leases, and otherwise according to circumstances, and that provision should also be made for the appointment of new trustees, and the Court was asked to insert a power of sale and exchange, Lord Eldon said, "It was held by Sir W. Grant, that, unless the insertion of a power were authorized by the direction to make a settlement, it could not be introduced, and if, where nothing is expressed, nothing can be implied, it is impossible, where something is expressed, I can imply more than is expressed; and particularly where the will notices what powers are to be given (n)." But, where a testator directed the insertion of powers of leasing, and sale or exchange or partition, and then added, "And my will is, that in such intended settlement shall be inserted all such other proper and reasonable powers, as are usually inserted in settlements of the like nature," and the question was raised, whether, under these words, a power of appointment of new trustees might be introduced, Lord Cottenham, then M. R., said, "He had referred to the will, and as he found that the general words were in a separate and distinct sentence, he was of opinion they would authorize the insertion of the power (0).”

A testator had directed the insertion of all proper powers for making leases or otherwise, to be reserved to the tenants for life, while qualified to exercise them, and, whenever disqualified, to the trustees. In the execution of the settlement, a power of sale and exchange was introduced, and was limited to the trustees with the consent of the tenant for life; but, it was held by Lord Eldon, that the insertion of the power in that mode was not in con

(n) Brewster v. Angell, 1 J. & W. 625; and see Horne v. Barton, Jac

(o) Lindow v. Fleetwood, 6 Sim.

152.

formity with the instructions (p). It was afterwards debated before Sir T. Plumer, whether a power of sale and exchange could, in any form, be admitted; when his Honor said, "The first point to be considered is, in whom the powers are to be invested; and it is clear they are to be given to the tenants for life, if qualified, and, if they should not be able to act, to the trustees. Now, if the power of sale and exchange is to be given to the tenant for life without check or control, I cannot say that it is a proper power; on the contrary it may be very dangerous, as the tenant for life may, for many reasons, be induced to sell, when it may not be for the benefit of the remaindermen; nor is it usual to give him this power without the check of requiring the assent of the trustees. Take it the other way if the tenant for life is disqualified, as by infancy, can the Court say it is a proper power to be given exclusively to the trustees?" And therefore his Honor thought the power of sale and exchange could not be introduced (q).

II. Of indirect or constructive trusts.

Wherever a person, having a power of disposition over property, manifests any intention with respect to it in favour of another, the Court, where there is no want of consideration, will execute that intention, through the medium of a trust, however informal the language in which it happens to be expressed.

Thus, if a person contract to sell another an estate, the vendor has impliedly declared himself a trustee in fee for the benefit of the purchaser (r).

(p) Brewster v. Angell, 1 J. & W.

625.

(q) Horne v. Barton, Jac. 437.

(r) See Vend. and Purch. ch. 4,

sect. 1.

So, if a testator direct his lands to be sold (s), or charge his realty with debts and legacies (t), or with any particular legacy (u), the legal estate may descend to the heir, or it may pass to a devisee; but the Court will view the direction as a declaration of trust, and will enforce the execution of it against the legal proprietor.

And a testator will sufficiently manifest an intention of creating a trust, if he employ words precatory, or recommendatory, or expressing a belief (x), as if he "desire (y)," "will (2)," "request (a)," "will and desire (b)," "wish and request (c)," "entreat (d)," entreat (d)," "most heartily beseech (e)," "order and direct (ƒ),” "authorize and em

(s) Pitt v. Pelham, 2 Freem. 134; S. C. 1 Ch. Re. 283; Locton v. Locton, 2 Freem. 136; Asby v. Doyl, 1 Ch. Cas. 180; Tenant v. Brown, Ib.; Garfoot v. Garfoot, 1 Ch. Ca. 35; S. C. 2 Freem. 176; Gwilliams v. Rowel, Hard. 204; Blatch v. Wilder, 1Atk. 420; Carvill v. Carvill, 2 Ch. Re. 301; Cook v. Fountain, 3 Sw. 592; Bennet v. Davis, 2 P. W. 318, &c. (t) Passim.

(u) Wigg v. Wigg, 1 Atk. 382. (x) Cary v. Cary, 2 Sch. & Lef. 189, per Lord Redesdale; Paul v. Compton, 8 Ves. 380, per Lord Eldon.

(y) Harding v. Glyn, 1 Atk. 469; Mason v. Limbury, cited Vernon v. Vernon, Amb. 4; Lawless v. Shaw, L. & G. 154; Trot v. Vernon, 8 Vin. 72; Pushman v. Filliter, 3 Ves. 7; Brest v. Offley,

1 Ch. Rep. 246; Cary v. Cary, 2 Sch. & Lef. 189; Cruwys v. Colman, 9 Ves. 319.

(z) Eales v. England, Pr. Ch. 200; Clowdsly v. Pellham, 1Vern. 411.

(a) Nowlan v. Nelligan, 1 B. C. C. 489; Pierson v. Garnet, 2 B. C. C. 38; S. C. affirmed, Id. 226; Eade v. Eade, 5 Mad. 118.

(b) Birch v. Wade, 3 V. & B. 198; Forbes v. Ball, 3 Mer. 437. (c) Foley v. Parry, 5 Sim. 138; affirmed, 2 M. & K. 138.

(d) Prevost v. Clarke, 2 Mad. 458; Meredith v. Heneage, 1 Sim. 553, 555, per Chief Baron Wood; and see Taylor v. George, 2 V. & B. 378.

(e) Meredith v. Heneage, 1 Sim. 553, per Chief Baron Wood. (f) Cary v. Cary, 2 Sch. & Lef.

189.

power (g)," "recommend (h)," "hope (i)," "do not doubt (k)," "be well assured ()," "have the fullest confidence (m)," or use such expressions as "of course the legatee will give (n)," "in consideration the legatee has promised to give (o)," &c.

But such a construction will not prevail where either the objects intended to be benefited are imperfectly described (p), or the amount of the property, to which the trust should attach, is not sufficiently defined (q);

for the difficulty that would attend the execution of such imperfect trusts is converted by the Court into an argument that no trust was really intended (r).

The objects have been held to be uncertain, where personal estate has been given to A., with a hope "that he would continue it in the family (s);" but, where freeholds were so devised, it was held that by "family," was to be understood the worthiest member of it, viz. the heir at law (t). In another case both real and personal estate were blended together, and given to A. in full confidence that she would devise the whole of the estate to "such of the heirs of the testator's father as she might think best deserved a preference," and the Court could not determine whether the heirs were intended, or the next of kin, or both (u). A residuary estate was bequeathed to A., with a recommendation that she would "consider the testator's relations." Sir A. Hart asked, "Who are the objects of the trust? Did the testator mean relations at his own death, or at A.'s death? Did he mean that she should have the liberty of executing the trust the day after his death?" And his Honour was of opinion, that no trust could attach (x).

Lord Thurlow; Bland v. Bland, 2 Cox 349; Le Maitre v. Bannister, cited in note to Eales v. England, Pr. Ch. 200; Sprange v. Barnard, 2 B. C. C. 585; Pushman v. Filliter, 3 Ves. 7; Attorney-general v. Hall, Fitzg. 314; Wilson v. Major, 11 Ves. 205; Eade v. Eade, 5 Mad. 118; Curtis v. Rippon, 5 Mad. 434.

(r) Morice v. Bishop of Durham, 10 Ves. 536, per Lord Eldon.

(s) Harland v. Trigg, 1 B. C. C. 142; but see Wright v. Atkyns, Coop. 121.

(t) Atkyns v. Wright, 17 Ves. 255; S. C. 19 Ves. 299; S. C. Coop. 111; and see S. C. 1 Turn. & Russ. 143.

(u) Meredith v. Heneage, 1 Sim.. 542, see 558, 559, 565; but see Wright v. Atkyns, Coop. 119.

(x) Sale v. Moore, 1 Sim. 534, see 540; but see Wright v. Atkyns, Coop. 119–123.