it to such heirs of the testator's father as she might think best deserved a preference;"1 or with a recommendation, that the donee "would consider the testator's relations; "2 or, where the recommendation was "to consider certain persons,' "936 to be kind to them," 4" to remember them," 5 "to do justice to them," ,"6"to make ample provision for them," "to use the property for herself and her children, and to remember the church of God and the poor," 8" to give what should remain at his death, or what he should die seized or possessed of," or, "to finally appropriate as he pleases;" with a recommendation" to divide among certain persons," 10 or, "to divide and dispose of the savings, or the bulk of the property; " 12 or, where the testator "recommends, but does not absolutely enjoin ; " 18 or, where a testator gave all his property to his wife absolutely, and by a codicil, in the form of a letter to her, said it was his wish "that she should have everything, using her judgment when to dispose of it among her children, but that he should be unhappy if he thought that any one not of her 11 1 Meredith v. Heneage, 1 Sim. 542; and see Wright v. Atkyns, G. Coop. 119; Curnick v. Tucker, L. R. 17 Eq. 320. 2 Sale v. Moore, 1 Sim. 534; McNab v. Whitebread, 17 Beav. 299; Wright v. Atkyns, G. Coop. 119. 3 Ibid.; Hoy v. Master, 6 Sim. 568. 4 Buggins v. Yates, 9 Mod. 122. 5 Bardswell v. Bardswell, 9 Sim. 319. Le Maitre v. Bannister, Pr. Ch. 200 and note; Pope v. Pope, 10 Sim. 1. 7 Winch v. Brutton, 14 Sim. 379; Fox v. Fox, 27 Beav. 301. Curtis v. Rippon, 5 Madd. 434. Sprange v. Barnard, 2 Bro. Ch. 585; Green v. Marsden, 1 Drew. 646; Pushman v. Filliter, 3 Ves. 7; Wilson v. Major, 11 Ves. 205; Eade v. Eade, 5 Madd. 118; Wynne v. Hawkins, 1 Bro. Ch. 179; Lechmere v. Lavie, 2 M. & K. 197; Bland v. Bland, 2 Cox, 349; Att'y-Gen. v. Hall, Fitzg. 314; and see Meredith v. Heneage, 1 Sim. 542; Tibbits v. Tibbits, 19 Ves. 655; Pope v. Pope, 10 Sim. 1. 10 White v. Briggs, 15 Sim. 33. 2 family should be the better for what he felt confidence she would so well dispose of;" or, where everything was given to a "wife in the fullest trust and confidence reposed in her that she will dispose of the same for the joint benefit of herself and my children," or where an estate was given to a wife, "being fully satisfied that she will dispose of the same, by will or otherwise, in a fair and equitable manner to our united relatives, bearing in mind that my relatives are in better circumstances than hers; or, where all the testator's estate was given to his wife, recommending her "to give the same to his children, at such time and in such manner as she should think best; " or, where a bequest of a house and an annuity was made to a niece, for the support of herself and her nephews and nieces whom she then had under her care, "and of such other persons as she from time to time might wish and request to be members of her family;"5 or, where property was given to a daughter, "to be hers for ever, to be disposed of as she may think proper among her children and grandchildren, by will or otherwise; "6 or a devise to a wife of all a testator's property, recommending her "to make some small allowance, at her convenience, to each of his brothers and sisters say, $1000 to each; "7 or, a devise "of the use, benefit, and profits, to a wife absolutely, having full confidence that she will leave the surplus to be divided at her decease justly among her children; "8 or, where the testator expressed an "earnest hope" and "particular request" that "the donee would give the property to some one bearing the 1 Williams v. Williams, 1 Sim. (N. s.) 358. 2 Webb v. Wools, 2 Sim. (N. s.) 267; Byne v. Blackburn, 26 Beav. 41. 8 Reeves v. Baker, 18 Beav. 372. Gilbert v. Chapin, 19 Conn. 351. 5 Harper v. Phelps, 21 Conn. 257. • Thompson v. McKisick, 3 Humph. 631. Ellis v. Ellis, 15 Ala. 296. 8 Pennock's Estate, 20 Pa. St. 268; reversing Coate's Appeal, 2 Barr, 129, and McKonkey's Appeal, 1 Harris, 253. family name." In a case where A. gave property to B. and directed that his daughter should reside with and be maintained by A., and she resided of her own accord in another place, it was held that there was no implied trust for her if she resided in another place.2 § 114. It is an easy task to enumerate cases where trusts have been implied and where they have not been implied; but it is difficult to reconcile all the decisions. The words "will," "wish," "request," "hope," "desire," "trust," "have confidence," "recommend," "not doubting," and other similar words found so often in wills, express a state of mind in the testator, and they generally operate as a direct gift, devise, or bequest; but they are frequently so used that it is doubtful whether they are absolute directions, or mere suggestions to be acted on or not according to the discretion of the donee. Every case must depend upon the construction of the particular will under consideration. The point really to be determined in all these cases is whether, looking at the whole context of the will, the testator intended to impose an obligation on his legatee to carry his wishes into effect, or whether, having expressed his wishes, he intended to leave it to the legatee to act on them or not at his discretion. It is doubtful if there exist any formula for bringing to a direct test the question, whether words of "request," "hope," or "recommendation," are or are not to be considered obligatory. The 1 Hood v. Oglander, 34 Beav. 513. 2 Wilson v. Ball, L. R. 4 Ch. 581. Negroes v. Palmer, 18 Md. 165; Meggison v. Moore, 2 Ves. Jr. 633. 4 Warner v. Bates, 98 Mass. 276; Williams v. Williams, 1 Sim. (N. s.) 358, by Sir Knight Bruce. In Wright v. Atkyns, 1 T. & R. 157, Lord Eldon said that in order to determine whether the words create a trust or not, it is matter of observation: first, that the words should be imperative; secondly, that the subject must be certain; and, thirdly, that the object must be as certain as the subject. See Wood v. Cox, 2 My. & Cr. 684; Pope v. Pope, 10 Sim. 1. In Knight v. Knight, 3 Beav. 148, Lord Langdale said, "It is not every wish or expectation which a testator may express, most that can be done is to state a few general rules that lead to the construction of particular wills. § 115. However strong the language of recommendation or request may be, a trust will not be implied if the testator declare that such is not his intention, as if he declares that the gift shall be "unfettered or unlimited," or if he "recom nor every act which he may wish his successors to do, that can or ought to be executed and enforced as a trust; and in the infinite variety of expressions employed, and of cases which arise, there is often the greatest difficulty in determining whether the act desired or recommended is an act which the testator intended to be executed as a trust. In the construction of wills it is the duty of the court to give effect to the intention of the testator, whenever it can be ascertained." Then, after stating that in decreeing trusts wills have been made rather than executed, and that caution is necessary, his lordship goes on to say "that as a general rule it has been laid down that when property is given absolutely to any person, and the same person is by the giver, who has power to command, recommended or entreated or wished to dispose of the property in favor of another, the recommendation or entreaty or wish shall be held to create a trust: first, if the words are so used that, upon the whole, they ought to be construed as imperative; secondly, if the subject of the wish be certain, and, thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also certain." Same case under the name of Knight v. Boughton, 11 Cl. & Fin. 548. The learned editors to Hill on Trustees, p. 73 (4th Am. ed.), have examined the American and English cases and state the following rules, which seem to be fairly deducible from the adjudged cases: 1. Precatory words in a will, equally with direct fiduciary expressions, will create a trust; the wish of a testator, like the request of a sovereign, is equivalent to a command. 2. Discretionary expressions which leave the application or non-application of the subject of the devise to the objects contemplated by the testator entirely to the caprice of the devisee, will prevent a trust from attaching; but a mere discretion in regard to the method of application of the subject, or the selection of the object, will not be inconsistent with a trust. 3. Precatory words will not be construed to confer an absolute gift on the first taker, merely because of failure or uncertainty in the object or subject of the devise. 4. But failure or uncertainty will be an element to guide the court in construing words of doubtful significancy adversely to a trust. mends but does not enjoin." And so a trust will not be implied if such a construction of the precatory words would render them repugnant to, or inconsistent with, other parts of the same instrument. If construing a recommendation or the expression of a wish into a trust would contradict in terms the preceding bequest, a trust will not be implied.3 As if the gift is absolute, and of all the testator's property, and of both the legal and equitable interest in it, words of recommendation will not cut it down into a trust; or, in the words of Kindersley, V. C., "where the later words of a sentence in a will go to cut down an absolute gift contained in the first part of a sentence, and are inconsistent with such gift, the court will, if it can, give effect to the absolute gift." The same rule was stated by Lord Cottenham thus: "Though recommendation' may in some cases amount to a direction and create a trust, yet that being a flexible term, if such a construction of it be inconsistent with any positive provision in the will, it is to be considered as a recommendation and nothing more." 5 The flexible term 6 must give way to the inflexible, if the two cannot stand together as they are expressed. § 116. Again a trust will not be implied from precatory words where it would be impracticable for a court to deal with, and execute it; as if a testator should devise a house to his wife, and express a wish that his sister should live with 1 Meredith v. Heneage, 1 Sim. 543; 10 Price, 230; Hoy v. Master, 6 Sim. 568; Young v. Martin, 2 Y. & C. Ch. 582; Huskisson v. Bridge, 4 De G. & Sm. 245; Warner v. Bates, 98 Mass. 277; Whipple v. Adam, 1 Met. 444; Eaton v. Witts, L. R. 4 Eq. 151; Barrett v. Marsh, 126 Mass. 213. 2 Brunson v. Hunter, 2 Hill, Ch. 490; Knott v. Cottee, 2 Phill. 192. 3 Webb v. Wools, 2 Sim. (N. s.) 267; Bardswell v. Bardswell, 9 Sim. 319. Webb v. Wools, 2 Sim. (N. s.) 267; Van Duyne v. Van Duyne, 1 McCarter, 397. Knott v. Cottee, 2 Phill. 192; Second, &c. Church v. Desbrow, 52 Pa. St. 219. |