The defendants demurred to the bill for want of equity. The case was heard by C. Allen, J., on the bill and demurrer, and a decree was entered sustaining the demurrer and dismissing the bill. The plaintiffs appealed to the full court.
R. M. Morse, Jr., and S. J. Elder, for the plaintiffs.
B. F. Butler and F. L. Washburn, for the defendants.
Judge Charles Devens. The fact that the respective portions of the estate bequeathed by Mrs. Eddy to Mrs. Stone and Miss Anthony were in amount equal to-or precisely the same as those which came to her by descent from her father, Francis Jackson, is not of importance in the case at bar. It had been held in Jackson vs. Phillips, 14 Allen, 539, that a certain bequest made by Mr. Jackson in trust was not, legally speaking, a public charity, and that it could not therefore pass to the beneficiaries named in his will. The property which he thus attempted to bequeath descended therefore to his legal representatives, of whom Mrs. Eddy was one. She received it with the same right to deal with it or dispose of it in her lifetime, or by will at her decease, that she had in any other estate which was her lawful property.
The bill alleges "that said will was intended by the testatrix to defeat the decision of the court, before mentioned; that the testatrix had no personal acquaintance with Lucy Stone or Susan B. Anthony; that said gift was intended as a gift in perpetuam to the said cause." But if Mrs. Eddy has complied with the rules of law in the disposition of her property, even if she has hoped thereby to attain the same object as that desired by her father, the decision referred to is not defeated, but is recognized and conformed to; and, whatever her intention may have been, her bequest is to be upheld. Her gift to her beneficiaries is absolute in terms. They may do what they will with the property bequeathed to them, as they may with any other property which is lawfully their own. It is true that the gift is accompanied by a request that they will use the fund bequeathed "to further what is called the woman's rights cause." A request made by one who has the right to direct is often, perhaps generally, interpreted as a command. For this reason, recommendatory or precatory words used in a bequest are frequently treated as an express direction. Thus, if a legacy were given to A., with a request that out of the sum bequeathed he would pay to another a certain sum, or a portion thereof, it might well be construed as a legacy, to the amount named, to such person. The expression of the desire of the testator would be the expression of his will, and the words in form recommendatory would be held to be mandatory and imperative. Where such words are used, it is therefore a question of the fair construction to be attributed to them (Whipple vs. Adams, 1 Met., 444; Warner vs. Bates, 98 Mass., 274; Spooner vs. Lovejoy, 108 Mass., 529).
But the testatrix in the case at bar has left nothing to construction. Apparently aware that a request, where she had a right to direct, might be treated as a command, and desirous to make it entirely clear that no restraint or duty in any legal sense was imposed upon her legatees, and that the request of the will was such in the limited sense of the word
