of dismissal is declared to be "without prejudice," it is a bar to any further litigation of the matter between the parties. But an action at law is disposed of, either by a judgment for the plaintiff or in bar of its maintenance or of nonsuit. By either the first or second one the cause of action is determined and the action brought to an end; but by the third, the action only is ended or disposed of, and another may be brought upon the same cause.

This judgment of nonsuit can only be obtained on motion of the defendant before trial, because of the failure of the plaintiff to appear for trial, or by consent. The form of it is, "that the plaintiff take nothing by his suit or action and the defendant go hence without day," and the effect of it, under the code, is to dismiss the action: See code of civil procedure, chap. ii, title xi.

But a "motion" to dismiss "a complaint," whether at law or in equity, will not lie under any circumstances and it proceeds upon a total misconception of the nature of legal procedure, both under the code and at common law.

CIRCUIT COURT. DISTRICT OF CALIFORNIA.

September 22, 1884.

ABIGAIL R. COLTON v. ELLEN M. COLTON.

WILL CONSTRUED-TRUSTS-RECOMMENDATION AND REQUEST.-The will of David D. Colton, contains this provision: "I give and bequeath to my said wife, Ellen M. Colton, all my estate, real and personal, of which I shall die seized, or possessed or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them, as in her judgment will be best." Held: That this provision is not an absolute gift, or bequest in trust for the mother and sister of the testator-that it is not an imperative command, to make the provision for their support, but only a recommendation and request, leaving the matter to the judgment and discretion of his surviving wife. TRUSTS ARISING FROM PRECATORY WORDS IN WILLS.-The conditions necessary to raise a trust from words of recommendation and request in a will discussed.

RULES FOR CONSTRUCTION OF WILLS under the civil code of California stated and applied.

The opinion states the facts.

W. W. & H. S. Foote and Grove L. Johnson, for the complainant.

Crittenden Thornton and Stanly, Stoney & Hayes, for the defendant.

SAWYER, CIRCUIT JUDGE. This is a bill in equity to establish a trust in favor of complainant in the estate of the late David D. Colton, deceased, in the hands of his devisee and legatee, Ellen M. Colton; and to obtain a decree against the defendant, requiring her to make a suitable provision out of the estate devised and bequeathed to defendant, for the maintenance of complainant.

The will out of which the suit arises is as follows, to wit: "I, David D. Colton, of San Francisco, make this my last will and testament. I declare that all of the estate of which I shall die pos

sessed is community property, and was acquired since my marriage with my wife. I give and bequeath to my said wife, Ellen M. Colton, all of the estate real and personal, of which I shall die seized, or possessed, or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them, as in her judgment will be best. I also request my dear wife to make such provision for my daughter Helen, wife of Crittenden Thornton, and Carrie, as she may in her love for them choose to exercise. I hereby appoint my said wife to be the executrix of this my last will and testament, and desire that no bonds be required of her for the performance of any of her duties as such executrix. I authorize and empower her to sell, dispose of, and convey any and all of the estate of which I shall die seized and possessed, without obtaining the order of the probate court, or of any court, and upon such terms, and in such manner, with or without notice, as to her shall seem best. If my said wife shall desire the assistance of anyone in the settlement of my estate, I hereby appoint my friend S. M. Wilson of San Francisco, and my secretary, Charles E. Green, to be joined with her in the said executorship, and authorize her to call in either or both of the said gentlemen, to be her co-executors. And in case she shall so unite either, or both of them with her, the same provisions are hereby made applicable to them, as I have before made for her in reference to bonds, and duties, and powers."

The question is, does this will create a trust in favor of complainant? Do the recommendations and requests, found in the will, give an absolute legacy to the complainant out of the estate, and do they constitute an imperative command to make the provision, or is the matter left to the discretion of the surviving wife, as sole devisee and legatee, to act in the matter as her judgment and feelings shall dictate? It cannot be denied that the earlier English decisions, and a few of the earlier cases in this country, go a long way toward sustaining the claim set up by the complainant. But later cases, both in England and the United States, considerably limit the construction given by the earlier decisions to precatory words of a will, or words of request or recommendation, and some of them, especially in this country, fall little short of repudiating and altogether overruling the earlier cases. Says Story, on this subject: "In the interpretation of the language of wills also, courts of equity have gone great lengths, by creating implied, or constructive trusts, from mere recommendatory and precatory words of the testator:" 2 Story's Eq. Jur., sec. 1,068.

After considering the English cases, he adds: "The doctrine of thus construing expressions of recommendation, confidence, hope, wish, and desire, into positive and peremtpory commands, is not a little difficult to be maintained upon sound principles of interpretation of the actual intention of the testator. It can, scarcely, be presumed, that every testator should not clearly understand the difference between such expressions, and words of positive direction and

command; and that, in using the one, and omitting the other, he should not have a determinate end in view. It will be agreed on all sides that, where the intention of the testator is to leave the whole subject, as a pure matter of discretion, to the good will and pleasure of the party enjoying his confidence and favor; and where his expressions of desire are intended as mere moral suggestions, to excite and aid that discretion, but not, absolutely, to control, or govern it, there the language cannot, and ought not, to be held to create a trust. Now, words of recommendation, and other words, precatory in their nature, imply that very discretion, as contradistinguished from peremptory orders, and, therefore, ought to be so construed, unless a different sense is irresistibly forced upon them by the context. Accordingly, in more modern times, a strong disposition has been indicated not to extend this doctrine of recommendatory trusts, but, as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear, that they are designed to be used in a peremptory sense:" 2 Story Eq., sec. 1,070.

The most favorable rule for complainant, now recognized, that can be deduced from the body of the English authorities, is, doubtless, that stated by Lord Langdale in Knight v. Knight, 3 Beav., 173, where he said: "As a general rule, it has been laid down, that where property has been given absolutely to any person, and the same person is, by the giver, who has power to command, been recommended, or entreated, or wished, to dispose of that property in favor of another, the recommendation, entreaty, or wish, should be held to create a trust: 1. If the words are so used, that upon the whole, they ought to be construed as imperative; 2. If the subject of the recommendation, or wish be certain; and 3. If the objects, or persons intended to have the benefit of the recommendation, or wish, be, also, certain:" See 44 Am. Dec., 372, note to Harrison v. Harrison's Adm'r, 2 Grat., 1. On the contrary in the language of Story: "Wherever, therefore, the objects of the supposed recommendatory trusts are not certain or definite; wherever the property to which it is to attach is not certain or definite; wherever a clear discretion or choice to act, or not to act, is given; wherever the prior dispositions of the property import absolute and uncontrollable ownership; in all such cases courts of equity will not create a trust from words of this character:" 2 Story's Eq. Jur., Sec. 1,070; see also, Howard v. Carusi, 109 U. S., 733-4, citing_and_ recognizing the rule as stated by Story, and 2 Pomeroy's Eq. Jur., Sec. 1,014 to 1,017, where the subject is well discussed.

Upon a careful consideration of the language of the will, giving the words their usual natural signification, as they would, doubtless, be understood, almost, if not quite, uuiversally, by ordinarily intelligent English speaking people, without reference to any strained, artificial, or technical rules of construction, it appears to me, that two, at least, if not three of these requisite conditions negatively stated are found in the will. The "objects of the supposed recom

mendatory trusts" are, undoubtedly, "certain and definite"-they are the mother and sister of the testator. But "the property to which it [the trust] is to attach is not certain, or definite.' "The subject, of the recommendation, or wish" is, surely, not "certain." No specific property, or amount, is indicated, as the subject of the asserted legacy or trust. The testator only "requests," his general legatee, and devisee, "to make such gift and provision for them as in her judgment will be best," apparently leaving the whole matter to her judgment, and discretion. How is the court to determine to what property, or to what amount of money, the trust is to attach? Neither the property, nor the amount of money, is indicated; and the testator has not left the matter to the judgment of the court to determine, but in express terms to the judgment of his surviving wife-his sole devisee and legates. The subject is, therefore, not certain, or definite. The testator has neither indicated the particular property, nor the particular amount of money, out of the million of dollars in value claimed to have been left, to which the legacy, or trust, is to attach, nor has he indicated any rule by which the property, or amount, can be ascertained, other than the judgment of his surviving wife; which judgment she appears to have exercised, for she made gifts from time to time in small sums, amounting in the aggregate to fifteen hundred dollars. Certainly, the property, or amount of money to which the trust, if any there be, is to attach-the subject of the recommendation, or request, or the subject of the trust-could not well be more uncertain, or more indefinite. In the absence of words expressly creating a trust, this indefiniteness and uncertainty, constitute strong evidence, that the testator did not intend to create a trust. In language quoted from 10 Ves., 536: "And wherever the subject to be administered, as trust property, and the objects for whose benefit it is to be administered, are not to be found in the will, not expressly creating a trust, the indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the court, as evidence that the mind of the testator was not to create a trust; and the difficulty that would be imposed upon the court, to say what should be so applied, or to what objects, has been the foundation of the argument, that no trust was intended; or, as Lord Eldon expresses it in another case: Turn. & Russ., 159, where a trust is to be raised, characterized by uncertainty, the very difficulty of doing it is an argument which goes, to a certain extent, towards inducing the court to say, it is not sufficiently clear what the testator intended: See also, Knight v. Boughton, 11 Clark & Finnel, R. 548;" note to Sec. 1,070, Sto. Eq. Jur., p. 284-5. In the notes to Harrison v. Harrison's Adm'x, 2 Grat., 1, reported in 44 Am. Dec., 375, and in 2 Sto. Eq. Jur., Sec. 1,073, et. seq., notes, the cases are cited illustrating certainty, and uncertainty, in a will within the meaning of the condition of the rule, adopted by the courts, as to the subject of the recommendation, or request; and, as it appears to me, few of those provisions held to be too uncertain to create a trust, are more

66

uncertain or indefinite, than the provision in the will in question. And in the language of Lord Cottenham, in Finden v. Stephens, 2 Phil., 142: "Words of recommendation are never construed as trusts, unless the subject be certain:" 44 Am. Dec., 376. The will in question, therefore, fails in this condition of certainty, as to the subject, essential to the creation of a trust by precatory words, even under the English rule most favorable to such trusts now recognized. Again, under that branch of the rule stated by Story, that wherever the prior dispositions of the property import absolute uncontrollable ownership, courts of equity will not create a trust from words of this character:" 2 Sto. Eq. Jr., Sec. 1,070, this will is deficient in this one of the elements from which the intention to create a trust may be inferred. No language can, more clearly, and unmistakably, dispose of property," absolutely, or "import absolute uncontrollable ownership" in the devisee, or legatee, than the language of this will, making "the prior disposition of the property of the testator," which is, "I give and bequeath to my said wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seized, or possessed, or entitled to." And further on in his will, the testator adds, "I authorize and empower her to sell, dis pose of, and convey, any and all of the estate of which I shall die seized and possessed, without obtaining the order of the probate court, or of any court, and upon such terms, and in such manner, with, or without, notice, as to her shall seem best." If this language of gift, and devise, and this power to dispose of, and control, does not constitute "a prior disposition of the property," which "imports absolute and uncontrollable ownership," then, I am at a loss to know what would express that idea, or effect such a purpose. In this respect, also, the will is deficient in one of the elements suggested by Story, as necessary to create a trust from mere precatory words, or words of recommendation, or expressing a desire.

Again, are the words considered by themselves "so used as upon the whole, they ought to be construed as imperative," or is there "a clear discretion, or choice to act or not to act," given, irrespective of other elements to be considered. The language, and all the language, to be consdered on this point, is, "I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them, as in her judgment will be best." Or, in effect, I do not, myself, make any gift, or any provision for them, according to my judgment, or determine how much they ought to have, but I recommend them "to her care and protection;" and I "request her to make such gift, and provision for them as in her judgment will be best."

By the express terms of the civil code of California, "a will is to be construed according to the intention of the testator," and the "testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it is made, exclusive of his oral declarations." "All parts of the will are to be construed in relation to each other, and, so as, if possible, to form a consistent