absolutely £5,000, but it is my specific wish that the said sum shall be distributed as follows:" A stated sum to a certain school, another sum to another school, and yet another sum "to be given to" ten or more deserving people as therein mentioned. Re Atkinson (1911) 80 L. J. Ch. N. S. (Eng.) 370.

No trust is created by a will in which testator left all his property to his wife, by the statement: "I express the wish that she should leave by her will or transfer during her life as she shall think fit," certain property to testator's son and the remainder to his daughters in such way as his wife should see fit. Re Humphrey [1916] 1 Ir. R. 21.

No trust is created by a will devising property to one "with the wish that he may keep the same free from mortgages as a summer residence for himself and children." Re Bolster (1910) 46 Can. L. J. 663.

No trust is imposed by a will in which testator left all his property to his wife, by the clause, "I also wish if you die soon after me that you will leave all you are possessed of to my people and your people equally divided between them," having regard to the fact that the "wish" covers the wife's own property as well as what he was leaving her. Johnson v. Farney (1913) 29 Ont. L. Rep. 223, 14 D. L. R. 134.

No trust is created by a will in which testator, after providing for his son and devising his farm to his wife, stated that, if it should become impossible from any good cause to work it, it should be sold and the money obtained from such sale should go to her, by the provision: "I wish and do want that my only daughter, Edith Florence, shall inherit from her mother a share equal to that of the boys named above, and the balance to be divided in equal shares between all our children then living." Perry v. Perry (1918) 29 Manitoba L. R. 45, 40 D. L. R. 628, affirming (1917) 29 Manitoba L. R. 23, 37 D. L. R. 89.

hhh. "Wish and desire." See also "Desire and wish."

No trust is created by a will by which testatrix gave all her estate to her husband, "his heirs, and assigns," adding: "But it is my wish and desire that after his decease so much as is left unused by him be divided equally between our adopted son, Roy H. Baker, and Ethel G. Baker." Clark v. Baker (1917) 91 Conn. 663, 101 Atl. 9.

A trust is created by a will by which the testator gave all his property to his nephew, stating: "My house servant, Adeline, and her child, Tolbert, have been good trusty and faithful servants to me. It is my wish and desire that the said Adeline shall not be separated from her child Tolbert.

I wish him to treat them just as he may at all times think I would treat them if I were in life. This confidence I repose in him, with the full assurance that it is not misplaced and that it will not be abused." Cobb v. Battle (1866) 34 Ga. 458.

No trust is imposed by the provisions of a will by which testator, after giving his estate to his sister Mimy and the heirs of her body, and, in case she should die without issue, then, except his slaves, to his nephew, said: "It is my wish and desire, in case my sister Mimy die without issue, that she shall will and devise all my negroes to be free or manumit them in any other way she may think proper; this request I hope she will comply with in time so as to carry my wish into effect." Chase v. Plummer (1861) 17 Md. 165.

No trust is created by a will in which the testator, after giving property absolutely and without restriction, further provided: "I wish my wife and daughters to receive an income from all my real and personal estate during their natural lives after they have got their portions. I wish my wife, when she dies, to give her property and money to my daughters. It is my desire that my property of whatever kind should, after the decease of my wife and daughters, descend to the children of my daughters, respectively, if they are married." Barrett v. Marsh (1879) 126 Mass. 213.

No trust is created by a will in

which testator gave his wife a power of appointment by will, adding: "But it is my wish and desire that if my wife has received from my daughter and her family the affection and respect to which she is entitled, that she then will appoint said share of said trust estate to my daughter and her children in such way and manner and in such proportions as to her may seem best-but in case my said wife shall die without making any appointment of her share of said trust estate, then the same shall be added to the share held in trust for my daughter and her children and be held upon the same trusts." Holmes v. Dalley (1906) 192 Mass. 451, 78 N. E. 513.

The precatory words used were, in view of the relation of the parties, held to create a trust, where a testator, who had given the bulk of his estate to his wife absolutely, further provided: "It is my wish and desire that my wife continue to provide for the care, comfort, and education of Thomas Joseph Murphy, now aged nearly five years, who has been raised as a member of my family since his infancy, and to make suitable provision for him in case of her death, providing that he continue to be a dutiful child to her and shows himself worthy of such consideration." Murphy v. Carlin (1892) 113 Mo. 112, 35 Am. St. Rep. 699, 20 S. W. 786.

A trust in favor of the aged, infirm, and dependent father of the testatrix is inferable from a will by which testatrix gave her residuary estate to her husband, "to have and to hold the same to him and his heirs and assigns forever," adding: "But it is my wish and desire that he shall furnish a home, maintenance, and care to and for my said father during life should he need and require it." Foster v. Willson (1894) 68 N. H. 241, 73 Am. St. Rep. 581, 38 Atl. 1003.

No trust is created by a will by which testator gave all his property to his wife "and her heirs and assigns absolutely," and appointed her sole executrix, and by a separate clause stated: "It is my wish and desire that my said wife shall pay the sum of $300 a year to my sister-in-law." Post

v. Moore (1905) 181 N. Y. 15, 106 Am. St. Rep. 495, 73 N. E. 482, 2 Ann. Cas. 591.

No trust is created by a provision in the will of a wealthy bachelor who had been the support of his mother and sisters, who lived with him, that his mother and sisters should “remain and continue to live together as one family, of which my mother shall be the head; and that my said mother and my said four sisters shall continue to occupy the house now occupied by them and make it a home for herself and my said sisters. But this clause of my will is not to be considered or treated as a direction or instruction; but simply as a suggestion of my wish and desire." Wood v. Seward (1880) 4 Redf. (N. Y.) 271.

No trust is created by a will in which testator, after devising certain land to his son, devised to his four daughters the remainder of his real estate to be equally divided among them, with the proviso that none of them should make sale of her interest until becoming of age, and then should give their brother the opportunity of purchasing it, and further said: is my last wish and desire that my old home shall remain intact as it now stands, and that my son M. Langhorn Hardy shall eventually own it by buying his sisters' interests as set out above, by all of them coming to a mutual agreement." Hardy v. Hardy (1917) 174 N. C. 505, 93 S. E. 976.

"It

No trust is created by a will in which testator devised to his wife certain premises, "to have and to hold and enjoy during her lifetime or dispose of the same as shall seem best unto her, and in doing so she shall possess all the rights and powers that I of right could do if living; but it is my wish and desire that my said wife, Elizabeth Hamilton, will leave at the time of her death the property thus left to her by me or any part

remaining in her hand for the benefit of young men that are unable to educate themselves and who are studying for the ministry." Second Reform Presby. Church v. Disbrow (1866) 52 Pa. 219.

An absolute bequest to testator's

daughter of the sum of $10,000 is not affected by a subsequent clause of the will: "It is my wish and desire that my said daughter shall consult fully and freely with her brothers in relation to the investment and management of the $10,000 in money bequeathed by me to her; and, further, that she shall not consume any part of the principal thereof, but preserve the same undiminished, and that at her death the said principal sum shall go to the persons entitled under this my will to the real estate herein devised to her for life." Heck's Appeal (1895) 170 Pa. 232, 32 Atl. 413.

A trust is created by the following expression: "I wish and desire that my daughter shall make a competent provision for my niece Mrs. Baby." Baby v. Miller (1847) 1 U. C. Err. & App. 218.

No trust is created by the words: “And it is my wish and desire, after my decease, that my said wife shall make a will dividing the real and personal estate and effects hereby devised and bequeathed to her, among my said children, in such manner as she shall deem just and equitable." Bank of Montreal v. Bower (1889) 18 Ont. Rep. 226.

A gift to the grandchildren of the testator is created by a will in which he bequeathed to each of his three sons one third of his shares in a certain railway company, adding: “My wish and desire, however, is that, though each of my said three sons shall have had such shares so transferred to them as aforesaid, they shall not dispose of them, but only the income derived therefrom shall be expended by them respectively, and that upon the death of each of them his shares shall be disposed of and the proceeds thereof divided equally amongst all my grandchildren." Walton (1911) 20 Manitoba L. R. 686.

Re

No trust in favor of testator's brother is created by a will in which he gave his aged sister all his property "absolutely and forever," adding: "But it is my wish and desire that my said sister shall, from time to time, give such proportion or proportions of my said estate as she in her judgment

may think proper to my brother Adam Clark," there being no definite benefit given to the brother or contemplated by the testator. Re Clark (1919) 17 Ont. Week. N. 88.

iii. "Wish and direct."

A trust is created by a gift of $1,000 to each of testator's grandchildren, with the words: "And I wish and direct that this shall be devoted and expended for their education." Clifford v. Stewart (1901) 95 Me. 38, 49 Atl. 52. jjj. "Wish and expectation."

It has been said that the words "wish and expectation" import hope, and "hope" presupposes the possibility of disappointment. Russell v. United States Trust Co. (1905) 69 C. C. A. 410, 136 Fed. 758.

No trust is created by a will by which testator gave his wife two thirds of all his property and his daughter the remaining one third, and, after requesting his wife to assist in providing for his aged mother, added: "And it is my wish and expectation that when my wife, Jane, shall make her will disposing of the property left by me, that she will generously remember the children of my deceased brother, William, and such others as she may choose;" it not appearing what the circumstances were under which the will was made. Ibid.

kkk. "Wish and request."

No trust in favor of testator's children is created by a will in which, after giving his residuary estate to his wife, "to have and to hold the same to her, her heirs and assigns forever," the testator continued: "It is my wish and request that my said wife shall, before the time of her death make and execute her last will and testament, and therein give and bequeath the property herein given and bequeathed to her to my children hereinbefore named, share and share alike," there being no discretion left in the widow as to who should take or the amount which they should take, so that to construe it as creating a trust would be virtually to cut down the interest given to her to a life estate, with remainder to the children. Street v. Gordon

(1899) 41 App. Div. 439, 58 N. Y. Supp. 860.

A trust for the benefit of testator's grandnephew is created by a will in which testator gave his real and personal estate to his wife for life, with remainder to such grandnephew, and stated: "It is my particular wish and request that my dear wife and the grandfather of the said [grandnephew] will superintend and take care of his education so as to fit him for any respectable profession or employment." Foley v. Parry (1832) 5 Sim. 138, 58 Eng. Reprint, 289.

lll. "Wish and will."

A trust is created by a devise to testatrix's husband, "his heirs, and assigns forever, to his use, behoof, and benefit in fee simple; but should my said husband die without issue of his body, it is my wish and will he shall give all of said property to Robert P. Means;" the word "will" being held to be the antithesis of words of recommendation and request. McRee v. Means (1859) 34 Ala. 349.

No trust is created by a will in which testator, after making an absolute devise to a charitable institution, continued: "It is my wish and will that the income from my said residuary estate shall be used to complete the present buildings and grounds, and for the erection of such other buildings or building as will accommodate not less than 200 additional inmates, and after that the income from my aforegoing donation shall be devoted mainly to the care of the indigent insane in the most advisable manner, at very low charges or absolutely free as the trustees of said corporation, in the exercise of their best judgment as to the rate to be charged, may deem best and wisest to promote the object of this donation." Pratt v. Sheppard & E. P. Hospital (1898) 88 Md. 610, 42 Atl. 51, 4 Am. Neg. Rep. 641.

mmm. "With the understanding." The absolute estate conferred by a bequest to the husband of the testatrix of the residue of her estate, "to have and to hold the same to him, his heirs,

and assigns forever," is not qualified by the fact that the testatrix continued: "With the understanding that at the decease of the said [husband] all of the estate which he shall derive under this will which shall then remain by him undisposed of he shall give and turn over to my sister." Tillman v. Ogren (1918) 182 App. Div. 672, 169 N. Y. Supp. 949, reversing on this point (1917) 99 Misc. 539, 166 N. Y. Supp. 39, and affirmed in (1920) 227 N. Y. 495, 125 N. E. 821, which has rehearing denied in (1920) 228 N. Y. 559, 127 N. E. 922..

V. Review of the decisions in which expressions implying a request or expectation have been used.

a. Gift to one "for the benefit of" himself (or herself) and "family," or "children."

No trust in favor of the testator's children is created by a will in which testator stated that he intrusted the care, education, and maintenance of his children to his wife until they should arrive at the age of maturity and be able to support and maintain themselves, and gave and bequeathed to such wife the whole of his property "for her own use and benefit, and to maintain and support my children with; the same to be hers absolutely." Molk's Estate (1878) Myrick, Prob. Ct. Rep. (Cal.) 212.

No trust in favor of testator's daughter is created by a will in which he gave his wife all his property, "to use to her own use and benefit as she shall deem best for herself and our beloved daughter." Bulfer v. Willigrod (1887) 71 Iowa, 620, 33 N. W. 136.

A trust in favor of testator's daughters as to three fourths of the property is created by a will in which testator gave his residuary estate to his wife, "to be used and disposed of at her discretion for the benefit of herself and my daughters," of whom there were three. Smith v. Bowen (1866) 35 N. Y. 83.

No trust in favor of testator's children is created by a will in which he gave his wife all his property, and appointed her executrix "to take charge of my property after my death and re

tain or dispose of the same for the benefit of herself and children above named." Clarke v. Leupp (1882) 88 N. Y. 228.

No trust for the benefit of the brother's children is created by a bequest to testator's brother "for the benefit of himself and his family," such words being indicative of the purpose for which the gift was made and the motive which prompted it. Holder v. Holder (1899) 40 App. Div. 255, 59 N. Y. Supp. 207.

In Jubber v. Jubber (1839) 9 Sim. 503, 59 Eng. Reprint, 452, unmarried children were held entitled to participate in the income of the property under a testamentary provision in which testator gave his wife a sum of money "for her own use and disposal, also the use of all my property for the benefit of herself and unmarried children that they may be comfortably provided for as long as my wife, Martha, may remain in this life;" the testator having drawn a distinction between the money legacy which he gave absolutely to his wife and the income of the other property.

In Raikes v. Ward (1842) 1 Hare, 445, 66 Eng. Reprint, 1106, it was held that the wife did not take an absolute interest under a bequest to her of certain personal property, "to the intent that she may dispose of the same for the benefit of herself and our children in such manner as she may deem most advantageous."

A trust for the maintenance and education of testator's children is created by a will in which testator devised property upon trust to permit his wife to receive the rents, issues, and profits thereof for her own use and benefit, and for the maintenance and education of the children, so long as his wife should continue his widow, and, in case she should marry, to pay her a stated annuity, and, subject to such trust, in trust after the decease or marriage of his wife, for his said children in equal shares when and as they should attain the age of twentyone. Longmore v. Elcum (1843) 2 Younge & C. Ch. Cas. 363, 63 Eng. Reprint, 160.

Nothing less than an absolute in

terest is given to testator's widow by a will in which he left her all his estate "to be at her disposal in any way she may think best for the benefit of herself and family." Lambe v. Eames (1871) L. R. 6 Ch. 597, 25 Eng. Rul. Cas. 471, affirming (1870) L. R. 10 Eq. 267.

In Re Hill [1923] 2 Ch. (Eng.) 259, where testator bequeathed the residue of his personal estate in equal shares to his five named brothers and sisters, "for the benefit of themselves and their respective families," one of the sisters being an elderly spinster, it was held that the words quoted were to be taken as expressing the motive for the gift, and not as creating a trust.

In Re Singer (1915) 33 Ont. L. Rep. 602, where a testator gave his widow the net annual income arising from his estate, "for the benefit of herself and our children," it was held that the widow was entitled, during her widowhood, to receive the income, subject to an obligation on her part to maintain the children out of it; the extent of the provision which should be made for each child being wholly a matter within her discretion, so long as she acted in good faith.

b. Gift to one "for the benefit of" others.

No trust is created by a will by which testator gave the residue of his estate, subject to a one-half interest given his wife for life, to his eldest daughter "and her heirs ... to dispose of as she may deem best for the benefit of my daughters, Mary, Johanna, Elizabeth, or either of them, said estate so devised to my said daughter Mary and her heirs being all my estate, real, personal, and mixed, except the use and improvement of one-half part thereof to my said wife during her natural life. And I hereby make, constitute, and appoint my said daughter Mary Fitzgerald executrix of this my last will and testament, hereby giving her full power and control over my said estate, to do with it as she thinks best, except that she is to allow my said wife the use and improvement of one-half part thereof during the natural life of my said wife." Hughes