
    Old Colony Trust Company, executor, vs. Thomas P. Wadell & others.
    Suffolk.
    November 15, 1935.
    January 29, 1936.
    Present: Rugg, C.J., Crosby, Pierce, Donahue, & Qua, JJ.
    
      Trust, Validity, Resulting.
    A bequest in trust, in the trustee’s discretion to reward “justly and fairly” persons who might hav.e taken care of or nursed the testator and who had not already been “remembered by me herein,” was void for indefiniteness, and there was a resulting trust for the next of kin.
    ■ Petition for instructions, filed in the Probate Court for the county of Suffolk on January 18, 1935, by the executor of the will of Elizabeth M. Allen, late of Boston.
    Certain respondents appealed from a decree entered by order of Dolan, J., to the effect that the trust under the sixth clause of the will was void for indefiniteness and that there was a resulting trust for the next of kin.
    
      G. S. Fuller, stated the case.
    
      E. 8. White, (L. I. Phillips & M. D. Lemaire with him,) for the respondents Ethel C. Gabriel and others.
    
      J. K. Carter, (R. W. Barrett with him,) for the respondents Thomas P. Wadell and others.
   Qua, J.

The sixth paragraph of the will of Elizabeth M. Allen, late of Boston, deceased, reads as follows: "All of the rest, residue and remainder of my goods and estate be it real, personal or mixed property, I give, devise, and bequeath unto my Executors and Trustees, Old Colony Trust Co. of Boston, Mass. and John A. McCaig, in Trust nevertheless for the uses and purposes of paying any person or persons who may have rendered service in taking care of me or nursing me. What I mean by this is that if there is anything left, after the payment of my just debts and charges of my last sickness and burial, and payment of the bequests set forth, if, in the judgment of my said Executors and Trustees, any person or persons, not already remembered by me herein, may be caring and doing for me, to be justly and fairly rewarded.”

The present controversy arises between persons who claim under paragraph 6 on the ground that they have rendered services in caring for the testatrix and the heirs at law and next of kin of the testatrix, who contend that the trust which she attempted to create is void for indefiniteness and that there is a resulting trust of the residue in their favor. Evidence was offered that the residue would amount to about $11,000 with some deductions for taxes and services.

It has been held in various jurisdictions that a trust for the benefit of persons who may have cared for the testator in his last illness is not too indefinite as to the beneficiaries. Lear v. Manser, 114 Maine, 342. Dennis v. Holsapple, 148 Ind. 297. Reinheimer’s Estate, 265 Penn. St. 185. The same result has been reached where the persons eligible to take are not limited to those who cared for him during his last illness, but include those who have cared for him during his "old age” or his "last days.” Harriman v. Harriman, 59 N. H. 135. Bosserman v. Burton, 137 Va. 502. And it has been so held where the beneficiaries do not take equally, but take in proportions to be fixed by the judgment of the trustee, Stout v. Hosmer, 123 Kans. 697, though the opposite result was reached in a somewhat similar case in Murdock v. Bridges, 91 Maine, 124. The cases are collected in 38 Am. L. R. 775.

But we are not called upon to decide how far we should go in following these cases on similar facts, because we are of opinion that the paragraph here in question was not intended as a bequest of the entire residue to the persons designated, to be divided among them either equally or in any ascertainable proportions. It is evident that the second sentence of the paragraph was inserted in the hope of explaining the meaning of the first sentence. Although no part of the paragraph is to be ignored, the second sentence is more important than the first as a final expression of the testatrix's intention. That sentence shows that the residue is not given to these beneficiaries. It limits them to being “justly and fairly rewarded.” The words “may be caring and doing for me” seem to refer to the time of death only and so seem to narrow the more general language of the first sentence. It cannot be supposed that the testatrix intended to give the entire residue, which might amount to a substantial sum, to some one person who might have been "caring” or “doing” for her during the last few days of her life, and who may already have been paid in full the fair value of any services rendered. The trust is not limited to those who have rendered gratuitous service. And it is not intended as a means of paying any sums legally owed, because payment of debts is expressly provided for outside this fund. It appears that the principal claimants have in fact been paid in full.

We do not see how either the trustees or the court could administer a trust which is not based upon the actual value of the services and which does not divide the fund according to the comparative amount or value of services rendered by different persons, but which is based solely upon the payment out of that fund of rewards or gratuities which may not exhaust the fund and for the ascertainment of which no standard is furnished. Nor do we see how we can give any construction to this clause which will obviate the difficulty without founding it upon a conjecture as to what the testatrix may have had in mind instead of upon anything written in her will. Sanger v. Bourke, 209 Mass. 481, 486.

The trust here attempted has none of the aspects of a public charity. As a private trust it fails for indefiniteness, and there is a resulting trust for the next of kin. Sheedy v. Roach, 124 Mass. 472, 476. Nichols v. Allen, 130 Mass. 211. Minot v. Attorney General, 189 Mass. 176. Davison v. Wyman, 214 Mass. 192.

Decree affirmed.  