(after stating the facts). It is not disputed that the estates of both John and Mary A. Hare have been wound up and finally settled, and all the property belonging to both disposed of, except the said property sold to the said Tillman Shaw, nor can it be disputed that the Sisters of Mercy have realized out of said estate all they would have received, had the will of John Hare operated to convey his entire estate to Mary A. Hare, as they thought it did, except the $5,500 they had to refund to Tillman Shaw, by reason of their not being the owners of the one-half undivided interest they attempted to convey to him, and they say they would have been satisfied with this disposition of the property of these estates and willing to care for the imbecile, Ella Hare, throughout her life in consideration thereof, and took charge of her and the estate with the expectation of doing so.
It was the intention of Mary A. Hare, as plainly expressed in her will, to leave one-half of her estate, after the payment of her debts and the small bequests and legacies, to appellees, the Sisters of Mercy, for the support and maintenance of her daughter Ella Hare, during her life, and thereafter to said Sisters of Mercy to be used in educating poor Catholic children. It was doubtless, also, John Hare’s intention to leave all of his estate to his wife, Mary A. Hare, in accordance with his will, which was invalid under the law, as against Ella Hare, his only child, her name having been- omitted therefrom. It may bé, and doubtless is, true that the Sisters of Mercy believed that the will of Mary A. Hare conveyed, not only her own estate, but also all the estate that had formerly belonged to her husband and was attempted by him to be devised
*556to her, and, so believing, they took charge of Ella Hare under the provisions of the will and have since furnished her care, maintenance and support. The will of John Hare was inoperative to convey his estate to Mary A. Hare, and some of it has been recovered by Ella Hare, and the Sisters of Mercy have been required to refund $5,500, that portion of the purchase money received by them from the sale of the one-half undivided interest of certain of his said property, which they sold and attempted to convey, claiming to be the owner thereof under the will of Mary A. Hare. On that account, they claim that the consideration for their taking charge of Ella Hare and furnishing her maintenance and support, under the provisions of her mother’s will, has failed, and that they are entitled to pay for the reasonable value for the care, maintenance and support so furnished to Ella Hare for the past nineteen years.
It is manifest from the provisions of the will that Mary A. Hare was not incidentally stating the motive which led her to make an absolute gift of the property to the Sisters of Mercy, but intended, as clearly expressed, to impose an obligation for the support and maintenance of her imbecile daughter throughout her life, and an express trust was thereby created. Bloom v. Strauss, 73 Ark. 57. It was a gift in trust, with the right upon the part of the trustee to use all of said property, not required for the maintenance and support of said child, at their own discretion and without accounting therefor, and they accepted said trust. It is undisputed that they have received from the two estates of the parents of this imbecile ward the sum of $16,500, which they have not returned. It would be manifestly unfair and unjust now to permit them to repudiate the obligation and the trust and recover, upon a quantum meruit for services already rendered and maintenance furnished, a sum more than sufficient to consume the entire estate belonging to said imbecile, with no corresponding obligation on their part to maintain, support and care for her in the future, as the.decree rendered below does, thus defeating the obvious purpose of the testator and leaving entirely without protection for the remainder of her life the imbecile ward, Ella Hare, while permitting the consumption of all the remaining estates of both her father and mother by *557the trustee who expected, on accepting the trust and taking charge of her, to care for, maintain and support the said Ella Hare throughout her whole life for the one-half of said estates which they understood was devised to them for that purpose. It is true, as urged, that the imbecile has been as well cared for by them as she could have been by any one, and that it was the intention of her father to leave all of his estate to her mother, and of her mother to leave all of her estate to the church and appellee, except the few small legacies provided for, for her care and support during her lifetime and the church’s benefit thereafter; but it does not follow, as insisted, that it would be only equitable that they should have what they thought they were going to receive, and what their testator intended to give, and that they would receive nothing more if the judgment of the lower court was affirmed. The parties can not be placed in statu quo, and the majority of the court have concluded, since they have expressed a willingness to carry out the purpose of the trust and care for and maintain said Ella Hare for life, under the provisions of the will, if they had received what they thought they were going to get, that the court, in the administration of the principles of equity, will permit them to recover of the said Ella Hare the $5,500 they have had to refund of the purchase money of the lands sold to Tillman Shaw, afterwards recovered by Ella Hare, and charge the same as a lien against the property of Ella Hare. By so doing they will be placed in the position they would have occupied had no suits been brought by Ella Hare for the recovery of the lands of her father’s estate, and his will had, in law, as it attempted to do in fact, conveyed same to. her mother.
They are entitled to a judgment for that amount with interest from the time of its return, and the same to be declared a lien and enforced against her property, leaving the obligation of the trust created by the will for her support throughout the remainder of her life unimpaired.
The court should have rendered such judgment, and, for the error of the decree as rendered, the cause is" reversed and remanded with directions to enter a decree in accordance with this opinion.