, disallowing said charge, should be reversed ; otherwise, that it should be affirmed.
    
      Newton C. Allen, for the appellants.
    Though the testator had no power to appoint a testamentary guardian for the children of others, yet he had power to appoint a trustee. This was his main purpose, which can and ought to be carried into effect, by regarding as trustees the persons whom he named as guardians. 8 Petersd. Ab. 240. Finlay v. King, 3 Pet. 346. Bartlet v. King, 12 Mass. 537. 2 Story on Eq. §$ 980, 981. 1 Mad. Ch. Pract. (2d ed.) 553-555. Rev. Sts. c. 69, § 2.
    
      Bacon, contra.
    
    The intention of the testator was to appoint guardians, and that the property should go into their hands, as guardians, and not as trustees. His words are to be presumed to have been used in their strict and primary sense, if such sense be applicable to the existing facts. Wigram on Extrinsic Evidence, 17.
    If there is a trust in this case, it is a trust forever, no limita tion being expressed. Whereas a guardianship would have terminated on the wards’ coming of age. Guardians have a mere naked power, but trustees have the legal estate. See 1 Hilliard’s Ab. 214, and cases there cited. The intention of the testator would therefore be defeated, by giving the word “ guardians ” the meaning of trustees. The provision in the will, as to guardians, must be held void, because the testator had no authority to appoint them, (Rev. Sts. c. 79, <§> 6,) and because there cannot be any cy pres execution of that provision.
   Wilde, J.

The main question in this case is, whether Jonathan D. Wheeler took any estate or interest under the last will of Jonathan Wheeler; and it appears to the court very clear that he did not. The testator undertook to appoint him guardian of his own children, without giving bonds, for the purpose of receiving and managing the property given to them by the will. This appointment the testator had no authority to make. He could only appoint a guardian for his own children. Rev. Sts. c. 79, § 6. The appointment, therefore, is wholly void.

It has been argued that, to effectuate the intention of the testator, the will may be so construed as to vest an estate in trust in Jonathan D. Wheeler, for the use of his children. But the language of the will is plain, and will admit of no such construction.

The disallowance, therefore, to the executors, of the charge of $500 paid to Jonathan D. Wheeler, as guardian or trustee of his minor children, by the judge of probate, must be affirmed.  