2

dinate such rules, and the operation and effect which is ordinarily accorded them, to the expressed or implied intention of the testator, and this intention, if not repugnant to law, is the rule and guide in each particular case.1 Neither is this intention to be gathered or ascertained solely from the particular words or forms of expression used in any special connection, but from all the provisions construed in connection with each other, while the surrounding circumstances; the situation of the parties; and the condition and character of the property; are all efficient to afford additional light in which to read the will. Although a testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptations, a liberal construction is always accorded them, and if a plain and definite purpose is manifest, the language will be subordinated to the intention. So, too, technical rules are made to yield to intention, when the application of such rules would tend to defeat, rather than effectuate the original design, and the sense in which the testor has used words, will prevail over any arbitrary legal construction.5

The uncertainty which has arisen in regard to the force of words, and the effect they may have upon the disposition of testamentary gifts and devises, has grown out of the equitable doctrine, that no particular form of expression is requisite to create an obligatory trust, provided the testator has pointed out with sufficient clearness and certainty the subject and object of same, and hence, words of entreaty, wish, expectation, bequest, or recommendation, when coupled with definite objects, may be so used that courts may reasonably infer or imply that it was the intention of the testator to create a trust, and, under the application of the principles

6

1 Rountree v. Talbot, 89 Ill. 246; Brooks v. Evetts, 33 Tex. 732.

2 Smith v. Taylor, 21 Ill. 296; Provenchere's Appeal, 67 Pa. St. 463.

3 Moran v. Dillehay, 8 Bush. (Ky.) 434; Grimes v. Harmon, 35 Ind. 198; Gilliam v. Chancelor, 43 Miss. 437: Broomfield v. Wilson, 78 Ill. 467.

4 Phillips v. Davies, 92 N. Y. 199.

5 Luce v. Durham, 69 N. Y. 36; Edwards v. Bibb. 43 Ala. 666; Mead v. Jennings, 46 Mo. 91; Welsch v. Savings Bank, 94 Ill. 191.

6 Bohan v. Barrett's Exr. 79 Ky. 378; Gilbert v. Chapin, 19 Conn. 342; and see 2 Story Eq. Jur. § 979; Hill on Trustees, 92; Perry on Trusts, 4.

just alluded to, may construe a prayer in form, into a command in fact.

No specific words are necessary to raise precatory trusts, and they may be created by almost any words indicative of desire, except such as amount to nothing more than mere suggestion. The subject seems to have been the source of a vast amount of learned dis

cussion in the equity courts of England, and, in a somewhat less degree, in this country as well, and though the courts of the United States have not, in general, adopted as radical constructions as those which seem to prevail in England, yet the authorities of both countries are conclusive, and in the main harmonious, that precatory words are sufficient to create an obligatory trust, and may take effect as a valid disposition.7

But, although the force of precatory words. in the creation of trusts has been many times recognized by the American courts, there can not be said to be any positive rule for bringing to a direct test the question of their binding obligation. Their construction is governed by the same elastic rules that are applied generally in the interpretation of all testamentary gifts. The primary meaning of the words may be controlled by the context or by external evidence, but the main point, upon which the question turns, has reference to the force of the language employed as indicative of absolute desire or mere suggestion; the one, leaving no alternative, the other, addressed to the donee's discretion; the real question always being, whether the wish, or desire, or recommendation, that is expressed by the testator, is meant to govern the conduct of the party to whom it is addressed; or, whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of such party, leaving it to him, however, to exercise that discretion as he may see fit.8

7 The reader is referred for a citation of English authorities to 1 Jar. on Wills, 385. The following American cases illustrate the text: Gilbert v. Chapin, 19 Conn. 342; Bohan v. Barrett's Exr., 79 Ky. 378; Warner v. Bates, 98 Mass 274; Reed v. Reed, 30 Ind. 313; Prewett v. Land, 36 Miss. 495; Gamble v. Dabney, 20 Tex. 69; Brasher v. Marsh, 15 Ohio St. 103.

8 This is the doctrine of the English cases, and has been substantially followed by the American decisions. see, Collins v. Carlisle, 7 B. Mon. (Ky.) 14; Thompson v. McKisick, 3 Humph. (Tenn) 631; Ellis v. Ellis, 15 Ala. 296; Lines v. Darden, 5 Fla. 51.

Following the English authorities, and under the application of the doctrine last stated, such words as "hope," "wish," "request," etc.; words expressive of confidence, as "trusting," "not doubting," etc.; words of advice, as "recommend,' etc., if they be not so modified by the context as to amount to no more than mere suggestions, to be acted on or not, according to the caprice of the immediate devisee, or negatived by other expressions indicating a contrary intention, will be sufficient to create a trust in favor of the parties to be benefited."

10

There is, however, a certain degree of flexibility about about precatory words that renders them pliant when confronted with positive provisions, and where the words of the gift expressly point to an absolute enjoyment by the donee himself, the natural construction of precatory words would be, that they simply express the testator's belief or wish, without imposing a trust.1 This follows, almost as a matter of course, for although such construction should always be adopted as will best serve to carry the intention of the testator into effect, yet mere conjectural hypothesis of such intention, however reasonable, should never be permitted to overcome the plain and obvious sense of the language of the instrument, and if there is no ambiguity, however unfortunate it may be that the intention of the testator should fail, courts have no right to say that direct and unambiguous words shall not have their plain and unambiguous meaning." In like manner they must also yield if the imputed interpretation be against the rules of law, or so inconsistent with other provisions that both can not stand together, and generally, whenever they are so used, as is frequently the case, that it is doubtful whether they are absolute directions or mere suggestions, they should be construed to mean rather an inclination of the mind than an act of the will, and regard

9 McRees' Admr. v. Means, 34 Ala. 349; Erickson v. Willard, 1 N. H. 217; Dresser v. Dresser, 46 Me. 48; Hunter v. Stembridge, 12 Ga. 192; Van Ame v. Jackson, 35 Vt. 176; Handley v. Wrightson, 16 Rep. 433; Bohan v. Barrett's Exr., 79 Key, 378.

10 Howard v. Corusi, 3 S. C. Rep. 575; Hess v. Singler, 114 Mass. 56. And see the English cases cited in 1 Jar. on Wills, 389.

11 Grimes v. Harmon, 35 Ind. 198; Van Nostrand v. Moore, 52 N. Y. 12; Welsch v. Savings Bank, 94 Ill. 191.

12

ed as recommendations only." The fact, however that there has been an absolute gift does not necessarily contravene either an express or implied trust annexed to the gift, as it is a common thing to invest the legal title and trusteeship in the same person, who is to receive the benefit in the event of the failure of the trust.

A strong tendency has been manifested in several of the States to restrict the application of the doctrine as stated in the preceding paragraphs, or to qualify it, and, in some instances, to reject it altogether. 13 In several cases it has been held, that no technical significance attaches to recommendatory words, and that they are not sufficient per se to convert a devise or bequest into a trust; that the true rule of interpretation is, to give to such recommendatory words their natural and ordinary effect, and having arrived at the true intention of the testator, to let that intention, if lawful, be the rule of decision in the particular case.14 It can not be denied that these dissenting cases have a strong foundation of reason and authority to sustain them, for it has long been an acknowledged principle in equity that to create a trust by means of an obligation imposed on the conscience of the donee, the words relied upon must be imperative, and hence we find abundant authority in the English cases that even in the creation of precatory trusts the testator must command and not merely enjoin. Words of desire, entreaty or confidence can hardly be said to be in the imperative mood, and can be made imperative only by construction. But where the words indicate intention it is customary to disregard grammatical rules, and the desire of the testator, like the wish of a sovereign, is construed and allowed to take effect as a positive command, the bequest losing none of its mandatory force or effect because "clothed merely in the language of civility.”

While the dissenting cases just alluded to have not been without force in influencing the decisions of other courts, the weight of authority fully sustains the principles first stated,

12 Brunson v. Hunter's Admr., 2 Hill. Ch. (S. C.) 490; Negroes v. Plumer, 17 Md. 165.

13 See Pennock's case, 20 Pa. St. 272.

14 Harper v. Phelps. 21 Conn. 257; Walker v. Hall, 34 Pa. St. 483.

15 See Hill on Trustees, (note 4th Am. Ed.) *73.

and precatory words are generally accorded a technical significance creative of trusts, when the contrary does not appear from the context or by necessary implication. It is, however, the disposition of all courts to adopt such a construction as will give an estate of inheritance to the first donee,16 and an absolute gift, directlylandJunequivocally bestowed, will not usually be restricted or reduced by any words of expectation or desire, however strongly expressed, relating to the disposal of any residue remaining in the hands of the donee at the time of his decease.17

The over anxiety of courts to fully effectuate the will of the testator and carry out what to them appeared to be his manifest design, may, in some instances, seem to have carried them to almost unwarrantable extremes in construing trusts from precatory words in loose terms, yet, as a rule, a conservative spirit seems to pervade the later decisions, and, notwithstanding the fact, that in a few instances courts have seen fit to adopt, as a more reasonable presumption, the theory that words precatory in form are meant simply to imply a discretion in the donee unless clearly shown to have been used in an imperative sense, the general doctrine as first stated may now be considered as fairly well established in this country. Though all the American authorities are not in complete harmony, the following deduction may be drawn from them as the settled law of the land: Precatory words, equally with direct or express provisions, may create valid and effectual trusts, 18 but no commendatory terms expressive of "wish," "will," "desire," etc., are sufficient for the purpose, whenever the objects of the supposed trust or the property to which it is to attach are not certain and definite; 19 whenever a clear discretion or choice to act or not to act is given to the donee or supposed

16 Leiter v. Sheppard, 85 Ill. 242.

17 Howard v. Corusi, 3 S. C. Rep. 575; Hess v. Singler, 114 Mass. 56.

18 Warner v. Bates, 98 Mass. 274; Reed v. Reed, 30 Ind. 313; Prewett v. Land, 36 Miss. 495; Gamble v. Dabney, 20 Tex. 69; Bohan v. Barrett's Exr. 79 Ky. 378; Brasher v. Marsh, 15 Ohio St. 103; McRee's Admr. v. Means, 34 Ala. 349; Dresser v. Dresser, 46 Me. 48; VanAme v. Jackson, 35 Vt. 176; Handley v. Wrightson, 16 Rup. 433; Hunter v. Sternbridge, 12 Ga. 192. 19 Brunson v. Hunter's Admr. 2 Hill. Ch. (S. C.) 490; Negroes v. Plumer, 18 Md. 165.

trustee ;20 or, whenever the prior disposition of the property imports absolute and uncontrollable ownership.21 GEO. W. WARVELLE.

Chicago, Ill.

THE BIBLE IN THE PUBLIC SCHOOLS.

MOORE v. MONROE.

Supreme Court of Iowa, September 18, 1884.

1. Constitutional Law Prohibition against the Establishment of Religion, Etc.-The Constitution of Iowa provides that "the General Assembly shall ma no law respecting an establishment of religion, or prɔhibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister or ministry." (Const. Iowa, Art. I, Sec. 3. Bill of Rights.) A statute of that State provides that "the Bible shall not be excluded from any school or institution in this State, nor shall any pupil be required to read it, contrary to the wishes of his parent or guardian." (Iowa Code, Sec. 1764.) It is held that this statute does contravene this constitutional provision.

2. Bible in Public Schools - Injunction against Reading not Granted.-An injunction will not be granted to restrain the reading or repeating of the Bible or parts thereof, or the singing of religious songs in a public school, at the instance of a tax-payer whose children are not required to be present during such exercises.

Appeal from Davis District Court.

The plaintiff, as a resident and tax-payer of the independent district of Bloomfield, and patron of the public school, taught in the district, brings this action against the teachers of this school and directors of the district, and prays for an injunction to prevent the reading or repeating of the Bible, or any part thereof, in the school, and to prevent the singing of religious songs in the school. The court refused to grant an injunction, and from the order of refusal the plaintiff appeals.

F. W. Moore and S. N. Steele, for appellant; S. S. Carruthers and Payne & Eichelberger, for appellees.

ADAMS, J.-The record shows that the teachers of the school are accustomed to occupy a few minutes each morning in reading selections from the Bible,

20 Erickson v. Willard, 1 N. H. 217; Sharon v. Simmons, 30 Vt. 458; Society v. Hawes Fund, 5 Cush. (Mass.) 454; Thompson v. McKiswick, 3 Hump. (Tenn.) 631; Collins v. Carlisle, 7 B. Mon. (Ky.) 14; Ellis v. Ellis, 15 Ala. 296; Lines v. Darden, 5 Fla. 51; Howard v. Corusi, 3 S. C. Rep. 575; Hess v. Singler, 114 Mass. 56.

21 Howard v. Corusi, 3 S. C. Rep. 575; Hess v. Singler, 114 Mass. 56; Consult-2 Story Eq. Jur. Sec. 979: Hill on Trustees 92; Perry on Trusts, 4; 1 Jar. on Wills, 385*; 2 Redf. on Wills, 409.*

in repeating the Lord's prayer, and singing religious songs; that the plaintiff has two children in the school, but that they are not required to be present during the time thus occupied. The record further shows that the plaintiff objected to such exercise and requested that they be discontinued; but the teachers refused to discontinue them, and the directors refused to take any action in the matter.

The plaintiff concedes that under a statute of Iowa, Sec. 1764 of the Code, if constitutional, neither the school directors nor courts have power to exclude the Bible from public schools. The provision of statute is in these words: "The Bible shall not be excluded from any school or institution in this State, nor shall any pupil be required to read it contrary to the wishes of his parent or guardian." Under this provision, it is a matter of individual option with school teachers as to whether they will use the Bible in school or not, such option being restricted only by the provision that no pupil shall be required to read it contrary to the wishes of his parent or guardian. It was doubtless thought by the Legislature that an attempt on the part of school-boards to exclude by official action, the Bible from schools, would result in unseemly controversies, to be decided ultimately at the polls, and that such controversies would naturally disturb the harmony of school districts, and impair the efficiency of schools. Whether the provision is a wise one, it is unnecessary for us to express any opinion. It is the law of the State, unless unconstitutional.

The plaintiff insists, however, that it is unconstitutional. The provision of the Constitution' which it is said to conflict with, is Article 1, Sec. 3, Bill of Rights. The provision is in these words: "The General Assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: nor shall any person be compelled to attend any place of worship, pay tithes, taxes or other rates for building or repairing places of worship, or the maintenance of any minister or ministry."

The plaintiff's position is that, by the use of the school-house as a place of reading the Bible, repeating the Lord's prayer, and singing religious songs, it is made a place of worship; and so his children are compelled to attend a place of worship, and he, as a tax-payer, is compelled to pay taxes for building and repairing a place of worship.

We can conceive that exercises like those described might be adopted with other views than those of worship, and possibly they are in the case at bar; but it is hardly to be presumed that this is wholly so. For the purposes of the opinion it may be conceded that the teachers do not intend to wholly exclude the idea of worship. It would follow from such concession that the school-house is, in some sense, for the time being, made a place of worship. But it seems to us that if we should hold that it is made a place of worship, within

the meaning of the Constitution, we should put a very strained construction upon it. The object of the provision, we think, is not to prevent the casual use of a public building as a place for offering prayer, or doing other acts of religious worship, but to prevent the enactment of a law whereby any person can be compelled to pay taxes for building or repairing any place designed to be used distinctively as a place of worship. The object, we think, was to prevent an improper burden.

It is, perhaps, not to be denied that the principle, carried out to its extreme logical results, might be sufficient to sustain the appellant's position; yet we can not think that the people of Iowa, in adopting the Constitution, had such extreme view in mind. The burden of taxation by reason of the casual use of a public building for worship, or even such stated use as that shown in the case at bar, is not appreciably greater. We do not think, indeed, that the plaintiff's real objection grows out of the matter of taxation. We infer from his arguments that his real objection is that the religious exercises are made a part of the educational system, into which his children must be drawn or made to appear singular, and perhaps be subjected to some inconvenience. But, so long as the plaintiff's children are not required to be in attendance at the exercises, we can not regard the objection as one of great weight. Besides, if we regarded it as of greater weight than we do, we should have to say that we do not find anything in the Constitution or law upon which the plaintiff can properly ground his application for relief. Possibly, the plaintiff is a propagandist, and regards himself charged with a mission to destroy the influence of the Bible. Whether this be so or not, it is sufficient to say that the courts are charged with no such mission.

We think that the injunction was properly denied.

3. Evidence to Enhance and Mitigate Damages.-It follows that,in an action for damages for such a libel, evidence is admissible, for the purpose of enhancing the damages, of the careless,reckless, or wanton conduct of the employee in writing the article. It also follows that, under a plea of not guilty, the defendant may prove the facts and circumstances which induced the writer erroneously to make the charge complained of, provided such facts and circumstances do not tend to prove the truth of the charge as made.

Error to the Court of Common Pleas No. 1, of Allegheny County.

John Dallzell and S. A. McClung. for plaintiff in error; A. M. Brown, for defendant in error.

MERCER, C. J., delivered the opinion of the court:

The defendants are the proprietors of a daily newspaper, called The Commercial Gazette. published in the city of Pittsburgh.

This suit is to recover damages for the composing and publishing, as editorial in the columns of that paper, an article reflecting on the plaintiff, which the jury have found to be libelous.

The first and second specifications of error are to the rejection of evidence, of substantially the same character, offered by the plaintiff.

Whether the evidence was properly rejected depends on the liability of the defendants for the conduct of Dr. Palmer, who was one of the editors of the paper.

A master is liable for the wrongful act of his servant when the injury is committed by authority of the master, either expressly conferred or fairly implied from the nature of the employment, and the duties thereby imposed: 1 Black's Com. 429; Wood on Master and Servant, Sec. 279. He is liable for the act of his servant within the scope of his employment, and incident to the performance of the duties intrusted to him, although the specific act of injury be in opposition to the express and positive commands of the master: Id., Sec. 307; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. This may be said to be the settled rule of law applicable to the liability of masters generally, for the acts of their agents.

The liability of the proprietors of a newspaper for the act of an agent to whose management they have intrusted the paper, is more broad. The proprietor is presumed to have published the libel which appears therein, and in a criminal prosecution therefor, it is no defense for him to show that it was published without his knowledge and in his absence: Railroad v. Walter, 3 Esp. 21; King v. Gutch, 1 Moody & Malkin, 433; Roscoe's Crim. Ev., 6 Amer. Ed., 621; Commonwealth v. Morgan, 107 Mass., 199.

The material for this libel appears to have been drawn from the fact that a reporter of the paper sought to "interview" the plaintiff, and asked his opinion, for publication, on a question of law, which the plaintiff declined to give, and stated reasons therefor.

The offers, inter alia, were to prove this conversation, and that it was reported to Dr. Palmer, who was in the employ of the defendants; that he had the charge and management of the column in which the article was published, not subject to the supervision of the defendants; that he subsequently wrote, and the defendants published, the libel in question; and that Palmer was pecuniarily irresponsible, and is now dead. The defendants objected to the evidence, claiming it to be incompetent, as the plea was "not guilty," and the only question was that of publication. They made no objection to proving the publication of the libelous article, but claimed their liability was restricted to what they actually published. The court rejected both offers.

If the defendants gave to Palmer such charge and control of an editorial column, reserving no supervision, he was practically authorized by them to write and publish therein any article he thought proper. The very purpose of his employment was to collect information and write articles for publication. If they imposed such duties upon him, and gave him such powers, limited only by his discretion, they are liable for injuries resulting from an act of his, clearly incident to the performance of his duties, in the scope of his employment. He stood in their place. If the libel was written under the authority of his employment and in furtherance of their business, they are responsible, whether the wrong resulted from his mere negligence or from a wanton and reckless purpose to accomplish the business in an unlawful manner: Howe v. Newmarch, 12 Allen, 49; Ramsden v. Boston & Albany R. R. Co., 104 Mass., 117; Hawes v. Knowles, 114 Id. 518. Or from his wilfullness: Wood on Master and Servant, pp. 576 and 583. If Palmer were still living he might be sued jointly with them for this libel, or he and they might be sued separately: Rogers on Libel and Slander, 157, 294. Every one in any way connected in the publication of a libel is equally responsible for all the damages which flow from that publication: Id. 328.

It is true, it has been held that express malice in an employee, who has written a libel, cannot be invoked to swell the damages against the employer, if he was ignorant of the publication and not negligent: Detroit Post Co. v. McArthur, 10 Mich., 447; Scripps v. Reilly, 38 Id., 10; obertson v. Wylde, 2 Moo. & Robey, 101. It was, however, held in Goddard v. Grand Trunk Railway Co., 57 Me., 202, that whenever exemplary damages would be recoverable, if the act had been done by the master himself, they are equally recoverable when the act is done by his servant. So in Wood on Master and Servant, Sec. 323, it is said: "In