b. Requisites of precatory trusts, 26. c. Words addressed to executors, 31. III. Indicia of intention as to creation of trust: a. Existence of moral obligation, 33. b. Fact that person to whom precatory words are addressed is spouse of testator, 34. c. Coupling of gift and request, 34. d. Gift to executor, 34. e. Separate legacy to donee, 34. f. Use of same words in other parts of will, 34. g. Failure to use phraseology ordinarily employed in creating trusts, 34. h. Request embracing property over which testator has no control, 35. i. Unreasonableness of request, 35. j. Fact that trust would cause difficulty and embarrassment, 35. k. Disclaimer of intention to create trust, 35. 1. Fact that request is as to disposition of property at death, 36. m. Scope of discretion conferred upon donee, 36. n. Power of donee over subject-matter, 36. o. Absolute character of gift, 36. p. Uncertainty as to subject-matter or object, 39. IV. Review of the decisions, arranged according to the precatory expression employed: 1. "Confident," "confidence," or "confiding," 46. m. "Desire," or "desiring," 51. n. "Desire and belief," 58. 0. "Desire and direct," 58. s. "Direct," 60. t. "Enjoin," 61. u. "Expect," 62. v. "Expect and desire," 62. w. "Expect and hope," 62. x. "Faith," 62. y. "Faith and confidence," 63. z. "Hope" or "hoping," 63. bb. "Hope and expectation," 63. cc. "Hope and trust," 64. dd. "I am assured," 64. ee. "I am anxious," 64. ff. "I leave to the discretion of," 64. gg. "Instruct," 64. hh. "Intention," 64. ii. "Invoke," 64. jj. "Knowing," 64. kk. "Like," 65. 11. "May," 65. mm. "Not doubting," 66. nn. "Recommend" or "recommending," 66. 00. "Rely," or "relying," 69. pp. "Request," or "requesting," 69. qq. "Request and direct," 79. rr. "Requesting and desiring," 79. ss. "Require," or "requiring," 80. tt. "Satisfied," 80. uu. "Suggest," 80. vv. "Trust," or "trusting," 80. ww. "Trust and confidence," or "trusting and confiding," 81. XX. "Trusting and believing," 82. yy. "Upon condition," 82. zz."Upon his promise," 82. aaa. "Want," 82. bbb. "Who will do," 83. ccc. "Will," 83. ddd. "Will and desire," 83. eee. "Will and intention," 84. fff. "Will and wish," 84. ggg. "Wish," 84. hhh. "Wish and desire," 91. iii. "Wish and direct," 93. jjj. "Wish and expectation," 93. kkk. "Wish and request," 93. Ill. "Wish and will," 94. mmm. "With the understanding," 94. V. Review of the decisions in which expressions implying a request or ex pectation have been used: a. Gift to one "for the benefit of" himself (or herself) and "family," or "children," 94. b. Gift to one "for the benefit of" others, 95. c. Gift to one "to use for" himself (or herself) and children, 96. e. Gift to one "to use in caring for" another, 97. f. Gift to one "for the support of" himself (or herself) and children, or other relatives, 97. g. Gift to one "for the support of" another, 98. h. Gift to one "to enable him to" provide for children of himself or another, 98. i. Gift to one "for the purpose of" doing some specified thing, 99. j. Gift to one "in order that" he may do a certain thing, 99. k. Miscellaneous, 100. VI. Recommending the employment of an agent or attorney as creating a trust, 102. I. Introduction. In order to create a trust, it is not necessary that the word "trust" be used; nor is it necessary that the testator should have had in his mind the idea of a trust eo nomine. It is sufficient if he intended that his will should follow the property after his death, and imperatively control or limit its use.2 On this point it has been said by the United States Supreme Court: is "No technical language 1 Cockrill v. Armstrong (1876) 31 2 Clifford v. Stewart (1901) 95 Me. 38, 49 Atl. 52. 3 Colton v. Colton (1887) 127 U. S. 300, 22 L. ed. 138, 8 Sup. Ct. Rep. 1164. See also, to the same effect: Alabama.-Ellis v. Ellis (1849) 15 Ala. 296, 50 Am. Dec. 132. Arkansas.-Cockrill v. Armstrong (1876) 31 Ark. 580. Connecticut.-Hughes v. Fitzgerald (1905) 78 Conn. 4, 60 Atl. 694; Plaut v. Plaut (1908) 80 Conn. 673, 70 Atl. 52. Missouri.-Cross v. Hoch (1899) 149 Mo. 325, 50 S. W. 786. Utah.-Re Dewey (1914) 45 Utah, 98, 143 Pac. 124, Ann, Cas. 1918A, 475. for the benefit of another, a court of equity will affix to it the character of a trust, and impose corresponding duties upon the party receiving the title if it be capable of lawful enforcement." 3 Accordingly, words of entreaty, recommendation, desire, request, or confidence addressed by a testator to a devisee or legatee, may make him a trustee for the person or persons in whose favor such expressions are used, provided the testator has pointed out with clearness and certainty the objects of the trust and the subject-matter to which it is to attach, or from which it is to arise and be administered. This is on the ground Virginia. Bare v. Montgomery (1925) 143 Va. 303, 130 S. E. 230. Wisconsin. Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155. England.-Re Atkinson (1911) 80 L. J. Ch. N. S. (Eng.) 370C. A. Canada.-Re Walton (1911) 20 Manitoba L. R. 686. * Spooner v. Lovejoy (1871) 108 Mass. 529. See also, as stating the doctrine that words of recommendation, request, or hope, may be sufficient to create a trust: that an expression may be imperative in its real meaning, although couched in language which is not imperative in form; and, when it appears to have been used in this sense by the testator, the courts will give it due effect. If it is used by way of suggestion, counsel, or advice, with a view to influence, but not to direct, the discretion of the party, it will not raise a trust.5 This annotation deals with the question as to when words of request or expectation may be deemed to create a trust. Trusts so created are commonly spoken of as precatory trusts; although, as remarked by Rigby, L. J., in Re Williams [1897] 2 Ch. (Eng.) 12-C. A., the phrase "is nothing more than a misleading nickname. When a trust is once established, it is equally a trust, and has all the effects and incidents of a trust, whether declared in clearly imperative terms by a testator, or deduced upon a consideration of the whole will from language not amounting necessarily, and in its Cal, 666, 61 Pac. 964, 64 Pac. 1071; Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123. Illinois.-Jones v. Jones (1888) 124 Ill. 254, 15 N. E. 751. Maryland.-Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641. Massachusetts. Hess v. Singler (1873) 114 Mass. 56; Dexter v. Young (1920) 234 Mass. 588, 125 N. E. 862. Michigan. Hillsdale College v. Wood (1906) 145 Mich. 257, 108 N. W. 675; Gilchrist v. Corliss (1908) 155 Mich, 126, 130 Am. St. Rep. 568, 118 N. W. 938. New Hampshire.-Foster v. Willson (1894) 68 N. H. 241, 73 Am. St. Rep. 581, 38 Atl. 1003. New York. Phillips v. Phillips (1889) 112 N. Y. 197, 8 Am. St. Rep. 737, 19 N. E. 411; Re Daintrey (1925) 125 Misc. 369, 211 N. Y. Supp. 529. North Carolina.-Laws v. Christmas (1919) 178 N. C. 359, 100 S. E. 587. Ohio. Ide v. Clark (1891) 5 Ohio C. C. 239, 3 Ohio C. D. 120, Oregon.-Beakey v. Knutson (1918) 90 Or. 574, 174 Pac. 1149, rehearing denied in (1919) 90 Or. 583, 177 Pac. 955; Wemme v. First Church of Christ (1924) 110 Or. 179, 219 Pac. 619 (mo prima facie meaning, to an imperative trust." If there be a trust sufficiently expressed and capable of enforcement by a court of equity, it does not disparage, much less defeat it, to call it a precatory trust.6 Precatory trusts, then, are trusts created by words which are more like words of entreaty and permission than of command or certainty." They are so named because the words used in their creation ordinarily express the idea of entreaty, rather than command.8 In order to raise an express trust by precatory words, the terms employed must be inserted in the will or other instrument of settlement; mere oral requests not being sufficient to raise a trust enforceable against the person to whom the property is given. It is to be noted, however, that if a gift is made in reliance on the donee's promise to carry out the donor's wishes, a trust ex maleficio may arise. tion to recall mandate denied in (1924) 110 Or. 214, 223 Pac. 250). Pennsylvania.-Re Pennock (1853) 20 Pa. 268, 59 Am. Dec. 718; Burt v. Herron (1870) 66 Pa. 400; Fickes's Estate (1915) 59 Pa. Super. Ct. 535. Vermont.-Van Amee v. Jackson (1862) 35 Vt. 173. Washington.RE HOCHBRUNN (reported herewith) ante, 7. West Virginia. Hays v. Harris (1913) 73 W. Va. 17, 80 S. E. 827. Wisconsin. Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155; Wolbert v. Beard (1906) 128 Wis. 391, 107 N. W. 663. England.-Eaton v. Watts (1867) L. R. 4 Eq. 151. Canada.-Re Walton (1911) 20 Manitoba L. R. 686. 5 Russell v. United States Trust Co. (1904; C. C.) 127 Fed. 445, affirmed in (1905) 69 C. C. A. 410, 136 Fed. 758. 6 Colton v. Colton (1887) 127 U. S. 300, 22 L. ed. 138, 8 Sup. Ct. Rep. 1164. 7 Simpson v. Corder (1914) 185 Mo. App. 398, 170 S. W. 357. 8 Keplinger v. Keplinger (1916) 185 Ind. 81, 113 N. E. 292. 9 Hayes v. Hayes (1912) 242 Mo. 155, 145 S. W. 1155. II. In general. a. Generally. The question as to when a trust may be implied where precatory expressions are employed is one with which the courts have had considerable difficulty. "The conflict of opinion as to the effect of words of this character," says one judge, "is almost bewildering." "10 Another court has said: "The use of precatory words in wills has been a source of annoyance to the courts, and, owing to the appearance of extremely harsh cases from time to time, has occasioned some extreme views, thereby producing a contrariety of opinion to some extent." 11 One source of difficulty is found in the fact that in the earlier English cases, which were followed to some 10 Mitchell v. Mitchell (1895) 143 Ind. 113, 42 N. E. 465. 11 Lemp v. Lemp (1915) 264 Mo. 533, 175 S. W. 618. 12 Cases adhering to this rule, and which, therefore, need not be further noticed herein, are Eales v. England (1702) P. Wms. 200, 24 Eng. Reprint, 96; Nab v. Nab (1718) 10 Mod. 404, 88 Eng. Reprint, 783; Vernon v. Vernon (1737) 1 Ambl. 4, 27 Eng. Reprint, 1; Massey v. Sherman (1739) 1 Ambl. 520, 27 Eng. Reprint, 335; Mason v. Limbury (1736) 1 Ambl. 4, 27 Eng. Reprint, 1; Harding v. Glyn (1739) 1 Atk. 469, 26 Eng. Reprint, 299; Medlicot v. Bowes (1749) 1 Ves. Sr. 207, 27 Eng. Reprint, 985; Pierson v. Garnet (1786) 2 Bro. Ch. 38, 29 Eng. Reprint, 20; Jones v. Nabbs (1718) 1 Eq. Cas. Abr. 405, pl. 3, 21 Eng. Reprint, 1135; Malim v. Keighley (1794) 2 Ves. Jr. 333, 533, 30 Eng. Reprint, 659, 760; Malim v. Barker (1796) 3 Ves. Jr. 150, 30 Eng. Reprint, 942; Paul v. Compton (1803) 8 Ves. Jr. 380, 32 Eng. Reprint, 400; Parsons v. Baker (1812) 18 Ves. Jr. 476, 34 Eng. Reprint, 397; Wright v. Atkyns (1810) 17 Ves. Jr. 255, (1815) 19 Ves. Jr. 299, 34 Eng. Reprint, 98, 528, G. Cooper, 111, 35 Eng. Reprint, 497, (1823) Turn. & R. 143, 37 Eng. Reprint, 1051; Birch v. Wade (1814) 3 Ves. & B. 198, 35 Eng. Reprint, 454; Taylor v. George (1814) 2 Ves. & B. 378, 35 Eng. Reprint, 362; Tibbits v. Tibbits (1816) 19 Ves. Jr. 657, 34 Eng. Reprint, 659, (1821) 1 Jac. 317, 37 Eng. Reprint, 871; Prevost v. Clarke (1816) 2 Madd. Ch. 458, 56 Eng. extent in the courts of this country, mere precatory expressions were deemed to raise a trust, unless it appeared from the context to be within the power of the legatee to whom such expressions were addressed to defeat the disposition of the property indicated by the precatory words.12 In other words, the use of precatory expressions was held to create a presumption that a trust was intended. This rule has been sometimes attributed to the historical fact that originally all trusts, no matter how expressed, were only of precatory force, and imposed no binding obligation, so that it was natural and appropriate that words of recommendation, desire, entreaty, and confidence should be used,13 and sometimes to Reprint, 403; Forbes v. Ball (1817) 3 Meriv. 437, 36 Eng. Reprint, 168; Eade v. Eade (1820) 5 Madd. Ch. 118, 56 Eng. Reprint, 840; Ford v. Fowler (1840) 3 Beav. 146, 49 Eng. Reprint, 57; Kirkbank v. Hudson (1819) 3 Price, 212, 146 Eng. Reprint, 951; Cholmondeley v. Cholmondeley (1845) 14 Sim. 590, 60 Eng. Reprint, 487; Smith v. Smith (1856) 2 Jur. N. S. (Eng.) 967; Barnes v. Grant (1856) 2 Jur. N. S. (Eng.) 1127; Gully v. Cregoe (1857) 24 Beav. 185, 53 Eng. Reprint, 327; Bonser v. Kinnear (1860) 2 Giff. 195, 66 Eng. Reprint, 82; Moriarty v. Martin (1852) 3 Ir. Ch. Rep. 26; Cary v. Cary (1804) 2 Sch. & Lef. (Ir.) 173. 13 In Re Pennock (1853) 20 Pa. 268, 59 Am. Dec. 718, it is said: "It is acknowledged that the rule by which a trust is raised out of such words was imported into the English from the Roman law. Its origin, therefore, in the Roman law, is a relevant subject of inquiry; for if we find it arising there, not from the ordinary meaning of the words, but under the constraint of circumstances which have no existence here, the force of the Roman rule will be much impaired, if not destroyed. If, under their law, words of common parlance acquired a technical value by reason of a peculiar institution, then that technical value depends upon circumstances and ceases with them, and the common meaning alone remains. To construe such words, after that, as technical, is, in almost all cases, to pervert the true meaning of |