[311] to use the words "upon trust" or "trustee," if | And by section 1319 it is provided that these The question, upon the language of the present will, which constitutes the point in dispute is whether the testator intended to charge his estate in the hands of his widow with a trust in favor of his mother and sister, or whether he intended his widow to take the estate free from any obligation of that character, at liberty to disregard the recommendation and request, and to make provision for his mother and sister or not out of property absolutely her own, as she might choose. As to the doctrine of precatory trusts, it is quite unnecessary to trace its origin, or review the numerous judicial decisions in England and in this country which record its various applications. If there be a trust sufficiently expressed and capable of enforcement by a court of equity, it does not disparage, much less defeat it, to call it "precatory." The question of its existence, after all, depends upon the intention of the testator as expressed by the words he has used, according to their natural meaning, modified only by the context and the situation and circumstances of the testator when he used them. On the one hand, the words may be merely those of suggestion, counsel, or advice, intended only to influence, and not to take away, the discretion of the legatee growing out of his right to use and dispose of the property given as his own. On the other hand, the language employed may be imperative in fact, though not in form, conveying the intention of the testator in terms equivalent to a command, and leaving to the legatee no discretion to defeat his wishes, although there may be a discretion to accomplish them by a choice of methods, or even to define and limit the extent of the interest conferred upon his beneficiary. It is argued against the establishment of the trust in favor of the complainants that it is of the nature of those called "precatory trusts," founded originally, in the earlier decisions of courts of equity in England and in this country, upon strained, artificial, and inappropriate interpretations of the language of testators, whereby their real intentions were perverted and defeated, according to a rule which is no longer favored as an existing doctrine of equity, and which is excluded by the express terms of the Civil Code of California, according to which the will in this case must be construed. That Code provides that "a will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible." § 1317. "In case of uncertainty arising upon the face of a will as to the application of any of its provisions, the testator's in- "All the cases upon a subject like this." tention is to be ascertained from the words of said Lord Chancellor Cottenham in Shaw v. the will, taking into view the circumstances Lawless, 5 Clark & F. 129, 153, "must proceed under which it was made, exclusive of his oral on a consideration of what was the intention of declarations. § 1318. "All the parts of a will the testator." In Williams v. Williams, 1 Sim. are to be construed in relation to each other, (N. S.) 358, 369, Vice-Chancellor Cranworth and so as, if possible, to form one consistent said: "The point really to be decided in all whole; but where several parts are absolutely these cases is whether, looking at the whole irreconcilable, the latter must prevail." $ 1321. context of the will, the testator has meant to "A clear and distinct devise or bequest cannot impose an obligation on his legatee to carry be affected by any reasons assigned therefor, his express wishes into effect, or whether, havor by any other words not equally clear and ing expressed his wishes, he has meant to leave distinct, or by inference or argument from it to the legatee to act on them or not at his disother parts of the will, or by the inaccurate re-cretion." And referring to rules for ascertaincital of or reference to its contents in another ing this intention sought to be deduced from [312] part of the will." § 1322. "The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained." $ 1324. "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative." § 1325. "Technical words are not necessary to give effect to any species of disposition by a will." 1328. the numerous decisions on the subject, he In Briggs v. Penny, 3 MacN. & G. 546, Lord [313] [314] confidence or belief or desire or hope that a | If the objects of the supposed trust are certain particular application will be made of such bequest will be deemed to import a trust upon these conditions: (1) that they are so used as to exclude all option or discretion in the party who is to act as to his acting according to them or not; (2) the subject must be certain; and (3) the objects expressed must not be too vague or indefinite to be enforced." The most recent declarations of the English courts of equity do not modify this statement of the law. Lambe v. Eames, L. R. 6 Ch. App. Cas. 597; Re Hutchinson and Tenant, L. R. 8 Ch. Div. 540; Re Adams and the Kensington Vestry, L. R. 27 Ch. Div. 394, 406. The existing state of the law on this question as received in England, and generally followed in the courts of the several States of this Union, is well stated by Gray, Ch. J., in Hess v. Singler, 114 Mass. 56, 59, as follows: "It is a settled doctrine of courts of chancery that a devise or bequest to one person, accompanied by words expressing a wish, entreaty, or recommendation that he will apply it to the benefit of others, may be held to create a trust, if the subject and the objects are sufficiently certain. Some of the earlier English decisions had a tendency to give to this doctrine the weight of an arbitrary rule of construction. But by the later cases in this, as in all other questions of the interpretation of wills, the intention of the testator, as gathered from the whole will, controls the court; in order to create a trust, it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence." In the previous case of Warner v. Bates, 98 Mass. 274, Chief Justice Bigelow vindicated the soundness and the value of this rule in the following commentary. He said: "The criticisms which have been applied to this rule by text writers and in judicial opinions will be found to rest mainly on its applications in particular cases, and not to involve a doubt of the correctness of the rule itself as a sound principle of construction. Indeed, we cannot understand the force or validity of the objections urged against it if care is taken to keep it in subordination to the primary and cardinal rule that the intent of the testator is to govern, and to apply it only where the creation of a trust will clearly subserve that intent. It may sometimes be difficult to gather that intent, and there is always a tendency to construe words as obligatory in furtherance of a result which accords with a plain moral duty on the part of a devisee or legatee, and with what it may be supposed the testator would do if he could control his action. But difficulties of this nature, which are inherent in the subjectmatter, can always be readily overcome by bearing in mind, and rigidly applying in all such cases, the test that to create a trust it must [315] clearly appear that the testator intended to govern and control the conduct of the party to whom the language of the will is addressed, and did not design it as an expression or indication of that which the testator thought would be a reasonable exercise of a discretion which he intended to repose in the legatee or devisee. and definite; if the property to which it is to attach is clearly pointed out; if the relations and situation of the testator and the supposed cestuis que trust are such as to indicate a strong interest and motive on the part of the testator in making them partakers of his bounty; and above all, if the recommendatory or precatory clause is so expressed as to warrant the infer ence that it was designed to be peremptory on the donee, the just and reasonable interpretation is that a trust is created, which is obligatory and can be enforced in equity against the trustee by those in whose behalf the beneficial use of the gift was intended." In the light of this rule, as thus stated and qualified, we proceed to ascertain the intention of the testator in this will as to the point in controversy. In the first place, the language of the bequest to his wife is undoubtedly suflicient to convey to her at his death the whole estate absolutely and without conditions. The will says: "I give and bequeath to my said wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seised or possessed or entitled to." If this stood alone there could be no controversy as to the nature and extent of her title. But it does not stand alone, and it does not contain any expressions which necessarily anticipate or limit any subsequent provisions affecting it. It does not say expressly that she shall have the absolute right to use, for her own benefit exclusively, or the absolute right to dispose of, the estate which he gives to her. Her right to use and her power to dispose are merely the legal incidents of the title conveyed by the clause considered, as unqualified by its context. But the bequest to the wife is immediately followed by the clause which is the subject of the present contention. In direct connection with his gift to his wife the testator adds: "I recommend to her the care and protection of my mother and sister, and request [316] her to make such gift and provision for them as in her judgment will be best." It may well be admitted that the recommendation of the testator to his wife to care for and protect his mother and sister when they should be deprived of the care and protection which he could personally secure to them while he lived is not sufficient of itself to create a trust, and attach it to the estate of his widow, so as to be capable of enforcement. It is certainly the expression of a strong desire on the part of the testator for a continuance of care and protection by his legatee over his mother and sister, but, considered by itself, cannot be construed as creating in them an enforceable right to a beneficial interest in the estate given to his widow. It is rather a personal charge than a property charge. But he did not leave it so. The testator adds: “And requests her to make such gift and provision for them as in her judgment will be best." It is immaterial in the construction of this language to determine whether the word "gift" means a donation from the legatee or from the testator, for it is also to be a "provision." It is this which he requests his widow to make, out of that provision which the testator made directly for her, consisting of the whole of his estate, real and per Isonal. The entire estate bequeathed to his [317] [318] The substance of the bequest was his own; the form of it, shaped only by the declared purpose of his bounty, he was willing to leave to the judgment of his wife. The alternative that such discretion should assume the power to disappoint his dispositions evidently was not present in his thoughts, as it is not implied in his words. The language of the testator immediately succeeding that under consideration throws some light on the meaning of the words in dis pute. He says: "I also request my dear wife to make such provision for my daughter Helen, wife of Crittenden Thornton, and Carrie, as she may in her love for them choose to exercise." These were the daughters of the wife as well as of the testator, as is to be inferred from the fact that he refers the whole subject of any provision for them to her love, and the provision which he requests in their behalf is to be, not such," as in her judgment will be best," but only such "as she may in her love for them choose to exercise," leaving the whole question of a provision subject to the exercise of the legatee's choice, which the testator was quite willing to adopt as the dictate of the love of a mother for her children. widow is thus affected by this request. Is that | ciaries, so as to insure them that care and pro- The situation of the testator at the time he framed these provisions is to be considered. He made his will October 8, 1878; he died the next day. It may be assumed that it was made in view of impending dissolution, in the very shadow of approaching death. There is room enough for the supposition that by this necessity the contents of his will were required to be brief; the conception of the general idea to give everything to his wife was simple and easily expressed, and capable of covering all other intended dispositions. The time and the circumstances, perhaps, disabled him from specifying satisfactory details concerning a provision for his mother and his sister, but he did not forget that he owed them care and protection. That care and protection, therefore, he recommended to his wife as his legatee; but he was not satisfied with that; he wished that care and protection to be embodied in a gift and provision for them out of the estate which he was to leave to her. He therefore requested her to make it, and that request he addressed to his legatee and principal beneficiary as expressive of his will that a gift and provision for his mother and sister should come out of it. His legacy to them was part of his legacy to her. All other particulars, as to its form and amount, he was willing to leave, and did leave, to be determined by his widow in her judgment of what would be best for his benefi127 U. S. U. S., Book 32. 10 It is also to be assumed that the circumstances and situation of his mother and sister were remembered by the testator in the act of making his will; that they were separated from his personal care by a wide distance; that his mother was a widow, and had nearly attained the age of three score years and ten; that even before the death of his father her health was feeble, and, that since, she had been an invalid, enduring much sickness and suffering, requir ing constant medical attendance, and the nurs ing and care of her daughter, who had always resided with her; that except the lot in Greenwood cemetery, where her husband was buried, she owned no real estate, and had no income except the interest on $15,000, which had been advanced to the testator himself by his father as a loan many years previously, and on the income from which the mother and daughter were obliged, with great economy and selfdenial, to maintain themselves in very straitened circumstances. A recollection of their necessities, as well as natural love and affection, must have inspired that sentence of his will by which the testator recommended to his widow the care and protection of his mother and sister, giving commanding weight and solemnity to the accompanying request "to make such gift and provision for them as in her judgment will be best; " for he also well knew that such a provision, sufficient for their comfort and independence, would not sensibly diminish the abundance of the legacy to his wife out of which it must issue. It is an error to suppose that the word " request" necessarily imports an option to refuse, and excludes the idea of obedience as corresponding duty. If a testator requests his executor to pay a given sum to a particular per son, the legacy would be complete and recov erable. According to its context and manifest use, an expression of desire or wish will often be equivalent to a positive direction, where 145 [319] tor's widow which could be made effectual by that is the evident purpose and meaning of the In the case of Costabadie v. Costabadie, 6 court eventually to say, when called upon, But it is also argued that the trust sought to be established under this will in favor of the complainants is incapable of execution by reason of the uncertainty as to the form and extent of the provision intended, and because it involves the exercise of discretionary power on the part of the trustee, which a court of equity has no rightful authority to control. We have seen that whatever discretion is given by the will to the testator's widow does not [320] affect the existence of the trust. That discretion does not involve the right to choose whether a provision shall be made or not; nor is there anything personal or arbitrary implied in it. It is to be the exercise of judgment directed to the care and protection of the beneficiaries, by making such a provision as will best secure that end. There is nothing in this left so vague and indefinite that it cannot, by the usual processes of law, be reduced to cer-ure of the legacy." But it is always for the tainty. Courts of common law constantly determine the reasonable value of property sold, where there is no agreement as to price; and the judge and jury are frequently called upon to adjudge what are necessaries for an infant, or reasonable maintenance for a deserted wife. The principles of equity and the machinery of its courts are still better adapted to such inquiries. In the exercise of their discretion over trusts and trustees, it is a fundamental maxim that no trust shall fail for want of a trustee; and where the trustee appointed neglects, refuses, or becomes incapable of executing the trust, the court itself in many cases will act as trustee. In Thorp v. Owen, 2 Hare, 607, Wigram, V. C., said: Whatever difficulties might originally have been supposed to exist in the way of a court of equity enforcing a trust the extent of which was ascertained, the cases appear clearly to decide that a court of equity can measure the extent of interest which an adult, as well as an infant, takes under a trust for his support, maintenance and advancement, provision, or other like indefinite expression, applicable to a fund larger, confessedly, than the party entitled to support, maintenance or advancement can claim, and some interest in which is given to another person." And in Foley v. Parry, 2 Myl. & K. 138, where the words of a will were "and it is my particular wish and request that my dear wife and A. will superintend and take care of the education of D. so as to fit him for any respectable profession or employment," it was held that a charge was created on the interest taken by the testa On the whole, therefore, our conclusion is that each of the complainants in these bills is entitled to take a beneficial interest under the will of David D. Colton, to the extent, out of the estate given by him to his wife, of a permanent provision for them during their respective lives, suitable and sufficient for their care and protection, having regard to their condi tion and necessities and the amount and value of the fund from which it must come. It will be the duty of the court to ascertain after proper inquiry, and thereupon to determine and declare, what provision will be suitable and best under the circumstances, and all particulars and details for securing and paying it. The decrees of the Circuit Court are accordingly reversed, and the causes remanded, with directions to overrule the demurrers to the several bills, and to take further proceedings therein not inconsistent with this opinion; and it is so ordered. [321] [322] Jurisdictional amount-suit on bond-Act of GEORGE BARKER, Admr. of HENRY O. [213] 1875. 1. Upon a bond given to appear in a United States Court to answer to an indictment, in which the penalty is $5,000, no interest can be recovered; nor v. WALTER CRAIG. can any recovery be had beyond the amount of the (See S. C. "Jones' Admr. v. Craig," Reporter's ed. 2. Therefore this court has no Jurisdiction of a suit upon such bond. 3. Section 3 of the Act of Feb. 16, 1875 (18 Stat. at L. 315), fixing the amount necessary to give jurisdiction to this court of writs of error from the circuit court, at a sum in excess of $5,000, applies to the United States, except in cases enumerated in section 699, Revised Statutes. The facts are stated in the opinion. 213-216.) Submitted April 18,1888. Decided April 30,1888. Mr. Wm. A. Maury, Asst. Atty-Gen., for est; but if plaintiff should fail to do so, order plaintiff in error. (No counsel for defendant in error.) Mr. Justice Miller delivered the opinion of the court: that the suit be dismissed. Appeal dismissed. The instruments constituted a mortgage. These cases are suits brought upon two McGann v. Marshall, 7 Humph. 121; Bald bonds given by John F. Broadhead and his win v. Jenkins, 23 Miss. 206; Dey v. Dunsureties, conditioned for his appearance in the ham, 2 Johns. Ch. 182; 8. C. 15 Johns. 555; District Court of the United States for the Jackson v. Green, 4 Johns. 186; Cooper v. Whit[213] District of California, to answer two separate ney, 3 Hill, 95 and other authorities cited in 2 indictments for making and forging checks Lead. Cas. Eq. (Hare & W.'s Notes,) 626; on the Assistant Treasurer of the United States Montgomery v. Chadwick, 7 Iowa, 114; Halat San Francisco. The penalty of each of these lesy v. Jackson, 66 Ill. 139; Shillaber v. Robinbonds was $5,000, and, according to well set-son, 97 U. S. 68 (24: 967); Arrington v. Liscom, tled principles, no interest can be recovered in such a suit; nor can any recovery be had beyond the amount prescribed in these instruments, except for costs. 34 Cal. 365. Twenty years is a bar to a bill to redeem. Mr. W. J. Connell, for appellee. Mr Justice Miller delivered the opinion of [214] the court: Section 3 of the "Act to facilitate the dis-548. The appellants here, Henry O. Jones and The object of the bill was to remove a cloud rule. cover their possession, and, having a prima facie |