864; Curtis v. Rippon (1820) 5 Madd. Ch. 434, 56 Eng. Reprint, 961; Heneage v. Andover (1822) 10 Price, 230, 147 Eng. Reprint, 297; Sale v. Moore (1827) 1 Sim. 534, 57 Eng. Reprint, 678; Hoy v. Master (1834) 6 Sim. 568, 58 Eng. Reprint, 706; Wood v. Cox (1837) 2 Myl. & C. 684, 40 Eng. Reprint, 801, reversing (1836) 1 Keen, 317, 48 Eng. Reprint, 329; Ex parte Payne (1837) 2 Younge & C. Exch. 636, 160 Eng. Reprint, 550; Bardswell v. Bardswell (1838) 9 Sim. 319, 59 Eng. Reprint, 381; Pope v. Pope (1839) 10 Sim. 1, 59 Eng. Reprint, 512; Knight v. Boughton (1840) 11 Clark & F. 548, 8 Eng. Reprint, 1209; Young v. Martin (1843) 2 Younge & C. Ch. Cas. 582, 63 Eng. Reprint, 260; Winch v. Brutton (1844) 14 Sim, 379, 60 Eng. Reprint, 404; White v. Briggs (1845) 15 Sim. 33, 60 Eng. Reprint, 528; Johnston v. Rowlands (1848) 2 De G. & S. 356, 64 Eng. Reprint, 160; Williams v. Williams (1851) 1 Sim, N. S. 358, 61 Eng. Reprint, 139; Huskisson v. Bridge (1851) 4 De G. & S. 245, 64 Eng. Reprint, 816; Webb v. Wools (1852) 2 Sim. N. S. 267, 61 Eng. Reprint, 343; Cowman v. Harrison (1852) 10 Hare, 234, 68 Eng. Reprint, 913; Macnab v. Whitbread (1853) 17 Beav. 299, 51 Eng. Reprint, 1049; Green v. Marsden (1853) 1 Drew. 646, 61 Eng. Reprint, 598; Palmer v. Simmonds (1854) 2 Drew. 221, 61 Eng. Reprint, 704; Reeves v. Baker (1854) 18 Beav. 372, 52 Eng. Reprint, 147; Re Crockford (1869) 17 Week. Rep. 1004; Smith v. Gibson (1872) 20 Week. Rep. 88; House v. House (1874) 23 Week. Rep. 22; Re Pinckard (1858) 4 Jur. N. S. 1041-C. A.; Fox v. Fox (1859) 27 Beav. 301, 54 Eng. Reprint, 118; Shephard v. Nottidge (1862) 2 Johns. & H. 766, 70 Eng. Reprint, 1268; M'Culloch v. M'Culloch (1863) 11 Week. Rep. 504; Hood v. Oglander (1865) 34 L. J. Ch. N. S. 528; Scott v. Key (1865) 35 Beav. 291, 55 Eng. Reprint, 907; Eaton v. Watts (1867) L. R. 4 Eq. 151; McCormick v. Grogan (1869) L. R. 4 H. L. 82; Ellis v. Ellis (1875) 44 L. J. Ch. N. S. 225; Stead v. Mellor (1877) L. R. 5 Ch. Div. 225; Teasdale v. Braithwaite (1877) L. R. 5 Ch. Div. 630-C. A.; Re Hutchinson (1878) L. R. 8 Ch. Div. 540; Dawkins v. Penrhyn (1878) L. R. 4 App. Cas. 51-H. L.; Parnall v. Parnall (1878) L. R. 9 Ch. Div. 97; Mussoorie Bank

v. Raynor (1882) L. R. 7 App. Cas. 321; Re Adams (1884) L. R. 27 Ch. Div. 394; Moore v. Roche (1886) 55 L. J. Ch. N. S. 418; Re Diggles (1888) L. R. 39 Ch. Div. 253-C. A.; Re Crawshay (1890) L. R. 43 Ch. Div. 615; Re Hamilton [1895] 2 Ch. 370; Re Sanson (1896) 12 Times L. R. 142; Re Williams [1897] 2 Ch. 12-C. A.; Hill v. Hill [1897] i Q. B. 483-C. A.; Re Hanbury [1904] 1 Ch. 415-C. A.; Re Oldfield [1904] 1 Ch. 549-C. A.; Re Conolly [1910] 1 Ch. 219; Re Atkinson (1911) 80 L. J. Ch. N. S. 370—C. A.; Re Lovett (1912) 132 L. T. Jo. 297. Scotland. Campbell v. KinseyMorgan [1915] S. C. 298, 52 Scot. L. R. 289.

Ireland.-Lefroy v. Flood (1853) 4 Ir. Ch. Rep. 1; Greene v. Greene (1869) Ir. Rep. 3 Eq. 90, 629; Reid v. Atkinson (1871) Ir. Rep. 5 Eq. 373, s. c. (1871) Ir. Rep. 5 Eq. 162; Creagh v. Murphy (1873) Ir. Rep. 7 Eq. 182;. Morrin v. Morrin (1886) Ir. L. R. 19 Eq. 37; Clancarty v. Clancarty (1893) Ir. L. R. 31 Eq. 530-C. A.; Humphrey's Estate [1916] 1 Ir. R. 21.

Canada.-Re Bolster (1910) 46 Can. L. J. 663; Perry v. Perry (1918) 29 Manitoba L. R. 45, 40 D. L. R. 628, affirming (1918) 29 Manitoba L. R. 23, 37 D. L. R. 89; Nelles v. Elliot (1878) 25 Grant, Ch. 329; Bank of Montreal v. Bower (1889) 18 Ont. Rep. 226, affirming (1889) 17 Ont. Rep. 548; Re Soulliere (1913) 24 Ont. Week. Rep. 400, 9 D. L. R. 879; Johnson v. Farney (1913) 29 Ont. L. Rep. 223, 14 D. L. R. 134; Re Clark (1919) 17 Ont. Week. N. 88; Re Fortier (1922) 22 Ont. Week. N. 136.

22 United States.-Burnes v. Burnes (1905) 70 C. C. A. 369, 137 Fed. 781.

California.-Re Marti (1901) 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071; Re Hamilton (1919) 181 Cal. 758, 186 Pac. 587; Re Purcell (1914) 167 Cal. 176, 138 Pac. 704; Re Browne (1917) 175 Cal. 361, 165 Pac. 960; Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123. Connecticut. Gilbert v. Chapin (1848) 19 Conn. 348; Harper v. Phelps (1851) 21 Conn. 257; Plaut v. Plaut (1908) 80 Conn. 673, 70 Atl. 52.

Florida.-Lines v. Darden (1853) 5 Fla. 51; Floyd v. Smith (1910) 59 Fla. 485, 37 L.R.A. (N.S.) 651, 138 Am. St. Rep. 133, 51 So. 537, 21 Ann. Cas. 318.

Idaho.-Bliss v. Bliss (1911) 20 Idaho, 467, 119 Pac. 451.

Massachusetts. Warner v. Bates (1867) 98 Mass. 274. New York. Foose v. Whitmore (1880) 82 N. Y. 405, 37 Am. Rep. 572; Phillips v. Phillips (1889) 112 N. Y. 197, 8 Am. St. Rep. 737, 19 N. E. 411.

North Carolina.-Laws v. Christmas (1919) 178 N. C. 359, 100 S. E. 587.

Tennessee.-Anderson v. Hammond (1879) 2 Lea, 281, 31 Am. Rep. 612.

Texas.-McMurry v. Stanley (1887) 69 Tex. 227, 6 S. W. 412; Paton v. Baugh (1924) Tex. Civ. App. 265 S. W. 250.

Wisconsin. Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155.

England. Williams v. Williams (1851) 1 Sim. N. S. 358, 61 Eng. Reprint, 139.

23 Van Gorder v. Smith (1884) 99 Ind. 404.

24 Wolbert v. Beard (1906) 128 Wis. 391, 107 N. W. 663.

Words of recommendation and entreaty or wish will be considered as imperative if it appears that they were intended to create an obligation. Wemme v. First Church of Christ (1924) 110 Or. 179, 219 Pac. 619 (motion to recall mandate denied in (1924) 110 Or. 214, 223 Pac. 250).

the old rule, there were three requisites to the creation of a precatory trust: First, the use of words of desire, request, recommendation, or confidence; second, certainty as to the subject of the trust; and, third, certainty as to its beneficiaries or objects. The second and third, it will be perceived, are merely requisites of valid trust generally.

According to the later rule, it might also appear that the precatory words were used in an imperative sense, to the exclusion of any option of the devisee as to whether or not the expressed wish shall be given effect. Statements to this purport, in varying language, may be found in the subjoined footnote.26

As some of the courts have pointed out, there is no formula by which it

25 See, in addition to cases cited in subd. II. c, infra: Burt v. Herron (1870) 66 Pa. 400; Byers's Estate (1898) 186 Pa. 404, 40 Atl. 524; Dickinson's Estate (1904) 209 Pa. 59, 58 Atl. 120; Taylor v. Martin (1887) 6 Sadler (Pa.) 125, 20 W. N. C. 27, 8 Atl. 920.

26 In order to the creation of a trust by words of recommendation, entreaty, wish, or request addressed by a testator to a devisee or legatee, three conditions must concur; (1) There must be such certainty of subjectmatter as to be capable of execution by the court; (2) there must be certainty as to the beneficiaries or objects of the intended trust; (3) the expressed wish, request, or desire of the testator must be imperative in its character, and not be left so dependent upon the discretion of the general devisee as to be incapable of execution without superseding or controlling that discretion. Toms v. Owen (1891; C. C.) 52 Fed. 417.

In order to bring a case within the rule concerning precatory trusts, the words used must be such that it shall appear from them that they were intended in an imperative sense, the subject of the recommendation or wish must be certain, and the objects thereof must be certain. McDuffie v. Montgomery (1904; C. C.) 128 Fed. 105.

Words of desire, request, recommendation, or confidence in a will, addressed by a testator to a legatee

whom he has the power to command, create no trust in favor of the parties recommended, unless (1) the intention of the testator to make the desire, request, recommendation, or confidence imperative upon the legatee, so that he should have no option to comply or to refuse to comply with it, clearly appears from the whole will and the situation and circumstances of the testator when it was made; (2) unless the subject-matter is certain; and (3) unless the beneficiaries are clearly designated. Burnes v. Burnes (1905) 70 C. C. A. 369, 137 Fed. 781.

Precatory words may or may not create a trust, according to the circumstances of the particular case. They are not to be regarded as creating a trust unless it appears that the testator intended to impose an imperative obligation, and to exclude the exercise of discretion or option in reference to the act in question. Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123.

No trust will be raised by expressions in a will importing recommendation, hope, confidence, desire, etc., unless there be certainty as to the parties who are to take and what they are to take; nor if a discretion whether to act or not be left with the devisee or so-called trustee. Gilbert v. Chapin (1848) 19 Conn. 342.

The tenor of modern decisions has been unfavorable to the conversion of the devisee or legatee into a trustee, and the principle may now be considered as well established that to constitute a trust from expressions of hope, confidence, request, desire, recommendation and the like, the language must, in its ordinary sense, clearly import such an intention, and both the estate and the person or class of persons must be described with reasonable certainty. Bristol v. Austin (1873) 40 Conn. 438.

In order to convert words of expectation into a valid trust, there must be shown a clear intent to make the expectation of the testator imperative upon the legatee, the subject-matter of the testator's expectation must be certain, and the object of his bounty must be certain. Seymour v. Sanford (1913) 86 Conn. 516, 86 Atl. 7.

Before a precatory trust can be found, not only must the object be certain and definite, and the property to which it is to attach clearly desig

nated, but the recommendatory clause must be peremptory on the donee. General Clergy Relief Fund v. Sharpe (1915) 43 App. D. C. 126.

The object of the trust must be specific and definite enough to be enforced, and the language creating it must be such as to charge the trustee with a duty, rather than to confer a discretion or option to act or not to act as to him may seem best. O'Brien v. McCarthy (1922) 52 App. D. C. 183, 285 Fed. 917.

Under the provisions of the Georgia Civil Code it is declared that "precatory or recommendatory words will create a trust if they are sufficiently imperative to show that it is not left discretionary with the party to act or not, and if the subject-matter of the trust is defined with sufficient certainty, and if the object is also certainly defined and the mode in which the trust is to be executed." Wood v. Owen (1910) 133 Ga. 751, 66 S. E. 951.

Where a bequest is accompanied by words expressing a command, recommendation, entreaty, wish, or hope on the part of a testator that the donee will dispose of the property in favor of another, a trust will be created: First, if the words on the whole are sufficiently imperative; second, if the subject be sufficiently certain; and, third, if the object be also sufficiently certain. Mills v. Newberry (1885) 112 Ill. 123, 54 Am. Rep. 213, 1 N. E. 156.

When property is given absolutely to any person, and the same person is by the giver, who has power to command, recommended, entreated, or wished to dispose of the property in favor of another, the recommendation, entreaty, or wish shall be held to create a trust, if the words so used as a whole ought to be construed as imperative, if the subject of the recommendation or wish be certain, and if the person intended to have the benefit of the recommendation or wish be also certain. Blanchard V. Chapman (1886) 22 Ill. App. 341.

Before a court will declare a trust to exist, and enforce it, three things must be shown: (1) The words of the testator must be construed as mandatory; (2) the person intended to be the beneficiary must be certain; (3) the subject to which the obligation relates must be certain. Webster v. Wathen (1895) 97 Ky. 318, 30 S. W. 663.

In order to create a trust and make precatory words operative in a will, it must appear that the estate is not an absolute estate, and that the disposition thereof is not unrestricted, the subject of the devise and the devisees must be certain, and the trust definite, and the language used must be positive and imperative, and not such as would indicate a mere wish or desire on the part of the testator, which might be complied with or not, at the pleasure or discretion of the legatee. Wood v. Wood (1907) 127 Ky. 514, 106 S. W. 226.

If the objects of the supposed trust are certain and definite, if the property to which it is to attach is clearly pointed out, if the relations and situations of the testator and the supposed cestuis que trust are such as to indicate strong interest and motive on the part of the testator in making them partakers of his bounty, and, above all, if the recommendatory or precatory clause is so expressed as to warrant the inference that it was designed to be peremptory on the donee, the just and reasonable interpretation is that a trust is created which is obligatory and can be enforced in equity against the trustee by those in whose behalf the beneficial use of the gift was intended. Warner v. Bates (1867) 98 Mass. 274.

Words expressing a hope, wish, request, or recommendation that a bequest or devise to a person will be applied by the latter to the benefit of others, may be held to create a trust where it appears that they were intended to be imperative. Dexter v. Young (1920) 234 Mass. 588, 125 N. E. 862.

The essence of the doctrine of precatory trusts is that the words creating them, while in form the expression of a request, wish, or recommendation on the part of the testator, are in fact intended by him as a positive direction or command obligatory upon the perto whom they are addressed. Hillsdale College v. Wood (1906) 145 Mich. 257, 108 N. W. 675.

son

Precatory words, if the intent is manifest, may be treated as mandatory. Gilchrist v. Corliss (1908) 155 Mich. 126, 130 Am. St. Rep. 568, 118 N. W. 938.

In order to imply a trust from the use of precatory words, such words must have been used in an imperative

sense as to a certain subject and a certain object or burden. Hayes v. Hayes (1912) 242 Mo. 155, 145 S. W. 1155.

Whenever the objects of the supposed recommendatory trust are not certain or definite, whenever the property to which it is to attach is not certain or definite, whenever there is a clear discretion or choice to act or not to act, and whenever the prior disposition of the property imports absolute and uncontrollable ownership, words of recommendation or request will not create a trust. Smullin v. Wharton (1905) 73 Neb. 667, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267.

Although in form precatory, the language will be held to be imperative, and to impose a trust, if the intent clearly appears. Laws v. Christmas (1919) 178 N. C. 359, 100 S. E. 587.

Precatory words may amount to a declaration of trust when it appears from other parts of the will that the testator intended not to commit the estate to the devisee or legatee or the ultimate disposal of it to his kindness, justice, or discretion. Re Pennock

(1853) 20 Pa. 268, 59 Am. Dec. 718.

While words in a will expressive of desire, recommendation, and confidence are not prima facie sufficient to convert a devise or bequest into a trust, such words may amount to a declaration of trust when it appears from other parts of the will that the testator did not intend to commit the ultimate disposal of the estate to the benevolence or discretion of the devisee or legatee. Fickes's Estate (1915) 59 Pa. Super. Ct. Rep. 535.

To create a trust and make precatory words operative in a will, it must be clear: First, that the estate vested in the first taker is not absolute nor disposition thereof unrestricted; second, that the subject of the bequest or trust is certain and definite; and, third, the object of the bounty certain and clear; and, further, that the language used as gathered from the whole context is intended to be imperative and controlling, and not a mere matter of discretion. Hill v. Page (1895) Tenn., 36 S. W. 735.

Whenever the object or the property of the supposed trust is not definite or certain, or a clear discretion and choice to act is given, and whenever the prior disposition imports uncontrollable ownership, the courts will not create a trust from precatory

may be determined whether a precatory trust has been created.27 The

words. Clark v. Hill (1897) 98 Tenn. 300, 39 S. W. 339.

A subject of the recommendation that is certain, and the object or persons to receive benefits therefrom equally certain, are essential elements of such a trust. Hadley. v. Hadley (1897) 100 Tenn. 446, 45 S. W. 342. A trust is created, first, if the words are so used as to be imperative upon a proper construction; second, if the subject of the recommendation or wish is certain; third, if the object or persons intended to have the benefit of the recommendation or wish be also certain. Ensley v. Ensley (1900) 105 Tenn. 107, 58 S. W. 288.

In Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155, the court said that, while it was not inclined to go to the extent of the older cases in England and in this country in establishing trusts upon the strength of precatory words used by a testator in his will, is was not disposed to repudiate the whole doctrine of such trusts, but would apply it only in cases where it was clear that on the whole it was the intention of the testator to create a trust by the use of such words, and where the words showed, with reasonable certainty, that the testator intended to control the legatee or devisee in the use and control of the property devised or bequeathed.

In Briggs v. Penny (1851) 3 Macn. & G. 546, 42 Eng. Reprint, 371, Lord Chancellor Truro said: "I conceive the rule of construction to be that words accompanying a gift or bequest expressive of confidence or belief, or desire or hope, that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions: First, that they are so used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not; secondly, the subject must be certain; and, thirdly, the objects expressed must not be too vague or indefinite to be enforced."

In Williams v. Williams (1851) 1 Sim. N. S. 369, 61 Eng. Reprint, 143, it was said by Lord Cranworth: "It has been said that the points to be inquired into are: First, whether the subject-matter to which the precatory words apply is clear; and, secondly,

form of expression used has little bearing on the question. "The courts whether the favored objects are distinctly ascertained; and when these two requisites concur, that is, when there is no doubt as to the property to which or the persons to whom the precatory words refer, there it would seem to have been sometimes assumed that such words are as obligatory as words creating an express trust. I confess that this reasoning has never carried conviction to my mind. I doubt if there can exist any formula for bringing to a direct test the question whether words of request or hope or recommendation are or are not to be construed as obligatory. It may be very safe in general to say that when there is uncertainty as to the subject-matter or as to the objects in whose favor the request or hope or recommendation is expressed, there precatory words cannot have been intended to be absolutely binding. But the converse of the proposition is by no means equally true. The subjectmatter of the bequest and the objects of the testator's bounty may be perfectly ascertained, and yet the context may show that words of hope or request or recommendation were not intended to interfere with the absolute discretion of the legatee."

The question is whether, from a consideration of the whole will, an intention on the part of the testator can be discovered that the words of request or recommendation used by him carry with them a legal obligation, and whether the language is sufficiently certain in other respects to enable a trust to be executed. Renehan v. Malone (1897) 1 N. B. Eq. Rep. 506.

27 In Williams v. Williams (1851) 1 Sim. N. S. 358, 61 Eng. Reprint, 139, 358, Lord Chancellor Cranworth expressed a doubt if there can exist any formula for bringing to a direct test the question whether words of request or hope or recommendation are, or are not, to be considered as obligatory.

In Colton v. Colton (1888) 127 U. S. 300, 22 L. ed. 138, 8 Sup. Ct. Rep. 1164, it is said that no general rule can be stated that will determine when a conveyance will carry with it the whole beneficial interest and when it will be construed to create a trust.

So, also, in Wooldridge v. Gilman (1926) 170 Ark. 163, 279 S. W. 20, it is said that no hard and fast rule can