Estate of Lee

Written objections to the petition of the executor of the last will and testament of Milton A. Lee for the final distribution of the estate were filed. The probate court sustained a demurrer to these objections and this appeal is taken from that order.

The will, which was holographic in form, reads as follows:

The sole question involved on this appeal is whether the precatory words addressed to the brothers and sisters of deceased—“take care of Brother Will”—are such that they would create a trust in favor of Will over the four-fifths of the estate devised to the brothers and sisters named in the will. The subject of precatory trusts is fully discussed in an elaborate note found in 49 A. L. R., pages 10 to 103, wherein it is said (p. 22) : “The crucial test, then, is whether the wish, desire, or recommendation expressed by the testator, is meant to govern the conduct of the one 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 such person, leaving it, however, to the person to exercise his own discretion. Where a bequest is given, coupled with precatory words which leave the legatee free to…