But such uncertainty is not conclusive of the testator's intention. However uncertain may be the provisions of the will, if it clearly appears that others than the donee were in

court will be guided by the consideration whether the amount he is requested to give is certain or uncertain, and whether the objects to be selected are certain or uncertain, and if there is a total absence of exclusive direction as to the quantum to be given or as to the objects to be selected by the donee of the property, then the court will infer from the circumstance of the testator having used precatory wordsexpressive only of hope, desire, or request-instead of the formal words usual for the creation of a trust, that those words are used not for the purpose of creating an imperative trust, but simply as suggestions on the part of the testator for the guidance of the donee in the distribution of the property; the testator placing implicit reliance upon his discretion, and leaving him the sole judge whether he will adopt those suggestions or not, and whether he will dispose of the property in the manner indicated by the testator or in any other manner at his absolute discretion.

In Mussoorie Bank v. Raynor (Eng.) supra, it is said that, if there is uncertainty as to the amount or nature of the property that is given over, two difficulties at once arise. There is not only difficulty in the execution of the trust, because the court does not know upon what property to lay its hands, but the uncertainty in the subject of the gift has a reflex action upon the previous words, and throws doubt upon the intention of the testator, and seems to show that he could not possibly have intended words of confidence, hope, or whatever they may be, to be imperative.

82 In Loomis Institute v. Healy (1922) 98 Conn. 102, 119 Atl. 31, it is said that there is a well-recognized distinction between an uncertainty where the intent to establish a trust is clear, but the provisions are so indefinite as to render the trust void for uncertainty, and the uncertainty which simply indicates the want of intention to create a trust.

In Maught v. Getzendanner (1886) 65 Md. 527, 57 Am. Rep. 352, 5 Atl. 471, it is said that the doctrine that no trust arises by force of any precatory

tended to have the benefit of the gift, the donee will be excluded, even though, because of such uncertainty, no valid precatory trust is created.82 On this point it has been said: words, unless there is certainty in the object as well as in the subject, receives support from statements contained in some of the textbooks, and is apparently sustained by some of the decisions, but that it has not been laid down as an inflexible rule applicable to all cases and wholly irrespective of the intention of the testator or donor to create a trust.

It was said by Lord Chancellor Truro in the case of Briggs v. Penny (1851) 3 Macn. & G. 546, 42 Eng. Reprint, 371: "I conceive the rule of construction to be that words accompanying a gift or bequest expressive of confidence or belief, or desire or hope, that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions: First, that they are so used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not; secondly, the subject must be certain; and thirdly, the objects expressed must not be too vague or indefinite to be enforced." With reference to this third condition, he says: "It is most important to observe that vagueness in the object will unquestionably furnish reason for holding that no trust was intended, yet this may be countervailed by other considerations which show that a trust was intended, while at the same time such trust is not sufficiently certain and definite to be valid and effectual, and it is not necessary to exclude the legatee from a beneficial interest that there should be a valid or effectual trust; it is only necessary that it should clearly appear that a trust was intended. . . . Once establish that a trust was intended, and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the object of that trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded and the next of kin takes."

See also, to the same effect: Pratt v. Sheppard & E. P. Hospital (1888)

"There is a distinction between a trust that is void for uncertainty and an uncertainty that is simply indicative of the absence of an intention to create a trust. In the one case there is no uncertainty as to the intention to create a trust, but merely an uncertainty as to the objects to be benefited or the subject to be affected; in the other case there is simply an uncertainty as to whether any trust was intended to be created at all. If it be uncertain as to whether there was an intention to create a trust, it is obviously not the province of the courts to ingraft a trust upon the gift; but if it be apparent from the whole will that a trust was intended to be established, then the uncertainty as to the objects or the subject of that trust will not indicate that there was no intention to raise a trust, but the uncertainty will avoid the trust attempted to be founded. Where the expressions have been held too vague to show an intention to create a trust, the devisee or legatee retains the property for his own use; but where the intention to create a trust is sufficiently expressed and yet the objects or the subjects of it are uncertain, the gift fails, and the heir or next of kin is let into the beneficial ownership."83

It does not follow, however, that certainty is conclusive of an intention to create a trust. In Williams v. Williams (1851) 1 Sim. N. S. 358, 61 Eng. Reprint, 139, it was said by Lord Cranworth: "The point really to be decided in all these cases is whether, looking at the whole context of the will, the testator has meant to impose an obligation on his legatee to carry his express wishes into effect, or whether, having expressed his wishes, he has meant to leave it to the legatee to act on them or not in his discretion. In some of the cases it has been said that the points to be inquired into are: First, whether the subject-matter to which the precatory words apply is clear; and, secondly, whether the favored objects are distinctly ascer

88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641; Gilchrist v. Corliss (1908) 155 Mich. 126, 130 Am. St. Rep. 568, 118 N. W. 938; Bernard v. Minshull (1859)

tained; and when these two requisites concur, that is, when there is no doubt as to the property to which or the persons to whom the precatory words refer, there it would seem to have been sometimes assumed that such words are as obligatory as words creating an express trust. I confess that this reasoning has never carried conviction to my mind. I doubt if there can exist any formula for bringing to a direct test the question whether words of request or hope or recommendation are or are not to be construed as obligatory. It may be very safe in general to say that when there is uncertainty as to the subject-matter or as to the objects in whose favor the request or hope or recommendation is expressed, there precatory words cannot have been intended to be absolutely binding. But the converse of the proposition is by no means equally true. The subject-matter of the bequest and the objects of the testator's bounty may be perfectly ascertained; and yet the context may show that words of hope or request or recommendation were not intended to interfere with the absolute discretion of the legatee."

IV. Review of the decisions, arranged according to the precatory expression employed.

a. Prefatory statement.

While it is true that some forms of expression lend themselves to a construction giving them more mandatory force than do others, it is to be borne in mind that the form of words used has very little to do with the question whether precatory words operate to create a trust, and that their effect is largely controlled by the context and the circumstances surrounding the testator.

The arrangement of the decisions with reference to the form of expression used is, therefore, merely one of convenience, and has no other significance.

1 Johns. V. C. 276, 70 Eng. Reprint, 427.

83 Pratt v. Sheppard & E. P. Hospital (Md.) supra.

b. "Advise."

A trust is created where testator appointed one "sole executor of this my will, and after my death do advise him to settle it upon himself and his issue male." Parker v. Bolton (1836) 5 L. J. Ch. N. S. (Eng.) 98.

c. "Allow."

A trust in favor of testator's widow is created by a will by which he devised his plantation to his son Henry with the declaration, "and I also allow my son Henry to give her a support off the plantation during her lifetime." Hunter v. Stembridge (1852) 12 Ga. 192.

d. "Ask."

A letter written to testator's wife, to whom he had given his residuary estate absolutely and in fee simple, in which he said: "All I ask when you go, you will not leave all to yours; but that you will share some of it with Ellen," was held, even if regarded as part of the will, not to be so mandatory as to create a trust. Thruston v. Prather (1903) 25 Ky. L. Rep. 1137, 77 S. W. 354.

e. "Assume."

No trust is created by a will by which testator gave to his two younger sons all his estate in fee simple, with the words: "In making this disposition of my property I assume: First, that if my dear wife shall survive me (which does not seem probable) my said sons will take pleasure in providing for all her wants; second, that my eldest son, John B. Treat,. will understand and appreciate my reasons for giving whatever property I may have at my decease to his younger brothers; and, third, that they on their part will not fail to do for him and his family all that in the circumstances the truest fraternal regard may require them to do." Rose v. Porter (1886) 141 Mass. 309, 5 N. E. 641.

f. "Beg."

A trust is created by a bequest of certain property to testator's sister, with the words: "And I beg she will apportion between the above-named [persons]; and as my nephew John

Corbet has a less secure position in life than his brothers, to him such portion or portions as she shall see fit. I would also wish that she should have power to give some small amounts for charity, especially to Daniel Laffin's family, etc. These are my desires on these matters, should death overtake me on the journey." Corbet v. Corbet (1873) Ir. Rep. 7 Eq. 456.

g. "Beg and request."

No trust is created by a will by which testator gave his wife certain real estate to and for her sole use and benefit, adding: "And I beg and request that at her death she will give and bequeath the same in such shares as she shall think proper unto such members of her own family as she shall think most deserving of the same." He then bequeathed to her his money in the funds for her sole and separate use and benefit, adding: "And I beg and request that at her death she will give and bequeath what shall be remaining in such sums as she shall think proper unto such members of her own and my family that she shall think most deserving and entitled to the same;" and thereafter made a codicil by which he bequeathed in terms his residue to his wife. Green v. Marsden (1853) 1 Drew. 646, 61 Eng. Reprint, 598.

h. "Being well assured."

No trust for the testator's children is created by a gift of a share of his property to his wife, "being well assured that she will husband the means that may be left to her by me with every prudence and care, for the sake of herself and any children that I may leave by her." Scott v. Key (1865) 35 Beav. 291, 55 Eng. Reprint, 907.

i. "Belief," "believe," and "believing.” See also "Desire and believe;" "Hoping and believing;" "Trusting and believing."

No trust is imposed by a will in which testator provided that, in case a preceding gift of his residuary estate for a charitable purpose should fail to take effect, such residuary estate should go to certain persons and

the survivor of them, absolutely and in fee, adding: “And this devise and bequest is in the confident belief that they will apply my estate and property so vesting in them in accordance with my wishes, but it is intended to be unconditional and free from any legal trust or obligation qualifying their absolute title." Re Havens (1888) 6 Dem. 456, 2 N. Y. Supp. 639.

A trust in favor of testator's chil- dren is created by a devise to one "in the full belief that she will so dispose thereof by deed, will, or otherwise that at her decease the whole may be equally divided between" such children. Fordham v. Speight (1875) 23 Week. Rep. (Eng.) 782.

No intention to create a trust is manifested by a will in which testator gave his wife all his estate, stating: "I desire that my wife shall take, hold, and own, just as now I hold and own or shall hold and own at the day of my death; I declare her interest in my estate, real and personal, shall be as absolute as my own, and not be considered or taken as a trust, technically so called, to be enforced by the judgment or decree of any court other than her own conscience, judgment, and affection shall prompt her to so regard it. In thus bestowing on my dear wife, Florence, all that I am worth, I wish my children to understand that in so doing I act upon the best convictions of my judgment and from knowledge of their mother's affection, love, and interest in the welfare, comfort, and happiness of each and all of our children, and in the belief that thereby I best protect and control them, and that she will from time to time as her judgment, sense of justice, and duty shall, in her own will, direct, and as the necessities and wants of our children shall require, make to them such advancements in cash or property as she shall think best and proper.

Should my wife marry again, then it is my will that my wife and children shall select three disinterested friends . . . who shall make an equal and just division of my property between her and all of our children or their legal representatives, as if made under the Stat

ute of Distributions in this state; and, in the event of her death as my widow, she may direct by writing the selection of three intelligent and disinterested friends . . . who shall make such equal and just division of all my property or estate remaining in her hands, bringing into view and account all previous advancements." Fellowes v. Durfey (1913) 163 N. C. 305, 79 S. E. 621.

A binding obligation was held to be imposed by a will by which testator directed the formation of a corporation, to be known as the "E. Henry Wemme Endowment Fund," for the purpose of holding and managing certain real property, and for the purpose of conducting a maternity home for unfortunate or wayward girls, and directed that all the capital stock of said endowment fund be transferred to certain Christian Science churches, "to be theirs forever for their own respective uses and benefit, without any charge or trust reserved to my estate of whatsoever kind or nature," adding: "I hope-however, this is not directory, but merely a suggestion— that the maternity home constructed as herein before provided shall be continued by said corporation, E. Henry Wemme Endowment Fund, perpetually and forever, but I do not make this binding upon said Church of Christ Science, or upon said E. Henry Wemme Endowment Fund, a corporation, for the reason that I have implicit faith and confidence in the Church of Christ Science, and believe that they will be perpetual, and I realize the inability of one now living to determine what in the future might be the greatest need and benefit to suffering humanity, and therefore I have given absolutely and without reservation all of the stock of said corporation of said E. Henry Wemine Endowment Fund, to said Church of Christ Science, believing that they will expend the rents, issues, and profits and all the proceeds of the said E. Henry Wemme Endowment Fund in a manner so as to create the greatest relief for the greatest number of suffering humanity." Wemme v. First Church of Christ (1924) 110 Or. 179, 219 Pac.

618, mandate denied in (1924) 110 Or. 214, 223 Pac. 250.

No trust is created by a will in which testator gave his residuary estate to his wife, "believing that she will manage it judiciously, and perfectly satisfied that she will make a fair distribution of it among our children at her death." Cheston v. Cheston (1899) 89 Md. 465, 43 Atl. 768.

A wife takes subject to a trust for herself and testator's next of kin under a will by which her husband gave her his residuary estate, adding: "Which said last-named legacy I give my said wife in good faith, believing that she will make a will and thereby distribute so much of the latter named legacy among my near relatives as she may not use for comfortable maintenance, and it is my will that my said wife shall make such distribution." Cox v. Wills (1892) 49 N. J. Eq. 573, 25 Atl. 938, affirming on this point (1891) 49 N. J. Eq. 130, 22 Atl. 794.

No trust in favor of the children is imposed upon the life estate given to testator's wife by a will in which he directed that certain property "shall continue in the possession of my beloved wife. during her life,

believing she will make use of it to the best advantage for the benefit of our children as well as her own comfort." McCreary v. Burns (1882) 17 S. C. 45.

An intention that the widow at her death should distribute the property equitably amongst the children is manifested by a will in which testator gave his wife all his estate, "believing that she will make an equitable distribution of the property at her death among our children, as she knows better than any other person what part they, each of them, have already received." Anderson v. McCullough (1859) 3 Head (Tenn.) 614.

Only precatory effect is to be given to the provision in a will in which testator, in giving his residuary estate to his wife, said: "Believing she will do justice between her relatives and mine at her death." Hill v. Page (1895) — Tenn. —, 36 S. W. 735.

j. "Charge."

No trust is created by a bequest to a certain society, by the words, "which society I charge with the duty of faithfully applying this legacy according to their wisdom and judgment" in furtherance of a certain purpose, which was one of the purposes of the society. Pierce v. Phelps (1902) 75 Conn. 83, 52 Atl. 612.

A trust is created by a will in which testator, having a wife and family and a married daughter by a former marriage, gave his wife all his property "for her natural life, subject to the limitations and charges hereinafter fixed," and, after provisions for his family by his second wife, stated: "Should my daughter Mrs. Mary Patterson become dependent and in need, I charge my wife out of the body of my estate to extend her such aid as the income in justice to herself and the other dependent members of my family enables her to do, but not to exceed the sum of three hundred dollars ($300) per annum." Patterson v. Humphries (1911) 101 Miss. 831, 58 So. 772.

No trust or charge is created by the following provision: "I charge my sons out of the estate respectively coming to them under the terms of the foregoing will to make provision for such of my sisters as shall survive me, during their lives, in the same manner as I have provided for them during my life." Re Kollstede (1923) 120 Misc. 533, 199 N. Y. Supp. 901.

k. "Conjure."

An intention that the testator's wife should take absolutely unencumbered by any trust is evidenced by a will in which testator, after expressing an intention to make a suitable provision for his wife "as well as for my daughter and grandchild respectively," stated: "In order to manifest the deep affection and unbounded confidence I have and entertain toward my dear wife, Elizabeth Bridges, such as I know she will feel for me, and believing that she will be actuated by the most paternal regard towards our child, I hereby intend to mark such confidence accordingly; now, there