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and personal property, "feeling confident that she will act justly to our children in dividing the same when no longer required by her." Mussoorie Bank v. Raynor (1882) L. R. 7 App. Cas. (Eng.) 321.

An absolute interest is given to the widow by a will in which testator gave all his property to his wife "absolutely, with full power for her to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so." Re Hutchinson (1878) L. R. 8 Ch. Div. (Eng.) 540.

No trust is created by a will in which testator gave all his real and personal estate "unto and to the absolute use of my wife, Harriet Smith, her heirs, executors, administrators, and assigns, in full confidence that she will do what is right as to the disposal thereof between my children, either in her lifetime or by will after her decease." Re Adams (1884) L. R. 27 Ch. Div. (Eng.) 394.

No trust is imposed by a will in which testator gave, subject to a specific bequest of his books and instruments, the residue of his estate to his wife, "her heirs, executors, administrators, and assigns, absolutely, in the fullest confidence that she will carry out my wishes in the following particulars, namely, that she pays the premiums due and to become due during her life in respect of a policy for £1,000 on her own life . . . and that she by her will leaves the moneys to become due and payable under such policy and also the moneys to become payable at my death in respect of a certain policy on my life for £300

to my daughter Lucy, and, in case she survives my said wife, in trust for her sole and separate use." Re Williams [1897] 2 Ch. (Eng.) 12.

No trust is created by a will in which testator gave his wife the whole of his property "absolutely, in full confidence that she will make such use of it as I should have made myself, and that at her death she will devise it to such one or more of my nieces as she may think fit; and, in default of any disposition by her thereof by her will or testament, I hereby direct that

all my estate and property acquired by her under this my will shall at her death be equally divided among the surviving said nieces;" it being the testator's evident intention to give the widow absolute dominion over the property. Re Hanbury [1904] 1 Ch. (Eng.) 415.

No trust is imposed by a will in which testator devised certain property to his wife "for her own absolute use, but in perfect confidence that she will, by her will or otherwise, dispose of the same upon her death in favor of my nephew." Re Lovett (1912) 132 L. T. Jo. (Eng.) 297.

No precatory trust for the benefit of testator's children is created by a will devising property to his wife, "well knowing her sense of justice and love to her family, and feel perfect confidence that she will manage the same to the best advantage for the benefit of her children." Greene v. Greene (1869) Ir. Rep. 3 Eq. 90.

No trust is created by a bequest to one of property "to be disposed of by him as to him may appear just, having every confidence he will act fairly and in accordance with my wishes." Creagh v. Murphy (1873) Ir. Rep. 7 Eq. 182.

m. "Desire," or "desiring."

See also "Expect and desire;" "Will and desire;" "Wish and desire."

According to the ordinary use of the English language, the word "desire" does not import a trust or charge. Re Marti (1901) 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071.

In Re Oldfield [1904] 1 Ch. (Eng.) 549, it was said by Kekewich, J., that in common parlance a desire carries no obligation except a moral one, and that to desire a person to do a thing is entirely different from telling him to do it.

While the desire of a testator for the disposition of his estate will be construed as a command when addressed to his executor, it will not, when addressed to his legatee, be construed as a limitation of the estate or interest which he has given to him in absolute terms. Re Marti (Cal.) su



No trust is created by the following testamentary provision: "I desire that [my two said brothers] shall have the care, custody, and control of my said children, and provide for, educate and maintain them until they arrive at the age of twenty-one years and longer if necessary, that they make to them the same advancements as they make to their own children. . . . No request, direction, or bequest made herein shall be so construed as to create a charge or encumbrance upon any of the property bequeathed to my brothers." Burnes v. Burnes (1905) 70 C. C. A. 369, 137 Fed. 781, petition for writ of certiorari denied in (1905) 199 U. S. 605, 50 L. ed. 330, 26 Sup. Ct. Rep. 746.

No trust is created by the following provision: "I will and bequeath to my wife, Hanchi Strauss, all my property, real, personal and mixed of which I may die seised and possessed, with the right to sell and convey the two lots on Pullen street and one lot on Scull street for the purpose of supporting the family, and I desire that my said wife do not marry again but live single with the children of my family and take care of them;" the phrase "take care of them" being held to refer not to property, but to personal care and attention, and the words "for the purpose of supporting the family" to refer to and limit the clause giving the right to sell the lots. Bloom v. Strauss (1904) 73 Ark. 56, 84 S. W. 511.

No precatory trust is created by a will by which testator gave his widow the residue of his estate, with the further provision, "Upon the death of my wife, I desire that one half of the property bequeathed to her shall be divided by her to my relatives," the word "desire" not being apt to import a trust or charge, and the precatory words standing in a paragraph separate from that by which the property was given to the wife. Re Marti (Cal.) supra.

According to the ordinary use of the English language, the word "desire" of "request" does not import a trust or charge. Kauffman v. Gries (1903) 141 Cal. 295, 74 Pac. 846.

No precatory trust is created by a residuary bequest to a son of the testa

tor, accompanied by the words "save and except I desire that he pay out of said property to Miss Cora McGarvey the sum of $200 and to Miss Edith Johns the sum of $200." Re Browne (1917) 175 Cal. 361, 165 Pac. 960.

The ordinary use of the word "desire" does not import a trust or charge as addressed to a legatee or devisee, such expression falling short of a command or direction. Re Sowash (1923) 62 Cal. App. 512, 217 Pac. 123.

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No trust is created by the provision, "It is my desire, also, that my wife, with the interest she will receive on the moneys invested in registered government bonds, will provide and keep a good and comfortable home for my two sons and herself, and that she will use every endeavor to give them a good education," where he also confided to her the discretion to divide and apportion to them from time to time as she might see fit the property "herein bequeathed to her." Van Gorder v. Smith (1885) 99 Ind. 404.

No precatory trust is created by a provision following an absolute devise: "It is my desire that the business be so conducted that all of our children or their heirs shall finally share equally in the distribution of our property. I would advise that the said Nancy Adamson shall at some suitable time call to her counsel two or three good discreet men to assist her in making a proper and equitable division of the real estate as well as other property that she may think proper among all the children aforesaid, retaining, however, if she choose so to do, the title and possession of said property to herself until after her death. Nothing in the above shall be construed to affect a perfect and indefeasible title to her, the said Nancy Adamson, which this will conveys to her, to all the said property, both real and personal, with a right to control, sell, and convey the same at her pleasure." Lumpkin v. Rodgers (1900) 155 Ind. 285.

The absolute title created by a gift of personal property to testator's wife, "without any condition whatever to have, hold, and enjoy and dispose of as she sees fit during her

lifetime," is not affected by the provision: "At the death of my wife, I desire that the residue, if any, be converted into cash and divided as follows." Nichols v. Alexander (1926) Ind. App., 152 N. E. 863.

No trust in favor of testator's children is created by a devise to his wife of his farm and the residue of his property during her lifetime and widowhood, accompanied by the words, "which I desire she shall manage and control for the benefit of herself and mine and her children; and, at her death or the termination of her widowhood, it is my desire that said property may be equally divided among my children." Major v. Herndon (1879) 78 Ky. 123.

No trust is created by a will in which the testator expressed his "greatest desire" to be that his executor would see that his two brothers were well taken care of as long as they might live, "that they may lack for nothing that will render them comfortable and happy in this life," but without making any other provision for them, and devised to his executor a saddle horse and saddle and his private papers, and to his relatives the remainder of his estate, the property to which the trust must attach being indefinite and uncertain, and the prior disposition of it showing that the testator intended the devisees to take it free of any burden. Hazelwood v. Webster (1885) 7 Ky. L. Rep. 164.

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No trust, but simply a desire or request addressed to the conscience of the devisee, is created by the following provision: "I give and bequeath to my wife the further sum of $10,000, which I desire her to use for the benefit for her brothers and sisters according to her best judgment and discretion, which is to be paid after the discharge of the debts; and provided, further, the same shall not exceed the full amount coming to the heirs and children aforesaid of" another legatee. Jacob v. Macon (1868) 20 La. Ann. 162.

Under a provision in a will that at the death of testator's wife, to whom he had given all his property, "I desire that. the balance of what she

will leave on the day of her decease shall be divided equally between my natural heirs and her own," no charge is imposed upon the wife to preserve anything. Dufour v. Deresheid (1903) 110 La. 344, 34 So. 469.

A trust, notwithstanding the indefiniteness of the object, was held to be created by the following provision: "I give and bequeath and devise unto 'the Reverend H. G. Bowers . . . all the rest and residue of my estate, and desire him to use and appropriate the same for such religious and charitable purposes and objects, and in such sums and in such manner as will in his judgment best promote the cause of Christ." Maught v. Getzendanner (1886) 65 Md. 527, 57 Am. Rep. 352, 5 Atl. 471.

A trust was held, in view of the fact that testator used the word "desire" in other parts of the will in a mandatory sense, to be created by a will in which testator devised a share of his residuary estate to his son and the other half to his wife for life, with remainder to his son, adding: “And it is my desire that all the property received from me by my son either directly or otherwise through my said wife, shall pass to my grandson if living at the time of the death of my and should my said grandson not be living at the time of the death of my son . . . and should be survived by his stepmother . then I desire that she shall have the life interest in such portion, and upon her death said property shall vest absolutely in the heirs, personal representatives, and assigns of" the grandson. Grieves v. Grieves (1918) 132 Md. 300, 103 Atl. 572.


A trust in the profits of the estate for the support and education of the testator's children is created by a will by which testator provided, that, during his wife's widowhood, she "is to have the entire use, profits, and control of my estate, and to her discretion do I intrust the education and maintenance of my children during that time; but, in case of her death or marriage before the time appointed for a division as aforesaid, then it is my desire that my children be all supported, and

that the girls under sixteen and the boys under eighteen be as well educated out of the annual profits of my estate as they will allow up to the time of division." Lucas V. Lockhart (1848) 10 Smedes & M. (Miss.) 466, 48 Am. Dec. 766.

A clause, after a bequest to a woman absolutely, "I desire that said Maria Rachel Mason and her daughter Edith Hyder Mason have the exclusive benefit of the above-bequeathed estate, free from any control of Robert B. Mason," -was held not to have been intended to give the daughter any interest in the land. Balliett v. Veal (1897) 140 Mo. 187, 41 S. W. 736.

The word "desire," in the clause, "I desire that at such time as may be agreeable and mutually consented to by my wife and my son Charles, the homestead be sold and one purchased in lieu thereof by them," was held not to be used in a precatory sense, where it was not used in such sense in other parts of the will. Stewart v. Stewart (1900) 61 N. J. Eq. 25, 47 Atl. 633.

Where the donee of property is "desired" or "requested" by the testator to dispose of that property in favor of others, those words are imperative, and their use will create a trust. Riker v. Leo (1889) 115 N. Y. 93, 21 N. E. 719.

An intention to make a gift, rather than to request the testatrix's son to do so, is manifested by a will in which testatrix gave all of her estate to her son, adding: "But out of this inheritance he is desired by his mother to pay as soon after as possible that it comes into his ownership five hundred dollars ($500) to her grandniece, recognizing in this form the kindness bestowed upon your mother in her youth by her brother, the grandfather of said" grandniece. Re Copeland (1902) 38 Misc. 402, 77 N. Y. Supp. 931.

No trust in favor of testator's children is created by a will in which he gave to his wife, "for her industry and good management of our domestic affairs," all his property, adding: "And I desire that my said wife at my decease shall take my place and shall have the right to sell and dispose of

all or any of my real or personal estate as she may deem proper and for the best interest of our children; and, lastly, if anything is left, it is my desire that she shall divide the same between our children as she in her good judgment may consider just and fair." Bennett v. McLaughlin (1908) 57 Misc. 507, 103 N. Y. Supp. 256, affirmed in (1908) 125 App. Div. 172, 109 N. Y. Supp. 63.

Nothing less than an absolute interest is given to the testator's wife by a will in which he gave her the residue of his estate, "with the express wish and desire that she use and enjoy only the income thereof, and that she do not dispose by will of any portion of the principal thereof to anyone except my said daughter, it being my desire that the unexpended balance of the principal of the above devise and bequest shall become the property of my daughter upon the death of my said wife." Re Crawford (1917) 99 Misc. 416, 163 N. Y. Supp. 1107.

No trust is created by a will by which testator gave his residuary estate to two persons and the survivor of them, adding: "I desire them to distribute my said residuary estate among such religious, charitable, and educational corporations as they may designate." Sands v. Waldo (1917) 100 Misc. 288, 165 N. Y. Supp. 654.

No trust is created by a will in which testator gave his residuary estate to his wife, "to use and dispose of as she may see fit," adding: “And it is my desire that, if any of my property should remain undisposed of by said wife at the time of her death, I direct that the same be disposed of as follows," among the relatives of his wife and himself. Re Russ (1923) 121 Misc. 498, 201 N. Y. Supp. 542.

No trust is created by a will by which testatrix gave all her property to her son, adding: "I desire that my son shall observe the following requests: To remember Frank P. Wolfe for his kindness to us with a small sum, and when wanting advice to go to him; that he remember [certain persons named]; that if my son dies without children, then I desire that the property which came to me on the

Griswold side, if any is left, be given to [a person named], and that the property which came to me on the Durand side to be given to [a person named]. I desire my son to do as he wishes with the property in his lifetime, and to follow these requests in the disposition of the remainder of those properties." 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. 206.

Nothing more than the expression of a wish is contained in a will by which testator devised to his children a certain tract of land, "with the distinct understanding that the parts or parcels hereinafter allotted to each is not to be sold to anyone by him or them except the right to sell to one of those above named, it being my desire that the said land shall descend to my grandchildren." Brooks v. Griffin (1919) 177 N. C. 7, 97 S. E. 730.

A trust is created by a will which showed that the equal division of the property of his wife and himself among his four children was the matter of chief concern to the testator, along with the ample power given to his wife to enjoy and control the property during her life, such will, after giving his wife all testator's property, "with power to sell and convey or pay debts or use in any way as she may choose," containing the following clause: "I request of her that our children . . shall in all respects share equally in our mutual estate after all their expenses for education shall have been paid. Should

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my wife die at or near the same time as myself, then and in that case I desire that her estate and mine be combined and divided equally among our several children after each is charged with whatever he or she may have received. In case my wife survives me, I desire that she have entire control of my estate, and divide and pay to our children only when and as she may desire." Ide v. Clark (1891) 5 Ohio C. C. 239, 3 Ohio

C. D. 120.

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The word "desire" was held to have been used by the testator in a mandatory sense in a provision by which he

devised to his son a farm and other property "for his support, and, if he should be spared to have family, I desire the above estate to go to use of his children." Oyster v. Knull (1890) 137 Pa. 448, 21 Am. St. Rep. 890, 20 Atl. 624.

In Presbyterian Bd. of Foreign Missions v. Culp (1892) 151 Pa. 467, 25 Atl. 117, testatrix gave her mother her real and personal property, "to be used by her for her own personal benefit," and further provided: "After the decease of my mother, Mary Elder, I desire that my interest in the said above-mentioned farm, together with all interest accruing therefrom, shall be appropriated to foreign missionary work." It was held that it was the intention of the testatrix to give her mother only a life estate, and therefore that the expression of desire as to the disposition of the remainder was of mandatory force.

The husband takes nothing more than a life estate, with power to consume, under a will by which testatrix devised her residuary estate to her husband, his heirs, and assigns, adding: "And should my husband not expend the whole of my estate, then it is my desire at his death to give so much of it as remains to my sister ... and my two brothers." Dickinson's Estate (1904) 209 Pa. 59, 58 Atl. 120.

No trust in favor of testator's adopted children was created by the following provisions: "All the residue of my estate, real and personal, of which I shall die seised and possessed I bequeath absolutely to my beloved wife, . . desiring that she shall use such portion of my estate as may seem best to her in the education and support of my beloved son [name] and of my beloved daughter [name], and in case of her remarriage pay ten thousand ($10,000) dollars to each of them then living." Miller v. Stubbs (1914) 244 Pa. 482, 90 Atl. 1132.

A trust in favor of the daughter of testatrix is created by a will in which testatrix devised her real estate to her husband, adding: "I also desire, should my husband, Jacob R. Croft, wish to dispose of all the remainder

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