PART I. CHAPTER II. Whether a there is also known to the court a power, which the party, to whom it is given, is entrusted and required to execute." And his lordship afterwards states the principle of the cases to be, "that if the power is a power, which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion, whether he will exercise it or not; and the court adopts the principle as to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interests of those, for whose benefit he is called upon to execute it (ƒ).” In this, as in most other similar cases, the difficulty is, to apply the general rule to the particular case. When it is laid down, that it must be the duty of the donee of the power to exercise it, the doubt still remains, as to what will create such a duty, independently of any imperative directions in the will. On this point it may be observed, power would be that the question, whether a power is simply such, or one in the nature of a trust, has hitherto arisen almost invariably on powers in favour of blood? Quare? children or relations; and it might be a question, admitting of very grave argument, whether the construction, that has been adopted in those cases, would be extended to strangers (g). held a trust in favour of strangers in Distinction, where the donee of the In examining the doctrine, as laid down above by Lord Eldon, as well as the decided cases on this subject, there appears to be a material power takes an distinction between those cases where the absolute interest is given to absolute estate, and where only the donee of the power, and where consequently the exercise of the power can take effect only out of that interest, and where the person or no interest. by whom the power is to be exercised, takes only a previous estate for life, to which the power is only collateral (h). a partial bene ficial interest In the former case the donee of the power himself would be entitled beneficially upon his refusal or omission to exercise it; and the intention or wish of the testator to qualify the gift to him would thus be disappointed. Consequently, in such cases, the court has always endeavoured to give effect to the apparent intentions of the testator by treating the donee as a trustee for the objects of the power (i). But where the execution of the power is not to take effect out of the interest of the person by whom it is to be exercised, as where it is given to a tenant for life to be exercised after the determination of his life estate; or à fortiori where the party, to whom it is given, takes no beneficial interest, the same argument on behalf of the objects of the power does not hold good, and the decisions in favour of their (f) Brown v. Higgs, 8 Ves. 570, 4, (h) See Crossling v. Crossling, 2 Cox. 396. (i) Hardyng v. Glyn, 1 Atk. 468; Brown v. Higgs, 4 Ves. jun. 708; S. C. 8 Ves. 561; Forbes v. Ball, 3 Mer. 437; Birch v. Wade, 3 V. & B. 198. PART I. SECT. 3. taking, in default of the exercise of the power, are not so uniform. Indeed where they have been held to be entitled, in default of appoint- CHAPTER II. ment, the decision has proceeded, not on the ground that the power was in the nature of a trust in their favour, but that the bequest operated as a direct gift to the objects in default of the exercise of the power (k). creating a trust. In Bull v. Vardy (1), a testator, without giving his wife any interest Instances of in his general estate, empowered her to give away at her death 1,000l., powers not 1001. of it to A., and 100l. to B.; the rest to be disposed of by her will. The wife died without having made any disposition of the 1,000l., or any part of it. On a suit by A. against the wife's executor, claiming the 1007., the Court of Exchequer held, that this was no absolute legacy, but a naked power in the wife, and dismissed the bill. In the Duke of Marlborough v. Godolphin (m), a gift by a testator of 30,000l. to his wife for life, and after her decease, to be divided and distributed to and amongst such of his children, and in such manner and proportion, as she should appoint, was held by Lord Hardwicke to be a mere power, and not a trust for the children in default of appointment. His lordship appears to have drawn a distinction between a gift "amongst my children as A. should appoint," which he considered a trust, and a gift "amongst such of my children, &c.," which he held to be a mere power (n). In Crossling v. Crossling (o), there was a devise of real estate to the wife for life, with a direction that "she should dispose of the same amongst testator's children by her at her decease as she should think proper." The wife did not exercise this power; and the Court of Exchequer refused to restrain the heir from proceeding with an ejectment against the children, holding that this devise did not create a trust for them, but was a mere power in the wife, which she never executed. In the case of Brown v. Higgs (p), already mentioned, an estate was devised to one of the sons of S. B., as the father should direct by a conveyance in his lifetime or by his will; and though the point did not call for decision, Lord Alvanley seemed to think this a mere power an opinion which is supported by the concurrence of Sir E. Sugden (q). However, at the present day, the courts will endeavour, if possible, to construe a bequest of this description into a gift by implication to the objects of the power, in default of its being exercised and if the cases of Duke of Marlborough v. Godolphin, or Crossling v. Crossling, (k) Bull v. Vardy, 1 Ves. jun. 271; 2 Sugd. Pow. 177; and see Coxe v. Basset, 3 Ves. 155, 164. (1) 1 Ves. jun. 270. (m) 2 Ves. 61; 5 Ves. jun. 506. (n) See 2 Sugd. Pow. 178. However, it : Court endeayours to raise a gift by implication to the objects of the power, in default of ap PART I. CHAPTER II. SECT. 3. were again to occur, there is little doubt but that the children would be held to take under the terms of the bequest, although the power were not exercised in their favour (r). Thus where the tenant for life is desired at his death "to give it amongst his children as he should think fit" (s); or where the residue, at the death of the tenant for life, "is to be disposed of amongst her children as she should think proper" (t); or where there is a gift, after the death of testator's wife, to such of his grandchildren as she should appoint (u) (and many other instances of the same nature might be given); the power has been held to extend only to the selection from, or distribution amongst, the class of objects; and in default of the exercise of that power they will be all equally entitled (x). The case of Brown v. Pocock (y), before Sir L. Shadwell, V. C., is a remarkable instance of the disposition of the courts to adopt this construction in favour of the objects of a power. There a testatrix directed a sum of 8,000l., three per cents., to be set apart, and the dividends paid weekly to A. and B. during their lives; and by a codicil she gave to A. the power of leaving a moiety of that fund to and for the benefit of his wife and children, in such manner as he should by will duly executed give and bequeath the same. A. died, having made an invalid appointment of the fund; and the ViceChancellor decided that it was clear that the testatrix intended the wife and children to take, and therefore that there was a gift to them by implication subject to the power. In the very recent case of Croft v. Adam (z), a widow upon her second marriage settled a fund in trust for her own separate use for life, and declared that subject thereto the fund should, as and when she should think fit or be advised, be settled in trust for the benefit of A. her daughter by her first marriage, and her daughter's intended husband and her children, in such manner and for such rights and interests as should be agreed upon either previous to or after the marriage of A. with her consent: and that she (the widow) should be at free liberty and have full power and authority to settle the fund or any part of it in trust for the immediate benefit of her daughter and her children; but if the daughter should not be married in her mother's lifetime, then that the fund should be in trust for the daughter's benefit and a vested interest in her at 21, with a trust over on the death of the daughter without marrying in the mother's lifetime. It was held by the Vice-Chancellor of England, that this was not a power, but a trust for the daughter and her husband and children, although the mother, if she thought fit, might modify the interests of the cestui que trusts (z). Where there is an express limitation over in default of the power being exercised, that of course will exclude the implication of any gift arising from the terms of the power itself (a). in default of exercise of the power. There has been already occasion to observe, that where a gift is once clearly impressed with the character of a trust, a discretionary Existence of a power, however ample, of controuling its application, will not alter that discretionary power of applicharacter (b). And it is immaterial, whether the trustee in such cation in the cases takes a beneficial interest jointly with the objects of the power (c); or whether the power be merely a collateral one, either from the trustee taking no beneficial interest in the trust estate (d), or from its attaching only after the determination of the life estate given to him (e). The circumstance that the discretionary power goes to the selection from amongst a class of objects, as well as the distribution or apportionment of their interests, will not affect the stringency of the trust; for it seems that the distinction taken by Lord Hardwicke, in the Duke of Marlborough v. Godolphin (f), cannot now be supported (g). And though the power of selection extends to one class of persons, or another, in the alternative, it has been held that the trust will be equally binding on the donee (h). In all these cases, if the discretionary power be not exercised, the whole of the objects who were within the power, will in general take equally, and no one else can be entitled (i). In some of the earlier cases the court has assumed the right of exercising a discretionary power of selection or application given to trustees (k). This jurisdiction, however, is now disclaimed; and the court will not only abstain from exercising such a power itself, but will even refuse to interfere with or to controul the trustee in the exercise of his discretion, unless improper conduct be shown (7); and even in (z) Croft v. Adam, 12 Sim. 639. (a) Pritchard v. Juinchant, Ambl. 126; S. C. 5 Ves. 596, n.; 2 Sugd. Pow. 183. (b) Ante, Sect. 2. (c) Burrell v. Burrell, Ambl. 660; Raikes v. Ward, 1 Hare, 445; Hockley v. Mawbey, 1 Ves. jun. 143; Harding v. Glyn, 1 Atk. 469; Brown v. Higgs, 4 Ves. 708; Forbes v. Ball, 3 Mer. 437. (d) Reade v. Reade, 5 Ves. 744. (e) Kennedy v. Kingston, 2 J. & W. 431; Morgan v. Surman, 1 Taunt. 289; Walsh v. Wallinger, 2 R. & M. 78; Casterton v. Sutherland, 9 Ves. 445; Kemp v. Kemp, 5 Ves. 849. Pow. 480; Brown v. Higgs, 4 Ves. 708; (h) Brown v. Higgs, 4 Ves. 708; 5 Ves. (i) Kennedy v. Kingston, 2 J. & W. 431; Walsh v. Wallinger, 2 R. & M. 78; Kemp v. Kemp, 5 Ves. 849. (k) Warburton v. Warburton, 2 Vern. 420; Longmore v. Broom, 7 Ves. 124; 2 Sugd. Pow. 190; Wareham v. Brown, 2 Vern. 153; Lewis v. Lewis, 1 Cox, 162. (1) Alexander v. Alexander, 2 Ves. 640; Kemp v. Kemp, 5 Ves. 849. See Wood v. Richardson, 4 Beav. 174; Pratt v. Church, id. 177, n. trustee will not gency of the affect the strin trust. Nor will a similar power of selection from amongst the objects. If discretion not exercised, objects take equally. The court cannot exercise a discretionary power given to a trustee. PART I. Div. I. CHAPTER II. SECT. 4. Three requisites for raising a trust on words of recommendation. 1st. Words sufficiently imperative. that case the improper appointment will merely be set aside, and the fund left to devolve, as if the power had not been exercised (m). SECT. 4.-Where Words of Recommendation, &c., will It frequently happens, that an absolute gift of property is made to a person by will, accompanied by expressions, indicating a wish on the part of the testator, that certain other parties should participate in the beneficial enjoyment. The strong disposition of the courts to give effect to the intentions of testators has given rise to a species of trusts founded on expressions of this nature, and differing in some respects from absolute trusts. These recommendatory trusts will be enforced in favour of the particular objects or purposes thus designated, although they will be insufficient to impress the gift with the character of a trust generally; and if the particular object or purpose designated, cannot take or fail, the first taker will be entitled to the benefit of the failure, and will hold absolutely discharged from any trust. It has been established, by a series of cases, that where a bequest is accompanied by words expressing a command, recommendation, entreaty, wish, or hope, on the part of the testator, that the donee will dispose of the property in favour of another, a trust will be created:1st, If the words on the whole are sufficiently imperative; 2nd, If the subject be sufficiently certain; and 3rd, If the object be also sufficiently certain (n). I. With regard to the nature of the recommendatory expressions,no particular words are necessary. It has been said by Lord Redesdale, that it is sufficient for a testator to express a desire as to the disposition of the property; and the desire so expressed amounts to a command (o). Thus the words "desire" (p), "will and desire" (q), "request" (r), "wish and request" (s), "entreat" (t), "recommend" (u), "hope" (x), "in the fullest confidence" (y), "not doubting" (z), "trusting and (m) 5 Ves. 849. (n) Malim v. Kneightley, 2 Ves. jun. 335; Paul v. Compton, 8 Ves. 380; Wright v. Atkins, T. & R. 157; Knight v. Knight, 3 Beav. 172. (0) Cary v. Cary, 2 Sch. & Lef. 189. Moggridge v. Thackwell, 7 Ves. 36; Mason v. Limbury, cited in Vernon v. Vernon, Ambl. 4; Harding v. Glyn, 1 Atk. 468; Cruwys v. Colman, 9 Ves. 319; Legge v. Asgill, T. & R. 265, n. (q) Eales v. England, 2 Vern. 466; Birch v. Wade, 3 V. & B. 198; Forbes v. Ball, 3 Mer. 437. (r) Nowlan v. Nelligan, 1 Bro. C. C. 489; Pierson v. Garnet, 2 Bro. C. C. 38; Eade v. Eade, 5 Mad. 118. (s) Foley v. Parry, 5 Sim. 138; S. C. 2 M. & K. 138. (t) Prevost v. Clarke, 2 Mad. 458; Taylor v. George, 2 V. & B. 378. (u) Malim v. Kneightley, 2 Ves. jun. 333; Tibbitts v. Tibbitts, 19 Ves. 656; Horwood v. West, 1 Sim. & St. 387; Ford v. Fowler, 3 Beav. 146; overruling Cunliffe v. Cunliffe, Amb. 686. (x) Harland v. Trigg, 1 Bro. C. C. 144. (y) Wright v. Atkins, 1 V. & B. 313; S. C. T. & R. 143; Podmore v. Gunning, 7 Sim. 644. (z) Massey v. Sherman, Ambl. 520; Parsons v. Baker, 18 Ves. 476; Taylor v. George, 2 V. & B. 378. |