The opinion
MILLER, Associate Justice
(dissenting in part).
I concur except as to points 1 and 3 of the majority opinion.
The testator created a testamentary trust as to his real property. 1 The only qxiestion for us to determine therefore is, Who were intended to be cestuis or beneficiaries thereunder? The majority opinion says “ * * * the will of Dr. Kolipinski involves a testamentary trust set up in favor of his wife. We see none of the continuities present in the Kolipinski will that would show testator’s intent to give the income of the trust he created to his wife and children as a class.” Standing
*710 alone this seems to mean that the widow was the sole beneficiary. Moreover, the same theory is suggested by cases relied upon to support the conclusion, i. e., cases construing wills which made testamentary gifts or absolute bequests of property, 2 and in which the theory of a trust was rejected. If this is the theory of the majority opinion then it cannot stand under the circumstances of the present case, because the widow, being the sole trustee, could not also be the sole beneficiary, 3 and the trust would fail. It must be remembered that a trust is not a gift. 4 Although the fact situations may be similar in the two cases, the difference between them is just as fundamental as the difference between a deed and a mortgage. The fiduciary relationship which exists between trustee and beneficiary, and which is of the essence in a trust, is absent in the case of a gift. Hence, in the present case, unless we deny the existence of a trust, the practice of reading the language of the will to discover the testator’s motive in making a gift has no application, 5 and it accomplishes nothing to speak of a “gift in the form of a trust.” While it is possible therefore — when other circumstances permit — to spell out a trust from the fact that executors are charged with active duties in the settlement of estates, it is not possible to do so when the result would be a trust in which the sole trustee is also the sole benfeficiary. In the latter situation the cases properly hold that no trust exists, but instead that a gift is made. Where, however, a trust is expressly declared, it becomes necessary to read the will in a manner consistent with a trust. Under the circumstances of the present case this requires that the gift theory be rejected and the cases relied on by the majority rejected as inapplicable.
The majority opinion also says “ * * this will provides for beneficiaries other than the wife * * It does not name those beneficiaries or define their interests. But it is obvious that none other than the children, born and unborn, could qualify, and presumably the statement means that their beneficial interests are in the income of the real property after the death of their mother. If this is the theory of the majority opinion then the vital *711 question is merely whether the children, born and unborn (this uncertainty was determined after the death of testator), were intended to share as beneficiaries with the mother during her lifetime or only after her death. In my opinion, the former was the intention of the testator. There is nothing in the language of the will to suggest the latter alternative.
The widow in the present case was executrix, trustee, and one of the beneficiaries. If testator’s intention had been to make a gift of the income of his real property to her alone, the elaborate trust provisions of the will would have been unnecessary. The simple expedient of an outright gift or the vesting in her of a life estate would have been sufficient. It seems obvious that he must, then, have had some other intent and purpose; and that, in my opinion, was the protection and care of his children, especially in the event of remarriage by his wife. For this purpose a trust, naming them as beneficiaries, provided the ideal instrument. Consequently, the' only reasonable answer to the question stated above is that the testator intended the income to be used for the benefit of the widow and children as a class and that both should be beneficiaries.
The language of the will, in my opinion, supports that conclusion. The language of Item 1 standing alone is obviously ambiguous. It reads as follows:
“ * * * In trust to manage and control the same and to collect all income therefrom arising, and after the payment of all my funeral expenses, all my just debts * * * then to use said income of my real estate for the benefit, support and maintenance of my said wife Ella. M. during her life and the lives of my children now living and for any children that may hereafter be borne to me.” (Italics supplied.)
Read literally, this means “for the benefit et cetera of my said wife Fila M. during her life and thereafter, for her benefit during the lives of my children now living.” This is susceptible of the interpretation that testator intended the income to be used following her death for maintaining a memorial, or for other like purposes. But no one contends for such a literal reading of the language. Ambiguity being present it becomes necessary to apply the well recognized rule that a will is not to be construed by isolated expressions, but must be construed in its entirety. 6 With the application of that rule in mind, my analysis of the other pertinent provisions of the will is as follows:
First, the testator used the word for twice as indicated by italics; the second time with respect to unborn children. There can be no doubt that he intended by the second use of the word for to provide for the benefit, support and maintenance of unborn children. There is no reason to assume that he intended to make different provision for born 'and unborn children. Putting this fact together with the ambiguous preceding statement in which he spoke of his wife and his children now living, it seems to me that what he intended to say was “for the benefit et cetera of my said wife during her life; for the benefit et cetera of my children now living during their lives; and for the benefit et cetera of any children that may hereafter be borne to me during their lives.”
Second, in the next succeeding item of the will the testator clearly expresses his intention as follows: “For the purpose of carrying out the full provisions of this my last will, it is my intentions that my real estate shall be preserved as a whole for the benefit, support and maintenance of my said wife Ella M. and my children during their lives.” (Italics supplied.) The meaning of this statement is unmistakable. 7 In language similar to that of the preceding item, he thus removed the ambiguity thereof and clearly revealed his intent. Apparently his lack of familiarity with legal language and his attempt to incorporate the words “during her life and the lives of my children now living” produced the inept and ambiguous result in the first item which now requires interpretation. But *712 -in the second item he was more successful and produced a result which requires no interpretation..
Third, in Item 5 of the will, provision is made for a’ trust fund to insure the trustee. in the management and protection of the real estate." The last sentence of the item reads “Said trust fund shall be kept on deposit in one or more Banking institutions at interest, which interest shall be added to the income hereinbefore provided and to be used for the benefit, support and maintenance of my said wife and children.” (Italics supplied.) Here again we have repeated the phrase which appeared in Item 1 — again without the confusion caused by the interpolation of “during her life and the lives of my children now living”— and again it is apparent that he intended the “income hereinbefore provided” in Item 1 “to be used for the benefit, support and maintenance of my' said wife and children,” concurrently.
Fourth, in Item 7 of the will the testator provided:
“ * * * Should my said wife Ella ■M. Kolipinski marry at any time after my death; or during the minority of either of my two oldest living children; or should my said zvife die;, then, in either event I hereby authorize, direct and empower any of my said children, to institute proceedings in the courts of the District of Columbia for the appointment of a competent trustee, in the place and stead of my said wife, who shall act as said trustee until such time as my two oldest living children shall arrive at their majority, then said substituted trustee shall thereupon surrender his said trust to and in favor of my two oldest living children, who are hereby appointed trustees with the same authority and power, as herein given and granted unto my said wife, or to the substituted trustee appointed in her place and stead.” (Italics supplied.)
There can be no question that such power and authority as the widow possessed over the real property trust and over its income, she possessed as trustee, and not as the recipient of a gift, for Item 1 clearly so provided. By Item 7 the testator provided for the transfer of all such power and authority, first to a substituted trustee, and thereafter to the children, upon the transfer of trusteeship.. This provision of the will, read in connection with the rest of it, again reveals the testator’s intention. ■ The first alternative situation under which such transfer was to occur was the death of the wife. The second alternative was her remarriage. So far as control of his estate was concerned, the two situations were practically the same in the mind of the testator. In either event he thought that it would become necessary for a substituted'trustee or for the children to take charge, for their own protection as well as the protection of the estate, presumably in order to prevent spoliation of the estate, by removing management from the possibly malign influence of a stepfather, a purpose which would be defeated if the trustees were required to turn over to the uncontrolled influence of the same stepfather the whole income therefrom. Consequently, in my opinion, a reading of the whole instrument clearly reveals the testator’s intention to provide a special safeguard for the welfare of his children by making them, equally with his wife, beneficiaries under the trust, and by providing that in the event of her remarriage she should forfeit the trusteeship. The first and great rule in the interpretation of wills is the ascertainment of the intent of the testator. 8
*713 I think that no helpful conclusion can be drawn from the failure of the children to claim any definite interest adverse to the mother until after the middle of 1935. The record reveals that the mother concealed from the children the fact of their interest; that one of them, at least, asked her for a copy of the will, which she refused; that their curiosity was aroused when in 1930 the mother instructed them to sign certain documents as trustees; that in 1932 for the first time the children learned the contents of the will, when they procured a copy thereof from the Register of Wills; that in 1933 and 1934 an accounting was demanded from the mother; and that in 1935 they took over the trusteeship.
I am also unable to agree with the conclusion of the majority concerning the $20,-000 trust fund. I can find no language in the will, and no authority, to support the conclusion that the trust failed as to this fund when the wife ceased to be trustee. The express language of the will directs that it shall continue, and that the interest therefrom shall be used for the benefit of the wife and children.
The vital language of Item 5 reads as follows:
“ * * * I then give and bequeath the same to my wife Ella M. in trust to hold as a fund, with which to settle and satisfy any and all claims, demands, suits "or damages that may arise against my said wife as trustee in the management and protection of my said real estate; * * (Italics supplied.)
In my opinion the testator’s primary interest, as set out in the quoted language, and as revealed in the rest of the will, was the management and protection of his real estate, not the protection of his wife, particularly in case she remarried. He was as much interested in the good management and protection of his real estate if and when his children became trustees as when his wife acted in that capacity. If any claims, demands, suits or damages arose against his real estate which could not be otherwise satisfied, it would become necessary to sacrifice the real estate by forced sale and thus defeat his major purpose, For that reason he provided a special fund, not for the protection of his wife but of his wife as trustee. If his wife should cease to be trustee, the need for protection of the estate and its good management would be just as great. A forced sale of his real estate while in the hands of the children or a substituted trustee would destroy the estate and defeat his major purpose. Therefore, he provided that upon transfer of trusteeship, the new trustees should have the same authority and power as the wife while she was trustee. This clearly contemplated that they should have power and authority over the $20,000 trust fund to use it to “settle and satisfy any and all claims, demands, suits or damages that may arise against my said (wife as) trustee[s] in the management and protection of my said real estate.” To give to the wife and a stepfather control over the $20,000 fund which he provided for the purpose of protecting his real property' — - thus diverting it from its major purpose— would defeat rather than carry out that purpose. It would be just as logical to contend that the real estate trust failed when the wife ceased to be trustee. The language used in the creation of that trust bequeathed the real property to the wife “absolutely and in fee simple * * * to the use of my said wife * * * her heirs and assigns;” but the condition of the trust revealed a different intent. So, in the case of the $20,000 trust, the conditions thereof clearly revealed a major purpose to protect the real property and his intent that the $20,000 trust should be used for that purpose.
It will be observed further that Item 7 of the will, in which provision is made for a substituted trustee, and in which the two oldest children “are hereby -appointed trustees with the same authority and power, as herein given and granted unto my said wife * * * ”, does not in any way limit the transfer of trusteeship to the real property trust. A rereading of Item 7, with this point in mind, will immediately suggest that it would be just as logical — or illogical — to limit its operation to the $20,000 trust. It is obvious, however, that the intent of the testator was to effect a complete transfer of trusteeship as to both trusts “with the same authority and power” as granted to the wife.
Moreover, as negative evidence of the testator’s intent that the $20,000 trust should' continue, reference is made to Item 4 of the will creating a trust in favor of testator’s sister. In that item is a provision for termination of the trust, i. e., “ * * * upon her death said principal sum and any income that may be due my said sister shall revert to my estate.” It is apparent that if testator had wished to provide for the ter *714 mination of the $20,000 fund upon the transfer of trusteeship he knew just the words necessary to accomplish that result. It is significant that he did not use them. 9
Restatement, Trusts, 1035, § 127, Comment e: “Where property is transferred to a member of a class for the benefit of himself and other’ members of the class, as for example where it is transferred to a person for the benefit of himself and his children or his family, it is a question of interpretation whether the transferor manifests an intention to create a trust or to make a beneficial gift to the transferee with an expression of the motive for making such a gift (see § 25, Comment d).
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“So also, if a trust is created by the tei’ms of which the trustee is directed to apply the trust property for the support of a woman and her children, both she and her childi’en are beneficiaries of the trust.”
Thompson v. Maxwell Land Grant & Ry. Co., 168 U.S. 451 , 18 S.Ct. 121 , 42 L.Ed. 539 ; Lewis v. Schafer, 61 App. D.C. 167 , 58 F.2d 893 ; Haller v. Helvering, 63 App.D.C. 35 , 68 F.2d 780 ; Paisley’s Appeal, 70 Pa. 153 ; Conrad v. Conrad’s Executor, 123 Va. 711 , 97 S.E. 336 ; Jackson v. Jackson, 13 Allen, Mass., 116; Lloyd v. Lloyd, 173 Mass. 97 , 53 N.E. 148 ; Estate of Heppenstall, 144 Pa. 259 , 22 A. 860 .
Restatement, Trusts, 1935, § 115(5). For this reason Whitridge v. Williams, 71 Md. 105 , 17 A. 938 , 17 Am.St.Rep. 513 , is not analogous. See Willey v. W. J. Hoggson Corp., 90 Fla. 343, 354 , 106 So. 408, 412 ; Town of Cascade v. County of Cascade, 75 Mont. 304, 309 , 243 P. 806, 808 ; Julian v. Northwestern Trust Co., 192 Minn. 136, 138, 139 , 255 N.W. 622, 623, 624 ; Weeks v. Frankel, 197 N.Y. 304, 310-314 , 90 N.E. 969, 971-973 ; Wilson v. Harrold, 288 Ill. 388 , 123 N.E. 563 ; McIntyre v. Smith, 154 Md. 660, 671 , 141 A. 405, 410 .
Restatement, Trusts, 1935, § 25, Comment d: “If property is transferred to a person for the benefit of himself and his family, it is a question of interpretation whether the transferor manifests an intention to create a trust, or manifests an intention to make a beneficial gift to the transferee with an expression of the motive for making such a gift (see § 127, Comment e).
“Illustrations:
“7. A bequeaths $100,000 to his brothers and sisters ‘for the benefit of themselves and their respective families.’ In the absence of other evidence, the brothers and sisters are entitled beneficially to the property and do not take it in trust.
“8. A bequeaths $10,000 to B in trust for the support of B and his wife. In the absence of evidence of a contrary intention, a trust is created.”
See Conner v. Everhart, 160 Va. 544, 549, 550 , 169 S.E. 857, 859 .
Even where the testator bequeaths his property to his wife for the support of herself and her children, without the establishment of a trust, it has been held in this jurisdiction that the gift is coupled with a trust which can be enforced by the children. Thus, in Wilson v. Snow, 35 App.D.C. 562, 563 , affirmed, 228 U.S. 217 , 33 S.Ct. 487 , 57 L.Ed. 807 , the following bequest was held to create a life estate in the wife coupled with a trust in favor of the children: “I give and devise to my dearly beloved wife, Adelaide Wilson, all my real and personal property during her single life, for the education and support of herself and my children hereinafter named, and in case of the marriage of my said wife, then she shall forfeit all claim, interest, and estate hereby devised to her * * See, also, 1 Perry, Trusts and Trustees, 7th Ed. 1929, § 117.
“No rule is better settled, than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole.” Marshall, Ch. J., in Smith v. Bell, 6 Pet. 68, 76 , 8 L.Ed. 322 . See, also, De Vaughn v. De Vaughn, 3 App.D.C. 50 , affirmed De Vaughn v. Hutchinson, 365 U.S. 566 , 17 S.Ct. 461 , 41 L.Ed. 827 ; Gibson v. Gibson, 53 App.D.C. 380, 384 , 292 F. 657, 661 , and cases there cited.
See Wilson v. Wilson, 119 N.C. 588 , 26 S.E. 155 ; Talley v. Ferguson, 64 W.Va. 328 , 62 S.E. 456 , 17 L.R.A.,N.S., 1215; Woodruff v. Woodruff, 54 App.Div. 414 , 66 N.Y.S. 936 .
Smith v. Bell, 6 Pet. 68, 76 , 8 L.Ed. 322 ; Adams v. Cowen, 177 U.S. 471 , 20 S.Ct. 668 , 44 L.Ed. 851 ; Washington Loan & Trust Co. v. Hammond, 51 App.D.C. 260 , 278 F. 569 ; Earnshaw v. Daly, 1 App.D.C. 218 ; De Vaughn v. De Vaughn, 3 App.D.C. 50 , 53, affirmed De Vaughn v. Hutchinson, 165 U.S. 566 , 17 S.Ct. 461 , 41 L.Ed. 827 ; Holcomb v. Wright, 5 App.D.C. 76, 83 , appeal dismissed 163 U.S. 689 , 16 S.Ct. 1202 , 41 L.Ed. 314 ; Baldwin v. National Savings & Trust Co., 65 App.D.C. 174, 176 , 81 F.2d 901, 903 , certiorari denied, 298 U.S. 670 , 56 S.Ct. 835 , 80 L.Ed. 1393 ; Jewell v. Graham, 57 App.D.C. 391, 393 , 24 F.2d 257, 259 , certiorari denied 277 U. S. 596 , 48 S.Ct. 559 , 72 L.Ed. 1006 . Walker v. Thomas, 64 App.D.C. 148, 150 , 75 F.2d 667, 669 , 99 A.L.R. 713 : “* * * where the intention is apparent, it should be given effect — and this is true— even though to do so involves the rejection of the literal meaning of particular words.” See, also, Masterson v. Townshend, 123 N.Y. 458, 462 , 25 N.E. 928, 929 , 10 L.R.A. 816 : “In the construction of a testamentary disposition, where the language is unskillful or inaccurate, but the intent can be clearly collected from the writing, it .is the duty of the court to give effect to that intent, subject only to the proviso that no rule of law is thereby violated.”
See, also, Restatement, Trusts, 1935, § 101: “Except as otherwise provided by the terms of the trust, if a trust has been created the trust will not fail when the person designated as trustee ceases for any reason to be trustee.”