III. Indicia of intention as to creation of trust.

a. Existence of moral obligation. A circumstance which seems to have great weight with the. courts is the existence of a moral duty on the part of the testator toward the person who will benefit from a compliance

sustenance to be out of my estate." Reid v. Porter (1873) 54 Mo. 265.

The word "desire," addressed to the executors of a will, is a command. Wood v. Camden Safe Deposit & G. Co. (1888) 44 N. J. Eq. 460, 14 Atl. 885.

Where the words of request are addressed to the executor, the case is not one of a precatory trust, but of a command. Sternberg v. Wolf (1917) 87 N. J. Eq. 49, 100 Atl. 333.

A trust is clearly contemplated by a will in which testator provided, after the payment of legacies, "I desire my executors to divide the surplus among such American charities they may think well of, and I would like these sums to be given to any society that assists poor needlewomen.' Manley v. Fiske (1910) 139 App. Div. 665, 124 N. Y. Supp. 149, affirmed in (1911) 201 N. Y. 546, 95 N. E. 1133.

An imperative direction, rather than a request, is to be inferred from a will by which testator stated: "I feel desirous to make ample provision for my poor old friendless woman Lucy, as well as my old man Peter; therefore rely on the humanity and tender feelings of my executors to have them well taken care of and kindly treated during the short time they will probably want it. I leave in the hands of my executors the annual interest as it becomes due on $1,500 of my Wilmington bonds or so much of it as may be necessary [etc.] to support them during their lives." Chambers v. Davis (1867) 62 N. C. 152, 93 Am. Dec. 605.

When precatory words are used merely for the purpose of advising or influencing, or as expressive of a wish or desire that the legatee or devisee make a certain use of the testator's bounty, they are not obligatory upon those to whom they are addressed, but, when used to express his manifest intention to control or direct, they are mandatory and will be so construed in saying what effect is to be given to 49 A.L.R.-3.

with the request or recommendation; as, where such person is dependent upon the testator for support.4 42 And there is always a tendency to construe words as obligatory in furtherance of a result which accords with a plain moral duty on the part of the devisee or legatee, and with what it may be them. Stinson's Estate (1911) 232 Pa. 218, 36 L.R.A. (N.S.) 504, 81 Atl. 207.

A trust is imposed in favor of the person named, by a provision: "I want to give my wife an executrix's power to give out of my estate before division as much as $15,000 of bequests to my kinfolks, say to Melville Williams $5,000 or $10,000 in her discretion, and the balance to someone else who may be needy." Ensley v. Ensley (1900) 105 Tenn. 107, 58 S. W. 288.

The word "recommend" was held to have mandatory force in a provision that, if, in the judgment of his executors, there should be a sufficient amount of surplus, "I would recommend that the same be used to establish a school . . . for the education of young persons in the domestic and useful arts." Webster V. Morris (1886) 66 Wis. 366, 57 Am. Rep. 278, 28 N. W. 353.

Imperative force was given to the words "I would have" in a provision, "The money from the equitable insurance office I would have equally divided between my daughters," in Proby v. Landor (1860) 28 Beav. 504, 54 Eng. Reprint, 460.

Obligatory import attaches to the words of a will by which testator provided: "I wish all my money that my daughter Annie Seaton may inherit from me shall be settled upon herself, so that, in the event of her marriage, it will be impossible for her or her husband to encroach upon the same;" the gift to the daughter not being direct and immediate, but in the form of a gift or legacy to trustees in trust to pay. Re Hamilton (1912) 27 Ont. L. Rep. 445, 8 D. L. R. 529, affirmed in (1913) 28 Ont. L. Rep. 534, 12 D. L. R. 861.

42 Poor v. Bradbury (1907) 196 Mass. 207, 81 N. E. 882; Noe v. Kern (1887) 93 Mo. 367, 3 Am. St. Rep. 544, 6 S. W. 239; Murphy v. Carlin (1892) 113 Mo. 121, 35 Am. St. Rep. 699, 20 S. W. 786; Foster v. Willson (1894) 68 N. H. 241, 73 Am. St. Rep. 581, 38 Atl. 1003.

supposed the testator would do if he could control his action.43

b. Fact that person to whom precatory words are addressed is spouse of testator.

A circumstance sometimes relied on as indicating that precatory expressions were used with intent to create a trust is that the person to whom they were addressed is the spouse of the testator, to whom it is not to be expected that commands would be expressed in such forcible language as between strangers.44 But language in form and substance advisory will not be construed as a command simply because the relationship of the parties not only admits of, but would seem to suggest, words of tenderness and civility.45

c. Coupling of gift and request.

The coupling together in the same sentence of the gift and an unqualified request for its disposition in a certain manner has been said to be a very cogent and compelling circumstance indicative of an intention to create a trust.46

d. Gift to executor.

The fact that the person to whom the property is given in the first instance is also the executor is a circumstance indicative of an intention to create a trust.47

43 Warner v. Bates (1867) 98 Mass. 274; Hadley v. Hadley (1898) 100 Tenn. 446, 45 S. W. 342.

44 Warner v. Bates (1867) 98 Mass. 274; Murphy v. Carlin (1892) 113 Mo. 112, 35 Am. St. Rep. 699, 20 S. W. 786; Knox v. Knox (1884) 59 Wis. 172, 18 N. W. 155, 48 Am. Rep. 487; Swarthout v. Swarthout (1901) 111 Wis. 102, 86 N. W. 558.

45 Mitchell v. Mitchell (1895) 143 Ind. 113, 42 N. E. 465.

46 Re Hamilton (1919) 181 Cal. 758, 186 Pac. 587.

47 Erickson v. Willard (1818) 1 N. H. 217.

48 Briggs v. Penny (1851) 3 Macn. & G. 546, 42 Eng. Reprint, 371.

49 McMurry v. Stanley (1887) 69 Tex. 227, 6 S. W. 412.

Where the word "desire" in all other

e. Separate legacy to donee. The fact that another legacy is expressly given the person named as residuary legatee indicates that such legatee was not to take the residue beneficially, as otherwise there would. be no object in making the separate legacy.48

f. Use of same words in other parts of will.

Where the same words are used in a mandatory sense in another part of the will, they must be considered as having been used in the same sense throughout, in the absence of something showing that the testator did not so use them.49

Conversely, the use of the same words in another part of the will in a nonimperative sense is indicative of an intention to use them in that sense elsewhere.50

g. Failure to use phraseology ordinarily employed in creating trusts.

There is a simple, sure, and familiar form of bequest to raise a trust, which consists of a devise to the legatee in trust to the beneficiary, and the failure to use it has been held to indicate an intention to avoid the creation of a trust.51 As remarked in one case:52 "It certainly seems singular that a testator, having a full and settled intention to create a trust (for that is what must be read on the face of the will or no trust can exist), should parts of the will is used in a sense clearly mandatory, it will not be given. a precatory meaning in another part of the will, in the absence of anything to show that the word was there used with such different intention. Grieves v. Grieves (1918) 132 Md. 300, 103 Atl. 572,

50 Morrin v. Morrin (1886) Ir. L. R. 19 Eq. 37.

51 Burnes v. Burnes (1905) 70 C. C. A. 369, 137 Fed. 781; Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641; Van Duyne v. Van Duyne (1862) 14 N. J. Eq. 397; Heneage v. Andover (1822) 10 Price, 230, 147 Eng. Reprint, 297.

52 Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641.

adopt a mode which at best appears to be a mere suggestion or inference, instead of employing the familiar method and creating the trust by an express declaration."

The fact that testator elsewhere in his will expressly creates a trust by the use of apt language is regarded as quite persuasive that he did not intend to do so by the use of precatory expressions.53 It has, however, been held that the fact that a testatrix elsewhere in her will had created a trust by the use of apt words was not conclusive that she did not intend to do so in addressing precatory words to her husband, the court saying that she might well express herself in a different language when addressing her husband from that which she would use towards strangers, and at the same time intend a similar result.54

h. Request embracing property over which testator has no control.

It is a circumstance indicative of the use of precatory words in their ordinary sense, that the property to which reference is made includes property other than that bequeathed or devised; as, where a testator expresses a wish that the beneficiary will make a will leaving all her property to a certain person.55

The same is the case where the request relates to property appointed by the testator to the person to whom the request is addressed, where the testator had only a special power of appointment.56

Such circumstance is not, however,

53 Kauffman v. Gries (1903) 141 Cal. 295, 74 Pac. 846; Pratt v. Sheppard & E. P. Hospital (Md.) supra; Williams v. Baptist Church (1901) 92 Md. 497, 54 L.R.A. 427, 48 Atl. 930; Re Lynch (1918) 102 Misc. 650, 169 N. Y. Supp. 321; Re McVeigh (1914) 181 Mo. App. 566, 164 S. W. 673.

54 Warner v. Bates (1867) 98 Mass. 274.

55 Loomis Institute v. Healy (1922) 98 Conn. 102, 119 Atl. 31; Hillsdale College v. Wood (1906) 145 Mich. 257, 108 N. W. 675; Springs v. Springs (1921) 182 N. C. 484, 109 S. E. 839; Crump v. Redd (1849) 6 Gratt. (Va.) 372; Re Williams [1897] 2 Ch. (Eng.)

conclusive. Precatory expressions may be regarded as creating a trust in the subject-matter of the disposition, notwithstanding they apply also to the property of the donee, over which the testator has no power.57

i. Unreasonableness of request. It is not to be presumed that a testator intended as imperative a request to his devisee which is found to be unreasonable and incapable of being effectively carried out. Precatory words will not be held to create that which cannot be executed.58

j. Fact that trust would cause difficulty and embarrassment.

One principle is that if, in construing the matter, the court finds that if it adopts one construction it will be defeating or embarassing the objects. which it finds the testator had in view, whereas if it adopts a different construction it will not be so doing, then it ought to take the latter, and not the former.59

The fact that a trust would cause embarrassment and difficulty-as where it would require the whole estate to be held in trust to pay an annuity of a trifling amount is evidence of an intention that no trust should be created.60

k. Disclaimer of intention

trust.

to

create

But in some instances the court has held a trust to have been impliedly created where necessary to carry out the testator's intention, notwithstanding an express disclaimer of an intention to create one.61

12-C. A.; Johnson v. Farney (1913) 29 Ont. L. Rep. 223, 14 D. L. R. 134.

56 Blacket v. Lamb (1851) 14 Beav. 482, 51 Eng. Reprint, 371.

57 Reed v. Reed (1868) 30 Ind. 313; Ford v. Fowler (1840) 3 Beav, 146, 49 Eng. Reprint, 57.

58 Pierce v. Pierce (1915) 114 Me. 311, 96 Atl. 143.

59 Re Atkinson (1911) 80 L. J. Ch. N. S. (Eng.) 370C. A.

60 Re Diggles (1888) L. R. 39 Ch. Div. (Eng.) 253—C. A.

61 Bohon v. Barrett (1881) 79 Ky. 378; Bouknight v. Brown (1881) 16 S. C. 155.