the misleading generalization (possibly imported from the cases in which precatory words addressed to an ex

the words, unless other parts of the instrument clearly show that they are technically used. It was part of the Roman law that the heir or devisee accepting the estate of a decedent became at once charged with the payment of all his debts, whether the estate was sufficient to discharge them or not. Hence, and by way of compensation, he was not bound to pay any of the legacies bequeathed by the testator; but this matter was left by the law entirely to his discretion. It was of the essence of a Roman will that the devisee should 'be universal successor to the property and debts of the decedent. He was in form and substance what we would call executor and sole devisee and legatee, with the additional qualification that he (or they, for many might be joined) was bound personally for the debts, if he accepted the devise. It is plain how restricted was the right of devise under such a law. When all the testator's bequests could be defeated at the pleasure of the devisee or instituted heir, he had no alternative but to use words of confidence, recommendation, or entreaty, as to any legacies or special devises, and such words would be much more likely to be regarded than the clearest imperative words. Moreover, there were great and peculiar difficulties in making a valid will at all under the Roman law, owing to the excessive strictness and complexity of the formalities required; and hence it was usual to add a codicil, in which the testator entreated his heir at law, if the will should not stand, to make the desired dispositions, or to hold the property for the benefit of the persons named in the codicil. Here, again, words of entreaty are much more appropriate than imperative words. Under the circumstances, they clearly proved an intention to impose a duty on the general devisee as far as was possible, and not merely to intrust him with a discretion. He intended a legacy; it was the law that made it discretionary, in disregard even of imperative words. It is very plain that such an institution is at war with moral principle, and it could not exist long without giving rise to many aggravated cases of breach of such trusts, that would

ecutor have been held the equivalent of a direct disposition) that a request coming from one with power to com

call loudly on the law to interfere with the discretion of the heir or devisee, and enforce the clear intention of the testator. Hence arose an alteration of the law, and the pretors were required to enforce trusts that were created in this form. Under such circumstances the new rule was a proper one; for it enforced the very duty imposed by the testator in the best form in which he was allowed to express it. No doubt the law continued after the reason of it had ceased; but then it contravened the intention of the testator by enforcing, as a binding obligation, what had been intrusted to the discretion of the heir or devisee. The matters are fully illustrated in Domat. 2, 3, 1; 1 Spence, Eq. Jur. 435; and in the Corpus Juris Civ. Inst. 2, 20 and 25; Dig. 28, 1 and 29, 7, and 30, 31 and 32; Code, 6, 23 and 36. Very similar was the origin of such trusts in England. The power of devise existed among the Anglo-Saxons in its fullest extent, and hence we might expect to find no such trusts among them, and it is said that no AngloSaxon will has been found containing the appointment of an executor charged with trusts. 1 Spence, Eq. Jur. 23, quoting Hinks, Dissert. 37. But, after the Norman conquest, and under the strict principles of feuds, devises of lands were not allowed. Hence the frequent resort to conveyances in trust, in order to be able to make provision for younger children, and for other purposes. These trusts were at first of no binding obligation, but depended for their execution entirely upon the honor of the grantee, and it was therefore very natural and appropriate that words of recommendation, desire, entreaty, and confidence should be used. Dishonesty would, of course, often occasion enormous grievances arising out of breaches of such confidence. It was very easy, then, for an English chancellor to bring in the Roman law to correct such evils. It was really enforcing what was intended to be a trust, and changing the law to do it. It was equity stepping in to correct the deficiencies of common-law institutions, and modifying them into accordance with the changing customs and circumstances of the people. The rule, thus

holding that words of request or expectation are presumably indicative of nothing more, unless the conry sense. Portsmouth v. Shackford (1866) 46 N. H. 423.

A strong disposition has been manifested by the courts to limit, rather than extend, the doctrine of raising trusts upon words of recommendation, and, as far as the authorities will allow, to give the words their natural and ordinary effect, unless it be clear that they are intended to be used in a peremptory sense. Van Duyne v. Van Duyne (1862) 14 N. J. Eq. 397.

The tendency of modern decisions is not to extend the rule or practice which, from words of doubtful meaning, deduces or implies a trust. Foose v. Whitmore (1880) 82 N. Y. 405, 37 Am. Rep. 572.

Under the old English decisions, which were followed by a few of the early cases in this country, the expression of a wish by the testator, like that of a sovereign, was construed as a command; but all the later cases, both in England and in this country, repudiate the doctrine, and hold that, in the absence of a clear indication of a contrary intent, expressions of "wish," "desire," etc., are to be treated as used in their commonly accepted sense, and are not to be artificially construed by the courts as a trust. Springs v. Springs (1921) 182 N. C. 484, 109 S. E. 839.

In Sale v. Moore (1827) 1 Sim. 534, 57 Eng. Reprint, 678, it is said that the first case that construed words of recommendation into a command made a will for the testator, for everyone knows the distinction between them.

Expressions of dissatisfaction as to the old rule are also to be found in Green v. Marsden (1853) 1 Drew. 346, 61 Eng. Reprint, 598.

In Palmer v. Simmonds (1854) 2 Drew. 221, 61 Eng. Reprint, 704, it was said by Vice Chancellor Kindersley that in most of the cases of this class the court is called upon to do what it is persuaded was never the intention of the testator; for, when a testator expresses his confidence that the devisee will do so and so, what he really means is to say that he expresses the confidence because he does not mean to create a trust. He gives absolutely, because he has confidence.

In Reeves v. Baker (1854) 18 Beav. 372, 52 Eng. Reprint, 147, Sir John

49 A.L.R.-2.

text, or the circumstances surrounding the testator at the time of making the will, show that he, though

Romilly, M. R., said that the current of authorities had changed.

James, L. J., in Lambe v. Eames (1871) L. R. 6 Ch. 597, 25 Eng. Rul. Cas. 471, said: "In hearing case after case cited, I could not help feeling that the officious kindness of the court of chancery in interposing trusts where in many cases the father of the family never meant to create trusts must have been a very cruel kindness indeed."

In Mussoorie Bank v. Raynor (1882). L. R. 7 App. Cas. (Eng.) 321, it is said that the current of decisions now prevalent for many years in the court of chancery shows that the doctrine of precatory trusts is not to be extended.

In Re Hamilton [1895] 2 Ch. (Eng.) 370, it was said by Lopes, L. J., that the current of decisions with regard to precatory trusts is now changed, and that the result of the change is that the court will not allow a precatory trust to be raised unless, on the consideration of all the words employed, it comes to the conclusion that it was the intention of the testator to create a trust.

"The doctrine of precatory trusts," says Lopes, L. J., in Hill v. Hill [1897] 1 Q. B. (Eng.) 483, "is a creature of equity, by whose aid the intentions of testators, in my judgment, have too frequently been defeated."

In Re Williams [1897] 2 Ch. (Eng.) 12, it is said that in some of the older cases obligations were inferred from language which in modern times would be thought insufficient to justify such an inference.

The inclination of the English courts is now to accept the natural construction of words of this character. Re Oldfield [1904] 1 Ch. (Eng.) 549.

The later authorities confine the operation of language supposed to create a trust within much narrower limits than is found in the earlier cases. Morrin v. Morrin (1886) Ir. L. R. 19 Eq. 37.

In Clancarty v. Clancarty (1893) Ir. L. R. 31 Eq. 530-C. A., it is said: "The doctrine of precatory trusts is one which possibly ought never to have been allowed to grow up and estab

marked by the case of Lambe v. Eames, L. R. 6 Ch. 597, 25 Eng. Rul. Cas. 471, decided in 1871, began to be apparent as early as the sec

parlance, and are not prima facie sufficient to convert a devise or bequest into a trust. Re Pennock (1853) 20 Pa. 268, 59 Am. Dec. 718; Bowlby v. Thunder (1884) 105 Pa. 173; Hopkins v. Glunt (1886) 111 Pa. 287, 2 Atl. 183; Boyle v. Boyle (1893) 152 Pa. 108, 34 Am. St. Rep. 629, 25 Atl. 494; Byers's Estate (1898) 186 Pa. 404, 40 Atl. 524.

The expression of a desire or expectation will not convert a devise into a trust unless it appears that the testator intended not to commit the estate to the discretion of the devisee. Cressler's Estate (1894) 161 Pa. 427, 29 Atl. 90, 95.

Words expressive of desire, request, or recommendation as to the direct disposition of an estate are sufficient, all expressions indicative of the testator's wish or will as to its disposition being commands; but it is different when, having made a disposition, he expresses a desire that the devisee or legatee should make a certain use of his bounty. Miller v. Stubbs (1914) 244 Pa. 482, 90 Atl. 1132.

Words of desire, recommendation, and confidence are not prima facie sufficient to convert a devise or bequest into a trust. De Dampierre v. Fidelity Ins. & T. Co. (1877) 34 Phila. Leg. Int. (Pa.) 248.

Precatory or recommendatory words imply discretion, and must be so construed unless a different sense is irresistibly forced upon them by the context. Rowland v. Rowland (1888) 29 S. C. 54, 6 S. E. 902.

Where it is doubtful whether a precatory trust was intended, the leaning is against it. Mere expressions of kindness toward third parties for whom a trust is claimed, or appeal to the liberality of the donee on their behalf, is not enough to create a precatory trust and make dubious words qualify the legatee's interest. Wilmoth v. Wilmoth (1890) 34 W. Va. 426, 12 S. E. 731.

The tendency of a court is to lean against precatory trusts. Sullivan v. Sullivan [1903] 1 Ir. R. 193.

16 In Handley v. Wrightson (1883) 60 Md. 198, it is said that it may be stated, as a general result of the cases in regard to the effect of words expressive of the wishes of a testator

ond quarter of the nineteenth century.

The earlier rule, however, seems to be still followed in Maryland, 16 New not imperative in form, that whether the words of the will are those of recommendation, or precatory, or expressing hope, or that the testator. has no doubt, if the objects with regard to whom such terms are applied are certain and the subjects of property to be given are also certain, the words are considered imperative and create a trust; and that, while a tendency has been manifested by some courts to restrict the application of this general rule, or to qualify it, and even to reject it altogether, and to adopt as more reasonable a presumption that words precatory in form are meant to imply discretion in the donee, and should be so construed unless clearly shown to be used in an imperative sense from other parts of the will, the weight of authority is that words of request, desire, expectation, and the like, operate to create a trust when the contrary does not appear from the context or by necessary implication.

In Chase v. Plummer (1860) 17 Md. 165, it was said that, although words of recommendation, desire, hope, etc., may raise a trust to be executed by the person to whom they are addressed, they are not always imperative, but are deemed flexible in character, and must yield if the imputed interpretation be against the rules of law, or so inconsistent with other provisions in the will that both cannot stand together, or if it appear from the whole will and the nature of the property that the testator meant to depend on the justice and gratitude of the donee, or repose in him a power to execute the supposed trust or not at his discretion.

So, also, in Nunn v. O'Brien (1896) 83 Md. 198, 34 Atl. 244, it was said that words of entreaty, recommendation, or wish, addressed by a testator to a devisee or legatee, will make him a trustee for the person or persons in whose favor such expressions are used, provided the testator pointed out with clearness and certainty the object of the trust and of the subjectmatter to which it is to attach or from which it is to arise and be administered.

But see Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl.