
    Annie Cooke Lawlence, an infant, etc., Resp’t, v. Sara L. Cooke, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 8, 1887.)
    
    Will—Construction of.
    The grandfather of plaintiff by his will devised and bequeathed his residuary estate as follows: “VI. The residue of my estate, both real and personal, of whatever name or kind, I give, devise and bequeath to my daughter Sara L. Cooke, to have and to hold the same unto her and her heirs and assigns forever.” “ VII. I commit my granddaughter Annie C. Lawrence, child of my daughter Annie, now deceased, to the charge and guardianship of my daughter Sara L. Cooke, in whose honesty, good will and integrity I repose the utmost confidence. I enjoin upon her to make such provision for said grandchild out of my residuary estate now in her hands, in such manner, at such times and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate.” Meld, that no trust was created by said clause and that the daughter took an absolute title to the residuary estate. That it was the will of the testator that the • defendant should be the sole judge of the manner in which provision for the plaintiff should be made, at what time it should be made and to what amount.
    Appeal from a judgment of the supreme court, general term, first department, reversing judgment entered upon the trial of the action by the court without a jury, dismissing plaintiff’s complaint.
    
      W. B. Darling, for app’lt; Henry W. Johnson, for resp’t.
    
      
       Reversing 33 Hun, 126.
    
   Rapallo, J.

The grandfather of the plaintiff, Chauncey L. Oooke, by the sixth and seventh clauses of his will, which took effect in December, 1878, devised and be- • queathed his residuary estate as follows: “ VI. The residue of my estate, both real and personal, of whatever name or kind, I give, devise and bequeath to my daughter, Sarah L. Cooke, to have and to hold the same unto her and her heirs and assigns forever.” “VII. I commit my granddaughter, Annie C. Lawrence, child of my daughter. Annie, now deceased, to the charge and guardianship of my daughter, Sarah L. Cooke, in whose honesty, good-will and integrity I repose the utmost confidence. I enjoin upon her to make such provision for-said grandchild out of my residuary estate now in her hands, in such manner, at such times, and in such amounts as she ■ may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate.”

The complaint alleged that in the month of March, 1880, and in the month of January, 1881, the plaintiff, through her general guardian, who was her father, requested the defendant to make, out of the estate so devised and bequeathed to her, provision for the plaintiff, but that" the defendant had neglected and refused so to do; and demanded judgment that by the terms of the will a trust was imposed upon the defendant in favor of the plaintiff; that the defendant render an account of the residuary estate and the income thereof, and that the court should determine and make such provision for the plaintiff out of said residuary estate as should be conducive to the welfare of the plaintiff, and that a receiver should be appointed of such residuary estate, etc.

The defendant, by her answer, denied that any trust was created by the will, but also denied that she had refused to make provision for the plaintiff. She admitted the full force of the moral considerations in favor of the plaintiff arising from the will, and averred that she intended, and had always intended, fully and in good faith to comply with the same.

The action was tried at special term before Lawrence, J., who held that no trust was created by the clause referred to, and that the defendant took, under the will of her father, an absolute title to his residuary estate, and he dismissed the complaint. His judgment was reversed at the general term, and a reference was ordered to ascertain the amount of the residuary estate, and report what provision should be made for the plaintiff out of such residuary estate. The referee reported the proofs taken before him, and that, in his opinion, the sum of $1,080 per annum would be a proper provision to be made for the plaintiff until she should attain the age of fourteen years. This report was confirmed by the court, and judgment was rendered that the defendant pay that sum to William H. Lawrence, the father and general guardian of the plaintiff, until the further order of the court. >

Full and exhaustive opinions were delivered, both at special and general terms, in which the authorities bearing upon the question are reviewed at length. Without going over the ground covered by those opinions, we deem it sufficient to say that we concur in that of Lawrence, J., at special term, which was to the effect that the defendant took an absolute title to the residuary estate, and that the provision to be made for the plaintiff was left wholly to the discretion of the defendant.

The opinions at general term were by Brady and Daniels, JJ., Davis, P. J., delivering a brief dissenting opinion. The prevailing opinions rest upon the word “enjoin,” used by the testator in clause 7. If the clause had been that the testator enjoined' upon the defendant to make suitable provision out of the residuary estate for the support of the plaintiff there would be force in the argument, not, indeed, that the defendant took the residuary estate in trust, but that she took it subject to a charge, the amount of which might be ascertained by a court of equity and satisfaction thereof decreed. But such is not the language of the will. It is: “I enjoin upon her to make such provision for said grandchild out of my residuary éstate, in such manner, at such times and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild.” She might, under the broad discretion thus conferred upon her, deem it best for the grandchild to wait until she should become of age, and then give her a portion of the estate, or otherwise provide for her. There was nothing in the will which required her to provide for the support of the grandchild during her minority. She was living with her father out of the state. No obligation was imposed upon the defendant by her father’s will to indemnify the father of the plaintiff for her support, or to furnish him with means therefor. The provision in the will was not intended for the benefit of the father of the plaintiff, nor to reheve him from his legal obligation to support his own child. All these matters were left wholly to the discretion of the defendant, uncontrolled by any consideration except to use the language of the testator, what “her own sense of justice and Christian duty shall dictate.”

It was the will of the testator that the defendant should be the sole judge of the manner in which provision for the plaintiff should be made, at what time it should be made, and to what amount. It was beyond the power of any court to substitute its discretion for hers, and no trust was created which a court of equity could execute contrary to her judgment.

The moral obligation imposed on the defendant is very strong. The plaintiff is the representative of the deceased sister of the defendant, and, if the testator had died intestate, the plaintiff would have been entitled to one-third of his estate. For reasons of his own, however, the testator preferred not to permit any part of his estate-to vest in this grandchild, but to leave entirely to the discretion of the defendant what portion she would take, in what manner, and at what time. He, therefore, vested the absolute title to his residuary estate in the defendant, enjoining upon her only the duty of exercising this discretion, and expressing his conviction that she would do so honestly and fairly. She recognizes this moral obligation, and avers her intentention of performing it. It is not for the courts • to repudiate the confidence which the testator chose to repose in the defendant, and to assume a power which was not intended to be exercised by them by determining in what manner, at what time, and to what amount the provision shall be made.

The orders of the general term and subsequent proceedings should be reversed, and the judgment of the special term dismissing the complaint affirmed with costs.

All concur.  