p. Uncertainty as to subject-matter or object.

It is just as essential to the crea

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

It is difficult to raise a trust upon words of recommendation when the property is vested in words absolutely and beneficially in the devisee. Gilbert v. Chapin (1848) 19 Conn. 342.

A trust is not created where a clear direction or choice is given to act or not to act, especially where the prior dispositions import an absolute or uncontrolled ownership. Harvey v. Griggs (1920) 12 Del. Ch. 232, 111 Atl. 437.

Wherever the prior disposition of the property imports absolute and uncontrolled ownership, and also wherever a clear discretion and choice to act or not to act are given, equity will not construe a trust from the language employed. Haight v. Royce (1916) 274 Ill. 162, 113 N. E. 71.

Precatory words which follow an absolute devise are usually treated as expressions of wish, rather than of will, so that no trust is created. Gross v. Smart (1920) 189 Ky. 338, 224 S. W. 871.

Precatory words in a will should not be accorded such force and meaning as will deprive the donee of his beneficial use and full right of disposal of a gift otherwise absolute, unless the court can gather from the rest of the will and the attending circumstances an intention of the testator which is reconcilable with the idea of a trust imposed upon the legal estate devised. Pierce v. Pierce (1915) 114 Me. 311, 96 Atl. 143.

Where the gift to the donee is in language importing an absolute interest, such interest cannot be lessened or cut down by the precatory words, unless the intention of the testator to create a trust is clear, plain, and unequivocal. Re McVeigh (1914) 181 Mo. App. 566, 164 S. W. 673.

A devise absolute in terms will not be impressed with a trust by reason of words of "request" or "desire" con

tion of a valid precatory trust that there should be certainty of objects and certainty of subject-matter as it is that the words in which the intention is expressed should be imperative. 80

Uncertainty or vagueness as to the objects of the expressed wish or request, or as to the subject-matter upon which it is to operate, has therefore tained in a subsequent and independent clause, in the absence of a clear indication of an intent not to use them in their usual and commonly accepted sense. Springs v. Springs (1921) 182 N. C. 484, 109 S. E. 839.

Where a testator makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not, in general, convert the devisee or legatee into a trustee, unless indeed it appears affirmatively that they were intended to be imperative. Burt v. Herron (1870) 66 Pa. 400.

If the entire interest in the subject of the gift is given to the legatee, with superadded words expressing the motive of the gift, or the confident expectation that the subject will be applied by the legatee for the benefit of particular persons, but without in terms cutting down the interest before given, it will not be held, without more, that a trust has been thereby created. Morrin v. Morrin (1886) Ir. L. R. 19 Eq. 37; Bank of Montreal v. Bower (1889) 18 Ont. Rep. 226.

An absolute gift is not to be cut down to a mere trust unless it is clearly shown to be testator's intention. Re Clark (1919) 17 Ont. Week. N. 88.

79 Field v. New York (1886) 38 Hun (N. Y.) 590, affirmed in (1887) 105 N. Y. 623.

80 McDuffie v. Montgomery (1904; C. C.) 128 Fed. 105; Angus v. Noble (1900) 73 Conn. 56, 46 Atl. 278 (where testatrix requested that flowers be put upon her grave once in a while); Bryan v. Milby (1891) 6 Del. Ch. 208, 13 L.R.A. 563, 24 Atl. 333; Lines v. Darden (1853) 5 Fla. 51; Coulson v. Alpaugh (186) 163 Ill. 298, 45 N. E. 216; Williams v. Worthington (1878) 49 Md. 572, 33 Am. Rep. 286.

There is not sufficient certainty of subject-matter where the subject of the trust is so much of a bequest as shall remain undisposed of or unspent at the time of the legatee's decease.

But such uncertainty is not conclusive of the testator's intention. However uncertain may be the provisions of the will, if it clearly appears that others than the donee were in

court will be guided by the consideration whether the amount he is requested to give is certain or uncertain, and whether the objects to be selected are certain or uncertain, and if there is a total absence of exclusive direction as to the quantum to be given or as to the objects to be selected by the donee of the property, then the court will infer from the circumstance of the testator having used precatory wordsexpressive only of hope, desire, or request-instead of the formal words usual for the creation of a trust, that those words are used not for the purpose of creating an imperative trust, but simply as suggestions on the part of the testator for the guidance of the donee in the distribution of the property; the testator placing implicit reliance upon his discretion, and leaving him the sole judge whether he will adopt those suggestions or not, and whether he will dispose of the property in the manner indicated by the testator or in any other manner at his absolute discretion.

In Mussoorie Bank v. Raynor (Eng.) supra, it is said that, if there is uncertainty as to the amount or nature of the property that is given over, two difficulties at once arise. There is not only difficulty in the execution of the trust, because the court does not know upon what property to lay its hands, but the uncertainty in the subject of the gift has a reflex action upon the previous words, and throws doubt upon the intention of the testator, and seems to show that he could not possibly have intended words of confidence, hope, or whatever they may be, to be imperative.

82 In Loomis Institute v. Healy (1922) 98 Conn. 102, 119 Atl. 31, it is said that there is a well-recognized distinction between an uncertainty where the intent to establish a trust is clear, but the provisions are so indefinite as to render the trust void for uncertainty, and the uncertainty which simply indicates the want of intention to create a trust.

In Maught v. Getzendanner (1886) 65 Md. 527, 57 Am. Rep. 352, 5 Atl. 471, it is said that the doctrine that no trust arises by force of any precatory

tended to have the benefit of the gift, the donee will be excluded, even though, because of such uncertainty, no valid precatory trust is created.82 On this point it has been said: words, unless there is certainty in the object as well as in the subject, receives support from statements contained in some of the textbooks, and is apparently sustained by some of the decisions, but that it has not been laid down as an inflexible rule applicable to all cases and wholly irrespective of the intention of the testator or donor to create a trust.

It was said by Lord Chancellor Truro in the case of Briggs v. Penny (1851) 3 Macn. & G. 546, 42 Eng. Reprint, 371: "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." With reference to this third condition, he says: "It is most important to observe that vagueness in the object will unquestionably furnish reason for holding that no trust was intended, yet this may be countervailed by other considerations which show that a trust was intended, while at the same time such trust is not sufficiently certain and definite to be valid and effectual, and it is not necessary to exclude the legatee from a beneficial interest that there should be a valid or effectual trust; it is only necessary that it should clearly appear that a trust was intended. . . . Once establish that a trust was intended, and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the object of that trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded and the next of kin takes."

See also, to the same effect: Pratt v. Sheppard & E. P. Hospital (1888)

"There is a distinction between a trust that is void for uncertainty and an uncertainty that is simply indicative of the absence of an intention to create a trust. In the one case there is no uncertainty as to the intention to create a trust, but merely an uncertainty as to the objects to be benefited or the subject to be affected; in the other case there is simply an uncertainty as to whether any trust was intended to be created at all. If it be uncertain as to whether there was an intention to create a trust, it is obviously not the province of the courts to ingraft a trust upon the gift; but if it be apparent from the whole will that a trust was intended to be established, then the uncertainty as to the objects or the subject of that trust will not indicate that there was no intention to raise a trust, but the uncertainty will avoid the trust attempted to be founded. Where the expressions have been held too vague to show an intention to create a trust, the devisee or legatee retains the property for his own use; but where the intention to create a trust is sufficiently expressed and yet the objects or the subjects of it are uncertain, the gift fails, and the heir or next of kin is let into the beneficial ownership."83

It does not follow, however, that certainty is conclusive of an intention to create a trust. In Williams v. Williams (1851) 1 Sim. N. S. 358, 61 Eng. Reprint, 139, it was said by Lord Cranworth: "The point really to be decided in all these cases is whether, looking at the whole context of the will, the testator has meant to impose an obligation on his legatee to carry his express wishes into effect, or whether, having expressed his wishes, he has meant to leave it to the legatee to act on them or not in his discretion. In some of the cases 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, whether the favored objects are distinctly ascer

88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641; Gilchrist v. Corliss (1908) 155 Mich. 126, 130 Am. St. Rep. 568, 118 N. W. 938; Bernard v. Minshull (1859)

tained; 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 subject-matter 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."