her, for the sister takes no interest in the house, and a court cannot decree two persons to live together. So where a testator devised a dwelling-house and an annuity to a niece, for the support of herself and her nephews and nieces then living with her, and of such other persons as she, from time to time, might request to be members of her family.2 Nor will a trust be implied, if there is uncertainty as to the property to be subjected to the trust, or as to the persons to be benefited by the trust, or as to the manner in which the property is to be applied. Lord Alvanley stated the rule to be "that a trust would be implied only where the testator points out the objects, the property, and the way in which it shall go." 5 If the subjects and objects of the supposed trust are left uncertain by a testator, the court will infer that no obligation was intended to be imposed upon the donee, but that the whole disposition was left to his discretion. So if a mere power to appoint is given to the first taker, to be exercised or

1 Graves v. Graves, 13 Ir. Ch. 182; Hood v. Oglander, 34 Beav. 513. 2 Harper v. Phelps, 21 Conn. 257.

8 Lechmere v. Lavie, 2 M. & K. 197; Knight v. Knight, 3 Beav. 148; Meredith v. Heneage, 1 Sim. 556; Buggins v. Yates, 9 Madd. 122; Sale v. Moore, 1 Sim. 534; Anon. 8 Vin. 72; Tibbits v. Tibbits, 19 Ves. 655; Wynne v. Hawkins, 1 Bro. Ch. 179; Pierson v. Garnet, 2 Bro. Ch. 45, 230; Bland v. Bland, 2 Cox, 349; Le Maitre v. Bannister, and Eales v. England, Pr. Ch. 200; Sprange v. Barnard, 2 Bro. Ch. 585; Pushman v. Filliter, 3 Ves. 7; Attorney-General v. Hall, Fitzg. 314; Wilson v. Major, 11 Ves. 205; Eade v. Eade, 5 Madd. 118; Curtis ". Rippon, ib. 434; Russell v. Jackson, 10 Hare, 213; Knight v. Boughton, 11 Cl. & Fin. 513; Flint v. Hughes, 6 Beav. 342; Lines v. Darden, 5 Fla. 51.

Harland v. Trigg, 1 Bro. Ch. 142; Wynne v. Hawkins, ib. 179; Tibbits v. Tibbits, 19 Ves. 655; Richardson v. Chapman, 1 Burns, Ecc. L. 245; Pierson v. Garnet, 2 Bro. Ch. 45, 230; Knight v. Knight, 3 Beav. 148; Sale v. Moore, 1 Sim. 534; Cary v. Cary, 2 Sch. & L. 189; Meredith v. Heneage, 1 Sim. 542; Ex parte Payne, 2 Y. & C. Ch. 636; Knight v. Boughton, 11 Cl. & Fin. 513; Lines v. Darden, 5 Fla. 51.

5 Malim v. Keighley, 2 Ves. Jr. 335; Knight v. Boughton, 11 Cl. & Fin. 548; Warner v. Bates, 98 Mass. 277; Whipple v. Adams, 1 Met. 444.

Morice v. Bishop of Durham, 10 Ves. 536.

not at his discretion, no trust will be implied.1 And no trust will be implied, if, taking the whole instrument and all the circumstances together, it is more probable than otherwise that the testator intended to communicate a discretion and not an obligation.2

§ 117. There is another variety of cases, where trusts are sometimes implied from the words used, though an express trust is not declared, as where property is given to a parent or other person standing in the relation of parent, and some directions or expressions are used in regard to the maintenance of his family or children. The question to be decided in this class of cases is, as in the others, did the settlor intend to create a trust and impose an obligation, or did he merely state incidentally the motive which led to an absolute gift? In the following cases a trust was clearly implied by the court; where property was given, that "he may dispose thereof for the benefit of himself and children," or, "for his own use and benefit, and the maintenance and education of his children," 5" for the maintenance of himself and family," ,"6"at the disposal of the legatee for herself and her children," or "all overplus towards her support and her

1 Brook v. Brook, 3 Sm. & Gif. 280; Paul v. Compton, 8 Ves. 380; Howorth v. Dewell, 29 Beav. 18; Lines v. Darden, 5 Fla. 51.

2 Bull v. Hardy, 1 Ves. Jr. 270; Knott v. Cottee, 2 Phill. 192; Knight v. Knight, 3 Beav. 174; 11 Cl. & Fin. 513; Meggison v. Moore, 2 Ves. Jr. 630; Hill v. Bishop, &c. 1 Atk. 618; Paul v. Compton, 8 Ves. 380; Lefroy v. Flood, 4 Ir. Ch. 1; Shepherd v. Nottige, 2 Johns. & Hem. 766.

Paisley's App. 70 Pa. St. 158.

4 Raikes v. Ward, 1 Hare, 445; Whiting v. Whiting, 4 Gray, 240.

5 Longman v. Elcum, 2 Y. & C. Ch. 369; Carr v. Living, 28 Beav. 644; Berry v. Briant, 2 Dr. & Sm. 1; Bird v. Maybury, 33 Beav. 351; Andrews v. Bank of Cape Ann, 3 Allen, 313.

• In re Robertson's Trust, 6 W. R. 405; Whelan v. Reilly, 3 W. Va. 597; Smith v. Wildman, 37 Conn. 387.

Crockett v. Crockett, 1 Hare, 451; 2 Phill. 461; Bibby v. Thompson, 32 Beav. 646.

family," or to "A. for the education and advancing in life of her children."2 In Byne v. Blackburn, it was held, that the fact that the property was given to a trustee instead of to the parent, was sufficient to show that no sub-trust was intended; 3 but this case is in conflict with other cases; and in Chase v. Chase, where property was given to trustees "to pay the income yearly to a son for the support of himself and family and the education of his children," it was held that the income was taken in trust by the son as sub-trustee, and that the wife and children could in equity enforce its appropriation in part for their support.5 Where a testator

1 Woods v. Woods, 1 M. & Cr. 401. 2 Gilbert v. Bennett, 10 Sim. 371. Byne v. Blackburn, 26 Beav. 41.

4 Gilbert v. Bennett, 10 Sim. 371; Longman v. Elcum, 2 Y. & C. Ch. 363; Carr v. Living, 28 Beav. 644.

Cole v. Littlefield, 35 Me. 435; Loring v. Loring, 100 Mass. 340; Wilson v. Bell, L. R. 4 Ch. 581; Whiting v. Whiting, 4 Gray, 240; Chase v. Chase, 2 Allen, 101. In this case Chief Justice Bigelow said: "The intent of the testator to give the benefit of the income of the trust fund created by his will to the wife and children of his son Philip, as well as to his son, is clear and unequivocal. It was intended for their joint support, and for the education of the children. The only question arising on the construction of the will is, whether the income of the trust fund, when received by the son, is held absolutely by him to be disposed of at his discretion, or whether he takes it in trust so that the wife and children can seek to enforce its due appropriation, in part for their benefit, in a court of equity. We cannot doubt that the latter is the true construction; otherwise it would be in the power of the son to defeat the purpose of the testator, by depriving his family of the support and education which was expressly provided for by the will. The adjudicated cases recognize the rule that where income arising from property is left to a person for the maintenance of children, he will be entitled to receive it for that purpose only so long as he continues properly to maintain them. It can make no difference in the application of the principle, that the person who is to receive the income also takes a beneficial interest in it for his own support. He is not thereby authorized to appropriate the whole of it to his own use, and deprive the other beneficiaries of the share to which they are entitled. Hadow v. Hadow, 9 Sim. 438; Jubber v. Jubber, ib. 503; Longmore v. Elcum, 2 Y. & C. Ch. 363; Leach v. Leach, 13 Sim. 304; Hart v. Tribe, 19 Beav. 149; Raikes v. Ward, 1 Hare, 445; Crockett v. Crockett, 2 Phill. 553." Babbitt v. Babbitt, 26 N. J. Eq. 44.

gave his wife the entire profit of his estate for life, "intrusting to her the education and maintenance of his children," and also providing for the education and maintenance of the children "out of the profits" of the estate, it was held, that the widow was charged with the trust of educating and supporting the children; and where a legacy was given to a wife to be applied to the maintenance of certain persons in such proportions and at such times as she should think proper, it was held to be an imperative trust.2 Where a testator gave to his wife all his personal property for her benefit and support and the benefit of his son, it was held to be a trust in the widow, the income of one half for her own benefit and of the other half for the support of the son.3

1 Lucas v. Lockhart, 10 Sm. & Mar. 468. See also Hunter v. Stembridge, 12 Ga. 192; Withers v. Yeadon, 1 Rich. Eq. 324.

2 Hawley v. James, 5 Paige, 318.

Loring v. Loring, 100 Mass. 340; Jubber v. Jubber, 9 Sim. 503. When a testator has stated the motive which leads to the gift, the inquiry arises, is the motive or purpose of the gift so stated that the donee is under an obligation to apply the gift, or any part of it, to the benefit of another person? There are three classes of cases: (I.) When a complete and obligatory trust is created in the first donee. As a gift to A. “to dispose of among her children," or for bringing up her children, gives no interest to A., but creates a complete trust. Blakeney v. Blakeney, 6 Sim. 52; Pilcher v. Randall, 9 Week. R. 251; Taylor r. Bacon, 8 Sim. 100; Chambers v. Atkins, 1 Sim. & St. 382; Fowler v. Hunter, 3 Y. & Jer. 506; In re Comac's Trust, 12 Jur. 470; Barnes v. Grant, 26 L. J. Ch. 92; Jubber v. Jubber, Sim. 503; Wetherell v. Wilson, 1 Keen, 80; Wilson v. Maddison, 2 Y. & C. Ch. 372; Re Harris, 7 Exch. 344; Whiting v. Whiting, 4 Gray, 420; Chase v. Chase, 2 Allen, 101; Cole v. Littlefield, 35 Me. 439; Wright v. Miller, 8 N. Y. 9. (II.) There is a large class of cases where the first donee has a discretion to apply a part or the whole of the gift to a third person. This discretion, if exercised in good faith, will not be interfered with by the court, and the property unapplied by the donee will belong beneficially to him. Thus in Hornby v. Gilbert, Jac. 354, where a gift was made to A., to be laid out and expended by her at her discretion, for or towards the education of her son, and that she should not be liable to account to her son or any other person, it was held that the property belonged to her beneficially, subject to a trust to apply a part to the education of the son during his minority. And so where income is given for life, to be applied to the education and maintenance of children in the discretion of the donee, the

§ 118. In cases where a trust for the maintenance of children is implied, the person bound by the trust is regarded in the same light as the guardian of a lunatic or of a minor: 1

income must be paid to the person named, and the part unexpended belongs to such person beneficially. Gilbert v. Bennett, 10 Sim. 371; Hadow v. Hadow, 9 Sim. 438; Leach v. Leach, 13 Sim. 304; Brown v. Paul, 1 Sim. (N. S.) 92; Bowden v. Laing, 14 Sim. 113; Longmore v. Elcum, 2 Y. & C. Ch. 363. And if the interest or income of legacies to the children is given to a parent, to be applied to the maintenance and education of the children, the parent will take the surplus beneficially if he performs his duty, unless a contrary intention is expressed: and providing for other trustees in case of the parent's death does not indicate a contrary intention. Brown v. Paul, 1 Sim. (N. s.) 103. Sometimes the gifts to a parent are so expressed that the parent takes the property in trust, subject to a large discretion; and sometimes the parent takes the property for life, subject to a power of appointment for the children. The latter construction is the more favored by the courts. See Crockett v. Crockett, 2 Phill. 553; Gully v. Cregoe, 24 Beav. 185; Hart v. Tribe, 18 Beav. 215; Ware v. Mallard, 21 L. J. Ch. 355, 16 Jur. 492. In Raikes v. Ward, 1 Hare, 445, a gift was made to a wife, "to the intent she may dispose of the same for the benefit of herself and our children as she may deem most advantageous," and the court determined that the children had no absolute interest, but that their interests were subject to her honest discretion. Connolly v. Farrell, 8 Beav. 347; Woods v. Woods, 1 My. & Cr. 401; Costababie v. Costababie, 6 Hare, 410; Cowman v. Harrison, 10 Hare, 234; Smith v. Smith, 2 Jur. (N. s.) 967; Cooper v. Thornton, 3 Bro. Ch. 96; Robinson v. Tickell, 8 Ves. 142; Wood v. Richardson, 4 Beav. 174; Pratt v. Church, ib. 177. (III.) The third class of cases contains those in which it is held that the primary donee is absolutely entitled to the whole interest given, without any rights in third persons, as in Brown v. Casamajor, 4 Ves. 498, where a legacy was given to a father "the better to enable him to provide for his children." These and similar words merely express the motive of the gift, but import or imply no obligation or discretion which courts can enforce or control. Hammond v. Neame, 1 Swans. 35; Benson v. Whittam, 5 Sim. 22; Thorp v. Owen, 2 Hare, 607; Andrews v. Partington, 3 Bro. Ch. 60. See also Biddles v. Biddles, 16 Sim. 1; Berkley v. Swinbourne, 6 Sim. 613; Oakes v. Strachy, 13 Sim. 414; Leigh v. Leigh, 12 Jur. 907; Jones v. Greatwood, 16 Beav. 528; Hart v. Tribe, 18 Beav. 215; Wheeler v. Smith, 1 Giff. 300. It may be said that latterly courts are not so astute to discover and enforce trusts from precatory words, and are more inclined to find in the words the mere statement of a motive, or the vesting of a discretion in the donee.

1 Jodrell v. Jodrell, 14 Beav. 411.