¶1This is a motion to confirm the report of the referee.
¶2The fifth clause of the will of testatrix reads as follows : “It is my desire and request that Frank L. Smith,- mentioned in the preceding clause in my will, shall watch over and care for my friend, Lena Wilde, who at one time lived in my family, and see that at no time is she allowed to suffer or want for the necessaries of life.” By the seventh clause, she appoints Frank L. Smith sole executor; and, by the second clause of the codicil, she devises and bequeaths all the rest, residue and remainder of her property to said Frank L. Smith, after bequeathing several articles of jewelry, etc., to a friend. It is now urged by the counsel for the petitioner that the precatory words contained in the will constitute a trust in favor of the beneficiary therein named, and that the residuary legatee therein named takes subject to the trust.
¶3The rule laid down by Lord Ceahwobth, in Williams v. Williams (1 Sim. N. S., 358), and approved in Wood v. Seward (4 Redf., 271), and by the Court of Appeals of this State, in Foose v.Whitmore (82 N. Y., 405), is as follows: “The real question always is, whether the wish, or desire, or recommendation that is expressed by the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party, leaving it, however, to the party to exercise his own discretion.”
¶4*96The testatrix, by the codicil, made an absolute and unqualified disposition of her estate to Frank L. Smith therein named. Had she intended to subject this devise to the trust, as claimed, for the benefit of Lena Wilde, she would have used other more obligatory words, to have expressed such intention. They are too indefinite, and are not words of obligation, nor do they impose any. They were not intended to govern the action of the person to whom they were addressed. They are simply a wish or recommendation, appealing to the discretion of the residuary legatee, and cannot, therefore, impose any legal obligation upon him in favor of the petitioner.
¶5This application for construction does not arise on the probate of the will, nor upon- a final accounting. It may, therefore, be questioned whether the Surrogate has the power, under the circumstances, to entertain the motion.
¶6An order may be entered, confirming the report of the referee, dismissing the motion.'