302

SHmLDs etaZ.

McAm,EY etaZ.

(OiJrcuif Oourt, llTo D. Pefl/1tsllZ'Dania. December, 24, 1888.)

1.

WILLS-T!tUSTS-PRIVATE UNDERSTANDING WITH DEVISEE.

It is a settled principle that if a testator make a devise'in terms absolute, but upon a private had with his devisee, whether by the lat· te1"!! express promise or his a!lsent implied from his' silence, that he will apply the devised estate to some purpose designated by. the testator, a trust arises which a court of equity will enforce, unless unlawful in itself.

2.

SAME""""-BEQUESTS TO CUARITIES. :

8

Mary McAu)eydied seised of a house and lot on Duquesne Way, J>ittsburgh, which she had acquired under the will of her brot;her,James; and also possessed of a large personal estate. As respects the laUer, she died intestate, but she left an instrumen t of writing signed by her, and which has been admitted to probate as her will. in. the words following: "By request of my dear brother my house on Duquesne Way is to be sold at my death, and the proceeds to be divided between the Home of the Friendless and the Home for Protestant Destitute Women. MARY McAuLEY." Hetd, that said instrument was operative asa validlleclaration of tbe terms of a trust upon which Mary McAuley held said ,property. and therefore it, was not affected by tbe act of assembly of April 26, 1855; which avoids beqtiests, devises, or conveyances for charitable usesun)essmade by deed or will, attested by two witnesses, at,least one calendar month before the death of the testator or alienor.
AND DISTRIBUTION-NEXT OF KIN-COUSINS. '

'

In the distribution of the peTsona} e'state of a decedent under the intestate laws of Pennsylvania. as between, first cousins and second cousins, the former take to the exclusion of the latter.

In Equity. Suit to val$dity of a will for administration of estate of decedent. ,¥noz & Reed, for com plainants., Thomas for devisees.... . . . D. F. Patter8O'fl, and John W. Donnan, for fhst cousins. V, . 11. WatBon and S. Schoyer,' Jr., .lor second cousins. Before McKENNAN and ACHESON, p. .
PF,Jt CURIAM. 1. James McAuley, who died on the 9th day of January, 1871, by his will dated and Noveloher 26, 1870, made large heQ;1.lests to his sisters .and Mary, and also; devised to them .a,. house and lot on Duquesne Way, in the city of Pittsburgh. Margaret died in 1871, a few months after her brother, and thereupon her interest in said property passed to her sister Mary, who died January 6, 1886, seised of said real eslate, and leaving also a large personal estate. As respects the latter, she died intestate, but she left an instrument of writing, signed by her, (the body thereof being also in her hand-writing,) of which the following is a jJopy: "By request of my dear brother, my house on Duqul'sne Way is to be sold at my death. and proceeds to be di videu bet ween the Home of the Friendless and the Home for Protestant Destitute Women. MARY McAULEY." On January 12, 1886, this instrument was admitted to probate as the will of Mary McAuley. The two named beneficiaries are corporations of the state of Pennsylvania, and charitable institutions, within the

SHIELDSt'. M'AUtEY.

308

meaningot the act of assembly of April 1855, whicliavoids bequests, devises, or conveyances-to any body politic, or to any person i lin trustfor religious or charitable ufles,unless made by deed or will, attested by two credible, and at the same time disinterested, witnesses,'8.t 'least one calendar month before the decease of the testator or alienor. Hence the neJtt of kin of Miss McAuley contest the validity of the disposition of the . proceeds of said .real estate made by said instrument. . . While there is no direct testimony to fiJt the precise date when said instrument was eJtecuted, there is circumstantial evidence quite sufficient to warrant a finding that it was much more than one calendar month before Miss McAuley's decease. But then the want 6fattestation by two witnesses remains as an objection against giving full effect to the paper, ifit is to be treated simply as the will of Miss McAuley. Must it be so regarded? Or (as mainminedby the learned counsel for the beneficiaries) may it be acc'epted as a valid declaration on the part of .Mary McAuley of thMerms of a trust upon which she held the prbperty? It is a settled principle that if a testator make a devise in terms absolute, but upon a' private understanding had with his devisee, whether by the latter's eJtpllesB promise or his assent implied from his sUence, that he will apply the devised estate to some purpose designated by the testator, a trust arises which a oourt of equity will enforce, unless unlawful 'in itself. Lewin, Trusts, *70; Wallgrave v. Tebbs,2 Kay' & J. 313, 321; Tee'v. Ferr.w, ld. 357; Springett v. Jenings, L. R. 10 Eq. 488; 3 Redf.Wills, 485; 1 Story, Eq. Jur. § 256; Hoge v. Hoge, 1 Watts, 1G3; Churchv. Ruland, 64 Pa. St. 432, 442. In our judgment such a trust is shown here. The instrument in question manifestly was designed tOCSlTy out the purpose of James McAuley, the execution of which he had confided to his dev. isee. f Thepapel1, both in its scope and aim, is unlike an ordinary ",ill· . It deals with nothing but the Duquesne Way house.· As to everything else Miss McAuley was content to die intestate. But that particular property had been devoted by her brother to charitable purposes, to take effect at her death. Evidently he had communicated his intention to her, and she had accepted the trust. All this, we think, is plain upon the face of the paper, "By the· request of my dear: brother, my house on Duquesne Way is to be sold at my death, and the proceeds to be divided," etc. It< ",as, then, his intention Miss McAuley sought to effectuate. Clearly, she was acting in fulfillment of a Sacred c.onfiden(le. True, she herself uses the word "request," but undoubtedly her understanding 'was that an obligation had been imposed on her. In Colton v. Qllton,127 U.S. 319, 8 Sup. Ct. Rep. 1164, the court says: ""It is an eITorto suppose that the word ·request' necessarily imports an option to refuse. and excludes the idea of obedience as corresponding duty. ... ... ... According to its context and manifest use, an expression of desire or, wish will often be equiValent to a positive direction, where that is the evident P,llrposean!l meaning of the testator." : Missl't1cAuley, who 'had perfect knowledge of her brother's intention, and fully understood her own duty, having undertaken to carry out his purpoEle by this instrument of writing, it is not for her neJtt of kin to

304

FEDERAL REPORTER.

question the existence of !t trust thus recognized by her, or to gainsay '. her deliberate act. James McAuley's will was executed more than one calendar month before lle died. Whether the understanding with his devisee was entered into contemporaneously with,the signing of his will, or before or after, is not known. There is, however, nothing to indicate that the arrangement was made within one month before his death, nor is this alleged in the bill. In Manners v. Libmry Ca., 93 Pa. St. 176, it is said that the act of April 26, 1855, being in' derogation of the common-law right of conveyance, the averments of a bill must be so distinct and clear as to bring the case within the terms of the law. Certainly a court of equity will not assume illegality in this trust, but, in furtherance of the beneficent intention of the donor, will rather make every reasonable presumption favorable to its validity. In respect to the second named charity , "The Home for Protestant Destitute Women," there is a misnomer; the true title being, "The Home for Aged Protestant Wo,men;" but this is not material, as it clearly appears that this is the institution intended. Society's Appeal, 30 Pa. St. 425. 2. In awarding the personal estate of the decedent (Mary McAuley) to the first cousins to the exclusion of the second cousins, the master followed the decision of the supreme court of Pennsylvania in Brenneman's Appeal,40 Pa. St. 115. The precise question was involved and directly ruled in that case; and it is conceded that, if we follow that ruling,the master's distribution must be confirmed. That decision has never been qualified or questioned by the supreme court. As it gives a construction to the Pennsylvania statutes of distribution in cases of intestacy, it is binding upon this court here, even were our own judgment diBerent. LeffingweU v. Warren, 2 Black, 599. But, in truth, we entertain no doubt whatever as to the correctness of the decision. In our . opinion it is clearly in accordance with the terms and intent of the statutes

HEDGES

et al. ".

DIXON COUNTY.

«(Jfrcuit Court, D.NelYra8ka. January, 1889.)
RAILROAD COMPANIES-MuNICIPAL AID-EXCESSIVE ISSUE-EQUITy-POWEB TO SCALE. .

Where a (Jounty's issue of bonds for donation to a railroad bas been held void in a court of law, as in e·xcess of the constitutional limit of indebtedness, equity bas no power to scale down the issue to the limit, and enforce it against . the county, tbe contract being indivisible, and void in toto, and there being no executed consideration to support an implied promise.

In Equity. Bill by Daniel T. Hedges and others to scale down'an:d enforce an issue of the bonds of defendant coilnty, said issue having been the held void as inexces>l of the constitutional limtt of indebtedness county, Defendant demurs.. J. Jtf. Woolworth, for complainant.