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.