Statement of the Case. ever since the death of her son, the said David D. Colton, has consisted solely of the interest moneys arising from the loan of the aforesaid fifteen thousand dollars, and the aforesaid several sums of money given by the defendant to your oratrix as aforesaid; and ever since in November, 1882, her income has consisted and does still consist solely of said interest moneys alone. "And your oratrix further shows, that at the time of the death of the said David D. Colton, his sister, the said Martha Colton, was not and is not now the owner of any real estate or property, nor has she any income whatever, and your oratrix has, therefore, ever since the death of the said Martha's father provided and still provides her, the said Martha, support and maintenance. "That by reason of your oratrix' very limited income aforesaid, and notwithstanding great economy in her living and expenses and the denying herself much that would conduce to her health and comfort, your, oratrix is in very straitened circumstances." To each of these bills the defendant demurred, and for causes of demurrer assigned the following: "First. That the said complainant hath not by her said bill made such a case as entitles the said complainant to any relief in this court. Avouching any of the matters therein complained of, in this, that no estate, trust, or interest exists in favor of said complainant or arises in her favor out of the said last will and testament in her bill set forth or any matter, legacy, or devise therein contained. "Second. That this court hath no jurisdiction of the matters and things set forth in said complainant's bill, nor hath it jurisdiction to consider the same or to grant the relief prayed for or any relief whatever. "Third. That neither this court nor any other court whatever hath jurisdiction to hear and determine the matters and things set forth in complainant's said bill or to grant the relief therein prayed, or any other relief whatever. "Fourth. That it appears on the face of said complainant's bill that if any cause of action whatever exists by reason of Opinion of the Court. the matters and things in said bill set forth, that such cause of action is founded upon a stale equity and claim. "Fifth. That it appears on the face of complainant's said bill that the said cause of action therein set forth, if any such exists, accrued more than four years before the commencement of this action, and that the same is barred upon the principle which courts, of equity follow in analogy to the statute of limitation at law. "Sixth. That it appears upon the face of said complainant's bill that the said pretended cause of action therein set forth accrued more than four years before the filing of her said bill. "Seventh. That it appears on the face of complainant's said bill that the matters and things therein sought to be inquired of and determined have long since been inquired into and determined against the said complainant by the probate court of the city and county of San Francisco, State of California." The demurrer to each of the bills was sustained, and they were severally dismissed. Colton v. Colton, 10 Sawyer, 325, 336. From these decrees the present appeals were prosecuted. Mr. Sherman Evarts and Mr. William M. Evarts for appellants. Mr. George R. B. Hayes for appellee. Mr. John A. Stanly was with him on the brief. MR. JUSTICE MATTHEWS, after stating the case as above reported, delivered the opinion of the court. These appeals bring before us the will of David D. Colton for construction. The question is, whether his widow, Ellen M. Colton, by its provisions, takes the whole estate of which he died seized and possessed absolutely in her own right, or whether she takes it charged with a trust enforceable in equity in favor of the complainants, and, if so, to what extent. The language of the will to be construed is as follows: "I give and bequeath to my said wife, Ellen M. Colton, all of the estate real and personal, of which I shall die seized, possessed, Opinion of the Court. or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best." Before proceeding, however, to a consideration of the will itself, we are met with the objection, interposed by the counsel for the appellee, that the matter of the present controversy has already been finally adjudicated. The proposition is, that the decree of the probate court of the city and county of San Francisco, distributing the whole of the estate of the testator to the appellee, was a complete and final adjudication as to all parties claiming, as heirs, legatees, or devisees, any interest, legal or equitable, in or to the estate, and is, therefore, a bar to the present suit. It is contended that by the law of California, the probate court, having jurisdiction over matters relating to the settlement of estates of deceased persons; and, among other matters, to distribute the residue of the estate among the persons who by law are entitled thereto, if a trust is attempted to be created by will, that court must determine how far the attempt is successful, what is the trust, who is the trustee, and who are the beneficiaries, and distribute accordingly. As there is no plea in bar of the relief sought by the bills, setting up any decree of the probate court to which the appellants were parties, and by which they could be bound, denying to them any interest under the will of the testator, we must look to the bills themselves for the only allegations on that subject. All that is said on the subject in them is that the defendant "continued to discharge the duties as such executrix until about the 18th day of December, A.D. 1879, when, by an order or decree of said probate court, then and there duly made and entered, the whole estate, real and personal, of the said David D. Colton then remaining was distributed to the said defendant, and she was discharged from any further duties as such executrix." The entire effect of this averment is to show that the defendant had come into possession of the estate as devisec and legatee, as she was clearly entitled to, as soon as the estate was fully administered by her as executrix. The claims in Opinion of the Court. sisted on by the complainants are not against her as executrix, but as devisee and legatee; and the trusts alleged to be created by the will do not arise until the widow of the testator comes into possession of the estate as devisee and legatee. Whatever jurisdiction by the laws of California its probate court may have been entitled to exercise for the purpose of construing the will as between the widow and the present complainants, there is no averment in the pleadings that it was ever exercised. There is, therefore, no adjudication on the subject by the probate court, which has decided the question raised in these suits so as to operate as a bar to their prosecution. The fundamental and controlling rules for the construction of wills are familiar and well understood. They were well stated by Chief Justice Marshall in delivering the opinion of this court in Smith v. Bell, 6 Pet. 68, as follows: "The first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. 1 Doug. 322; 1 W. Bl. 672. This principle is generally asserted in the construction of every testamentary disposi tion. It is emphatically the will of the person who makes it, and is defined to be 'the legal declaration of a man's intentions which he wills to be performed after his death.' 2 Bl. Com. 499. These intentions are to be collected from his words, and ought to be carried into effect if they be consistent with law. In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words and ascertaining the meaning in which the testator used them. No rule is better set tled 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. Notwithstanding the reasonableness and good sense of this general rule, that the intention shall prevail, it has been sometimes disregarded. If the testator at Opinion of the Court. tempts to effect that which the law forbids, his will must yield to the rules of law. But courts have sometimes gone farther. The construction put upon the words in one will has been supposed to furnish a rule for construing the same words in other wills; and thereby to furnish some settled and fixed rules of construction which ought to be respected. We cannot say that this principle ought to be totally disregarded; it should never be carried so far as to defeat the plain intent; if that intent may be carried into execution without violating the rules of law. It has been said truly (3 Wils. 141) 'that cases on wills may guide us to general rules of construction; but unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills." See Clarke v. Boorman's Executors, 18 Wall. 493, 502. The object, therefore, of a judicial interpretation of a will is to ascertain the intention of the testator, according to the meaning of the words he has used, deduced from a consideration of the whole instrument and a comparison of its various parts in the light of the situation and circumstances which surrounded the testator when the instrument was framed. These rules of construction, indeed, apply to every written instrument, although in deeds and some other formal documents the long usage of the law has, in certain cases, required the use of technical words and phrases to accomplish particular effects. No technical language, however, is necessary to the creation of a trust, either by deed or by will. It is not necessary to use the words "upon trust" or "trustee," if the creation of a trust is otherwise sufficiently evident. If it appear to be the intention of the parties from the whole instrument creating it that the property conveyed is to be held or dealt with for the benefit of another, a court of equity will affix to it the character of a trust, and impose corresponding duties upon the party receiving the title, if it be capable of lawful enforcement. No general rule can be stated that will determine when a conveyance will carry with it the whole beneficial interest, and when it will be construed to create a |