## Facts

- George Kearns executed a holographic will leaving his entire estate to his fiancée, Emma Hammersmith, and naming her executrix.
- The will included language stating “I direct” Hammersmith to provide for Kearns’s nieces, Marjorie Mallarino and Lois Graham, “as her judgment, kindness and honesty sees fit to do.”
- The will did not specify any amounts, shares, or objective standards for distributions to the nieces.
- After Kearns’s death, the nieces claimed the quoted language created an express trust with Hammersmith as trustee and the nieces as beneficiaries.
- The nieces sought to introduce extrinsic evidence of Kearns’s intent to show he meant to impose a binding trust obligation.
- Hammersmith contended the will made an outright gift to her and that the niece-related clause expressed only a nonbinding moral wish.

## Issues

1. Whether a will clause directing a devisee to “provide for” named relatives “as her judgment, kindness and honesty sees fit” creates an enforceable express trust or merely precatory language.
2. Whether extrinsic evidence of testamentary intent is admissible to convert such discretionary wording into a binding trust obligation.

## Decision

- The California Supreme Court affirmed the probate court’s judgment for Hammersmith.
- The court held the clause concerning the nieces did not create an express trust and imposed no enforceable fiduciary duties.
- Hammersmith took the estate as the absolute beneficial owner, subject at most to a moral obligation.
- The court upheld exclusion of the nieces’ proffered extrinsic evidence because it could not be used to transform the will’s dispositive scheme into a trust.

## Legal Principles

- Precatory expressions in a will—statements that leave performance to the recipient’s conscience or discretion—do not create a trust absent a clear intent, from the will as a whole, to impose a legal duty.
- An express trust requires sufficiently definite intent and enforceable terms; where the donee may decide whether, when, and how much to benefit others without an objective standard, courts will not treat the arrangement as a trust.
- Extrinsic evidence may resolve ambiguity in application, but it cannot contradict clear dispositive language or supply a trust obligation not reasonably supported by the will’s text.

## Conclusion

The court construed the will as an outright devise of the entire estate to Hammersmith and treated the instruction to “provide for” the nieces according to her “judgment, kindness and honesty” as precatory and indefinite, leaving the nieces without enforceable rights and barring extrinsic evidence from manufacturing a trust.


In re Kearns’s Estate, 225 P.2d 218 (Cal. 1950)