— This action was instituted for the purpose of construing a will. The appellant’s contention is, that the word “ recommend,” used in the sixth provision thereof, “is obligatory, and that its effect is to limit A. D. Tuttle’s interest to a life estate, and to dispose of the remainder by his Will, in accordance with the wishes of the testator.” The court below disagreed with this desired construction, and from its decree in the premises, *269 so far as the same affected the property mentioned in the sixth clause of the will, this appeal is taken.

That decree, among other matters, distributed the property in dispute “ to the said Adolphus Darwin Tuttle and his son Charles Whitcomb Tuttle, of Hancock, New Hampshire, in fee-simple absolute,” and further ordered that George Hagar, who held the legal title of the property in trust, should make conveyance of the same to them. The testator, A. C. Whitcomb, was a lawyer, who had acquired a large property in California. He left the state in 1867, and spent the last twenty years of his life in Paris, adding, while there, a good deal to his fortune. He died in 1888, leaving an estate which was inventoried at over four million dollars. A part of it consists of an equitable thirty-one forty-eighths part, undivided, in the Jimeno Rancho, originally a Spanish grant extending for some miles along the Sacramento River, in Colusa and Yolo counties. It contains about eighteen thousand five hundred acres of land, of which ten thousand acres are in a swamp-land district, a large portion of it at times covered with water. The whole interest in this land, including appurtenances and personal property, was appraised at three hundred and fifty thousand dollars. About twenty-five thousand dollars of this value consists in town lots in the town of Colusa. The taxes upon the rancho were large, and the income proportionately small. It was improved only so far as was necessary to raise crops of hay and grain. Being not profitable, it was thought best to subdivide and sell it, and to that end George Hagar was invested with Whitcomb’s title, he (Hagar) holding and owning the other seventeen forty-eighths part. This mere legal estáte, held in trust for Whitcomb and his devisees, Hagar admitted in open court, and was willing to abide by the decree thereof, ordering a conveyance to the Tuttles.

The real party contesting here against the decree is Harvard College. Whitcomb had been brought up by *270 A. D. Tuttle’s mother, was much attached to Tuttle, and frequently aided him by gifts of money, and in the education of C. W. Tuttle, the son of A. D. Tuttle, whom Whitcomb wished to be prepared for the sphere in life intended for him, which wmuld come by virtue of a large amount of property which Whitcomb had declared he should leave to him. Whitcomb removed to Paris, as before stated, was there married, and left surviving him two small children, who, with his wife, were his heirs at law. C. W. Tuttle was about twenty-five years of age at the date of this will.

So much of the will as is necessary to this controversy is as follows: —

It is said in Colton v. Colton, 127 U. S. 309 , a case on appeal from the United States circuit court for California, as the rule on the subject laid down by Chief Justice Marshall: “ The first and great rule in the exposition of wills, to which all other rules must bend, is, that the *273 intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of lawn” Mr. Whitcomb was a lawyer, and understood fully what was necessary in order to vest a trust estate. If he had intended that the property thus willed to Adolphus Tuttle and his son should finally go to Harvard College, as is contended for by the appellant, it was very easy for the former to have said so in unequivocal language. As to the other property mentioned in the seventh clause of his will, he expressly left it, in trust, to Jerome Lincoln to pay over to his, testator’s, wife one third of the income thereof during her natural life, and the other two thirds to his two children, born of her, with the reversion or remainder of the whole to their descendants per siirpes, if any were alive at the death of the children; and if no descendants of them were alive at their death, the property to go to Harvard College, in conformity with the provisions named or indicated in section 6 of the will, having reference to that college. If he had intended to create a trust in the sixth section, he would have said so in as plain language as be used in the seventh section.

Again, when, in the fourth section, he leaves his wife two hundred thousand dollars of his Chesapeake and Ohio railroad bonds, he further recommends that she do not dispose of them or convert them without the distinct advice of his friend Mr. Bruce. There it is plain that the solicitude of the husband for the wife’s welfare induces him to say to her, in effect: “It is my advice that you consult Mr. Bruce and be governed by his judgment in your action as to the sale or conversion of these bonds.” Even to the wife, to whom, from her close alii-, anee to him, such a word as “ recommend ” might be intended to have more binding force than to a man like Mr. Tuttle, he does not use that word in a sense to convey any particular injunction or command, disobedience to which would affect her title to the property in any way, or by means of which Mr. Bruce acquired any in *274 terest in the property. And in the third section, where he recognizes the business capacity of and his confidence in A. D. Tuttle and Henry Foster Whitcomb, by making them trustees for two persons, he uses apt and unambiguous language. In fact, the whole will, taken together, shows that the testator fully understood what he desired done with his property, and that when he intended trusts to exist he said so in plain language. And when he gave persons property, and recommended them to do so and so with it, he meant to leave them free to act upon his advice or not, as they saw fit, but did not intend in any way to limit the estates he had bequeathed them in the first part of the sections of the will, giving the property.

Such being the plain intent of the testator, it is clear that the trial court gave proper construction to the section of the -will in controversy, and we advise that the judgment appealed from be affirmed,

Belcher, C. C., and Hayne, C., concurred.

The Court. —■ For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.