Williams v. Williams. at the bankers', where I always like a good balance, there are large arrears due from tenants; and I hope my will is so worded that every thing that is not in strict settlement you will find at your command. It is my wish that you should enjoy every thing in my power to give, using your judgment as to where to dispose of it amongst your children when you can no longer enjoy it yourself. But I should be unhappy if I thought it possible that any one not of your family should be the better for what I feel confident you will so well direct the disposal of. May Heaven bless and protect you. "Most affectionately yours, "JAMES WILLIAMS. "I direct this to Charlotte, from whose hands you will receive it.” The letter was indorsed by the testator, upon the codicil "Lady Chichester; to be read by her and then given to her mother by her." The bill then stated that the testator died on the 3d of February, 1839, and the will and codicil were duly proved. And it alleged that under and by virtue of the said codicil, the testator's widow became entitled to all the personal estate and effects of the testator for her life, with a power of appointing the same to such of her children living at her death as she should think proper, and in default of such appointment the said personal estate vested absolutely in the children of the said testator's widow living at her death. That the said Diana Williams, notwithstanding the said codicil, appropriated to her own use the whole of the personal estate and effects of the testator, and that she sold large portions thereof and converted the proceeds to her own use, and that she gave away other portions of such estate and effects to various persons, and otherwise wasted and squandered the same. That the said Diana Williams left three children only her surviving, i. e., the plaintiff, her eldest son, and Charles Williams and D. W. Williams, two of the defendants, her only other surviving children. That the said Diana Williams made no appointment, either during her life or by her will, of the said personal estate and effects so bequeathed to her for her life by the said codicil, and that, consequently, upon her death, the plaintiff became absolutely entitled to one equal third part of such personal estate and effects. The bill prayed that the plaintiff might be declared entitled under the codicil to one third part of the residuary personal estate and effects of the said testator; that an account might be taken of the personal estate of the testator, and such parts thereof as should have been wasted or misapplied by his widow, the said Diana Williams, should be made good out of her estate; and that such parts as remained in specie or could be traced and ear-marked, might be transferred and delivered to the plaintiff and the other parties entitled thereto. The cause came on, upon demurrer, for the purpose of obtaining the opinion of the court as to the true construction of the will and codicil of the late Sir J. Williams, Bart.; the plaintiff contending that, under the codicil, his mother took only an estate for her life in his residuary personal estate, with a power of disposing thereof by will among her children, with an implied gift, so far as not appointed Williams v. Williams. by her, to her children living at her death. On the other hand, it was contended that Lady Williams was entitled under the will to the whole of the residuary personal estate absolutely and for her own benefit, and that such her interest was not restricted or cut down by the codicil. Mr. Rolt and Mr. Glasse, in support of the demurrer, contended that there were no clear words showing that the testator meant to impose a confidence. The will and codicil must be taken together. By the former an absolute interest was given to the widow; and the only question was, whether the words of the codicil were sufficiently explicit to cut down that gift to a life estate. In this case every thing was doubtful. It was doubtful to what amount of property the words applied. It was doubtful to what objects they were meant to apply; whether the word "family" meant children or descendants, and it was doubtful in what proportions they were to take. If this were to be held otherwise than as an absolute gift, it would be going beyond any case yet decided. The following cases were cited: Wynne v. Hawkins, 1 Bro. C. C. 179. Curtis v. Rippon, 5 Madd. 434. Sale v. Moore, 1 Sim. 534. Meredith v. Heneage, 1 Sim. 542. Knight v. Knight, 3 Beav. 148; s. c. 9 Law J. Rep. (N. s.) Chanc. 354. Winch v. Brutton, 14 Sim. 379. Mr. Bethell, Mr. Malins, and Mr. Karslake, for the bill, contended that the intention of the testator was expressed with sufficient clearness; and it was evident upon the words of the codicil that the testator intended his wife to take only a life estate, and that she was then to give the whole of the property between his children; and as no appointment was made by her, the children would be entitled to take equally. The cases which had been cited were none of them similar to this. There were numerous authorities, but the principle was plain. The following were cited: Cary v. Cary, 2 Sch. & Lef. 189. Malim v. Keighley, 2 Ves. Jun. 333. Wright v. Atkyns, Turn. & R. 143. Brown v. Higgs, 4 Ves. 708. Raikes v. Ward, 1 Hare, 445; s. c. 11 Law J. Rep. (N. s.) Chanc. 276. Penny v. Turner, 2 Ph. 493; s. c. 17 Law J. Rep. (N. s.) Chanc. 133. Pierson v. Garnet, 2 Bro. C. C. 38 and 226. Eade v. Eade, 5 Madd. 118. LORD CRANWORTH, V. C. The question in this case is, whether under the bequests in the will and codicil of the late Sir James Williams, his widow, Lady Williams, took an absolute interest in the personal property given to her, or only an estate for life, with remainder to her children as she should appoint; and this depends on the question, whether the words of the codicil "using your judgment where to dispose of it amongst your children when you can no longer enjoy it yourself" are imperative, or only, in the language of the law, precatory. On this subject, there has been a long series of authorities in modern times, ending with the case of Knight v. Boughton, in the House of Lords, reported 11 Cl. & F. 513. The point really to be decided, in all these cases, is, whether, looking at VOL. V. 5 Williams v. Williams. the whole context of the will, the testator has meant to impose an obligation on his legatee to carry his express wishes into effect; or whether, having expressed his wishes, he has meant to leave it to the legatee to act on them or not at her discretion. In some of the cases, it has been said, the points to be inquired into are, first, whether the subject matter to which the precatory words apply is clear; and, secondly, whether the favored objects are distinctly ascertained; and when these two requisites concur, i. e., when there is no doubt as to the property to which, or the persons to whom the precatory words refer, there it would seem to have been sometimes assumed, that such words are as obligatory as words creating an express trust. I confess that this reasoning has never carried conviction to my mind. I doubt if there can exist any formula for bringing to a direct test the question, whether words of "request," or "hope," or "recommendation," are or are not to be construed as obligatory. It may be very safe in general to say, that where there is uncertainty as to the subject matter, or as to the objects in whose favor the request, or hope, or recommendation is expressed, these precatory words cannot have been intended to be absolutely binding. But the converse of the proposition is by no means equally true. The subject matter of the bequest and the objects of the testator's bounty may be perfectly ascertained, and yet the context may show that words of hope or recommendation were not intended to interfere with the absolute discretion of the legatee. I have made these observations with reference to some of the arguments addressed to me, and to which I was referred, as being to be found in many of the cases, rather than because they are absolutely necessary to the present decision; for I am of opinion that in this case there is a want of certainty as to the objects to whom the precatory words refer; and I am also of opinion, mainly on the ground of such uncertainty, that looking to the whole of the will and codicil together, the testator meant to give his wife an absolute discretion over the property bequeathed to her. There can be no doubt but that, if the matter had rested on the words of the will, the widow's interest would have been absolute. The gift to her is absolutely for her own use and benefit. Then comes the codicil. [His lordship read the words.] The argument for the plaintiff is, that the words "using your judgment as to where to dispose of it amongst your children when you can no longer enjoy it yourself" cut down the preceding absolute gift, and reduce the interest of the legatee to a life estate, with a power to dispose of the whole among her children when she can no longer enjoy it herself, i. e., at her death. Assume, for the purpose of argument, that this would have been a legitimate construction of the words "when you can no longer enjoy it yourself." The testator, however, does not stop there; he goes on to say, I should be unhappy if I thought it possible that any one not of your family should be the better for what I feel confident you will so well direct the disposal of." I think it may fairly be inferred from the last passage, that the testator meant to say he would not be unhappy to think that any one of his wife's family should take any part of 66 Rumolas Williams v. Williams. the property bequeathed, which she might think fit to give them. In other words, the testator did not consider that he had said any thing which would prevent his wife from giving any part of the property bequeathed to any member of her family. Now, Lady Williams, at the death of the testator, had four children, one of them, Lady Chichester, was married, and of course adult, and she was younger than her sister. What were the ages of the sons does not appear. In this state of things, I think that the word "family," as used in the codicil, is not confined to children only, but would include descendants in any degree. The word "family" is one of doubtful import, and may, according to the context, mean "children," or "heirs," or "next of kin." But here I think the words "of your family" are equivalent to "of your blood," i. e., your posterity, your descendants. And the testator must be considered to have said, he was happy in thinking of the mode in which his property would eventually go, for that he felt confident his wife would give it to no one who was not one of her descendants. I think it is a perfectly legitimate inference from this, that he considered the language he had used to be such as would authorize his wife to give it to any of her descendants, i. e., to a class more extensive than children. How is this to be made consistent with the language he has used? It can only be, either by saying that the word "children" means descendants, or by holding that the wife took an absolute interest; an interest, therefore, which would enable her to give to any one, but with a confident expression of belief on the part of the testator that she would not exercise her discretion in favor of any one not a descendant, and which confidence left him perfectly happy with respect to the future enjoyment of his property. And I think this latter construction is the true one, for to hold that the word "children" means " descendants," would be to put on it a very forced interpretation, and one which would lead to the inconvenient result that all descendants, in whatever degree, must have something, for the power is one of distribution, not of selection; and so if the widow should die without exercising the power, leaving children, grandchildren and great-grandchildren, they would all take, as a class, per capita. It is impossible to imagine that this was once contemplated by the testator, and so the only other construction must prevail, namely, that which would enable the wife to give to any descendant, by virtue of an absolute interest vested in her by her husband. This construction is conformable to the current of modern decisions, and to what has been felt in latter times to have been ordinarily the real meaning of testators, and if in any case such an inference may legitimately be drawn from the surrounding circumstances it would be in this, where the words, supposed to reduce the absolute interest to a mere life estate, are to be found, not in the original document, whereby the property was bequeathed, but in a subsequent codicil of so informal a character that in all probability it would have been matter of great surprise to the testator if he had been told it would be treated as a codicil at all. I do not, however, rest on this ground. My judgment is founded Whicker v. Hume. on the consideration, that if I were to construe the words of the codicil as reducing the wife's interest to any thing short of an absolute interest, it could only be by holding that they cut it down to a life interest with a power of distribution among her children; but I think that this cannot be, for by the same codicil the testator shows a clear intention that his wife might in her discretion give to remote descendants; and that this latter intention can only be effectuated by supposing that all his expressions narrowing the wife's absolute interest were intended merely as an expression of the testator's wishes, without meaning to make them obligatory. The result is, that the demurrer must be allowed. WHICKER V. HUME.1 January 14, 1851. A man may obtain a new domicil in a country where he is only a lodger, and not a housekeeper, and without repudiating his nationality. And where a testator was a native of Scotland, and domiciled there, and afterwards came to London, where he continued to reside, chiefly in lodgings, for many years, making London the central place of his affairs and business, it was held that he acquired a new domicil in London, and that it was immaterial whether he resided in a house of his own, or in lodgings: Held, also, that this domicil was not changed by a subsequent residence in Paris, where the testator took a lease of apartments determinable either by the lessor or lessee at the end of three, six, or nine years; and that the fact of his describing himself in his will, made at Paris shortly before his death, as of the city of Edinburgh, was immaterial with reference to the question of domicil. THIS case came on upon exceptions to the master's report, who had found that Dr. Borthwick Gilchrist, the testator in the cause, was domiciled in England, whereas it was contended that he ought to have found that he was domiciled in Scotland, or, if not in Scotland, in France. Roupell, Beavan, and Thompson, were for the exceptions. Turner, R. Palmer, Bagshaw, and Anderson supported the master's report. Wray, for the crown. Bruce v. Bruce, cited 5 Somerville v. Somerville, Craijie v. Lewin, 3 Curt. Monro v. Monro, 7 Cl. & Re Vernon, 1 Rob. A. The following authorities were cited: 1 15 Jur. 567. |