Burton v. Irwin
181 S.E.2d 624, 212 Va. 104, 1971 Va. LEXIS 301 (1971)
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Rule of Law:
For precatory words in a will to create a trust, there must be a clear testamentary intent to impose an enforceable legal obligation upon the legatee to make a particular disposition of property, considering all relevant circumstances and admissible extrinsic evidence when the will's language is ambiguous.
Facts:
- Blanche Burton Mallory, an 86-year-old widow without issue, died on November 10, 1967.
- On June 26, 1962, Mrs. Mallory wrote a holographic will appointing her brother, William L. Burton, as "executor and Trustee."
- The will stated: "To my Brother William L Burton I present herewith & without recourse the accompaning Bonds, Stocks, Mortage Notes, real estate, and Bank Accounts and valuables of all descriptions...."
- The will concluded: "My Brother knows my wishes and will carry them out, to the best of his ability."
- Mrs. Mallory and her brother, William L. Burton, had an unusually close relationship akin to mother and son, with him being 24 years her junior.
- William L. Burton had given up his business to care for Mrs. Mallory's needs, lived with her for six months a year in Florida, and was financially dependent on her.
Procedural Posture:
- William L. Burton qualified as Executor of Blanche Burton Mallory's will and entered into bond.
- A sister of Mrs. Mallory, the personal representative of another deceased sister, five nieces and nephews, two great-nieces, and a great-nephew (complainants) filed a chancery suit against William L. Burton and two infant heirs at law/distributees in the Chancery Court of the City of Richmond.
- The complainants alleged Mrs. Mallory's estate was devised to Burton to hold "for the benefit of her heirs and next of kin," while Burton asserted he was entitled to the entire estate.
- The chancery court heard evidence ore tenus (witness testimony).
- The chancery court issued a written opinion, concluding no intention could be found for the brother to take fee simple title, and that a "naked trust was created or implied in favor of the heirs at law and distributees" because the testatrix attempted to create a trust for unknown persons and purposes.
- The chancery court entered a final decree on September 11, 1969, ordering William L. Burton as Executor to distribute the net estate to the heirs at law and distributees.
- William L. Burton (appellant) was granted an appeal from this final decree.
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Issue:
Does a holographic will, which names the testator's brother as "executor and Trustee," devises property to him using words like "I present herewith & without recourse," and concludes with "My Brother knows my wishes and will carry them out, to the best of his ability," create a valid trust for undesignated beneficiaries or an absolute gift of the estate to the brother?
Opinions:
Majority - Cochran, J.
No, the holographic will does not create a valid trust for undesignated beneficiaries; it constitutes a devise and bequest of her property in fee simple and absolute estate to her brother William L. Burton. The court found that the chancellor erred in excluding extrinsic evidence because the will's language was not clear and unambiguous enough to make such evidence inadmissible. Examining the will in light of the surrounding facts and circumstances, the court noted Mrs. Mallory's lack of legal training, which meant words like "trustee" might not carry their precise legal meaning. The unusually close, mother-son-like relationship, William's financial dependence, and his role in caring for Mrs. Mallory provided a strong motive for her to leave him her estate. The will mentioned only William, referred to him three times, and the designation "executor and Trustee" without naming beneficiaries or specifying trust purposes suggested a layperson's intent for him simply to administer the estate. The phrase "I present herewith & without recourse" was interpreted as an unconditional gift. The concluding precatory words, "My Brother knows my wishes and will carry them out, to the best of his ability," were addressed to William personally as "Brother" rather than as a fiduciary. Under the modern view, precatory words do not create a trust unless there is clear testamentary intent to impose an enforceable legal obligation, which was absent here. The court distinguished prior cases where trust language was more explicit or definite.
Analysis:
This case is significant for clarifying the interpretation of wills, particularly those drafted by testators without legal training. It establishes that courts should prioritize the testator's true intent over a strict, technical reading of legal terminology, especially when extrinsic evidence sheds light on the testator-legatee relationship and the circumstances surrounding the will's creation. The ruling reinforces that precatory words, which express a wish or hope, do not automatically create an enforceable trust unless they clearly impose a legal obligation. This approach helps prevent unintended intestacy and ensures that property is distributed according to the testator's demonstrable wishes, rather than by a forced, legally precise construction of informal language.
