Gross v. Smart (1920) 189 Ky. 338, 224 S. W. 871. No trust is created by a will by which testator devised to his son certain land, adding: "I make it as an earnest request of my said son . . that, if he should die without having issue, that he give said 305 acres of land or its value to my daughter Sarah I. White, if living, if not, then to her children." White v. Irvine (1903) 24 Ky. L. Rep. 2458, 74 S. W. 247. No trust is created by a devise of the ownership of a slave absolutely, coupled with the request that the slave be transferred to some other state or country where slavery is not recognized by law. Young v. Egan (1855) 10 La. Ann. 415. No trust is created by a will by which testator, who had given certain property to his grandson Josiah absolutely, further provided: "Should my said grandson Josiah Pierce or his guardian or guardians during his minority decide to sell the said real estate, then I request him or them to first offer the property to the sons of my brother Lewis Pierce in order of seniority at the value at which the property was last previously assessed for the purposes of taxation," there being nothing else in the will to indicate any intention of the testator to make such nephews and nieces partakers of his bounty. Pierce v. Pierce (1916) 114 Me. 311, 96 Atl. 143. A trust was held to be created by a will by which testator devised to his sons, their heirs, and assigns, to be equally divided between them, all the residue of his estate, adding: "I request my seven sons above named to take care of their brother John Tolson and his family," although the trust was held too indefinite in respect of the term "family." Tolson v. Tolson (1838) 10 Gill & J. (Md.) 159. There is no such definiteness and certainty as to the subject-matter as to permit the implication of a trust from a will in which testator gave all his property to his wife "and her heirs and assigns forever," adding: "And it is my request and desire that my said wife .. should by last will and testament devise and bequeath all of the said property at her death remaining in her possession to," certain persons. Williams v. Worthington (1878) 49 Md. 572, 33 Am. Rep. 286. In Handley v. Wrightson (1883) 60 Md. 198, a trust was held to be created by a will in which testator provided that, if his son should die without issue, the testator's wife should have the land devised to his son, "with a special request that at her death she give the said land to be equally divided between her near relatives and mine." The court said: "The property to which the supposed trust attaches is clearly described. It is 'all my lands' first devised to his son but which his wife is to have in case his son dies without lawful issue, a contingency which happened. With the devise to his wife are coupled the words, 'with a special request that at her death she give the said lands to be equally divided between her near relatives and mine.' The wish expressed is clear and emphatic; the person addressed is his own wife; the time indicated for her disposition of the property is at her death, when she could no longer enjoy it herself; the mode of disposition is distinctly prescribed, the lands are to be equally divided between two classes of beneficiaries; these two classes are his wife's near relatives and his own,persons whom he would have a strong motive to make partakers of his bounty, the one class from natural affection for his own blood, the other from affection for his wife and regard for her interest in her own kindred. Thus the objects of his bounty are clearly. pointed out and their selection is in consonance with his relations to all concerned. To disregard his 'special request' would be to operate a discrimination against the testator's own kin and to pass his estate upon the death of his wife intestate wholly to her heirs; a result repugnant to natural instincts and in violence to his expressed desire. In all respects the conditions here exist which justify the application of the rule of implied trusts from precatory words in the present case." No obligation is imposed by a pro vision in a will by which testator gave his wife all his estate "to her sole use, benefit, and disposal," that "whatever may be left of my estate, if any, she may, by will or otherwise, give to those of my heirs that she may think best, she knowing my mind upon that subject. It am willing to leave the matter entirely with her, feeling satisfied that she will do as I have requested her to in the matter." Davis v. Mailey (1883) 134 Mass. 588. No trust is created by a bequest of a fund to each of two persons "as her absolute property," followed by the words: "I request said Susan and Lucy to use said fund thus given to further what is called the Woman's Rights Cause. But neither of them is under any legal responsibility to anyone or any court to do so," the testatrix having made it clear that her request was in no way mandatory. Bacon v. Ransom (1885) 139 Mass. 117, 29 N. E. 473. No trust affecting the title of the husband is created by a will by which testatrix gave the residue of her property to her husband, his heirs, and assigns forever, adding: "It being my request that my dear husband assign by will what of this property I now leave him he has not expended to such of my relatives as he in his judgment may think may need it." Durant v. Smith (1893) 159 Mass. 229, 34 N. E. 190. In McCurdy v. McCallum (1904) 186 Mass. 464, 72 N. E. 75, it was held (applying the law of Nova Scotia) that, in view of the circumstances, a trust was created by a will in which testatrix, who had provided for her children other than her son Hugh, gave a legacy to Susan, the wife of Hugh, stating: "This amount is to be free from the control of her husband and her son Guy McCallum, and I request the said Susan McCallum at her death to give the same to her two daughters Vesta Vane McCallum and Marion McCallum, but the receipt of the said Susan McCallum for the said amount shall be a sufficient discharge to my executors therefor." The court relied largely on the provision that the receipt of Susan should be a sufficient discharge, and on the fact that the relation of the testatrix to the objects of the trust were such as to indicate a strong motive for the bounty and for this method of providing it, and on the fact that there were no qualifying words giving the legatee a clear discretion or choice. No trust is created by a will by which testator gave his residuary estate "to my sister Fanny Young, who has contributed so much to make my home a happy one. I direct and desire that the amount received from my estate should be kept entirely separate and distinct from her own property, and I earnestly request her at once to make a codicil to her will, leaving my bequest to her to my brothers and my sister," the request showing that the testator expected his brothers and sister should take under her will, and not under his. Dexter v. Young (1920) 234 Mass. 588, 125 N. E. 862. No trust is created by a will of one who had conveyed, through an intermediary, property formerly owned by him, to himself and his wife as tenants by entirety, by which he made certain gifts, but provided that, should his wife survive him, then she should take his entire estate absolutely, adding: "But it is my request that she shall either before her death by gift or in such other manner as she shall deem proper, or after her death by will, transfer, grant, and give to the foregoing legatees the sums and amounts hereinbefore set forth out of whatever may remain of the proceeds of my property, real and personal, over and above what she may have used or desire to use during her lifetime for her own maintenance or for other purposes to which she may desire to apply it," since, having conveyed his property in such a way that his wife would be the legal owner thereof after his death, he had no legal authority to direct its disposition. Hillsdale College v. Wood (1906) 145 Mich. 257, 108 N. W. 675. The provision for the testator's wife is subject to a trust, notwithstanding such trust is too vague to be enforceable, where he bequeathed to her the balance of his estate, adding: “I re quest that at my death my said wife make her will, and will at least two thirds of what she receives under this, my will, to some charities named and designated by her, said charities to be in the city of Alpena, Michigan, and the amount so willed to be payable at her death, as it is my wish that she have and use all the income from that portion of my estate willed to her as long as she lives." Gilchrist v. Corliss (1908) 155 Mich. 126, 130 Am. St. Rep. 568, 118 N. W. 938. No obligation is created by the provisions of a will by which a testator gave his wife all his property, adding: "I direct that, out of my estate and after my death, such sums be expended from time to time for the support of my brother John" as in the judgment of the executors might be necessary to keep him from want and to provide him with a suitable burial, "and also request at the death of my wife . . that all the real and personal property remaining of my estate shall be distributed as follows: To my adopted daughter, Carrie Maud Atherton, that she be given $1,000 a year during her lifetime. Any of my estate remaining shall go to" a charitable institution. Holloway v. Atherton (1919) 205 Mich. 129, 171 N. W. 413. No trust in favor of testator's children is created by a will in which, after stating that at the time of making it he felt unable to make such disposition of his property as ought to be made, and that he had implicit confidence in his wife, the testator gave all his property to her "in fee, simply requesting her to do with the property when she is done with it or can spare it, or any portion thereof, as I know she intends to do and as I desire shall be done with it; that is, divide all property equally among our children." Long v. Willsey (1916) 132 Minn. 316, 156 N. W. 349. An obligation to pay the annuity is created by a will by which testator devised certain lands to another, "with one request that he give my father $200 a year as long as he lives." Red v. Powers (1891) 69 Miss. 242, 13 So. 586. No trust beyond the minority of the children is created by a will in which testator gave his wife all his property, "the proceeds of which to be appropriated for her support and that of my children, and the payment of my debts if any. It is my desire that all claims against my estate shall be amicably settled without recourse to law. And it is my further request that no sale or mortgage be made of any of my real estate during the minority of any of my children. After which time my wife will be at liberty to make such disposition of the property here bequeathed as she may deem proper for the use and benefit of my children." Courtenay v. Courtenay (1907) 90 Miss. 181, 43 So. 68. A trust is created by a bequest to one of a sum of money, "with the request that upon his death he leaves the same in equal portions to" certain persons named, so that, upon his death in the lifetime of the testatrix, the legacy does not lapse, but goes to the persons to whom she requested him to leave it at his death. Eddy v. Hartshorne (1881) 34 N. J. Eq. 419. No trust is created by a will in which testator gave all his property to his wife, adding: "Only requesting her at the close of her life to make such disposition of the same among my children and grandchildren as shall seem to her good." Foose v. Whitmore (1880) 82 N. Y. 405, 37 Am. Rep. 572. Where a testatrix made certain charitable bequests in her will which would not be valid should she fail to survive for two months after the making of the will, and made a codicil stating: "Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will . . . by making my friend Townsend Wandell my residuary devisee and legatee, and hereby request him to carry into effect my wishes with respect thereto, but this is not to be construed into an absolute direction on my part, but merely my desire"-it was held that no trust was created. Re Keleman (1891) 126 N. Y. 73, 26 N. E. 968. No trust is created by the following provision in a will: "I appoint Ellen C. Woodbury my legatee, and give to her all not before specified in this, and request her to give as I may direct or sell from what remains." Wyman v. Woodbury (1895) 86 Hun, 277, 33 N. Y. Supp. 217, affirmed on other grounds in 153 N. Y. 243, 47 N. E. 283. No trust is created by a will in which testatrix gave her residuary estate to the city of New York, "with the request that the same be expended, if such expenditure is sanctioned by law, in the erection of a drinking fountain in the city of New York to my memory," since to create a trust by a precatory expression, such expression must concern individuals other than the trustee. 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. No trust is created by a bequest of the testator's residuary estate to his executors "for their use and benefit, with a request to them that a portion of said residue be used for masses for the repose of my soul, and the balance given to some deserving charity." Re O'Regan (1909) 62 Misc. 592, 7 Mills, 123, 117 N. Y. Supp. 96. No trust is created by a will giving the residuary estate to a certain person, "with the request that he sell and dispose of such property in such manner as in his judgment would be satisfactory to me." Re Jones (1921) 199 App. Div. 426, 192 N. Y. Supp. 163. A trust is imposed by a will prepared by an unskilled person, by which testatrix gave the residue of her estate to the person holding the office of president of a theosophical society, to be used for the purposes of that society, adding: "I also request that an annuity of $500 be paid by that person (president of the theosophical society) to" a certain person, and "I also request and direct that . my executor shall be paid the sum of $500 before satisfying any other legacy," where, by a further codicil, she referred to the bequest to the president of the theosophical society as having been made "under the above-mentioned condition," the context showing that the testatrix used the word "request" in a mandatory sense. Re Daintrey (1925) 125 Misc. 369, 211 N. Y. Supp. 529. The absolute estate given to testatrix's son by a will is not qualified by the provision: "But, should my son. John Faulcon die without lawful issue, then and in that case it is my request (inasmuch as it was his father's wish) that the above given legacy be by him conveyed by will in writing to his brother J. M. Faulcon or to one or more of my grandchildren." Batchelor v. Macon (1873) 69 N. C. 545. No trust is created by a will in which the testator devised to his niece a plantation, adding: "And it is my request that my said niece, Elizabeth W. Carter, shall at her death devise said tract of land to her daughter Mertie E. Carter," where it appeared in another part of the will that the testator knew the use of apt and efficient words to create a trust when he so desired, and in another part of the will referred to the plantation as land devised to the niece, and it being evident that his niece, being nearer to him in blood, was the primary object of his bounty. Carter v. Strickland (1914) 165 N. C. 69, 80 S. E. 961, Ann. Cas. 1915D, 416. A devise to testator's wife of all his property is not qualified by a subsequent provision: "My wish is that after the sale of my real estate by my wife, Margaret, aforesaid, without charging my said real estate, that she will, if she has a sufficient sum of money to do so, give to my daughter Mary's children as follows: . . my further request is that at the death of my wife, Margaret, aforesaid that she will so divide what she may have among our daughters Martha and Eliza's children, share and share alike." Hopkins v. Glunt (1886) 111 Pa. 287, 2 Atl. 183. No trust is created by the provisions of a will in which the testator gave property to his daughters in words importing an absolute interest, by the provision: "And I request my executors, in dividing and apportioning the said residue, to require of my said daughters that their respective daughters shall receive of my estate as far as practicable severally about double the amount that my said daughters' sons received severally." Bellas's Estate (1896) 176 Pa. 122, 34 Atl. 1003. Only a life estate is given to testator's daughter Ida by a will in which he directed that his residuary estate be equally divided among his four children, "subject, however, to the following requests: I direct that my daughter Ida . . . shall invest her share of my estate as a first judgment or mortgage, and to receive the annual interest of the same during her natural life, and at her death it shall return to such of her children as shall then be living and to the issue" of any then dead. Byers's Estate (1898) 186 Pa. 404, 40 Atl. 524. The husband takes a fee simple, which is not cut down by the precatory words following, under a will by which his wife gave him the residuary estate: "To have and to hold to him my said husband and to his heirs and assigns forever," adding: "And after his death I request that my estate, both real and personal, be divided as follows." McBride v. Mangan (1915) 249 Pa. 515, 95 Atl. 79. No trust is created by a will in which testator, after devising property to his son, went on to state that "it is my request and desire" that, in case the son should have no children to inherit his estate, 'so much of his estate as he receives from me under this will" should be bequeathed by him to the children of his sister. Forscht's Estate (1892) 2 Pa. Dist. R. 294. No trust is created by a will in which testator, after making an absolute gift of all his property to his wife, added: "And above all, my lawful wedded wife must see and comply with my last request, which is as follows: She shall pay out" certain specified amounts to various persons and charitable institutions. Herskovitz's Estate (1923) 81 Pa. Super. Ct. 379. No trust is created by a provision following a gift of all testator's residuary estate to his wife, "her heirs, executors, administrators, and assigns forever," as follows: "I request that my said wife shall make a will devising and bequeathing so much of said property as may remain at the time of my death to my two sisters." Cahill v. Tanner (1921) 43 R. I. 403, 113 Atl. 289. On the ground that the requests made were definite and certain and left the wife no discretion, a precatory trust was held to be created by a will in which testator, after giving his wife all his real and personal property, referred to the fact that a relative had purchased certain property from him, and provided that, "in case he should be so fortunate as to meet all notes promptly, I request that, when he has paid all but the last $1,500, then this amount be given him," and also requested that another relative should have the right to purchase at a stated sum certain property. Daly v. Daly (1919) 142 Tenn. 242, 218 S. W. 213. No precatory trust is created by a will in which testator gave his wife all his personal property and such of his real property as he had not otherwise devised, "to dispose of as she may please, requesting her that she will so dispose of her property at her death as to make my youngest son an equal legatee with the balance of my children." Speaires v. Ligon (1883) 59 Tex. 233. A trust is created by a will in which a wife gave her husband, "his heirs, administrators, or assigns all of my estate, real and personal, with one simple request that the said estate be divided with my children or its equivalent as his better judgment may direct." Seefried v. Clarke (1912) 113 Va. 365, 74 S. E. 204. A trust in favor of testator's sister is created by a will in which testator provided that, after the payment of debts and funeral expenses, the entire residue and remainder of his estate should go to a brother, "with the special request to my said brother that he pay to my sister .. the sum of ten thousand ($10,000) dollars out of the proceeds of my estate as soon as possible after my decease; the same may be paid to her by instalments if necessary, but request that no unnecessary delay be made, provided she may survive me." RE HOCHBRUNN (reported herewith) ante, 7. |