130 Mass. 221 (1881)
The will on its face contained a residuary bequest to the defendant that expressly required him to distribute all the property bequeathed to him. It granted him no discretion on whether to distribute it and allowed discretion only as to the manner of distribution pursuant to the testatrix's intentions.1
No other written instrument was signed by the testatrix and made part of the will by reference.2 Before, at the time of, and after the execution of the will, the testatrix orally made known to the defendant her wish and intention that the residue should be disposed of and distributed by him as executor for charitable uses and purposes according to his discretion and judgment.3 She directed him to do so while especially expressing her desires as to the objects to be preferred.4 The defendant stated these oral communications in his answer, and the plaintiffs admitted the facts to be true.5
The matter was presented to the Supreme Judicial Court of Massachusetts on the facts agreed by the parties, with the court entering a decree for the plaintiffs.6
Whether the residuary bequest in the testatrix's will, which on its face directs the defendant to distribute the property according to her intentions without granting him any beneficial interest, permits enforcement of her orally expressed charitable wishes against the defendant?7
A trust not sufficiently declared on the face of the will cannot be set up by extrinsic evidence to defeat the rights of the heirs at law or next of kin.8 By statute no will shall be effectual to pass any estate unless signed by the testator and attested by three witnesses.9 Where the bequest is declared upon its face to be upon such trusts as the testator has otherwise signified to the devisee, the devisee takes the legal title only.10 The equitable interest goes by way of resulting trust to the heirs or next of kin as property of the deceased not disposed of by his will.11
No. The established facts demonstrate that the will on its face gave the defendant no beneficial interest and required him to distribute the property according to the testatrix's intentions with discretion only as to manner.12 No other written instrument was signed by the testatrix and made part of the will by reference. The charitable directions were conveyed solely through oral communications before, at the time of, and after execution, which the defendant disclosed in his answer and which the plaintiffs admitted as true.13 The statute of wills was never satisfied for those directions.14 Consequently the trust cannot be enforced and a resulting trust arises in favor of the next of kin.15
The court applied the rule by observing that the devisee holds legal title only while the trust remains insufficiently defined on the face of the will.16 The equitable interest therefore passes directly to the next of kin by operation of law.17 Oral communications, even if assented to before execution, cannot deprive the next of kin of the interest that accrues to them from the deceased.18 The Supreme Judicial Court of Massachusetts therefore entered a decree for the plaintiffs on the agreed facts.19
The residuary bequest does not permit enforcement of the orally expressed charitable wishes against the defendant.20
Whether the next of kin of the testatrix are entitled to the residue of the estate when the only evidence of the intended distribution consists of oral communications made by the testatrix to the defendant before, at the time of, and after execution of the will?21
When the bequest is declared upon its face to be upon such trusts as the testator has otherwise signified to the devisee, and the trust is not sufficiently defined by the will to take effect, the equitable interest goes by way of resulting trust to the heirs or next of kin as property of the deceased not disposed of by his will.22 They cannot be deprived of that equitable interest by any conduct of the devisee or by any intention of the deceased unless signified in those forms which the law makes essential to every testamentary disposition.23
Yes. The established facts establish that the next of kin of the testatrix must take by way of resulting trust unless the facts agreed show such a trust for the benefit of others as the court can execute.24 The will on its face required distribution of the residue yet supplied no written definition of the charitable objects.25 All evidence of the intended distribution consisted of oral communications made before, at the time of, and after execution.26
Those communications were disclosed in the defendant's answer and admitted by the plaintiffs, but they were never attested as required by statute.27 The Supreme Judicial Court of Massachusetts therefore held that the residue passed to the next of kin by resulting trust and entered a decree in their favor.28
The next of kin of the testatrix are entitled to the residue of the estate.29