continue his cousins James Tibbits and Richard Tibbits in the occupation of their respective farms in the county of Warwick as heretofore, and so long as they continue to manage the same in a good and husbandlike manner and to duly pay their rents." Tibbits v. Tibbits (1816) 19 Ves. Jr. 657, 34 Eng. Reprint, 659. No trust is created by a will in which testator gave his wife all his property "upon trust for the following purposes:" To pay debts, funeral expenses, and certain legacies, including an annuity to a sister of testator during her life, stating: "My brother being in affluent circumstances and my eldest sister being already well provided for by me will, I trust, be considered by them as a sufficient reason for my not leaving them anything in this my will, as I could not do it without taking from my wife's property, who is more in need of it. The remainder of what I die possessed of after the payment of the aforesaid debts and legacies I leave to my dear wife aforesaid, recommending to her, and not doubting, as she has no relations of her own family, but that she will consider my near relations should she survive me, as I should consider them myself in case I should survive her." Sale v. Moore (1827) 1 Sim. 534, 57 Eng. Reprint, 678. An absolute interest, not affected by a trust, is created by a devise to testator's daughter of certain property as a reward for her care of the testator, notwithstanding the words: "And in case she should happen to marry I strongly recommend her to execute a settlement of the said estate and thereby to vest the same in trustees to be chosen and approved by her, for the use and benefit of herself and her assigns for her life, with remainder to her husband and his assigns for his life, with remainder to all and every the children she may happen to have,. . . or to such other uses as my said daughter shall think proper, to the intent that the said estate in the event of her marriage may be effectually protected and secured." Ex parte Payne (1837) 2 Younge & C. Exch. 636, 160 Eng. Reprint, 550. No trust is created by a will in which testator gave a sum of money to his wife, by the added words: "This sum, however, I recommend to her to divide as follows." White v. Briggs (1845) 15 Sim. 17, 60 Eng. Reprint, 522. No trust is created by a will which gives a legacy to testator's wife "to be disposed of by her will in such way as she shall think proper; but I recommend her to dispose of one half thereof to her own relations and the other half to such of my relations as she shall think proper." Johnston v. Rowlands (1848) 2 De G. & S. 356, 64 Eng. Reprint, 160. No trust can be implied from words in which the testator recommended to his wife, to whom he had devised his property, the propriety of disposing of it in a certain way, where he concludes by saying that such provision was not to affect her right to exercise the entire right and will over such property. Huskisson v. Bridge (1851) 4 De G. & S. 245, 64 Eng. Reprint, 816. No trust is created by a will in which testator gave the income of certain property to his wife for her life, for the maintenance, and support of herself and children, and the education of the children, by a provision by which he particularly recommended, desired, and directed his wife at her decease, by will or otherwise, to divide or dispose of what money or property she might have saved from the yearly income therein before given to her, amongst all his children in equal shares,-the right of the wife to spend the subject-matter of the gift being inconsistent with the nature of a trust, from which it may be inferred that there was no intention to impose a trust. Cowman v. Harrison (1852) 10 Hare, 234, 68 Eng. Reprint, 913. No trust is created by a provision: "I earnestly recommend as part of this my last solemn will and testament as follows: that, if my grandson Frederick Solly Flood shall during his future life adopt and follow such line of conduct as shall merit her full approbation, my wish is," etc.; there being no complete withdrawal of discretionary power from the legatee. Le Froy v. Flood (1853) 4 Ir. Ch. Rep. 1. A trust is created by a codicil in which the testator, who had devised certain realty to another, recommended to the devisee,. if he should choose to keep certain property, that he should within twelve months make over the property devised to another. Kingston v. Lorton (1829) 2 Hogan (Ir.) 166. 00. "Rely," or “relying." See also Blanchard v. Chapman (1886) 22 Ill. App. 341, under heading, "Confident," etc. No trust is created by a will by which the testatrix, who left no descendants other than a daughter and the child of a deceased daughter, the latter of whom was without means, bequeathed to such granddaughter the sum of $5, adding: "And I rely upon my daughter . . . to make further and suitable provision for my said granddaughter," and, after referring to the possibility of an adoption of such granddaughter by her daughter, further provided that, in event such adoption should not take place, "I rely upon my daughter to make at all times suitable and adequate provision for my said granddaughter, believing that my daughter Lucie will give to Lucille [the granddaughter] the love and care of a mother, and that she will, both during Lucille's youth and upon her arriving at majority, amply and carefully make provision for her," and devised and bequeathed to her daughter all the residue of her estate, "to be held and owned by her in her own absolute right." Re Mitchell (1911) 160 Cal. 618, 117 Pac. 774. A will bequeathed to certain persons named, "the survivors and survivor of them, the sum of $100,000, relying upon them to dispose of the same for the benefit of such charitable and benevolent and educational purposes as they shall judge will most promote the comfort and improve the condition of the poor, or, in case any of my descendants should become poor and needy, then to apply, in whole or in part, to such descendants." It was held that an intention that the persons named should not take for their own benefit was ap parent and, therefore, that a trust was created. Willets v. Willets (1886) 103 N. Y. 650, 20 Abb. N. C. 471, reversing (1885) 35 Hun, 401. A trust is attempted to be created by a will in which the testatrix, after stating that she desired to leave some of her estate to promote certain religious purposes, authorized her executor to expend, through the agency of a certain church and its various societies, such sum as he might deem best, not to exceed $10,000, adding: "And in order that my executor may be enabled to do so without hindrance I give and bequeath to him the said sum of $1,000, and the same is to him and his heirs and assigns forever, for the uses and purposes before stated, and I rely upon him to carry out the wishes and purposes that I have hereinbefore indicated." Re Ingersoll (1892) 131 N. Y. 573, 30 N. E. 47, reversing (1891) 59 Hun, 571, 14 N. Y. Supp. 22. A bequest "to my wife and her heirs, relying on her doing what is right," does not create a trust, the words being too vague. Re Crockford (1869) 17 Week. Rep. (Eng.) 1004. No precatory trust attaches to a gift "to have, hold, and enjoy in the fullest and amplest manner for the term of her natural life, with full power to dispose of all the aforesaid property, both real and personal, as she may judge best and wisest, relying with implicit confidence on her discretion, and well satisfied in my mind that she will make such distribution or disposal of it as will perfectly accord with my wishes on that subject, with all of which she is thoroughly acquainted." Reid v. Atkinson (1871) Ir. Rep. 5 Eq. 373, s. c. (1871) Ir. Rep. 5 Eq. 162. pp. "Request," or "requesting," See also "Beg and request;" "Desire and request;" "Wish and request." The words "request" and "requesting" are, under many circumstances, precatory words sufficient to raise a trust, but under other circumstances they are not. Coulson v. Alpaugh (1896) 163 Ill. 298, 45 N. E. 216. The words "request" and "desire" used in wills have often been held to be imperative and entirely sufficient to create a trust. RE HOCHBRUNN (reported herewith) ante, 7. The word "request" does not necessarily import an option to refuse, and excludes the idea of obedience as corresponding duty. Colton v. Colton (1887) 127 U. S. 300, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164. The effect of the word "request" must depend upon the circumstances in which it is employed. Snodgrass v. Brandenburg (1904) 164 Ind. 59, 71 N. E. 137, 72 N. E. 1030. the object of the alleged trust being ambiguous and uncertain, and it appearing that the testatrix was greatly interested in the welfare of Elizabeth Gilman, whom she had brought up and who had returned after her own husband's death to live with the testatrix. Wooldridge v. Gilman (1926) 170 Ark. 163, 279 S. W. 20. No precatory trust is created by a will by which testatrix gave the considerable residue of her very large estate to a brother-in-law, with the statement: "It has always been my desire and purpose to devote a large part of my property and estate to charitable purposes and uses, and to make such provisions therefor in my will. But under the exigencies of this will I am not now able to designate the particular charities and benevolences to which I, Mary B. Purcell, desire to extend my bounty. The said Charles A. Purcell, however, is fully aware of and understands my desires in this regard, and I have full confidence in him that he will, in his judgthe matterment, respect and endeavor to carry out my said wishes and desires. I therefore request of him to do so, so far as he may think proper, without, however, intending by this clause or anything that may be herein stated to create any trust or to place any limitations upon the said Charles A. Purcell, residuary legatee, in respect to the said legacy." Re Purcell (1914) 167 Cal. 176, 138 Pac. 704. A trust was held, in view of the circumstances, which were that the will was made on the day before testator's death, and that he knew his mother and sister to be in straitened circumstances, to be created by a will by which testator gave his entire estate, amounting to about $1,000,000 to his wife, adding: "I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best,"left to the wife's discretion being the extent of the provision, and not whether or not one should be made. Colton v. Colton (1887) 127 U. S. 300, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164, reversing (1884) 10 Sawy. 325, 21 Fed. 594. -- No trust is created by a will by which the testator gave his residuary estate to his wife "absolutely," with a request that at her death, or before, if she should think best, she give to a son a certain sum, or any sum she might think best, with a further provision: "I further request that she, my said wife, shall assist any of my brothers or sisters if they should be in need, and at her decease she should divide her property among them as she may think best." McDuffie v. Montgomery (1904; C. C.) 128 Fed. 105. No trust is created by the provision of a will, "To Elizabeth Gilman I bequeath my entire stock in the Simmonds National Bank, and request that she never dispose of it but keep to educate her children," notwithstanding in other clauses of the will both real aand personal property were left absolutely to Elizabeth Gilman, A precatory trust is created by a bequest to an archbishop, coupled with the words, "and I request that masses be offered for the repose of my soul and the souls of my parents" and others, in certain named churches, it being clear that a personal benefit to the archbishop was not intended, since, under a rule of the church, money for the saying of masses becomes the personal property of the priest saying them. Re Hamilton (1919) 181 Cal. 758, 186 Pac. 587. No trust in favor of the children is created by a bequest of all testator's property to his wife, "with this my dying request to her that she make a will before, or at least immediately upon, my death, devising and bequeath ing all the property she shall receive from me or my estate other than so much thereof as shall have been expended by her and for her during her lifetime for her comfort, maintenance, and support,". half to his wife's children and the other half to his own, adding: "I make this request because all the property we have has been accumulated by us jointly as husband and wife and is as much hers as mine, and it is just and right that, upon our deaths, the one half of it should go to her children and the other half to my children, and we have mutually agreed that it shall be so divided." Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123. No trust is created by a will by which testator gave his wife all his estate, adding: “And I do request my wife, if she should not require the whole of my estate as her support, that she will at her death the remainder to the children of my brother," the subject of the gift claimed as precatory not being certain. Bryan v. Millby (1890) 6 Del. Ch. 208, 13 L.R.A. 563, 24 Atl. 333. No trust in favor of testator's children is created by a will by which he gave his wife all his real and personal estate, "with full power to use and dispose of, to sell and reinvest the proceeds in lands or otherwise for her use while living, requesting her to make at her death such equitable distribution of what remains among my children, giving first, before such disposition of the property that may at her death remain," various sums to each, there being not sufficient certainty as to the subject-matter. Coulson V. Alpaugh (1896) 163 III. 298, 45 N. E. 216. The widow takes the whole interest in property given to her, to have, use, and enjoy the same as she may choose, and to dispose of the same in such manner as she may desire, notwithstanding the added words: "Yet I request that if, at the time of her decease, any of the personal property shall remain undisposed of, it be given to the children of my son and the children of my daughter." Fullenwider v. Watson (1887) 113 Ind. 18, 14 N. E. 571. No trust in favor of testator's son is created by a provision following an absolute devise in fee of certain land to the testator's wife, that "it is my request and wish that, in the event that my wife survives me, that she will during her life make such provisions by will or otherwise, so that at her death my son William C. Mitchell may share equally of the estate and property herein willed to her with my other children." Mitchell v. Mitchell (1895) 143 Ind. 113, 42 N. E. 465. The absolute character of an estate created by a bequest of testator's entire estate to his wife is not affected by the provision: "I request that, at the death of my wife, that my estate that I am now seised of be equally divided between my children." Snodgrass v. Brandenburg (1904) 164 Ind. 59, 71 N. E. 137, 72 N. E. 1030. In Bohon v. Barrett (1881) 79 Ky. 378, a trust was held, in view of the circumstances, to have been created by a childless testator having an adopted daughter, to whom he was much attached, and a brother of ample means, who did not need his bounty, by a will by which he appointed his brother his executor and requested two other men to give him the benefit of their advice in certain business matters, and devised all his estate after the payment of debts to such brother, adding: "But it is my request of him (but not as a condition upon which this devise is to take effect) that he take charge of, raise, and educate Lillie Barrett [the adopted daughter], who is now with me, in his family, and that if she is obedient to him and his wife, Mary J. Barrett, and is governed by their advice and counsel and conducts herself in such a manner to merit the same, and does not marry without their consent and contrary to their advice, and she remains with my said brother and his wife, and is not taken from them or does not voluntarily go away from them or abandon their home, then I request him to expend for her benefit in such manner, at such time, in such time, or to settle upon her in such way, at such time, and on such terms as he, in his judgment, may think her interest requires, the sum of $10,000; but these requests are not to be legally binding upon him, but I desire to leave the same entirely to his discretion, and to make no requirement of him that would be legally binding upon him in a court of equity or elsewhere-it being my wish to leave the whole matter to his sense of right and discretion, he being fully advised of my wishes concerning the said Lillie and also concerning the said sum of $10,000, which I request him to use for her benefit on the conditions aforesaid, if he sees fit to do so, and the condition of his family is such that he can do so without embarrassment, but not otherwise." No trust is created by a will by which testator gave the residue of his estate to his wife "in her own right in fee simple," adding: "I only make this request of her, and only as a request, for I feel that her own kind heart and good judgment will prompt her to do so without, viz. that in the event she should marry again, she will see that the interests of our children in said property are protected." Sale v. Thornberry (1887) 86 Ky. 266, 5 S. W. 468. No trust is created by a will by which testator gave the residue of his estate to his wife, "to have, control, use, and enjoy as her own absolute property if she should survive me long enough to enjoy, or take possession or control of the same; and, in the event of her surviving me, it is my desire that it may suit her pleasure, and, if so, I request but without intending to create any trust therefor, that she allow and pay Ann Tasco, a mulatto, who has been for some time in our service, the sum of fifteen dollars per month at the end of each month so long as said Ann may live, to be used and applied toward her maintenance and support," notwithstanding a further provision devising all the testator's estate to an adopted daughter in case his wife should not survive him, and charging it with the payment of $15 per month to Ann Tasco. Enders v. Tasco (1889) 89 Ky. 17, 11 S. W. 818. All the elements which go to create a precatory trust are lacking in a will by which testator gave his residuary property to his wife, adding: "It is my request that my law library be kept intact for a period of five years, and if at that time my brother B. H. Wood shows in the judgment of my wife sufficient promise, it is my further request that she give to him the said library. It is my further request that should my wife die without heirs of her body and the estate herein devised to her be intact, that, with the exception of the sum of $5,000, she will and devise the remainder to such of my brothers and sisters as may seem proper to her." Wood v. Wood (1907) 127 Ky. 514, 106 S. W. 226. A fee not charged with any trust is given to the devisee by a will by which testator bequeathed to a son certain specified tracts of land, and containing the following provisions: "I make it as a request of my children that, if any of them should die without issue, that in so far as they may have received any estate from me that at their death they 'will' the same to my surviving children or the issue of those that may be dead. I think this is but a reasonable request, and I have confidence that it will be complied with by my children." Igo v. Irvine (1909) 139 Ky. 634, 70 S. W. 836. No trust is created by a will by which the testator gave his wife his entire estate, and the following codi "I hereby request of my said wife, Sarah J. Gross, who is the sole beneficiary in fee simple of all my estate of whatsoever kind or character, that she arrange at her death that, if there be any property left which shall pass to her under my will, that such residue shall be divided into equal parts, one part to be given to" various persons named. "I hereby declare this to be only a request upon my part I make of my said wife, and that in no wise shall this request be construed as meaning that I am placing any limitations whatever upon the right of my said wife to do as she desires with all of said property, which shall be hers in fee simple." |