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 person to whom they are addressed. Hillsdale College v. Wood (1906) 145 Mich. 257, 108 N. W. 675. 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 have sometimes implied and sometimes negatived the existence of a trust from the use of the same or equivalent terms, according to the light thrown on the intention of the testators by the various provisions of the will and by such extraneous facts as have been considered material in interpreting them." 28 Conversely, cases where the surrounding circumstances were fully disclosed are of little weight where there is nothing be be laid down to determine when precatory words will be construed to create a trust. 28 Russell v. United States Trust Co. (1904; C. C.) 127 Fed. 445, affirmed in (1905) 69 C. C. A. 410, 136 Fed. 758. 29 Russell v. United States Trust Co. (1905) 69 C. C. A. 410, 136 Fed. 758. 30 United States.-Colton v. Colton (1888) 127 U. S. 300, 22 L. ed. 138, 8. Sup. Ct. Rep. 1164. Alabama.-McRee v. Means (1859) 34 Ala. 349. Arkansas.-Bloom v. Strauss (1904) 73 Ark. 56, 84 S. W. 511; Wooldridge v. Gilman (1926) 170 Ark. 163, 279 S. W. 20. California.-Re Marti (1901) 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071. District of Columbia. O'Brien v. McCarthy (1922) 52 App. D. C. 183, 285 Fed. 917. Maine.-Clifford v. Stewart (1901) 95 Me. 38, 49 Atl. 52. Maryland. Chase v. Plummer (1861) 17 Md. 165; Williams v. Worthington (1878) 49 Md. 572, 33 Am. Rep. 286; Nunn v. O'Brien (1896) 83 Md. 198, 34 Atl. 344; Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641; Williams v. Baptist Church (1901) 92 Md. 497, 54 L.R.A. 427, 48 Atl. 930. Massachusetts. (1873) 114 Mass. 56. Hess v. Singler Missouri.-Corby v. Corby (1884) 85 Mo. 371; Lemp v. Lemp (1915) 264 Mo. 533, 175 S. W. 618. New Jersey.-Van Duyne v. Van Duyne (1862) 14 N. J. Eq. 397. New York.-Wood v. Seward (1880) 4 Redf. 271. Oregon.-Beakey v. Knutson (1918) 90 Or. 574, 174 Pac. 1149, rehearing denied in (1919) 90 Or. 583, 177 Pac. 955. fore the court but the instrument itself.29 The intention of the testator is to be deduced from the language of the will considered in the light of the circumstances under which it was made, or, as it is sometimes put, from the general purpose and scope of the instrument.30 It is therefore proper to take into consideration the circumstances under which the will was made;31 as, that it was made while testator was on Virginia. Harrison v. Harrison (1845) 2 Gratt. 1, 44 Am. Dec. 365. England.-Re Williams [1897] 2 Ch. 12; Hill v. Hill [1897] 1 Q. B. 483; Re Atkinson (1911) 80 L. J. Ch. N. S. 370-C. A. Canada. Re Walton (1911) 20 Manitoba L. R. 686. Words in a will expressive of desire and recommendation and confidence 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 of the devisee or legatee, or the ultimate disposal of it, to his kindness, justice, or discretion. Dickinson's Estate (Pa.) supra. In Harrison v. Harrison (Va.) supra, the court said: "In inquiring what is the will of the testator, we are not to look merely to the forms of speech which he may employ, but to the obvious meaning; and, whether that meaning be conveyed in the language of command or direction or request or hope or confidence, it is equally the will of the testator. The questions to be considered are: Does the testator intend and expect his expressed wishes to be carried out? Would his wishes be thwarted if his request or hope was not attended to? If we answer these questions affirmatively, then, whatever the form of words by which he expresses his wish, that wish is his will, and his will is the object and the end of the inquiry." Expressions sufficient per se to create a trust may be deprived of their effect by the context expressly declaring, or by implication showing, that no trust was intended. Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641. 31 The subject-matter and situation of the parties is to be taken into consideration in determining whether the precatory words are used in an im his deathbed, when, it is reasonable to suppose, the contents of his will had to be brief and simple; and also the situation of persons for whose benefit the provision was inserted; as, that they were in straitened circumstances.32 So, the relative situation of the parties, the ties and affection subsisting between them, besides the motives which would naturally influence the mind of the testator, are proper to be considered in expounding the import of doubtful words.33 In order that a trust may arise from the use of precatory words in a will, the court must be satisfied from the words themselves, taken in connection with the other terms of the disposition, that the testator's intention to create a trust was as full, complete, settled, and sure as though he had given the property to hold upon a trust declared in the ordinary manner,34 Any doubt raised by precatory .words is to be resolved in favor of the person who conveys.35 perative sense. Meggison v. Moore (1795) 2 Ves. Jr. 632, 30 Eng. Reprint, 813. The situation of the testator at the time of making his will may be taken into consideration. Lambe v. Eames (1871) L. R. 6 Ch. 597, 25 Eng. Rul. Cas. 471. Whether or not a trust is created will depend upon the intention of the testator, according to the meaning of the words he has used, deduced from a consideration of the whole will and a comparison of its various clauses in the light of the situation and circumstances which surrounded him when the instrument was executed. Wooldridge v. Gilman (1926) 170 Ark. 163, 279 S. W. 20. In looking for the intention of the testator, the surrounding circumstances may be taken into consideration. Noe v. Kern (1887) 93 Mo. 367, 3 Am. St. Rep. 544, 6 S. W. 239. In giving a construction to precatory words in a devise, a court of equity will look at the circumstances existing at the date of the will, and, if necessary, will construe words importing a trust as mere expressions of recommendation or confidence. Van Amee v. Jackson (1862) 35 Vt. 173. To create a trust the precatory expression must concern individuals other than the trustee, and none is created by a request to apply the legacy to a purpose for which the legatee is authorized to hold the property.36 So where, in a gift to a religious corporation, the wish is expressed that the property be used for certain purposes which are corporate purposes, no trust is created. 87 c. Words addressed to executors. It is uniformly held that words of recommendation, request, wish, or expectation, addressed to the executor and used in respect to the direct disposition of the testator's property, are prima facie testamentary and imperative, rather than precatory, in effect, on the ground that, the testator having a right to make such a disposition of his property as he thinks proper, the expression of his wishes is deemed to be the expression of his will, and the request is equivalent to a command.38 Words which are precatory 32 Colton v. Colton (1888) 127 U. S. 300, 22 L. ed. 138, 8 Sup. Ct. Rep. 1164. 33 Lines v. Darden (1853) 5 Fla. 51. 34 Loomis Institute v. Healy (1922) 98 Conn. 102, 119 Atl. 31. 35 O'Brien v. McCarthy (1922) 52 App. D. C. 183, 285 Fed. 917. 36 Re Crane (1896) 12 App. Div. 271, 42 N. Y. Supp. 904 (affirmed without opinion in (1899) 159 N. Y. 557, 54 N. E. 1089). Only precatory force may be given. to the provisions of a will in which land is devised to certain municipal corporations with the stipulation that it shall never be sold, but shall be rented, and the revenues devoted to certain specified purposes. Carrere v. New Orleans (1927) 162 La. So. 393. 111 37 First Presby. Church v. McKallor (1898) 35 App. Div. 98, 54 N. Y. Supp. 740. 38 Whipple v. Adams (1840) 1 Met. (Mass.) 444. Where words of recommendation, request, and the like are used in direct reference to the testator's own property, they are prima facie testamentary and imperative, and not precatory. Presbyterian Bd. of Foreign when used in connection with an act to be done by some person named by the testator are mandatory when expressive of the intent of the testator, to be carried out without intervention of another's will.39 As said in one case the words "desire," "request," "recommend," "hope," "not doubting" the executor will conduct himself in Missions v. Culp (1892) 151 Pa. 467, 25 Atl. 117; Edward's Estate (1916) 255 Pa. 358, 95 Atl. 1010. The expression of a wish that the testator's property be applied to a particular object amounts to a bequest for that object. Dundee v. Morris (1858) 3 Macq. H. L. Cas. 134, 25 Eng. Rul. Cas. 532. The word "desire" or other similar expression, when used to declare the disposition to be made of property at the death of the testator, and not as a request or prayer directed to a devisee or legatee concerning such devise or legacy, is a dispositive command testamentary in character, and not precatory, but a positive direction binding upon the court in the distribution of the estate. Re Tooley (1915) 170 Cal. 164, 149 Pac. 574, Ann. Cas. 1917B, 516; Re Pforr (1904) 144 Cal. 121, 77 Pac. 825. The expression, "It is my will and desire," is equivalent to saying, "I direct." Girdler v. Girdler (1908) Ky. 113 S. W. 835. - The word "wish," where used in making a bequest, is equivalent to "I will" or "I direct.' Bliven v. Seymour (1882) 88 N. Y. 469. See also, to the same effect: Re Pforr (1904) 144 Cal. 121, 77 Pac. 825; Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123; Re Hull (1926) Cal. App. - 247 Pac. 1093; Moseley v. Bolster (1909) 201 Mass. 135, 87 N. E. 606; Van Duyne v. Van Duyne (1862) 14 N. J. Eq. 397; Meehan v. Brennen (1897) 16 App. Div. 395, 45 N. Y. Supp. 57; Decker v. High Street M. E. Church (1898) 27 App. Div. 410, 50 N. Y. Supp. 260; Re Compton (1911) 72 Misc. 289, 131 N. Y. Supp. 183; Turrill v. Davenport (1916) 173 App. Div. 543, 159 N. Y. Supp. 814; Brasher v. Marsh (1864) 15 Ohio St. 103; Gaston's Estate (1898) 188 Pa. 374, 68 Am. St. Rep. 874, 41 Atl. 529; Brest v. Offley (1664) 1 Rep. in Ch. 246, 21 Eng. Reprint, 563; Dundee v. Morris a specified manner, when they come from a testator who has the power to command, are to be construed as commands clothed merely in the language of civility.40 Instances in which words of request have been given the effect of testamentary dispositions may be found in the subjoined footnote.41 (1858) 3 Macq. H. L. Cas. 134, 25 Eng. Rul. Cas. 532. 39 Croft v. Chelten Trust Co. (1922) 272 Pa. 514, 160 Atl. 479. 40 Erickson v. Willard (1818) 1 N. H. 217. 41 An actual gift of freedom to testator's slaves is made by a clause providing: "It is my wish and desire that my slaves should be set free at the expiration of seven years from my death." Phebe v. Quillin (1860) 21 Ark, 490. An express trust and charge upon testator's estate are created by a provision: "It is my wish and desire that my grandson be brought up and educated at the cost and expense of my estate." Cockrill v. Armstrong (1876) 31 Ark. 580. An effective devise of the use of the property in question for five years is made by a will in which the testator, who had devised all his property to his six children in equal shares, went on to provide: "It is my desire that my son Walter shall have the use and occupation, rents, issues, and profits of my fruit ranch for the period of five (5) years immediately after my death should he live so long at the annual rental of three hundred dollars ($300), to be paid annually at the end of each year to his brothers and sisters, and I direct all my other children to execute to my said son Walter immediately after my death a lease of said premises." Re Buhrmeister (1905) 1 Cal. App. 80, 81 Pac. 752. The word "desire" directed to executors imports a command. Weber v. Bryant (1894) 161 Mass. 400, 37 N. E. 203. A trust for the support of testator's family is created by a will providing: "It is my will and desire that, until distribution of my estate shall be made according to item No. 9, my executors provide for the sustenance and support of my wife and my two daughters, said support and |