the precatory words applied being clearly pointed out, the quantum of the estate given clearly defined, and the testatrix having directed that the money be "put in the bank" instead of giving it to Robert L. Christmas, which would have been the natural course if she had intended him to have the beneficial interest. Laws v. Christmas (1919) 178 N. C. 359, 100 S. E. 587.

bbb. "Who will do."

In Dexter v. Evans (1893) 63 Conn. 58, 38 Am. St. Rep. 336, 27 Atl. 308, where a testator who had bequeathed to his wife several sums of money, "for her to help her sister" and brother "as she may see fit" went on to provide: "At the decease of my beloved wife, the remainder and residue of the above legacies to go to Walter P. White, who will do by his mother and uncle as he may see fit,"-it was held that the latter provision, though precatory in form, was mandatory in effect.

ccc. "Will."

The word "will" does not carry with its use an invariably imperative meaning. Loomis Institute v. Healy (1902) 98 Conn. 102, 119 Atl. 31.

No trust is created by a will by which the testator gave his residuary estate to an educational institution which he and other members of his family had agreed to found as a family memorial, with the provision: "My will is that no building shall be commenced until at least $200,000 are in the hands of the trustee of the institute for that purpose. That not

more than one third of the funds of the institute shall be at any time invested in the grounds, buildings, and outfit of the institute, the other two thirds shall be kept invested to produce the income necessary for the support of the institute, and, when the income shall be insufficient to pay the expenses of the institute, such expenses shall be reduced until the income is equal to their payment." Ibid.

The words, "it is also my will," are more than a mere entreaty or expression of desire. They are words of command, and express an imperative

testamentary design. TEMPLE V. RUSSELL (reported herewith) ante, 1.

A charge is imposed on the land devised by a will in which testator, after stating, "It is my will that my sons have all my real estate," went on to add: "It is my will that my sons . . . support their mother and single sisters off of the proceeds of the farm I bequeath to them, so long as they may see fit and proper to live with my sons." Bakert v. Bakert (1900) 86 Mo. App. 83.

A trust is imposed on all the property which the devisee did not dispose of in her lifetime, by a will in which testator provided: "It is my will that my wife, M. E. Rains, have all I may die seised of that at her death

she will to our respective families whatever she may have, making an equal division thereof between the two families." Norton v. Smith (1921) Tex. Civ. App. —, 227 S. W. 542.

ddd. "Will and desire."

The words "will and desire" are not necessarily mandatory. Lines v. Darden (1853) 5 Fla. 51.

No trust is created by the provision of a will in which the testator gave his only daughter all of his estate for life, with remainder to her children, that "should either of my grandsons arrive at the age of twenty-one years or any of my granddaughters marry previous to the time of final distribution, viz.: before the death of my daughter, Sara N. Lines, then in that case my will and desire is that such grandson so arriving at the age of twenty-one years or such granddaughter so marrying as aforesaid shall receive a portion of the estate as a loan, to have the management and receive the benefit of the same until the final distribution shall take place, and then to return the same to be equally divided with the rest of my estate." Ibid.

No trust is created by a will in which the testator devised his estate to his wife, expressing a will and desire that she should have full management and control of the said property during her lifetime, and should enjoy the benefit of the same, and should have full power to sell and dispose of

-

the same at her discretion, by a provision: "It is my will and desire that, in the event my beloved wife

does not dispose of said property during her, natural life, or in the event she does dispose of it, that at her death she shall devise said property or proceeds thereof to the person or persons who have been the kindest to us in aiding and comforting us in our old age." Weaver v. Kirby (1923) 186 N. C. 387, 119 S. E. 564.

No trust is impressed upon the residue by a will in which testator expressed his "will and desire that the remainder of my estate shall be equally divided between my" brothers named, share and share alike, "and that they be obliged to look after the welfare of" another brother. Fisher's Estate (1920) 268 Pa. 405, 112 Atl. 17.

A charge is imposed on testator's widow by a will in which, after making her his residuary legatee, he went on to provide: "It is further my will and desire. that my beloved

wife, Statira shall pay $200 commencing 1st of January, 1861, to my nephew John Lyell for the purpose of educating him, said sum of $200 to be paid annually until said John Lyell is of age." Anderson v. Hammond (1879) 2 Lea (Tenn.) 281, 31 Am. Rep. 612.

The words "my will and desire," in a will which provides that, should testator's daughters marry, "my will and desire is that the property given to them shall not in any instance, be liable for the debts of their husbands, but shall descend from my daughters aforesaid to their children," are not merely precatory, but operate to create a remainder in the children of the devisee. Collins v. Williams (1896) 98 Tenn. 525, 41 S. W. 1056.

A trust is created by a will in which testatrix provided: "It is my will and desire that my beloved husband shall have all my property . . . and that he shall have full power and control over same to use and dispose of as he may desire. It is my will and desire that at his death, should he have any of said property still remaining in his possession not disposed of or used by him, that the same shall be given by him to my nieces," naming

them; since the words "will and desire," being mandatory in the provision for the husband, should be likewise deemed mandatory in the following provision. McMurry v. Stanley (1887) 69 Tex. 227, 6 S. W. 412.

eee. "Will and intention."

An absolute property in the articles mentioned, not subject to a trust, is conferred by a clause in a will reading: "It is my will and intention that the said Seth Wells may dispose of the furniture, plate, pictures, and all other articles now in my house absolutely as he may deem expedient in accordance with my wishes as otherwise communicated by me to him." Wells v. Doane (1855) 3 Gray (Mass.) 201.

A trust is created by a will in which testator gave two of his sons all his property, "to have and to hold the same in the most absolute manner," adding: "And I further will and hereby declare it to be my intention that the said [sons] shall, at their discretion and according to their own judgment, allocate to the other members of my family, being my lawfully begotten children, such portions of the said property and goods, be the same shall more or less, as to them seem fit and suitable." Gray v. Gray (1860) 11 Ir. Ch. Rep. 218.

Phillips v. Phillips (1889) 112 N. Y. 197, 8 Am. St. Rep. 737, 19 N. E. 411. No trust in favor of testator's brothers and sisters and the sister of his wife is created by a will by which testator, after reciting that he had theretofore executed and delivered to his wife a conveyance of all of the property of which he should die seised and possessed, and that the will was made to avoid all accidents or questions that might arise, and for the purpose of giving expression to his wishes as to her use and disposition of the property so conveyed to her, gave her the property absolutely, with the provision: "As I have no children to inherit my property, it is my wish that such property as my wife may have remaining undisposed of at her death that she should previously will and devise the same to her sister and to my surviving brothers and sisters in equal proportion, leaving it entirely with her to make such use and disposition of her property by will as her kind heart and good judgment shall dictate, merely expressing my desires and wishes in the premises; and, if change of fortune or other causes shall in her judgment make it unwise to carry out any or all of the foregoing wishes or requests, she is absolved from carrying out the same, as my wish to suitably provide for her care and comfort surpasses all other considerations; and should she prefer to retain or dispose of the property so conveyed and devised to her in a manner different from wishes as herein expressed, she is at full liberty so to do without having her right or motives for so doing called in question by my executors or by any person or persons." Toms v. Owen (1891; C. C.) 52 Fed. 417.

The word "wish" may be equivalent to "will" or "request" or "direct," if the context justifies that meaning. Russell v. United States Trust Co. (1904; C. C.) 127 Fed. 445, affirmed in (1905) 69 C. C. A. 410, 136 Fed. 758.

No trust is created by a will in which testatrix, who had shown that she knew how to impose an imperative duty, gave the residue of her estate to a person named, "to be expended by him entirely in his judgment in ac

cordance with my verbally expressed wishes to him." O'Brien v. McCarthy (1922) 52 App. D. C. 183, 285 Fed, 917.

No trust is created by a conversation between a son who had a policy of life insurance payable to his father and mother, in which the father suggested that, since the son was married and had a family, he should change the beneficiary, and the son stated that he did not care to do so, adding: "I know you and mother will take care of my family in case of my death and never allow them to want for anything, and you know that would be my wish." Bliss v. Bliss (1911) 20 Idaho, 467, 119 Pac. 451.

Precatory words following a bequest to a church, expressing a wish that it should be used in the purchase of real estate for the erection of permanent improvements in connection with the church property, to remain as a permanent memorial of affection for the church body and the membership thereof, are sufficient to create a trust. French v. Calkins (1911) 252 III. 243, 96 N. E. 877.

No trust is created by a will in which testatrix, who had devised and bequeathed certain property absolutely to a nephew, with an executory limitation over to a sister in case of the death of the nephew in her lifetime, further stated: "It will be understood by my nephew . and my sister that, should any of my near relatives become so reduced in circumstances as to need assistance, then it is my wish that they assist such relatives in such ways as my said nephew and sister shall judge to be the best." Haight v. Royce (1916) 274 Ill. 162, 113 N. E. 71.

A trust in favor of testator's grandson is created by a bequest to him of $200, "which said $200 it is my wish that my son S. shall add to the advancement he may make to his son R. when R. comes of age." Reed v. Reed (1868) 30 Ind. 313.

Only precatory force can be given to the provisions of a will by which testator, after giving all his property to his wife "absolutely," went on to state: "It is my wish that at the death of my wife what is then left

herself and children

during her widowhood is manifested by a will in which he gave her all his property "to be disposed of in such manner as she may think proper for the benefit of the family, it is my wish that my youngshall have an my daughter

my

sons [naming

est daughters education equal to Phoebe, and my two them] to be educated and fully prepared to enter college or the study of a profession, but, provided either of them should not choose to have such an education, the one who does not to be made equal in property to the expense of educating the other, in which case the mother is to be judge, or, in case of her decease, my executors whom I shall appoint. After the children arrive at age, I leave it discretionary with Susan, my loving wife, what donation to make them out of the property, and, in case of her decease or marriage, to be left with the executors whom I shall hereafter name, but in every respect I wish them made as near equal as can be." Ward v. Peloubet (1855) 10 N. J. Eq. 304.

No trust is created by a will which provides: "I give and bequeath unto my beloved wife, Margaret, all my estate, real and personal, wheresoever situate, for her use and enjoyment during the term of her natural life, and after her death it is my wish, unless she shall have earlier divided the same or disposed of it by will, that the same shall be equally divided among my children, part and part alike," any advancement made to any one of them to be deducted from the share of such one. "It is my wish that my wife should sell and dispose in her lifetime of just so much of the real estate that I may die seised of as may be necessary to pay debts and to raise the necessary means on which she and my children who may choose to make a home with her may economically and plainly live, and no more, though that is a matter of discretion with her and my children, who I hope will seriously and carefully advise her." Hoxsey v. Hoxsey (1883) 37 N. J. Eq. 21.

A trust is created by a will in which testator, who had no children and whose wife had a considerable estate

of her own, gave her the whole of his property, naming her as executrix, and then proceeded: "If she find it always convenient to pay my sister Caroline Buck the sum of $300 a year and also to give my brother Edwin W. during his life the interest on $10,000 (or $700 per year), I wish it to be done." Phillips v. Phillips (1889) 112 N. Y. 197, 8 Am. St. Rep. 737, 19 N. E. 411.

An intention to create a trust is evinced by a will by which testator gave his residuary estate to certain persons or the survivors of them, adding: "And it is my wish that such persons apply the said rest, residue, and remainder of my estate and property to the creation of some charitable or educational institution in the city of New York." Rothschild v. Schiff (1907) 188 N. Y. 327, 80 N. E. 1030.

No trust is created by a will in which testatrix, after giving a residue of her estate to certain persons, went on to say: "This bequest and devise I make absolute in order that there may be no legal or technical difficulty or embarrassment in effecting the end I desire, and having entire confidence that those four gentlemen will, although under no legal obligation so to do, observe my wishes; and my wish is (although this is not to be taken as a legal direction) that my residuary estate so bequeathed and devised and any proceeds thereof shall" be applied in a certain way. Bowker v. Wells (1885) 2 How. Pr. N. S. (N. Y.) 150.

No trust is created by a will, by which testatrix, who had given certain legacies to benevolent and religious institutions, which she anticipated might fail because of her impending death within a month after the execution of the will, said: "If for any reason any legacy or legacies left by my will . . . shall lapse or fail or for any cause not take effect in whole or in part, I give and bequeath the amount which shall lapse, fail, or not take effect, absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to