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It has frequently been held that no trust will be implied from the use of precatory words, where the testator expressly declares that such is not his intention.6

1. Fact that request is as to disposition of property at death.

The fact that the donee is not requested to act in his lifetime but at his death has been said to be a circumstance indicating an intention not to create a trust.6 63

m. Scope of discretion conferred upon donee.

A wide latitude of discretion given to the donee is inconsistent with an intention to dictate or command.64 Whenever a clear discretion or choice to act or not to act is given, a trust will not be implied.65

n. Power of donee over subject-matter.

No trust may be implied where the testator has made it clear that the donee has absolute dominion over the

62 Re Purcell (1914) 167 Cal. 176, 138 Pac. 704; Enders v. Jasco (1889) 89 Ky. 17, 11 S. W. 818; Gross v. Smart (1920) 189 Ky. 338, 224 S. W. 871; Bacon v. Ransom (1885) 139 Mass. 117, 29 N. E. 473; George v. George (1904) 186 Mass. 75, 71 N. E. 85; Re Keleman (1891) 126 N. Y. 73, 26 N. E. 968; Wood v. Seward (1880) 4 Redf. (N. Y.) 271; Re Havens (1888) 6 Dem. 456, 2 N. Y. Supp. 639; Fellowes v. Durfey (1913) 163 N. C. 305, 79 S. E. 621; Tabor v. Tabor (1893) 85 Wis. 313, 55 N. W. 702; McCormick v. Grogan (1869) L. R. 4 H. L. (Eng.) 82.

63 McDuffie v. Montgomery (1904; C. C.) 128 Fed. 105; Dexter v. Young (1920) 234 Mass. 588, 125 N. E. 862.

In Re Crawford (1917) 99 Misc. 416, 163 N. Y. Supp. 1107, it is said that, while gifts qualified by words of desire have been found to be subject to a trust or charge, no case had come to the attention of the court in which such finding had been imposed upon language not contemplating a use or application of the subject of the gift during the life of the devisee.

There are, however, cases of the kind.

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

65 Harvey v. Griggs (1920) 12 Del.

property.66

If it appears from the context that the first taker was intended to have a discretionary power to withdraw any part of the subject from the object of the wish or, request,67 as where the donee has the right to spend the subject of the gift,68 no trust is created.

The doctrine of precatory trusts does not prevail when the property said to be given over is only given when no longer required by the first taker.69

o. Absolute character of gift.

The character of the estate given to the first taker is always a consideration of much significance in determining whether the words relied on to create a trust are recommendatory or imperative,70 there being a distinction between cases where the will gives the first taker an estate for life only, and those where the gift is absolute, with superadded words.71

Where the words of a gift expressCh. 232, 111 Atl. 437; Haight v. Royce (1916) 274 Ill. 162, 113 N. E. 71; Nunn v. O'Brien (1896) 83 Md. 198, 34 Atl. 244.

66 Pushman v. Filliter (1795) 3 Ves. Jr. 7, 30 Eng. Reprint, 864; Johnston v. Rowlands (1848) 2 De G. & S. 356, 64 Eng. Reprint, 160; Huskisson v. Bridge (1851) 4 De G. & S. 245, 64 Eng. Reprint, 816; Webb v. Wools (1852) 2 Sim. N. S. 267, 61 Eng. Reprint, 343.

67 Howard v. Carusi (1884) 109 U. S. 725, 27 L. ed. 1090, 3 Sup. Ct. Rep. 575; Re Pennock (1853) 20 Pa. 268, 59 Am. Dec. 718; Knight v. Knight (1840) 3 Beav. 148, 49 Eng. Reprint, 58.

68 An intention evidenced by the will to give the devisee a right or power to spend the property is inconsistent with an intention to create an imperative trust. Heneage v. Andover (1822) 10 Price, 230, 147 Eng. Reprint, 297; Cowman v. Harrison (1852) 10 Hare, 234, 68 Eng. Reprint, 913.

69 Mussoorie Bank v. Raynor (1882) L. R. 7 App. Cas. (Eng.) 321.

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

71 McClerman v. McClerman (1890) 73 Md. 283, 20 Atl. 908.

ly point to an absolute enjoyment by the donee himself, the natural construction of subsequent precatory words is that they express the testator's belief or wish without imposing a trust.72

So, the fact that the testator refers to the property devised as being "unfettered and unlimited" indicates that it was not his intention to encumber it with any imperative trust.73

Where property is given in terms importing an absolute gift, it has been held that words expressing a hope or

72 Pratt v. Sheppard & E. P. Hospital (Md.) supra; First Presby. Church v. McKallor (1898) 35 App. Div. 98, 54 N. Y. Supp. 740.

73 Heneage v. Andover (1822) 10 Price, 230, 147 Eng. Reprint, 297.

74 Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123; Re Hull (1926) Cal. App. 247 Pac. 1093; Williams v. Baptist Church (1901) 92 Md. 497, 54 L.R.A. 427, 48 Atl. 930; Van Duyne v. Van Duyne (1862) 14 N. J. Eq. 397.

75 Loomis Institute v. Healy (1922) 98 Conn. 102, 119 Atl. 31; Bills v. Bills (1890) 80 Iowa, 269, 8 L.R.A. 696, 20 Am. St. Rep. 418, 45 N. W. 748; Nunn v. O'Brien (1896) 83 Md. 198, 34 Atl. 244; Hopkins v. Glunt (1885) 111 Pa. 287, 2 Atl. 183; Miller v. Stubbs (1914) 244 Pa. 482, 90 Atl. 1132; Chew v. Chew (1920) 266 Pa. 526, 109 Atl. 799; Forscht's Estate (1892) 2 Pa. Dist. R. 294; Taylor's Estate (1919) 28 Pa. Dist. R. 778.

Where in a will words of gift are used which by themselves are sufficient to give the legatee, devisee, or donee the whole property in the subject-matter of the gift, then the interest of that devisee or legatee will not be cut down to a trust estate or to a life estate with a trust for disposal after the determination of the life, by the mere expression of a desire. Re Conolly [1910] 1 Ch. (Eng.) 219.

When words of request or desire follow an absolute gift, and the benefit contemplated in favor of another is to be accomplished not by the direct "request" or "desire" of the testator taking effect at the expiration of a prior limitation, but through the agency of the original legatee invoked by the testator's request, the person or class in whose favor it is invoked cannot

wish as to the disposal of the property will not be construed as a limitation upon the estate or interest given.74 As it is sometimes put, precatory words cannot cut down or diminish an estate given absolutely in the foregoing portion of the will.75

Some courts have gone so far as to hold that there is such a repugnancy between a gift in absolute terms and subsequent expressions of desire as to what should be done with it, as to prevent the latter from operating to create a trust.76 But since a trust assert the existence of a trust which can be enforced by decree. Whelen's Estate (1896) 175 Pa. 23, 34 Atl. 329, affirming (1895) 16 Pa. Co. Ct. 523, 4 Pa. Dist. R. 478, 36 W. N. C. 575.

Precatory words as to the treatment of their children do not affect a bequest to testator's wife "absolutely, to sell and convey and to do with as she may think proper, the whole to be at her free and absolute disposal." Craig v. Reilly (1900) 13 Pa. Super. Ct. 536.

76 Thus, in Mitchell V. Mitchell (1895) 143 Ind. 113, 42 N. E. 465, it is said that the precatory words should not only be of such a character as to indicate that the testator intended a trust to be created, but they must also be consistent with the other provisions of the will, that is, they must not be repugnant to positive provisions by which the same property is devised or bequeathed absolutely or without limitation.

And in Taylor v. Brown (1895) 88 Me. 56, 33 Atl. 664, it is said that however strong the language of recommendation or request may be, a trust will not be implied where such a construction of the words will be repugnant to or inconsistent with other parts of the same will, às by cutting down an absolute estate first clearly given, to an estate for life.

In Herskovitz's Estate (1923) 81 Pa. Super. Ct. 379, it is said that where the testator has disposed of his entire personal estate absolutely, a subsequent expression of desire as to what should be done with it is without mandatory force.

When to impose a trust would be to nullify previous expressions in the will, and to create a repugnancy between its different parts, then the rules of construction forbid the intent. Clay v. Wood (1897) 153 N. Y. 134, 142,

may be created by a bequest or devise to one of an absolute interest or fee simple, "in trust for" the purpose stated, there is in fact no repugnancy between an absolute gift and precatory words from which a trust may be implied, unless it clearly appears that the donee is to take the whole property beneficially. It has accordingly been held that a trust may attach to property devised to one absolutely, with expressions of desire or 47 N. E. 274; Pierce v. Pierce (1915) 114 Me. 311, 96 Atl. 143.

77 Thus, in Bohon v. Barrett (1881) 79 Ky. 378, it was said that an absolute gift does not contravene either an express or implied trust annexed to the gift, nor does the fact that an absolute devise precedes the location of the trust words in the will throw any light upon their construction, as it is a common thing to invest the legal title and trusteeship in the same person, who is to receive the benefit in the event of the failure of the trust.

In McMurry v. Stanley (1887) 69 Tex. 227, 6 S. W. 412, it is said: "There are cases which hold that a trust cannot be supported when the gift to the first taker is absolute in terms, so as to give to him power to dispose of the property, even if there be words following them by which the gift, in terms absolute, is given, which show the will of the testator that the first taker shall make a given disposition of what may remain of the property at the time of his death; and so, upon the ground that the subject of the supposed trust is uncertain. This rule is also asserted by text-writers. Such a rule, it seems to us, must be deemed but a rule of construction, founded upon a presumed intent as to one thing, arising from an expressed intention as to another, rather than as a rule of law inflexible in its application, which, as the rule before referred to, must yield to the clearly expressed intention of the testator. From the facts necessary to the invocation of such a rule, the inference may be drawn, in the absence of language showing a contrary intent, that the testator did not intend to create a trust, for the reason that he gives the trustee power to defeat it; but it cannot be said that such a provision in a will renders uncertain the subject to which the trust is intended to attach."

recommendation, provided the intention of the testator so to charge it appears in the will." And still other cases state what appears to be the correct rule, which is, that where property is given absolutely, a trust is not to be lightly imposed, the fact that the gift is in terms importing an absolute interest being a strong indication that subsequent words of request or wish are not obligatory, but are mere expressions of desire.78

The fact that apt words are used to convey a full title is consistent with the view that the conveyance is in trust for the object subsequently indicated. Swarthout V. Swarthout (1901) 111 Wis. 102, 86 N. W. 558.

If the precatory words relate to the whole of the property devised, the words indicating the ultimate disposition which the testator desires the beneficiary to make will charge the property with a trust in favor of the persons named, notwithstanding the gift is in fee. Williams v. Worthington (1878) 49 Md. 572, 33 Am. Rep. 286 (obiter).

Although the language of a will may make an absolute gift, yet, if other appropriate expressions be used which show with sufficient certainty that but a qualified gift was intended, a court of equity will look to the clear intention of the testator, and raise a constructive trust when none has been expressly declared. Lucas v. Lockhart (1848) 10 Smedes & M. (Miss.) 466, 48 Am. Dec. 766.

See also, as holding that the fact that the property is devised absolutely or in fee is not conclusive of an intention not to create a trust by precatory words. Noe v. Kern (1887) 93 Mo. 367, 3 Am. St. Rep. 544, 6 S. W. 239; Murphy v. Carlin (1892) 113 Mo. 112, 35 Am. St. Rep. 699, 20 S. W. 786; Seefried v. Clarke (1912) 113 Va. 365, 74 S. E. 204; Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155; Gray v. Gray (1860) 11 Ir. Ch. Rep. 218; Re Clark (1919) 17 Ont. Week. N. 88.

78 Russell v. United States Trust Co. (1904; C. C.) 127 Fed. 445, affirmed in (1905) 69 C. C. A. 410, 136 Fed. 758; Hess v. Singler (1873) 114 Mass. 56; Dexter v. Young (1920) 234 Mass. 588, 125 N. E. 862; Clay v. Wood (1897) 153 N. Y. 134, 47 N. E. 274, affirming (1895) 91 Hun, 407, 36 N. Y. Supp.

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p. Uncertainty as to subject-matter or object.

It is just as essential to the crea

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

It is difficult to raise a trust upon words of recommendation when the property is vested in words absolutely and beneficially in the devisee. Gilbert v. Chapin (1848) 19 Conn. 342. A trust is not created where a clear direction or choice is given to act or not to act, especially where the prior dispositions import an absolute or uncontrolled ownership. 'Harvey v. Griggs (1920) 12 Del. Ch. 232, 111 Atl. 437.

Wherever the prior disposition of the property imports absolute and uncontrolled ownership, and also wherever a clear discretion and choice to act or not to act are given, equity will not construe a trust from the language employed. Haight v. Royce (1916) 274 III. 162, 113 N. E. 71.

Precatory words which follow an absolute devise are usually treated as expressions of wish, rather than of will, so that no trust is created. Gross V. Smart (1920) 189 Ky. 338, 224 S. W. 871.

Precatory words in a will'should not be accorded such force and meaning as will deprive the donee of his beneficial use and full right of disposal of a gift otherwise absolute, unless the court can gather from the rest of the will and the attending circumstances an intention of the testator which is reconcilable with the idea of a trust imposed upon the legal estate devised. Pierce v. Pierce (1915) 114 Me. 311, 96 Atl. 143.

Where the gift to the donee is in language importing an absolute interest, such interest cannot be lessened or cut down by the precatory words, unless the intention of the testator to create a trust is clear, plain, and unequivocal. Re McVeigh (1914) 181 Mo. App. 566, 164 S. W. 673.

A devise absolute in terms will not be impressed with a trust by reason of words of "request" or "desire" con

tion of a valid precatory trust that there should be certainty of objects and certainty of subject-matter as it is that the words in which the intention is expressed should be imperative. 80

Uncertainty or vagueness as to the objects of the expressed wish or request, or as to the subject-matter upon which it is to operate, has therefore tained in a subsequent and independent clause, in the absence of a clear indication of an intent not to use them in their usual and commonly accepted sense. Springs v. Springs (1921) 182 N. C. 484, 109 S. E. 839.

Where a testator makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not, in general, convert the devisee or legatee into a trustee, unless indeed it appears affirmatively that they were intended to be imperative. Burt v. Herron (1870) 66 Pa. 400.

If the entire interest in the subject of the gift is given to the legatee, with superadded words expressing the motive of the gift, or the confident expectation that the subject will be applied by the legatee for the benefit of particular persons, but without in terms cutting down the interest before given, it will not be held, without more, that a trust has been thereby created. Morrin v. Morrin (1886) Ir. L. R. 19 Eq. 37; Bank of Montreal v. Bower (1889) 18 Ont. Rep. 226.

An absolute gift is not to be cut down to a mere trust unless it is clearly shown to be testator's intention. Re Clark (1919) 17 Ont. Week. N. 88.

79 Field v. New York (1886) 38 Hun (N. Y.) 590, affirmed in (1887) 105 N. Y. 623.

80 McDuffie v. Montgomery (1904; C. C.) 128 Fed. 105; Angus v. Noble (1900) 73 Conn. 56, 46 Atl. 278 (where testatrix requested that flowers be put upon her grave once in a while); Bryan v. Milby (1891) 6 Del. Ch. 208, 13 L.R.A. 563, 24 Atl. 333; Lines v. Darden (1853) 5 Fla. 51; Coulson v. Alpaugh (186) 163 Ill. 298, 45 N. E. 216; Williams v. Worthington (1878) 49 Md. 572, 33 Am. Rep. 286.

There is not sufficient certainty of subject-matter where the subject of the trust is so much of a bequest as shall remain undisposed of or unspent at the time of the legatee's decease.

been taken as indicative of an intention merely to suggest a course of

Mills v. Newberry (1885) 112 Ill. 123, 54 Am. Rep. 213, 1 N. E. 156.

There is no sufficient certainty of subject-matter when the beneficiary is requested to make a certain disposition of "what remains." Coulson v. Alpaugh (Ill.) supra.

There is no such certainty as to subject-matter as to create an enforceable trust in a will by which the testatrix, after devising all her estate to one of two sisters, directed her to give to the other sister "any present

that she may need and that my estate can afford." Webster v. Wathen (1895) 97 Ky. 318, 30 S. W. 663.

But a request to a beneficiary to make such gift and provision for others as, in the judgment of such beneficiary, will be best, is not incapable of execution by reason of the uncertainty as to the form and extent of the provision intended. Colton v. Colton (1887) 127 U. S. 300, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164.

81 Arkansas.-Wooldridge v. Gilman (1926) 170 Ark. 163, 279 S. W. 20.

Connecticut. Gilbert v. Chapin (1848) 19 Conn. 342; Seymour v. Sanford (1913) 86 Conn. 516, 87 Atl. 7. District of Columbia. General Clergy Relief Fund v. Sharpe (1915) 43 App. D. C. 126.

Maryland.-Pratt v. Sheppard & E. P. Hospital (1888) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641; Williams v. Baptist Church (1901) 92 Md. 497, 54 L.R.A. 427, 48 Atl. 930. Michigan. Gilchrist v. Corliss (1908) 155 Mich. 126, 130 Am. St. Rep. 568, 118 N. W. 938.

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conduct to the donee, rather than to impose an obligation.81

Atk. 469, 26 Eng. Reprint, 299; Wynne v. Hawkins (1782) 1 Bro. Ch. 179, 28 Eng. Reprint, 1068; Bardswell v. Bardswell (1838) 9 Sim. 319, 59 Eng. Reprint, 381; Knight v. Knight (1840) 3 Beav. 148, 49 Eng. Reprint, 58; Briggs v. Penny (1851) 3 Macn. & G. 546, 42 Eng. Reprint, 371; Russell v. Jackson (1852) 10 Hare, 204, 68 Eng. Reprint, 900; Green v. Marsden (1853) 1 Drew. 346, 61 Eng. Reprint, 598; Macnab v. Whitbread (1853) 17 Beav. 299, 51 Eng. Reprint, 1049; Palmer v. Simmonds (1854) 2 Drew. 221, 61 Eng. Reprint, 704; Bernard v. Minshull (1859) 1 Johns. V. C. 276, 70 Eng. Reprint, 427; Re Crockford (1869) 17 Week. Rep. 1004; Reeves v. Baker (1854) 18 Beav. 372, 52 Eng. Reprint, 147; Mussoorie Bank v. Raynor (1882) L. R. 7 App..Cas. 321.

In determining whether precatory words in a will create a trust, the courts give great weight to the fact that the person or object to which the precatory words apply is clearly pointed out, and the quantum of the estate to be given to such person or object is also clearly defined. Laws v. Christmas (1919) 178 N. C. 359, 100 S. E. 587; Knox v. Knox (1884) 59 Wis. 172, 48 Am. Rep. 487, 18 N. W. 155.

In Phillips v. Phillips (1889) 112 N. Y. 197, 8 Am. St. Rep. 737, 19 N. E. 411, it is said that as a general rule the cases turn upon one important and vital inquiry, and that is whether the alleged bequest is so definite as to amount and subject-matter as to be capable of execution by the court, or whether it so depends upon the discretion of the general devisee as to be incapable of execution without superseding that discretion.

In Bernard v. Minshull (1859) 1 Johns. V. C. 276, 70 Eng. Reprint, 427, it is said that what is meant by the rule that, in order to create a trust by the use of precatory words, there must be a certain object, is this: In ascertaining whether the precatory words import merely a recommendation on the part of the testator of that which he thinks will be a reasonable exercise of discretion on the part of the donee, leaving it, however, to the donee to exercise his own discretion, or whether they import definite imperative direction to him as to his mode of dealing with the property, the

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