mand has all the force of a command, being virtually a command clothed in the language of courtesy.

The later English cases, however,

properly introduced, has of course outlived the circumstances which gave it birth, and which alone ought to maintain it."

14 In Re Marti (1901) 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071, it is said that in the earlier cases in England, and also in this country where those cases are followed, very slight terms were held sufficient to create such a trust, but in the later cases in England, as well as in this country, with the exception perhaps of New Jersey, a different rule has been followed.

In Kauffman v. Gries (1903) 141 Cal. 295, 74 Pac. 846, it is said that in the early decisions in England any and every precatory word was laid hold of to create a trust, but the modern cases in that country and the better-considered cases in America have gone the other way, and the rule to be followed is that the ordinary and natural import of the words used will be followed unless the clear intention to use them in another sense can be collected and that other can be ascertained.

The tendency of modern decisions is not to extend the rule or practice which, from words of doubtful meaning, deduces or implies a trust. Bryan v. Milby (1890) 6 Del. Ch. 208, 13 L.R.A. 563, 24 Atl. 333.

In O'Brien v. McCarthy (1922) 52 App. D. C. 183, 285 Fed. 917, it is said that in the earlier decisions judges were so anxious to satisfy the intentions of the testator that the expression of a wish, expectation, desire, request, or even recommendation, was held to be mandatory and binding, alike on the court and on those upon whom rested the obligation of carrying the will into effect; but that these decisions apparently disregarded utterly the primary meaning of precatory words, and established a rule of interpretation which now and then frustrated the actual intention of the testator by imposing an imperative duty on his executors, legatees, and devisees as to something which he really intended to leave entirely to their discretion and judgment; that the vice of such a rigid construction has been recognized for a long time, and the later decisions have almost uniformly declined to follow it, on the

and most of the American cases, have repudiated this rule as leading to results not intended by the testator,1 14 and in effect reverse the presumption, sound principle that it not infrequently brought defeat to testator's real intention.

In Igo v. Irvine (1909) 139 Ky. 634, 70 S. W. 836, it is said that the doctrine of implied or precatory trusts was carried to great length by the early English and American cases. Thus, if a testator made an absolute gift to the person in his will, and accompanied the gift with words expressing a desire, will, request, wish, hope, or recommendation, such words were held sufficient to raise a trust where the subject and object were sufficiently certain; but the later American and English cases have departed from the doctrine of the early cases, and have inclined toward the doctrine of giving precatory words and expressions only their natural import.

The tendency of the later cases is to restrict the doctrine of precatory trust within more reasonable and somewhat narrower bounds than formerly. Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641.

The tendency of the later decisions has been, if not to relax the rule that precatory words will be taken as creating a trust, at least not to extend it. Aldrich v. Aldrich (1898) 172 Mass. 101, 51 N. E. 449.

Not every precatory expression contained in a will creates a trust, but only such as clearly shows that the testator intended it to govern the conduct of the party to whom it is addressed. Courtenay v. Courtenay (1907) 90 Miss. 181, 43 So. 68.

The whole doctrine of precatory trusts has been criticized as being purely artificial and as involving the solecism of reading an imperative command into words of mere recommendation accompanying an absolute devise or bequest. Snyder v. Toler (1914) 179 Mo. App. 376, 166 S. W. 1059.

The current of authority, and the later English cases, are against converting the discretion of the donee into an absolute trust, and in favor of giving effect more fully than formerly to the intention of the testator, giving to his words their natural and ordina

holding that words of request or expectation are presumably indicative of nothing more, unless the conry sense. Portsmouth v. Shackford (1866) 46 N. H. 423.

A strong disposition has been manifested by the courts to limit, rather than extend, the doctrine of raising trusts upon words of recommendation, and, as far as the authorities will allow, to give the words their natural and ordinary effect, unless it be clear that they are intended to be used in a peremptory sense. Van Duyne v. Van Duyne (1862) 14 N. J. Eq. 397.

The tendency of modern decisions is not to extend the rule or practice which, from words of doubtful meaning, deduces or implies a trust. Foose v. Whitmore (1880) 82 N. Y. 405, 37 Am. Rep. 572.

Under the old English decisions, which were followed by a few of the early cases in this country, the expression of a wish by the testator, like that of a sovereign, was construed as a command; but all the later cases, both in England and in this country, repudiate the doctrine, and hold that, in the absence of a clear indication of a contrary, intent, expressions of "wish," "desire," etc., are to be treated as used in their commonly accepted sense, and are not to be artificially construed by the courts as a trust. Springs v. Springs (1921) 182 N. C. 484, 109 S. E. 839.

In Sale v. Moore (1827) 1 Sim. 534, 57 Eng. Reprint, 678, it is said that the first case that construed words of recommendation into a command made a will for the testator, for everyone knows the distinction between them.

Expressions of dissatisfaction as to the old rule are also to be found in Green v. Marsden (1853) 1 Drew. 346, 61 Eng. Reprint, 598.

In Palmer v. Simmonds (1854) 2 Drew. 221, 61 Eng. Reprint, 704, it was said by Vice Chancellor Kindersley that in most of the cases of this class the court is called upon to do what it is persuaded was never the intention of the testator; for, when a testator expresses his confidence that the devisee will do so and so, what he really means is to say that he expresses the confidence because he does not mean to create a trust. He gives absolutely, because he has confidence.

In Reeves v. Baker (1854) 18 Beav. 372, 52 Eng. Reprint, 147, Sir John.

49 A.L.R.-2.

text, or the circumstances surrounding the testator at the time of making the will, show that he, though Romilly, M. R., said that the current of authorities had changed.

James, L. J., in Lambe v. Eames (1871) L. R. 6 Ch. 597, 25 Eng. Rul. Cas. 471, said: "In hearing case after case cited, I could not help feeling that the officious kindness of the court of chancery in interposing trusts where in many cases the father of the family never meant to create trusts must have been a very cruel kindness indeed."

In Mussoorie Bank v. Raynor (1882) L. R. 7 App. Cas. (Eng.) 321, it is said that the current of decisions now prevalent for many years in the court of chancery shows that the doctrine of precatory trusts is not to be extended.

In Re Hamilton [1895] 2 Ch. (Eng.) 370, it was said by Lopes, L. J., that the current of decisions with regard to precatory trusts is now changed, and that the result of the change is that the court will not allow a precatory trust to be raised unless, on the consideration of all the words employed, it comes to the conclusion that it was the intention of the testator to create a trust.

"The doctrine of precatory trusts," says Lopes, L. J., in Hill v. Hill [1897] 1 Q. B. (Eng.) 483, "is a creature of equity, by whose aid the intentions of testators, in my judgment, have too frequently been defeated."

In Re Williams [1897] 2 Ch. (Eng.) 12, it is said that in some of the older cases obligations were inferred from language which in modern times would be thought insufficient to justify such. an inference.

The inclination of the English courts is now to accept the natural construction of words of this character. Re Oldfield [1904] 1 Ch. (Eng.) 549.

The later authorities confine the operation of language supposed to create a trust within much narrower limits than is found in the earlier cases. Morrin v. Morrin (1886) Ir. L. R. 19 Eq. 37.

In Clancarty v. Clancarty (1893) ir. L. R. 31 Eq. 530-C. A., it is said: "The doctrine of precatory trusts is one which possibly ought never to have been allowed to grow up and estab

using the language of request, really meant to leave the legatee no option

lish itself as it has done in our system of equity. It leads to results which in many cases defeat the intentions of testators."

In Re Humphrey [1916] 1 Ir. R. 21, it was said by Ross, J.: "When we come to consider the innumerable decisions in which the courts of equity have displayed their benevolent astuteness in imposing an obligatory meaning upon words merely expressive of desire, the mind is reduced to a condition of perplexity and confusion. Trusts have been held to be created by the following expressions: 'I desire him to give,' 'I advise him to settle,' 'It is my dying request,' 'It is my will and desire,' 'I recommend,' 'Well knowing,' and such like. All these, one would think, impose at most a moral obligation. On the other hand, an expression of hope that the devisee would continue the estate in the family has been held to create no trust. I think it is quite impossible to reconcile the cases. However that may be, there is no doubt that the tide has turned and is running strong against precatory trusts."

Allusion to the departure from the earlier rule is made in Johnson v. Farney (1913) 29 Ont. L. Rep. 223, 14 D. L. R. 134.

15 Prima facie, a mere request or an expression of hope or confidence or expectation does not import a command. Re Marti (1901) 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071.

Words of favor or petition in a will will not be raised into words of positive direction so as to create a precatory trust, unless it is clear that they were so used by the testator. Re Hamilton (1919) 181 Cal. 758, 186 Pac. 587.

A trust will not be raised by expressions in a will importing recommendation, confidence, or desire, unless it clearly appears that they were intended to be used in an imperative sense. Hughes v. Fitzgerald (1905) 78 Conn. 4, 60 Atl. 694.

The words used should be given their ordinary and natural meaning unless there is something to show that they were intended to be taken in a different sense. Mitchell v. Mitchell (1895) 143 Ind. 113, 42 N. E. 465.

Words of recommendation, and other words precatory in their nature, imply a discretion as contradistin

in the matter.15 This change in the current of decision, while definitely guished from peremptory orders, and therefore ought to be so construed, unless a different sense is irresistibly forced upon them by the context. Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641.

Not every expression of a wish in the interpretation of a will is to be construed as a command or as the creation of a trust. In order to have such an effect, it must appear that the words used were intended by the testator to be imperative. Barrett v. Marsh (1879) 126 Mass. 213.

A trust is not lightly to be imposed upon mere words of recommendation and confidence. Ibid.

Precatory expressions are to be given their ordinary significance, and will not be held to create a trust unless it clearly appears from the terms and disposition of the will, and the circumstances relevant to its proper construction, that such expressions were. used in an imperative sense, and that the creation of a trust was intended by the testator. Howells State Bank v. Pont (1925) 113 Neb. 181, 202 N. W. 457; Carter v. Strickland (1914) 165 N. C. 69, 80 S. E. 961, Ann. Cas. 1915D, 416.

The court will not give precatory expressions the weight of an absolute command unless the intent of the testator that such should be their effect is beyond question. Re Thistlethwaite (1907) 104 N. Y. Supp. 264.

It is only when a clear intent is shown that precatory words are accorded such force as to deprive the donee of an absolute right; otherwise words indicating a desire or request are held not imperative, but to be only words of entreaty or admonition, leaving obedience, exercise, and performance to the sense of duty, gratitude, and discretion of the one to whom they are addressed. Re Barney (1923) 207 App. Div. 25, 201 N. Y. Supp. 647, affirmed on opinion below in (1924) 239 N. Y. 584, 147 N. E. 205.

Precatory words are not to be regarded as imperative unless it is plain from the context that testator so intended them. Hardy v. Hardy (1917) 174 N. C. 505, 93 S. E. 976.

Words expressive of desire, recommendation, and confidence are not words of technical but of common

marked by the case of Lambe v. Eames, L. R. 6 Ch. 597, 25 Eng. Rul. Cas. 471, decided in 1871, began to be apparent as early as the secparlance, and are not prima facie sufficient to convert a devise or bequest into a trust. Re Pennock (1853) 20 Pa. 268, 59 Am. Dec. 718; Bowlby v. - Thunder (1884) 105 Pa. 173; Hopkins v. Glunt (1886) 111 Pa. 287, 2 Atl. 183; Boyle v. Boyle (1893) 152 Pa. 108, 34 Am. St. Rep. 629, 25 Atl. 494; Byers's Estate (1898) 186 Pa. 404, 40 Atl. 524.

The expression of a desire or expectation will not convert a devise into a trust unless it appears that the testator intended not to commit the estate to the discretion of the devisee. Cressler's Estate (1894) 161 Pa. 427, 29 Atl. 90, 95.

Words expressive of desire, request, or recommendation as to the direct disposition of an estate are sufficient, all expressions indicative of the testator's wish or will as to its disposition being commands; but it is different when, having made a disposition, he expresses a desire that the devisee or legatee should make a certain use of his bounty. Miller v. Stubbs (1914) 244 Pa. 482, 90 Atl. 1132.

Words of desire, recommendation, and confidence are not prima facie sufficient to convert a devise or bequest into a trust. De Dampierre v. Fidelity Ins. & T. Co. (1877) 34 Phila. Leg. Int. (Pa.) 248.

Precatory or recommendatory words imply discretion, and must be so construed unless a different sense is irresistibly forced upon them by the context. Rowland v. Rowland (1888) 29 S. C. 54, 6 S. E. 902.

Where it is doubtful whether a precatory trust was intended, the leaning is against it. Mere expressions of kindness toward third parties for whom a trust is claimed, or appeal to the liberality of the donee on their behalf, is not enough to create a precatory trust and make dubious words qualify the legatee's interest. Wilmoth v. Wilmoth (1890) 34 W. Va. 426, 12 S. E. 731.

The tendency of a court is to lean against precatory trusts. Sullivan v. Sullivan [1903] 1 Ir. R. 193.

18 In Handley v. Wrightson (1883) 60 Md. 198, it is said that it may be stated, as a general result of the cases in regard to the effect of words expressive of the wishes of a testator

ond quarter of the nineteenth century.

The earlier rule, however, seems to be still followed in Maryland, 16 New

not imperative in form, that whether the words of the will are those of recommendation, or precatory, or expressing hope, or that the testator has no doubt, if the objects with regard to whom such terms are applied are certain and the subjects of property to be given are also certain, the words are considered imperative and create a trust; and that, while a tendency has been manifested by some courts to restrict the application of this general rule, or to qualify it, and even to reject it altogether, and to adopt as more reasonable a presumption that words precatory in form are meant to imply discretion in the donee, and should be so construed unless clearly shown to be used in an imperative sense from other parts of the will, the weight of authority is that words of request, desire, expectation, and the like, operate to create a trust when the contrary does not appear from the context or by necessary implication.

In Chase v. Plummer (1860) 17 Md. 165, it was said that, although words of recommendation, desire, hope, etc., may raise a trust to be executed by the person to whom they are addressed, they are not always imperative, but are deemed flexible in character, and must yield if the imputed interpretation be against the rules of law, or so inconsistent with other provisions in the will that both cannot stand together, or if it appear from the whole will and the nature of the property that the testator meant to depend on the justice and gratitude of the donee, or repose in him a power to execute the supposed trust or not at his discretion.

So, also, in Nunn v. O'Brien (1896) 83 Md. 198, 34 Atl. 244, it was said that words of entreaty, recommendation, or wish, addressed by a testator to a devisee or legatee, will make him a trustee for the person or persons in whose favor such expressions are used, provided the testator pointed out with clearness and certainty the object of the trust and of the subjectmatter to which it is to attach or from which it is to arise and be administered.

But see Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl.

Jersey,17 and Washington.18 Statements of it are also to be found in the earlier decisions of other states

51, 4 Am. Neg. Rep. 641, in which it is said that words of recommendation and other words precatory in their nature imply a discretion as contradistinguished from peremptory orders, and therefore ought to be so construed unless a different sense is irresistibly forced upon them by the context.

17 In Eddy v. Hartshorne (1881) 34 N. J. Eq. 419, it is said that when by will the property is given absolutely to a person, and the same person is by the giver "recommended," "entreated," "requested," or "wished" to dispose of that property in favor of another, the recommendation, request, or wish is held to be imperative, and to create a trust if the subject and objects are certain.

The adherence of the New Jersey courts to the early English rule is again declared in Deacon v. Cobson (1914) 83 N. J. Eq. 122, 82 Atl. 1029, in which it is said that, with this rule of construction uniformly recognized by the New Jersey courts for so long a period of time, testators and scriveners may be said to have been privileged to rely upon its existence and future recognition.

18 In Hunt v. Hunt (1897) 18 Wash. 14, 50 Pac. 578, it was said that a trust may be created by precatory words if they be not so modified by the context as to amount to no more than mere suggestion, to be acted upon or not according to the caprice of the interested devisee, or negatived by other expressions indicating a contrary intention, and the subject and object be sufficiently certain.

The earlier rule appears, also to be adhered to in RE HOCHBRUNN (reported herewith) ante, 7, in which it is said that where a person makes a special request of another who is independent of him it may be altogether ignored; but in making a request to him capable of being fulfilled, if, in the same instance, he specially requests that a portion of it be paid to another at a time sufficiently definite, the courteous language used makes it no less imperative than if he had commanded or ordered it to be paid.

19 In Hunter v. Stembridge (1852) 12 Ga. 192, it is said that, when the

which have since adopted the later rule.19

The reluctance of the courts to give words of the will are those of recommendation, or precatory, or expressing hope, or that the testator has no doubt, etc., if the objects in regard to whom such terms are used are certain and the subjects of property to be given are also certain, the words are considered imperative and create a trust. The modern rule, which requires the words used to be sufficiently imperative to show that it is not left to the discretion of the legatee whether to act or not, is, however, embodied in the Georgia Civil Code. See Wood v. Owen (1910) 133 Ga. 751, 66 S. E. 951.

In Bohon v. Barrett (1881) 79 Ky. 378, it is said that a trust will be created by precatory words if they be not so modified by the context as to amount to no more than mere suggestion to be acted on or not, according to the caprice of the immediate devisee, or negatived by other expressions indicating a contrary intention, and the subject and object be sufficiently certain. Later Kentucky cases, however, adopt the rule that the words of the testator must be construed as mandatory. See Webster v. Wathen (1895) 97 Ky. 318, 30 S. W. 663; Wood v. Wood (1907) 127 Ky. 514, 106 S. W. 226.

In Schmucker v. Reel (1876) 61 Mo. 592, it was said that no particular form of expression is requisite in order to create a binding and valid trust, and words of recommendation, request, entreaty, wish, or expectation, will impose a binding duty upon the devisee by way of trust, provided the testator has pointed out with sufficient clearness and certainty both the subject-matter and the object of the trust. And in Noe v. Kern (1887) 93 Mo. 367, 3 Am. St. Rep. 544, 6 S. W. 239, it was said that words of recommendation, request, entreaty, wish, or expectation, addressed to a legatee or devisee, will make him a trustee for the person or persons in whose favor such expressions are used, provided the testator has pointed out with sufficient clearness and certainty both the subjectmatter and the objects of the intended trust. The later Missouri cases, however, require the precatory words to have been used in an imperative sense. See Hayes v. Hayes (1912) 242 Mo. 155, 145 S. W. 1155.