#### ALICE V. SPRINGS v. JOHN L. SPRINGS et al.

(Filed 23 November, 1921.)

1. Wills — Letters—Devises—Pee—Trusts.

Where a holograph will, unnecessarily witnessed and bearing a seal after the testator’s signature, in positive terms gives all of the testator’s real property to his sister, to be held by a designated person in trust for her until her twenty-third birthday, and the testator has written a letter to her (without attestation or seal, but on the same sheet of paper) expressing a wish that when she should become aware of the contents of his will, she would make one, leaving “all your property” to a certain nephew, so that in the event of her dying without children the nephew should have it, and in case of her marriage she could destroy her will: Held, the words in the letter were precatory and not mandatory; and should it be considered a part of the will, which is at least doubtful, and the clerk has admitted the whole to probate, the words employed in the letter are insufficient to evidence the intent of the testator to impose a trust thereby upon the unqualified gift in the writing he declared to be his will.

2. Same — Precatory Words — Statutes.

Por precatory .words used in a will to be regarded as mandatory to create a trust in lands devised, the intention of the testator to that effect must clearly appear by interpretation of the instrument, for otherwise these words must be given the ordinary significance of those of that character, both under our modern decisions and C. S., 4162, providing that a devise of lands shall be construed to be in fee, unless the terms of the will clearly shows the testator’s intent to pass an estate of less dignity.

Appeal by plaintiff from Harding, J., May Term, 1921, of Meok-LENBURG.

' This is ah action to remove' a cloud upon title submitted upon the pleadings and agreed statement of facts. Richard A. Springs, of Charlotte, died in 1879. On 28 June, 1870, he wrote and signed the following paper-writings, which were admitted to probate in Mecklenburg Superior Court on 5 July, 1879, the whole of said writings being in testator’s own handwriting, except the signature of John E. Orr as a witness, to wit:

Ohaklotte, N. C., 28 June, 1870.

To whom it may concerní:

Knowing the uncertainty of life, and wishing to have my worldly goods disposed of according to my wishes, I make my last will and testament.

I will first that all my debts be paid. Secondly, I will, devise, give and bequeath all my real and personal estate and valuables of every kind to my sister, Alice Y. Springs, and I wish Gen. Robert D. Johnston to act as trustee for her until her twenty-third birthday.

Given under my hand and seal this 28 June, 1870.

R. A. SPRINGS. [seal.]

"Witness: John E. Orr.

*485To my Sister Alice:

When you are made acquainted with -the contents of this will, it is my wish that you make a will immediately and leave all of your property to our nephew, John M. Springs. Should you marry afterward you can then tear up the will. My object is to have my property given to you first, but should you die without children, I wish you to leave your property to Johnny Springs.

Very affectionately, your brother,

R. A. SPRINGS.

The testator had never married, and left him surviving five sisters, one of whom is the plaintiff, the other four being then married; one brother, and the children of a deceased brother, who had left a widow and five minor children, the defendant, John L. Springs, being next to the youngest of them, and the only boy. The testator left an estate, real and personal, including a half interest in fee simple in a lot in Charlotte described in the complaint, the whole valued at that time at about $13,300. At the date of the paper-writing, and at the death of the testator, the plaintiff had property estimated to be worth $2,000, or $2,500, inherited from her father.

The only question involved in this appeal is whether under the will of Richard A. Springs the plaintiff was seized of an absolute fee simple title to the property in question to the exclusion of the defendants. The court below so held, and the defendants appealed.

Gansler & Oansler, Glarlcson, Taliaferro & Glarlcson for plaintiff.

Cochran & Beam, W. B. Gouncil, and, John M. Bobmson for defendants.

Clare, C. J.

The defendants , contend that the will and the lower script having been probated in common form, the lower script has been adjudicated to be a part of the will. We do not. deem it essential to discuss this point, for taking it to be true that it has been so adjudicated, we think that the words in the script are simply precatory and not mandatory. It would seem that the appended letter was not intended to operate as a part of the will, but as merely a private letter of recommendation ; but passing that by and taking it to have been proven as a part of the will, still it seems to us that the effect is not at all different.

The will itself, excluding the script, is a devise absolute in terms, and it will not be impressed with a trust by reason of words of “request” or “desire” contained in the subsequent and independent clause. The words used in the will proper are unequivocal and clearly vested a fee simple absolute in the plaintiff, and did not create a trust. The words of the *486script, taken as a part of tbe will, should be taken as baying been used in tbeir usual and commonly accepted sense, and in tbe absence of clear indication of a contrary intent, expressions of “wisb,” “bope,” etc., are not to be construed as creating a trust.

Tbe will was complete in itself, and disposed of all bis property absolutely in bis sister, tbe plaintiff. It is giyen under bis band and seal, and is witnessed. While tbe seal was not necessary, it indicates an intention of making it bis solemn act, and as sucb be bad it duly witnessed, and it is directed to tbe public generally. Tbe script appended on tbe same sheet is evidently an intimate letter addressed “To my sister Alice,” and bas no seal nor witness. Tbe first line of tbis script states to bis sister that when sbe is made acquainted “with tbe contents of tbis will,” it is bis wisb that sbe would make a will leaving “all yowr property” to tbeir nepbew, Jobn M. Springs. These words embrace tbe property which be knew tbe plaintiff bad already inherited from her father, as well as that which sbe would take by virtue of tbis will. Tbis indicates that it was a mere wisb, for be bad no power to require her to devise “all” her property to tbe nepbew. He further states in tbis note to bis sister that if sbe should marry after making sucb will sbe could tear it up, notwithstanding tbe request that be bad made, and be further states that bis object is to give bis property to her first, but that if sbe should die without children, be wished her to leave "your property to Johnnie Springs,” and be signs tbis script “very affectionately, your brother.”

Tbe broad and comprehensive terms of tbe devise to tbe plaintiff made her tbe sole beneficiary: No logical reason bas been assigned why if tbe testator desired to make tbe contents of bis affectionate note to bis sister a limitation on bis absolute devise to her be did not incorporate it in tbe will as signed, sealed and witnessed at tbe same time. Tbe fact that be did not do so is conclusive evidence that be did not intend tbe letter to operate as an imperative testamentary command imposed as a charge upon bis devise of all bis property to her. Indeed, be suggests in bis note not only that sbe should devise all her property, which would include that wbicb sbe already bad, as well as that wbicb be bad given her, but be adds that if sbe should marry sbe could tear up tbe will, thus indicating that her compliance with bis request was not absolute or imperative.

Had tbe testator desired and intended to place an obligatory burden upon tbe devise to bis sister whereby in tbe event of her death without children bis property should go to tbeir nepbew be would certainly have written, “But should you die without children my property (or tbe property herein devised) shall go to Jobn Springs.” And, furthermore, be would have included a provision of sucb importance in tbe will proper *487wbicb be bad signed, sealed and caused to be witnessed, whereas there was no witness or seal to the script. It is significant that bis request to bis sister is one wbicb be knew could not be obligatory, for it is the expression of a wish that she should devise all “her” property to the nephew, wbicb be knew was not binding upon her, for be was aware that she already bad independent property of her own and points out that if she desired she could afterwards tear up the will if so made.

It is true that under the old English decisions, wbicb were followed by a few of the early cases in this country, the expression of a wish by the testator, like that of a sovereign, was construed as a command, but all the later cases, both in England and in this country, repudiate the doctrine, and .bold that in the absence of a clear indication of a contrary intent, expressions of “wish,” “desire,” etc., are to be taken as used in their commonly accepted sense, and are not to be artificially construed by the courts as a trust. In this State to this effect, Alston v. Lea, 59 N. C., 27; Batchelor v. Macon, 69 N. C., 545; Young v. Young, 68 N. C., 309; St. James v. Bagley, 138 N. C., 348; Hayes v. Franklin, 141 N. C., 599; Fellowes v. Durfey, 163 N. C., 305; Carter v. Strickland, 165 N. C., 69; Hardy v. Hardy, 174 N. C., 505; Laws v. Christmas, 178 N. C., 359; Waldroop v. Waldroop, 179 N. C., 674.

The decisions are to the same effect elsewhere, and are summed up, 37 L. N. S., 646, notes; Ann. Cases, 1915 D, 416, note; 2 Underbill on Wills, 1151 et seq.; 1 Perry on Trusts, 147.

The subject is nowhere better stated than in a review of the cases in this and other states by Mr. Justice Hoke in Carter v. Strickland, 165 N. C., 69, as follows: “Some of the earlier English cases, and they have been followed by decisions in this country, are to the effect that a trust will be engrafted or imposed upon an estate, absolute in terms, or upon its bolder, by reason of precatory words in a will whenever the objects of the precatory language are certain and the subject of the recommendation or wish is also certain — a position supposed to best effectuate the intent of the testator. A consideration of the later cases, however, will show that, in the decisions referred to, the principle has been too broadly stated, and it is now the prevailing doctrine, certainly so in this jurisdiction, that such words will be given their ordinary significance, and will not have the effect above stated, unless from the terms and dispositions of the will and the circumstances relevant to its proper construction it clearly appears that they are to be considered as imperative and that the testator intended to create a trust.”

That case has been cited with approval in the subsequent cases on the subject, and is almost exactly on all fours with this case. In 2 Underbill on Wills, 1156, it is said: “The current of the decisions, both in Eng*488land and tbe United States, indubitably shows that precatory trusts are not to be favored, nor is their extension to be encouraged by the courts.”

Indeed, C. S., 4162, has made this ruling statutory. “When real estate shall be devised to any person the same shall be held and construed to be a devise in fee simple, unless such devise shall in plain and express words show, or it shall be plainly intended by the will or some part thereof, that the testator intended to convey an estate of less dignity.”

The rule is well settled that in a will no words are necessary to enlarge an estate devised or bequeathed into an absolute fee. On the contrary, restraining expressions must be used to confine the gift to the life of devisee or legatee. Holt v. Holt, 114 N. C., 241; Jones v. Richmond, 161 N. C., 553.

In Griffin v. Commander, 163 N. C., 230, where the testator devised to his wife “all the remainder of my estate, real and personal, with power to give and devise the same after her death to her beloved children and grandchildren,” it was held that she took in fee simple.

In Fellowes v. Durfey, 163 N. C., 305, where, after giving the property to the testator’s widow in subsequent clauses the will goes into elaborate details and directions as to advancements, and in other respects authorizing her to make provision for their children, the Court held that the widow took an estate in fee simple absolute.

The judgment of the court below is

Affirmed.

Waliceb, J.,

concurring in result: I concur in the decision of this case, but not altogethei in the reason assigned in the Court’s opinion therefor. The letter’ of Mr. Springs to his sister, which was written at the same time as the will, was not intended to be a part of the same, but merely a collateral request to his sister, which should only suggest his wishes as to the subsequent disposition of his property by her, but which should not be imperative upon her, but strictly discretionary or optional, that is, a thing she’might do or not as she pleased. This is shown by his not incorporating it within his will as á part thereof, but expressing his wish in the form of a letter to her, without being witnessed by Mr. John E. Orr. As the letter was probated with the will as a part thereof (which should not have been done, as it was clearly not intended to be any part of the will), I must recognize the principle of law applicable to such a case, that the probate cannot be attacked except directly, for the usual rule with regard to judgments rendered by a court of competent jurisdiction applies to the decrees of a competent court admitting a will to probate and to the extent that the same can be attacked only by a proceeding immediately directed to that end, and they cannot be assailed collaterally. Gardner on Wills (1903), p. 337; 40 Cyc., 1370-*4891377, especially'the latter page; Hampton v. Hardin, 88 N. C., 592; London v. R. R., ib., 584; Edwards v. White, 180 N. C., 55; In re Beauchamp’s Will, 146 N. C., 254; Starnes v. Thompson, 173 N. C., 466; In re Thompson's Will, 178 N. C., 540. But, admitting this to be the inflexible rule of the law, it is nevertheless proper to consider the nature, or character, of the two documents, and the fact that they were prepared and signed at the same time, in passing upon the meaning of the testator, and upon an examination of them in the light of the facts and surrounding circumstances, my opinion is that it was clearly not the intention of Mr. Springs that his language should be considered as imperative, but merely precatory, that is, the expression of a mere wish, without intending to bind his sister at all to its observance. She might comply with it or not as she deemed best. The fact that her entire will was revocable by her upon her marriage favors this construction. If it were otherwise, and the letter had been made formally a part of his will, that is, embodied in it, I would be compelled to hold that the words he used were not merely precatory, and the making of her will purely discretionary, but that they would be imperative or mandatory upon her, and I have written this opinion to exclude the conclusion that I assented to the statement in the opinion that the words, considered by themselves, are precatory, and not imperative in character.

My opinion is that Miss Alice Y. Springs is not compelled to comply with the request contained in the letter, but may do so or not as she may choose, and with perfect freedom to act in that way.

Hoke, J., concurs in the opinion of Walkeb, J.