1. A devise of real estate and bequest of personal property
"to my brother S. C., to be held, used, and enjoyed by him, his
heirs, executors, administrators and assigns forever, with the hope
and trust, however, that he will not diminish the same to a greater
extent than may be necessary for his comfortable support and
maintenance, and that at his death, the same, or so much thereof as
he shall not have disposed of by devise or sale, shall descend to
my three beloved nieces P. E. C., G. E. C., and I. E. C., is, as to
real estate, a devise to S. C. in fee simple, with no limitations
over, and creates no trust, executory or otherwise."
2. An execution of a power to name beneficiaries to take under a
deed which designates A., his heirs, executors, administrators and
assigns forever, with the hope and trust that he will not diminish
the same, and a provision that at his death so much thereof as he
shall not have disposed of by devise or sale shall descend to B.,
vests the fee simple absolute in A. with no remainder to B.
The pleadings and evidence in this case disclose the following
facts:
On March 18, 1872, Lewis Carusi, a bachelor about 78 years of
age, and a citizen of the City of Washington, in the District of
Columbia, being seized in fee of certain real estate in said city,
executed his last will and testament. In the first item of the
will, he directed his just debts and funeral expenses to be paid
out of his personal estate. The second item of the will was as
follows:
Page 109 U. S. 726
"And as to all my property, real, personal, and mixed, after the
payment of my just debts and funeral charges as aforesaid and the
payment of the legacies hereinafter mentioned, I give, devise, and
bequeath the same to my brother Samuel Carusi, to be held, used,
and enjoyed by him, his heirs, executors, administrators, and
assigns forever, with the hope and trust, however, that he will not
diminish the same to a greater extent than may be necessary for his
comfortable support and maintenance, and that at his death the same
or so much thereof as he, the said Samuel Carusi, shall not have
disposed of by devise or sale, shall descend to my three beloved
nieces, Phillippa Estelle Caulfield,
nee Carusi, Genevieve
E. Carusi, and Isolina E. Carusi, the daughters of my said brother
Samuel Carusi, as follows: to the said Phillippa Estella Caulfield,
nee Carusi, the sum of five thousand dollars ($5,000), the
remainder of my estate to be divided between Genevieve E. Carusi
and Isolina E. Carusi, to share and share alike as tenants in
common and not as joint tenants, and so that they and they alone
shall have the right to have, possess, use, and enjoy the same
separate and apart from and independent of any husband either one
of them may have at the time of my decease or at any time
thereafter, and so that he or they shall have no right, privilege,
or power to control or interfere with any part of my said estate in
any manner whatsoever, and so that the same shall not be subject or
liable to any debt that any such husband may have incurred."
"I further hope, trust, and desire that in the event either one
of my said nieces, daughters of the said Samuel Carusi, shall not
survive my said brother Samuel, that the share she might become
entitled to had she survived him may be conferred and fall to the
surviving niece or nieces. In no event shall any portion of my
estate be subject to the control or interference of any husband
either one of my said nieces may have at the time of my decease or
at any time thereafter."
"I give and devise to my three nieces, daughters of my brother
Nathaniel Carusi, the sum of two thousand dollars ($2,000)."
By the third and last item of the will, the testator appointed
his brother Samuel Carusi the sole executor thereof.
Afterwards, on July 18, 1872, the said Lewis Carusi, as party of
the first part, executed a deed of that date, which purported to
convey to his brother Samuel Carusi party of the
Page 109 U. S. 727
second part, in fee simple, all his real estate in the City of
Washington, upon trusts which were thus expressed:
"In trust, nevertheless, to, for, and upon the following uses
and trusts, that is to say, in trust to sell and convey the whole
or any part of the said piece or parcels of ground and premises at
the discretion of the said party of the second part and to invest
the moneys arising out of such sale or sales in other property or
securities, for the use and benefit of the said party of the first
part, and in event of the death of the said party of the first
part, so much of said pieces or parcels of ground as may remain
unsold, or such other property as may be purchased, or such
securities as may be acquired, in manner aforesaid, to convey to
such person or persons as the said party of the first part may, by
his last will and testament, or other paper writing, under his hand
and seal, by two persons witnessed, designate and direct."
The appellant averred, and the defendants denied, that this deed
had been delivered by the grantor to the grantee therein named.
Subsequently, on October 17, 1872, Lewis Carusi executed and
delivered to his brother Samuel Carusi another deed conveying to
him absolutely in fee simple the same lands described in said will
and in the deed of July 18, reserving to himself the rents and
profits thereof during his life.
On October 25, 1872, Lewis Carusi died, having made no will
other than that of March 18, 1872, above mentioned. After the death
of Lewis, Samuel Carusi took possession of the real estate
described in said will and deeds, claiming an absolute title in fee
simple thereto, by virtue of said will and the deed of October 17,
1872, and continued in possession until his death. On March 23,
1877, he duly executed his last will and testament, by which he
devised to his wife, Adelaide S. Carusi, for her natural life, all
his real estate, with remainder in fee at her death to his
children, John McLean Carusi, Samuel P. Carusi, Thornton Carusi,
Estelle Caulfield, Genevieve Carusi, and Isolina E. Howard, share
and share and share alike, and appointed his wife, the said
Adelaide S., and his son, the said John McLean Carusi, the
executors thereof.
Page 109 U. S. 728
Afterwards, on December 22, 1877, Samuel Carusi died, and on
January 8, 1878, his will was admitted to probate and record in the
orphans' court of the District of Columbia.
The bill in this case was filed by Isolina E. Howard, one of the
children and heirs at law of Samuel Carusi, against the defendants,
who were her brothers and sisters and devisees under their said
father's will. It averred the making by Lewis Carusi of his said
will and of the deeds of July 18 and October 17, 1872, and
specially averred the delivery by Lewis Carusi to his brother
Samuel of the first-mentioned deed. It averred that the deed of
October 17, 1872, was made by Lewis Carusi when he was physically
so feeble as to be unable to sign his name
"and when he was mentally incompetent to execute a deed; that at
the time said deed was made by him he had no legal title to the
real estate therein described, having divested himself thereof by
the deed of trust of July 18, 1872, and that he was procured to
make said deed of October 17th by Samuel Carusi, for whose benefit
it was made."
The bill further alleged that the will of Lewis Carusi was
propounded for probate and record in the proper court, but a caveat
having been filed against the probate thereof, no proceedings were
taken or decree made in reference thereto.
The bill charged that the will of Lewis Carusi fully designated
the beneficiaries of the trusts created by the deed of trust of
July 18, 1872, and that Samuel Carusi had no estate in the property
belonging to Lewis Carusi which he could dispose of by his last
will so as to divest the plaintiff and her sisters of their rights
under the last will and testament of Lewis Carusi, and that Samuel
Carusi was only a trustee to hold the property during the lifetime
of Lewis Carusi, and upon trust to convey the same upon the death
of Lewis to the complainant and her sisters in manner set forth in
Lewis Carusi's last will and in said deed of trust.
The bill further alleged that Samuel Carusi, with the purpose of
defeating the provisions of the will and deed of trust executed by
Lewis Carusi, did during his own lifetime suppress the deed of
trust and claimed an absolute title in fee simple to all the estate
of Lewis Carusi under the will of the latter and the deed
Page 109 U. S. 729
of October 17, 1872. Finally, the bill alleged that Lewis
Carusi, during his lifetime, repeatedly
"Declared in the most unmistakable terms that it was his
intention to leave his estate, by any testamentary disposition he
should make thereof, to his nieces, to the exclusion entirely of
any nephews that might survive him, and to the exclusion of the
wife of the said Samuel Carusi, should she survive him; . . . and
that it was the intention of Lewis Carusi to make provision at all
events for his said several nieces in preference to all persons and
to every person who might, by reason of affinity, have any claim
upon him or his estate."
The bill prayed for a decree declaring the deed of trust dated
July 18, 1872, to be in full force and effect, and that the will of
Lewis Carusi was operative as designating the beneficiaries under
the deed of trust, and its terms and conditions; that the will of
Samuel Carusi, so far as it devises any part of the estate of which
Lewis Carusi died seized, might be declared null and void; that a
receiver might be appointed to take charge of and manage the
estate, and that the defendants, Adelaide S. Carusi and John McLean
Carusi, named as executors of the will of Samuel Carusi, might be
enjoined from interfering in any way with the estate of Samuel
Carusi, and for general relief.
MR. JUSTICE WOODS delivered the opinion of the Court.
The case made by the bill of complaint is based on the will of
Samuel Carusi and upon the deed of trust alleged to have been
executed and delivered July 18, 1872. The contention of complainant
is that, by the deed, Lewis Carusi conveyed to Samuel Carusi all
his real estate in trust to convey the same to such person or
persons as the said Lewis Carusi might "by his last will and
testament, or other paper writing under his hand and seal, by two
persons witnessed, designate and direct," and that, although the
will was revoked by the trust deed, it was nevertheless effectual
as a designation of the persons to whom
Page 109 U. S. 730
said real estate was to be conveyed by Samuel Carusi, the
trustee, and that the complainant and her sister, Genevieve Carusi,
were the persons who were so designated by the will.
It is clear, therefore, that complainant's case can derive no
aid from the declarations of the testator, Lewis Carusi, alleged to
have been made before and after the execution of his will, in
relation to the disposition which he intended to make of his
property. It must stand or fall upon the designation made in the
will.
It is clear also that the will is to receive precisely the same
construction, as an instrument designating the beneficiaries of the
trust deed, as it would have received as a last will duly proven
and recorded. The question is therefore what estate did the
testator intend to give the complainant by his will of March 18,
1872?
This will gives first, an estate in fee simple to Samuel Carusi;
it contains, second, the expression of a hope and trust that he
will not unnecessarily diminish the estate; and, third, it gives to
the nieces of the testator so much of his estate as Samuel Carusi
shall not at his death have disposed of by sale of devise. We have,
then, devised to Samuel Carusi an estate in fee simple, with an
absolute power of disposition either by sale or devise, clearly and
unmistakably implied. Therefore, according to the adjudged cases,
the limitation over to the niece of the testator is void.
The rule is well established that although generally an estate
may be devised to one in fee simple or fee tail, with a limitation
over by way of executory devise, yet when the will shows a clear
purpose of the testator to give an absolute power of disposition to
the first taker, the limitation over is void.
Thus, in the case of
Attorney General v. Hall, Fitz-G.
314, there was a devise of real and personal estate to the
testator's son and to the heirs of his body, and that if he should
die leaving no heirs of his body, then so much of the real and
personal estate as he should be possessed of at his death was
devised over to the complainants in trust. The son in his lifetime
suffered a common recovery of the real estate, and made a will as
to the personal estate, and died without issue, and a bill was
filed against his executor to account. It was held by Lord
Page 109 U. S. 731
Chancellor King, aided by the Master of the Rolls and the Chief
Baron of the Exchequer, that the devisee was tenant in tail of the
real estate, and had barred the plaintiffs by the common recovery,
and that the executrix was not to account for the personal estate
to the persons claiming under the limitation, for that was void as
repugnant to the absolute ownership and power of disposal given by
the will.
In the case of
Ross v. Ross, 1 Jac. & Walker 154, a
limitation over was declared void because it was limited upon the
contingency that the first taker did not dispose of the property by
will or otherwise.
See also Cuthbert v. Purrier, Jac. 415;
Bourn v. Gibbs, 1 Russ. & Mylne 615;
Holmes v.
Godson, 8 D.G., M. & G. 152.
The American cases are to the same effect. Thus, in
Jackson
v. Bull, 10 Johns. 19, Charles Bull died seized of the
premises in question. By his last will, after devising a certain
lot of land to his son Moses, he declared: "In case my son Moses
should die without lawful issue, the said property he died
possessed of I will to my son Young, his lawful issue," etc. It was
held that the limitation over was void, as being repugnant to the
absolute control over the estate which the testator intended to
give.
In
Ide v. Ide, 5 Mass. 500, the devise was to the
testator's son Peleg, his heirs and assigns, with the following
provision:
"And further, it is my will that if my son Peleg shall die and
leave no lawful heirs, what estate he shall leave to be equally
divided between my son John Ide and my grandson Nathaniel Ide, to
them and their heirs forever."
Held that his limitation over to John and Nathaniel Ide were
void because inconsistent with the absolute, unqualified interest
in the first devisee.
To the same effect is the case of
Bowen v. Dean, 110
Mass. 438, where a man devised all his estate, real and personal,
to his wife, "to hold to her and her assigns," but should she "die
intestate and seized of any portion of said estate at the time of
her death," then over. The wife took possession of the land and
died, having made a will by which she devised and bequeathed all
her estate, real and personal. It was held that the will of the
husband gave the wife, by necessary implication,
Page 109 U. S. 732
an absolute power of disposal, either by deed or will, and this
power having been fully executed by her will, nothing remained upon
which the devise over in the will of her husband could operate.
In
Melson v. Copper, 4 Leigh, 408, the case was
this:
John Cooper died in 1813 seized of the messuage and land in
controversy, having, by his last will duly executed, devised,
inter alia, as follows: "I give to my son William Cooper
the plantation I live on, to him and his heirs forever. In case he
should die without a son and not sell the land, I give the land to
my son George," etc. The plantation on which the testator lived was
the land in controversy. George Cooper, the lessee of the
plaintiff, was the testator's son George mentioned in the devise,
who claimed the land under the litigation over to him therein
contained. The testator's son William, to whom the land was devised
in the first instance, attained to full age, married, and died,
leaving issue one daughter, but without leaving or ever having had
a son, and without having sold the land. The question referred to
the court was whether, upon this state of facts, George Cooper was
entitled to the land. The court held that a general, absolute,
unlimited power to sell the land was given to William Cooper by the
devise, that he took a fee simple, and that George Cooper was not
entitled to recover.
See also Gifford v. Choate, 100 Mass.
343;
Hale v. Marsh, ib., 468;
Ramsdell v.
Ramsdell, 21 Me. 288.
The rule is thus stated by Chancellor KENT:
"If there be an absolute power of disposition given by the will
to the first taker, as if an estate be devised to A in fee, and if
he dies possessed of the property without lawful issue, the
remainder over the property which he, dying without heirs, shall
leave, or without selling or devising the same; in all such cases,
the remainder over is void, because of his preceding fee, and it is
void by way of executory devise, because the limitation is
inconsistent with the absolute estate expressly given, or
necessarily implied, by the will."
4 Kent's Com. 271.
If the will of Lewis Carusi had remained unrevoked and had been
duly proven and recorded, and Samuel Carusi had died
Page 109 U. S. 733
intestate, with all the property devised to him by Lewis Carusi
undisposed of, the complainant would be entitled to no relief, for
she would have taken nothing by the will. If the will can be held
the designate any beneficiary under the trust deed of July 18,
1872, it designated Samuel Carusi, and not the complainant and her
sisters.
But by the terms of Lewis Carusi's will, the complainant and her
sisters were only entitled to so much of the estate of Lewis as
Samuel should "not have disposed of by devise or sale." The bill of
complaint charges that Samuel Carusi, by his last will and
testament, had devised to certain persons therein named, among them
the complainant, all the property devised to him by the last will
of Lewis Carusi. There was therefore no property of the estate of
Lewis Carusi to which the supposed devise to complainant and her
sisters could apply.
The case of complainant receives no support from the precatory
words of the will of Lewis Carusi. These words express "the hope
and trust that Samuel Carusi will not diminish the same
(
viz., the property devised to him by the will) to a
greater extent than may answer for his comfortable support," and
the testator then devises to complainant and her sisters what
Samuel shall not have disposed of by devise or sale.
The words do not raise any trust in Samuel. He is not made a
trustee for any purpose, and no duty in respect to the disposition
of the estate is imposed upon him. But even if the will had
contained an express request that Samuel should convey to the
complainant so much of the estate as he did not dispose of by sale
or devise, there would be no trust, for the will, as we have seen,
gives Samuel Carusi the absolute power of disposal.
In
Knight v. Knight, 3 Beavan 148, it was said by the
Master of the Rolls (Lord Langdale):
"If the giver accompanies his expression of wish or request by
other words from which it is to be collected that he did not intend
the wish to be imperative, or if it appears from the context that
the first taker was to have a discretionary power to withdraw any
part of the subject from the wish or request, . . . it has been
held that no trust was created. "
Page 109 U. S. 734
And see S.C. nom. Knight v. Boughton, 11 Cl. & Fin.
513.
The rule is thus stated by Mr. Justice Story in his Commentaries
on Equity Jurisprudence, 1070:
"Whenever the objects of the supposed recommendatory trust are
not certain or definite, whenever the property to which it is to
attach is not certain or definite, whenever a clear discretion or
choice to act or not to act is given, whenever the prior
dispositions of the property import absolute and uncontrollable
ownership, in all such cases, courts of equity will not create a
trust from words of this character."
See also Wood v. Cox, 2 Mylne & Craig 684;
Wright v. Atkyns, 5 Turn. & Russ. 157;
Stead v.
Mellor, 5 Ch.D. 225;
Lambe v. Eames, L.R. 10 Eq. 267;
S.C. L.R. 6 Ch. 597;
Hess v. Singler, 114 Mass.
56;
Bennock's Estate, 20 Penn.St. 268;
Van Duyne v.
Van Duyne, 1 McCarter 397; 2 Pomeroy's Eq.Jur. ยงยง 1014, 1015,
1016, 1017, and notes.
The views we have expressed render it unnecessary to consider
other questions argued by counsel. It is quite immaterial whether
or not Lewis Carusi had mental capacity to execute the deed of
October 17, 1872, or whether he had any title to the property
described therein. If that deed had never been executed, the fact
would not aid the complainant's case.
The result is that the decree of the Supreme Court of the
District of Columbia in general term by which the decree of the
special term dismissing the complainant's bill was affirmed was
right, and must itself be
Affirmed.
