k. Miscellaneous, 100.

I. Introduction.

In order to create a trust, it is not necessary that the word "trust" be used; nor is it necessary that the testator should have had in his mind the idea of a trust eo nomine. It is sufficient if he intended that his will should follow the property after his death, and imperatively control or limit its use.2 On this point it has been said by the United States Supreme Court:

is

"No technical language necessary to the creation of a trust. If it appears to be the intention of the parties from the whole instrument creating it that the property conveyed is to be held or dealt with

1 Cockrill v. Armstrong (1876) 31 Ark. 580; Hughes v. Fitzgerald (1905) 78 Conn. 4, 60 Atl. 694; Re Atkinson (1911) 80 L. J. Ch. N. S. (Eng.) 370 -C. A.; Re Walton (1911) 20 Manitoba L. R. 686.

2 Clifford v. Stewart (1901) 95 Me. 38, 49 Atl. 52.

3 Colton v. Colton (1887) 127 U. S. 300, 22 L. ed. 138, 8 Sup. Ct. Rep. 1164. See also, to the same effect: Alabama.-Ellis v. Ellis (1849) 15 Ala. 296, 50 Am. Dec. 132.

Arkansas.-Cockrill v. Armstrong (1876) 31 Ark. 580.

Connecticut.-Hughes v. Fitzgerald (1905) 78 Conn. 4, 60 Atl. 694; Plaut v. Plaut (1908) 80 Conn. 673, 70 Atl. 52.

Missouri.-Cross v. Hoch (1899) 149 Mo. 325, 50 S. W. 786.

Utah.-Re Dewey (1914) 45 Utah, 98, 143 Pac. 124, Ann. Cas. 1918A, 475.

for the benefit of. another, a court of equity will affix to it the character of a trust, and impose corresponding duties upon the party receiving the title if it be capable of lawful enforcement." "3

Accordingly, words of entreaty, recommendation, desire, request, or confidence addressed by a testator to a devisee or legatee, may make him a trustee for the person or persons in whose favor such expressions are used, provided the testator has pointed out with clearness and certainty the objects of the trust and the subject-matter to which it is to attach, or from which it is to arise and be administered. This is on the ground

Virginia. Bare v. Montgomery (1925) 143 Va. 303, 130 S. E. 230. Wisconsin. Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155.

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

Canada.-Re Walton (1911) 20 Manitoba L. R. 686.

4

* Spooner v. Lovejoy (1871) 108 Mass. 529.

See also, as stating the doctrine that words of recommendation, request, or hope, may be sufficient to create a trust:

United States. - Colton v. Colton (1887) 127 U. S. 300, 22 L. ed. 138, 8 Sup. Ct. Rep. 1164; Russell v. United States Trust Co. (1904; C. C.) 127 Fed. 445, affirmed in (1905) 69 C. C. A. 410, 136 Fed. 758.

California.-Re Marti (1901) 132

that an expression may be imperative in its real meaning, although couched in language which is not imperative in form; and, when it appears to have been used in this sense by the testator, the courts will give it due effect. If it is used by way of suggestion, counsel, or advice, with a view to influence, but not to direct, the discretion of the party, it will not raise a trust.5

This annotation deals with the question as to when words of request or expectation may be deemed to create a trust. Trusts so created are commonly spoken of as precatory trusts; although, as remarked by Rigby, L. J., in Re Williams [1897] 2 Ch. (Eng.) 12-C. A., the phrase "is nothing more than a misleading nickname. When a trust is once established, it is equally a trust, and has all the effects and incidents of a trust, whether declared in clearly imperative terms by a testator, or deduced upon a consideration of the whole will from language not amounting necessarily, and in its

Cal. 666, 61 Pac. 964, 64 Pac. 1071; Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123.

Illinois.-Jones v. Jones (1888) 124 III. 254, 15 N. E. 751.

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

Massachusetts. Hess v. Singler (1873) 114 Mass. 56; Dexter v. Young (1920) 234 Mass. 588, 125 N. E. 862. Michigan. Hillsdale College v. Wood (1906) 145 Mich. 257, 108 N. W. 675; Gilchrist v. Corliss (1908) 155 Mich. 126, 130 Am. St. Rep. 568, 118

N. W. 938.

New Hampshire.-Foster v. Willson (1894) 68 N. H. 241, 73 Am. St. Rep. 581, 38 Atl. 1003.

New York. Phillips v. Phillips (1889) 112 N. Y. 197, 8 Am. St. Rep. 737, 19 N. E. 411; Re Daintrey (1925) 125 Misc. 369, 211 N. Y. Supp. 529. North Carolina.-Laws v. Christmas (1919) 178 N. C. 359, 100 S. E. 587. Ohio. Ide v. Clark (1891) 5 Ohio C. C. 239, 3 Ohio C. D. 120.

Oregon.-Beakey v. Knutson (1918) 90 Or. 574, 174 Pac. 1149, rehearing denied in (1919) 90 Or. 583, 177 Pac. 955; Wemme v. First Church of Christ (1924) 110 Or. 179, 219 Pac. 619 (mo

prima facie meaning, to an imperative trust."

If there be a trust sufficiently expressed and capable of enforcement by a court of equity, it does not disparage, much less defeat it, to call it a precatory trust."

Precatory trusts, then, are trusts created by words which are more like words of entreaty and permission than of command or certainty. They are so named because the words used in their creation ordinarily express the idea of entreaty, rather than command.8

In order to raise an express trust by precatory words, the terms employed must be inserted in the will or other instrument of settlement; mere oral requests not being sufficient to raise a trust enforceable against the person to whom the property is given. It is to be noted, however, that if a gift is made in reliance on the donee's promise to carry out the donor's wishes, a trust ex maleficio may arise.

tion to recall mandate denied in (1924) 110 Or. 214, 223 Pac. 250).

Pennsylvania.-Re Pennock (1853) 20 Pa. 268, 59 Am. Dec. 718; Burt v. Herron (1870) 66 Pa. 400; Fickes's Estate (1915) 59 Pa. Super. Ct. 535. Vermont.-Van Amee v. Jackson (1862) 35 Vt. 173.

Washington. RE HOCHBRUNN (reported herewith) ante, 7.

West Virginia. Hays v. Harris (1913) 73 W. Va. 17, 80 S. E. 827.

Wisconsin. Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155; Wolbert v. Beard (1906) 128 Wis. 391, 107 N. W. 663.

England.-Eaton v. Watts (1867) L. R. 4 Eq. 151.

Canada.-Re Walton (1911) 20 Manitoba L. R. 686.

5 Russell v. United States Trust Co. (1904; C. C.) 127 Fed. 445, affirmed in (1905) 69 C. C. A. 410, 136 Fed. 758.

Colton v. Colton (1887) 127 U. S. 300, 22 L. ed. 138, 8 Sup. Ct. Rep. 1164. 7 Simpson v. Corder (1914) 185 Mo. App. 398, 170 S. W. 357.

8 Keplinger v. Keplinger (1916) 185 Ind. 81, 113 N. E. 292.

9 Hayes v. Hayes (1912) 242 Mo. 155, 145 S. W. 1155.

II. In general.

a. Generally.

The question as to when a trust may be implied where precatory expressions are employed is one with which

the courts have had considerable difficulty. "The conflict of opinion as to the effect of words of this character," says one judge, "is almost bewildering." "10 Another court has said: "The use of precatory words in wills has been a source of annoyance to the courts, and, owing to the appearance of extremely harsh cases from time to time, has occasioned some extreme views, thereby producing a contrariety of opinion to some extent." 11

One source of difficulty is found in the fact that in the earlier English cases, which were followed to some

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

11

Lemp v. Lemp (1915) 264 Mo. 533, 175 S. W. 618.

12 Cases adhering to this rule, and which, therefore, need not be further noticed herein, are Eales v. England (1702) P. Wms. 200, 24 Eng. Reprint, 96; Nab v. Nab (1718) 10 Mod. 404, 88 Eng. Reprint, 783; Vernon v. Vernon (1737) 1 Ambl. 4, 27 Eng. Reprint, 1; Massey v. Sherman (1739) 1 Ambl. 520, 27 Eng. Reprint, 335; Mason v. Limbury (1736) 1 Ambl. 4, 27 Eng. Reprint, 1; Harding v. Glyn (1739) 1 Atk. 469, 26 Eng. Reprint, 299; Medlicot v. Bowes (1749) 1 Ves. Sr. 207, 27 Eng. Reprint, 985; Pierson v. Garnet (1786) 2 Bro. Ch. 38, 29 Eng. Reprint, 20; Jones v. Nabbs (1718) 1 Eq. Cas. Abr. 405, pl. 3, 21 Eng. Reprint, 1135; Malim v. Keighley (1794) 2 Ves. Jr. 333, 533, 30 Eng. Reprint, 659, 760; Malim v. Barker (1796) 3 Ves. Jr. 150, 30 Eng. Reprint, 942; Paul v. Compton (1803) 8 Ves. Jr. 380, 32 Eng. Reprint, 400; Parsons v. Baker (1812) 18 Ves. Jr. 476, 34 Eng. Reprint, 397; Wright v. Atkyns (1810) 17 Ves. Jr. 255, (1815) 19 Ves. Jr. 299, 34 Eng. Reprint, 98, 528, G. Cooper, 111, 35 Eng. Reprint, 497, (1823) Turn. & R. 143, 37 Eng. Reprint, 1051; Birch v. Wade (1814) 3 Ves. & B. 198, 35 Eng. Reprint, 454; Taylor v. George (1814) 2 Ves. & B. 378, 35 Eng. Reprint, 362; Tibbits v. Tibbits (1816) 19 Ves. Jr. 657, 34 Eng. Reprint, 659, (1821) 1 Jac. 317, 37 Eng. Reprint, 871; Prevost v. Clarke (1816) 2 Madd. Ch. 458, 56 Eng.

extent in the courts of this country, mere precatory expressions were deemed to raise a trust, unless it appeared from the context to be within the power of the legatee to whom such expressions were addressed to defeat the disposition of the property indicated by the precatory words.12 In other words, the use of precatory expressions was held to create a presumption that a trust was intended.

This rule has been sometimes attributed to the historical fact that originally all trusts, no matter how expressed, were only of precatory force, and imposed no binding obligation, so that it was natural and appropriate that words of recommendation, desire, entreaty, and confidence should be used,13 and sometimes to Reprint, 403; Forbes v. Ball (1817) 3 Meriv. 437, 36 Eng. Reprint, 168; Eade v. Eade (1820) 5 Madd. Ch. 118, 56 Eng. Reprint, 840; Ford v. Fowler (1840) 3 Beav. 146, 49 Eng. Reprint, 57; Kirkbank v. Hudson (1819) 3 Price, 212, 146 Eng. Reprint, 951; Cholmondeley v. Cholmondeley (1845) 14 Sim. 590, 60 Eng. Reprint, 487; Smith v. Smith (1856) 2 Jur. N. S. (Eng.) 967; Barnes v. Grant (1856) 2 Jur. N. S. (Eng.) 1127; Gully v. Cregoe (1857) 24 Beav. 185, 53 Eng. Reprint, 327; Bonser v. Kinnear (1860) 2 Giff. 195, 66 Eng. Reprint, 82; Moriarty v. Martin (1852) 3 Ir. Ch. Rep. 26; Cary v. Cary (1804) 2 Sch. & Lef. (Ir.) 173.

13 In Re Pennock (1853) 20 Pa. 268, 59 Am. Dec. 718, it is said: "It is acknowledged that the rule by which a trust is raised out of such words was imported into the English from the Roman law. Its origin, therefore, in the Roman law, is a relevant subject of inquiry; for if we find it arising there, not from the ordinary meaning of the words, but under the constraint of circumstances which have no existence here, the force of the Roman rule will be much impaired, if not destroyed. If, under their law, words of common parlance acquired a technical value by reason of a peculiar institution, then that technical value depends upon circumstances and ceases with them, and the common meaning alone remains. To construe such words, after that, as technical, is, in almost all cases, to pervert the true meaning of

the misleading generalization (possibly imported from the cases in which precatory words addressed to an ex

the words, unless other parts of the instrument clearly show that they are technically used. It was part of the Roman law that the heir or devisee accepting the estate of a decedent became at once charged with the payment of all his debts, whether the estate was sufficient to discharge them or not. Hence, and by way of compensation, he was not bound to pay any of the legacies bequeathed by the testator; but this matter was left by the law entirely to his discretion. It was of the essence of a Roman will that the devisee should be universal successor to the property and debts of the decedent. He was in form and substance what we would call executor and sole devisee and legatee, with the additional qualification that he (or they, for many might be joined) was bound personally for the debts, if he accepted the devise. It is plain how restricted was the right of devise under such a law. When all the testator's bequests could be defeated at the pleasure of the devisee or instituted heir, he had no alternative but to use words of confidence, recommendation, or entreaty, as to any legacies or special devises, and such words would be much more likely to be regarded than the clearest imperative words. Moreover, there were great and peculiar difficulties in making a valid will at all under the Roman law, owing to the excessive strictness and complexity of the formalities required; and hence it was usual to add a codicil, in which the testator entreated his heir at law, if the will should not stand, to make the desired dispositions, or to hold the property for the benefit of the persons named in the codicil.

ecutor have been held the equivalent of a direct disposition) that a request coming from one with power to com

call loudly on the law to interfere with the discretion of the heir or devisee, and enforce the clear intention of the testator. Hence arose an alteration of the law, and the pretors were required to enforce trusts that were created in this form. Under such circumstances the new rule was a proper one; for it enforced the very duty imposed by the testator in the best form in which he was allowed to express it. No doubt the law continued after the reason of it had ceased; but then it contravened the intention of the testator by enforcing, as a binding obligation, what had been intrusted to the discretion of the heir or devisee. The matters are fully illustrated in Domat. 2, 3, 1; 1 Spence, Eq. Jur. 435; and in the Corpus Juris Civ. Inst. 2, 20 and 25; Dig. 28, 1 and 29, 7, and 30, 31 and 32; Code, 6, 23 and 36. Very similar was the origin of such trusts in England. The power of devise existed among the Anglo-Saxons in its fullest extent, and hence we might expect to find no such trusts among them, and it is said that no AngloSaxon will has been found containing the appointment of an executor charged with trusts. 1 Spence, Eq. Jur. 23, quoting Hinks, Dissert. 37. But, after the Norman conquest, and under the strict principles of feuds, devises of lands were not allowed. Hence the frequent resort to conveyances in trust, in order to be able to make provision for younger children, and for other purposes. These trusts were at first of no binding obligation, but depended for their execution entirely upon the honor of the grantee, and it was therefore very natural and appropriate that words of recommendation, desire, entreaty, and confidence should be used. Dishonesty would, of course, often occasion enormous grievances arising out of breaches of such confidence. It was very easy,

disregard It is very plain that such an institution is at war with moral principle, and it could not exist long without giving rise to many aggravated cases of breach of such trusts, that would

bring in the Roman law to correct such evils. It was really enforcing what was intended to be a trust, and changing the law to do it. It was equity stepping in to correct the deficiencies of common-law institutions, and modifying them into accordance with the changing customs and circumstances of the people. The rule, thus