under the will as joint tenants, induced the making of the will by an oral promise, all will be bound by a constructive trust; but if the promisors simply prevented by their promise the revocation of a will previously made, only those who gave the promise will be bound by a trust.84 It is admittedly illogical to draw such a line.85

In the case of a promise which prevents the revocation of a legacy or devise, the same difference of opinion would seem to exist as to the necessity of solicitation, of confidential relationship, and of fraudulent intent at the time of promising, as applies in the case of a promise which induces the legacy or devise.86 In the case of an illegal promise, also, the same rule applies in both situations.87 Where the heir or next of kin promises the ancestor to hold for or to pay or convey to others whose names are communicated to him in the ancestor's lifetime and the promise is made to secure intestacy in whole or in part. If the making of a will is prevented, or the revocation of a will is secured, and the intending testator is persuaded to die intestate as to the property he intended to will, by the promise of the heir or next of kin to carry out his wishes, a constructive trust will be enforced against the heir or next of kin who so promised and against any transferee of his who is not an innocent purchaser for value.88 No case seems to have drawn the line

nate, the breaking of the promise, without which the devise would not have been made, is bad faith to the testator. . . . But unkept promises, declarations, or misrepresentations, which will create trustees ex maleficio, must be made before or at the time the legal title is acquired or the devise made; for nothing subsequently said by a grantee or devisee will turn an estate that had passed absolutely from the grantor or testator into a trust for others."

The court apparently thought that the devise took effect on the making of the will. In other words, it would seem to be because the court overlooked the very elementary fact that a will is ambulatory, i. e., that the legal title does not pass until the testator's death, that it decided as it did.

& See In re Stead, [1900] 1 Ch. 237.

85 Ibid., per Farwell, J., quoted post, p. 387.

86 That fraudulent intent at the time of promising is not required see In re Maddock, supra; French v. French, supra; DeLaurencel v. DeBoom, supra; Hoffner's Estate, supra (semble).

But, contra, see McCloskey v. McCloskey, supra (semble).

87 But see Burney v. Macdonald, 15 Sim. 6 (1845).

88 Cassey v. Fitton, 2 Harg. Jur. Arg. 296 (1679); cf. 1 Ames, Cases Eq. Jur. 145; Harris v. Horwell, Gilb. Eq. 11 (1708); McDowell v. McDowell, 141 Ia. 286, 119 N. W. 702 (1909) (estoppel); Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713 (1907); Browne v. Browne, 1 Harr. & Johns. (Md.) 430 (1803); Bailey v. Wood, supra (semble). But see Campbell v. Brown, 129 Mass. 23 (1880); Grant v. Bradstreet, 87 Me. 583, 33 Atl.

between prevention of the making of a will or of a particular legacy or devise and inducing the revocation of a will or of a particular legacy or devise, but the same difference of opinion exists here as in the other situations discussed above as to the necessity of solicitation, confidential relationship, or fraudulent intent at the time of promising.89 In practically every case of this particular kind, however, there will probably be found to have been active solicitation.

Where the will discloses that the legatee or devisee is to hold in trust, but does not disclose the terms. In the legacy or devise cases on oral trust discussed so far, the will did not disclose the fact that there was any trust. There are, however, cases where the will discloses that the legatee or devisee is to dispose of the property according to instruction already communicated, or thereafter to be communicated, to him by the testator. If in such case the instructions are not made known to the legatee or devisee, he must hold in trust for some one, and the only one is the next of kin, residuary

165 (1895); Norton v. Mallory, 63 N. Y. 434 (1875); Tyler v. Stitt, 132 Wis. 656, 112 N. W. 1091 (1907). See Sellack v. Harris, 2 Eq. Cas. Abr. 46, pl. 11, 5 Vin. Abr. 521, pl. 31 (1708), where a resulting trustee notified his heir of the trust and got his promise to perform it, but where, of course, the promise was not needed, and Bulkley v. Wilford, 2 Cl. & F. 102 (1834), where there was no promise, but where the heir was seeking to profit by the revocation of a will as to all of testator's lands unnecessarily, and seemingly unknown to the testator, caused by a fine being levied of all the land on advice given by the heir as the testator's solicitor when only part of the land was to be transferred. In both cases a trust was enforced. Cf. Ransdel v. Moore, supra, where the giving of a deed by a dying grantor was prevented by the promise and the will-case rule was applied, and Scott v. Harris, 113 Ill. 447 (1885), where a husband conveyed to his wife to hold and manage property and apply the estate according to the husband's then existing will, but the grantor was not dying and no constructive trust was enforced.

In Browne v. Browne, supra, unlike the usual case, there was a bilateral contract. In Bedilian v. Seaton, 3 Wall. Jr. 279 (1860), it was not shown that a will would have been made if the promise had not been given. In Campbell v. Brown, supra, no promise by the heir seems to have been shown, and if there was one, it was not the promise but the sudden decease of the intestate that prevented the making of a will embodying his wishes. Cf. Whitehouse v. Bolster, 95 Me. 458, 50 Atl. 240 (1901).

89 That fraudulent intent at the time of making the promise need not be shown, see McDowell v. McDowell, supra (estoppel); Gemmel v. Fletcher, supra; Grant v. Bradstreet, supra; Bailey v. Wood, supra; Mead v. Robertson, supra (semble); Norton v. Mallory, supra (semble).

But see, contra, Cassels v. Finn, 122 Ga. 33, 49 S. E. 749 (1905); Bedilian v. Seaton, supra (semble).

It is difficult to appraise Tyler v. Stitt, supra.

legatee, heir, or residuary devisee.90 If, however, the instructions are communicated to the legatee or devisee by the testator in his lifetime, then the legatee or devisee should be made to hold on a constructive trust for the intended cestui que trust. There is, however, a conflict of authority on the point." The jurisdictions which

90 Juniper v. Batchelor, supra; Ames, Cases on Trusts, 2 ed., 189; In re Boyes, supra; Scott v. Brownrigg, supra; Bryan v. Bigelow, 77 Conn. 604, 60 Atl. 266 (1905); Thayer. Wellington, 9 Allen (Mass.) 283 (1864); Gross v. Moore, 22 N. Y. Supp. 1019 (1893). Cf. Briggs v. Penny, 3 De G. & Sm. 525 (1849); In re Keenan, 94 N. Y. Supp. 1099 (1905).

In In re Gardom, Le Page v. Attorney-General, [1914] 1 Ch. 662, 672-3, Eve, J., in the lower court, expressed a doubt as to the need, on principle, of a communication to the trustee in such a case, if only a communication, "properly proved," was made to some one. He said: "Where there is nothing in the will disclosing any trust, one can appreciate why communication of the trust to and its acceptance by the legatee is essential, but the considerations applicable to a case where the legatee takes beneficially under the will, and is only converted into a trustee by reason of the trust being disclosed to and accepted by him, do not, I should have thought, in any way apply to a case where it is made clear on the face of the will that he is to take as trustee and not beneficially. In the last mentioned cases the problem is to find out what is the trust, not whether there is a trust at all, and speaking for myself, I do not see why a communication to the trustee should be an essential element in the solution of the problem, or, indeed, of any greater value than a communication made to any other person, and of course properly proved. But In re Fleetwood, 15 Ch. D. 594, and the other authorities appear to have established that there must be a communication to the trustee and I must accept that position." See n. 62, ante.

91 That on a bequest or devise, expressly made to carry out the unattested directions of the testator communicated in his lifetime to the legatee or devisee, the legatee or devisee must hold for the intended cestui que trust, see In re Huxtable, [1902] 2 Ch. 793; Pring v. Pring, 2 Vern. 98 (1689); Irvine v. Sullivan, L. R. 8 Eq. 673 (1869); In re Spencer's Will, 57 L. T. R. 519 (1887); In re Fleetwood, supra; Riordan v. Banon, 10 Ir. Eq. R. 469 (1876); Attorney-General v. Dillon, 13 Ir. Ch. Rep. 127 (1862); Attorney-General v. Cullen, supra (semble), aff'd Cullen v. Attorney-General, supra; Morrison v. McFerran, [1901] 1 Ir. R. 360; In re King's Estate, supra (semble); Curdy v. Berton, supra; Jay v. Lee, 41 N. Y. Misc. 13, 83 N. Y. Supp. 579 (1903); Golland v. Golland, supra (semble); Williams's Appeal, 73 Pa. St. 249 (1873) (semble). See also Cagney v. O'Brien, 83 Ill. 72 (1876), where executors who took under oral instructions mentioned in the will, and who carried them out, were protected. Cf. also In the Goods of Marchant, [1893] P. 284; Podmore v. Gunning, supra; Smith v. Attersoll, Russ. 266 (1826); and O'Brien v. Condon, supra. But see Balfe v. Halpenny, [1904] 1 Ir. R. 486, where the trust was not enforced for the cestuis que trust whom the testator told one of the trustees about, after the will was executed, but for the next of kin, and Johnson v. Ball, 5 De G. & Sm. 85 (1851) where a trust was enforced for residuary legatees although the testator's wishes were communicated to both trustees. And cf. Creagh v. Murphy, Ir. R., 7 Eq. 182 (1873).

That the legatee or devisee cannot safely perform to the intended cestui que trust, but must instead hold for the next of kin, residuary legatee, heir, or residuary devisee, see Balfe v. Halpenny, supra; Bryan v. Bigelow, supra; Olliffe v. Wells, supra; Wilcox v.

make the legatee or devisee hold as if the terms of the trust had not been communicated, proceed on an erroneous theory of what happens in the latter case. That erroneous theory is that, when a legacy or devise is expressly "in trust," but the trusts are not expressly specified, the equitable interest never passes out of the testator by the will, and so goes as in case of intestacy.92 That

Attorney-General, 207 Mass. 198, 93 N. E. 599 (1911); Smith v. Smith, 54 N. J. Eq. 1, 32 Atl. 1069 (1895); In re Keenan, supra (semble). But see Golland v. Golland, supra (semble contra); Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382 (1892); Sims v. Sims, 94 Va. 580, 27 S. E. 436 (1897). Cf. Davison v. Wyman, 214 Mass. 192, 100 N. E. 1105 (1913). In Smith v. Smith, supra, the court followed Olliffe v. Wells, supra, although the will showed that the trust was for charity. Wilcox v. AttorneyGeneral, supra, is in accord. In re Huxtable, supra, is the charity case contra to Smith . Smith and Wilcox v. Attorney-General, supra.

But even where a trust will be enforced the doctrine is not applied to powers of appointment to be exercised according to secret instructions. In re Hetley, [1902] 2 Ch. 866; Reid v. Atkinson, Ir. R. 5 Eq. 373 (1871) (semble).

While in In re Huxtable, supra, evidence was admitted to show what the charitable purposes agreed upon between the testator and the legatee as mentioned in the will were, it was held not admissible to show that only the interest of the £4000 bequeathed was to be used for charitable purposes by the legatee, who was to dispose of the principal at his death as his own. In concurring in holding that the bequest of £4000 "for the charitable purposes agreed upon between us" could not be cut down in that way without contradicting the will, Stirling, L. J., in his separate opinion, said (p. 797):

"If, for instance, the affidavit [of the legatee] had stated that a conversation had taken place with reference to a legacy of £2000, and that by her will the testatrix had bequeathed £4000 for the charitable purposes, it could never, as it seems to me, be contended that the amount of the legacy was to be cut down and that the charities were to have only £2000, because the conversation related to £2000, whereas by her will the testatrix expressly said that £4000 was to be applied to the charitable purposes. In like manner it appears to me that, when the will says that the capital sum of £4000 is to be applied to the charitable purposes, it is not competent for the court to look at the evidence for the purpose of cutting down the gift to the income of £4000 during the life of [the legatee] Mr. Crawfurd."

92 In Olliffe v. Wells, supra, 225, 226, Gray, C. J., for the court, said: "Where a trust not declared in the will is established by a court of chancery against the devisee, it is by reason of the obligation resting upon the conscience of the devisee, and not as a valid testamentary disposition by the deceased. Cullen v. AttorneyGeneral, L. R. 1 H. L. 190. Where the bequest is outright upon its face, the setting up of a trust, while it diminishes the right of the devisee, does not impair any right of the heirs or next of kin, in any aspect of the case; for if the trust were not set up, the whole property would go to the devisee by force of the devise; if the trust set up is a lawful one, it enures to the benefit of the cestuis que trust; and if the trust set up is unlawful, the heirs or next of kin take by way of resulting trust. Boson v. Statham, 1 Eden 508; cf. 1 Cox Ch. 16; Russell v. Jackson, 10 Hare 204; Wallgrave v. Tebbs, 2 K. & J. 313.

"Where the bequest is declared upon its face to be upon such trusts as the testator has otherwise signified to the devisee, it is equally clear that the devisee takes no bene

theory is erroneous, because it assumes that the testator dies possessed of two separate interests in the property, viz., a legal in

ficial interest; and as between him and the beneficiaries intended, there is as much ground for establishing the trust as if the bequest to him were absolute on its face. But as between the devisee and the heirs or next of kin, the case stands differently. They are not excluded by the will itself. The will upon its face showing that the devisee takes the legal title only and not the beneficial interest, and the trust not being sufficiently defined by the will to take effect, the equitable interest goes, by way of resulting trust, to the heirs or next of kin, as property of the deceased, not disposed of by his will. Sears v. Hardy, 120 Mass. 524, 541, 542. They cannot be deprived of that equitable interest, which accrues to them directly from the deceased, by any conduct of the devisee; nor by any intention of the deceased, unless signified in those forms which the law makes essential to every testamentary disposition. A trust not sufficiently declared on the face of the will cannot therefore be set up by extrinsic evidence to defeat the rights of the heirs at law or next of kin. See Lewin on Trusts, 3 ed., 75."

The weakness of the foregoing analysis is pointed out in the text, but here should be noted the court's failure by proper language to preserve the rights of residuary legatees or devisees where the trust is not of part or all of the residue. That the residuary legatee or devisee may have rights if the trust cannot take effect is clear. As is said in 1 Jarman on Wills, 6 Eng. ed., 909-910:

"Where the fact that a gift to A. is made to him merely as trustee appears on the face of the will, he cannot in any case take beneficially, and if the trust is not established, or is illegal, or fails, he holds upon trust for the residuary legatee (or devisee) or the next of kin (or heir at law) as the case may be. This is so even if it appears from the evidence that, subject to the trusts which fail, the testator intended the trustee to take the property for his own benefit. Re Baillie, 2 T. L. R. 660."

Massachusetts adheres to the rule of Olliffe v. Wells even in the case of a trust for charity where the charitable objects to be selected can be ascertained only upon resort to the verbal communications of the testator to the trustee. Wilcox v. AttorneyGeneral, supra. Cf. Thayer v. Wellington, supra.

What the Massachusetts rule would be if the language in the will should be deemed not to disclose a trust as intended, but instead, in addition to failing to set forth any terms of trust, should be determined to be merely precatory, and if, nevertheless, there was an oral-trust understanding between the testator and the legatee or devisee, is not so clear. Probably, however, the oral trust would be used as the basis for a constructive trust. See Ham v. Twombly, supra. The supposititious case could hardly arise, however, because the practical effect of the court's knowledge that there was a trust intended would probably be that it would interpret the precatory language to be trust language, and therefore deny the intended cestui que trust any relief. In Golland v. Golland, supra, precatory language in the will was not allowed to interfere with the enforcement of a constructive trust in favor of the intended cestui que trust of the oral trust (see also Crook v. Brooking, 2 Vern. 50 (1688); Edson v. Bartow, supra), and that should be the rule even in Massachusetts, since the reasons given for the decision in Olliffe v. Wells, supra, do not apply if the language in the will is only precatory.

It should be noted that Olliffe v. Wells, supra, and Wilcox v. Attorney-General, supra, apply only when the will declares that there is a trust, but not what the trust is. Where the will expresses the trust in sufficient terms, but the testator arranged a secret