Moss v. Axford, 224 N.W. 425, 246 Mich. 288 (1929)
Author: Anonymous

Facts: Ms. Girard died leaving all her residue and remainder to her attorney, Axford, w/ instructions to pay ‘the person who has given’ her care during her ‘declining years.’  Pls, are her sisters.  Df, Axford, drafted the will and was her executor.  Df, Piers, took care of the deceased from the time of the will until death.

Issue: Whether the portion of the will naming the “person who gave me the best care during my declining years,” sufficiently describes a beneficiary?

Holding: Yes, the court could from extraneous evidence ascertain and declare the beneficiary to fully carry out the intention of the testatrix, the clause is a valid devise in trust.

Procedure: Affirmd.

Rule: Express trusts may be created for any or either of the following: beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it. . . .

Rationale:   The words used in the will are precatory, the intent of the testatrix regarding disposition to the person who provided care for her is manifest, and therefore the language is mandatory.  The residue of her estate should go to the person who gave her the best care during her declining years, that is not subject to the unrestrained discretion of Df Axford.  Rather he has a duty to perform–he was bound to exercise good faith in the determination of who had rendered the best care.  The purpose of the testatrix was lawful and unless there is uncertainty it should be carried out.  A beneficiary is not required to be designated by name, or by description which makes identification automatic.  It is enough if the testator used sufficient language to clearly enable a court to identify the beneficiary by extrinsic evidence.

Df, Piers was the only one who rendered care to the deceased from the time of the will until death. A trust is not invalid b/c the trustee is vested with discretion.  When a testator has given pure discretion to trustees, a court will not enforce the exercise of power against the wish of the trustees, but it will prevent them from exercising it improperly.