ESTATE OF JOHN H. MOLK.
No. 8483--November, 1878.
DEVISE.--PRECATORY WORDS.--The words, "To my
beloved wife the whole of my property, for her own use and benefit and to maintain
and support my said children with, the same to
be hers absolutely," do not create a trust, but vest the wife with the
absolute estate.
Construing
section, C. C., 1322.
T. F. Bachelder,
for executrix.
The estate is ready for distribution, and the clauses
in the will relating to the question for consideration are as follows:
"Fifthly. To my beloved wife I hereby entrust the care,
education, and maintenance of my beloved children until they shall arrive at
the age of maturity, and be able to support and maintain themselves.
"Sixthly. I give and bequeath unto my beloved wife,
Anna Margaretha Molk, the
whole of my said property above mentioned for her own use and benefit, and to
maintain and support my said children with; the same to be hers
absolutely."
The question is, whether these words create a trust
for the benefit of the children, or whether the widow is entitled to distrubtion of the entire estate to herself.
By the COURT:
The words used as to the children are precatory
words, of recommendation and confidence only, and do not create a trust. The entire estate should be distributed to
the widow in fee.
Transcribed
by Sue Wood.
© 2007 Sue Wood.
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