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It was decided by Sugden, when Lord Chancellor of Ireland, that the meritorious consideration of blood was sufficient to set the court in motion for the purpose of enforcing an executory trust. But this decision was not followed in England; and the doctrine must be considered as settled the other way, so far as that country is concerned. In the United States, the authorities are not altogether harmonious.

The English rule has been followed in Pennsylvania,3 and in New York there is a dictum that a meritorious consideration would be sufficient; while in South Carolina, it is said that a voluntary declaration will be sufficient if under seal. But the general tendency of the American authorities is the other way."

70. In connection with the subject of voluntary declarations of trust, it might seem proper to notice donationes mortis causa, which are introduced, as a distinct head, in many treatises on equity jurisprudence. But a donatio mortis causa depends not upon an equitable, but a legal title; and the claim of the donee is not an essentially equitable right. For the purpose of enforcing a donatio mortis causa it is sometimes necessary to resort to the equitable remedy for the administration and settlement of estates at the suits of legatees and others, which will be found noticed in its appropriate place.3

71. It has been seen, already, that no particular form of lan

1 Ellis v. Nimmo, Ll. & Gould, 333.

See Holloway v. Headington, 8 Sim. 324; Jefferys v. Jefferys, 1 Cr. & Ph. 138; Dillon v. Coppin, 4 My. & Cr. 647. In Moore v. Crofton, 3 Jones & Lat. 442, Sir E. Sugden was compelled to abandon the position he had taken in Ellis v. Nimmo.

3 Kennedy v. Ware, 1 Barr, 445; Campbell's Estate, 7 Barr, 100: though see Dennison v. Goehring, 7 Barr, 175, and Bond v. Insurance Co., 30 Leg. Int. 304. 4 Hayes v. Kershow, 1 Sand. Ch. 261. But the consideration of collateral consanguinity will not be enough. Id. See, also, Buford v. McKee, 1 Dana, 107.

6 Caldwell v. Williams, 1 Bailey's Eq.

175.

6 Haines v. Haines, 6 Maryl. 444; McIntire v. Hughes, 4 Bibb, 186; Mahan v. Mahan, 7 B. Mon. 579; Bright v. Bright, 8 Id. 197. Perry on Trusts, 109.

7 "Courts of equity maintain a concurrent jurisdiction in all cases of such donations, where the remedy at law is not adequate or complete. But in such cases the jurisdiction stands on general grounds, and not upon any notion that a donatio mortis causa is, from its own nature, properly cognizable therein." Story's Equity Jurisp., 606. See upon the general subject of these donations, Ward v. Turner, 1 Lead. Cas. Eq. 721, and

notes.

8 Post, Part iii., chap. on Creditors' Bills and Administration Suits.

guage is necessary to create a trust. Certain words, it is true, are considered apt words for that purpose, and are generally used in all carefully prepared instruments by which a disposition of property, either inter vivos or after death, is effected; but, nevertheless, if the expressions used sufficiently indicate an intention to create a trust, they will be construed to have that effect, although the technical words, most proper to accomplish the object in view, have not been employed.

This is especially so in the case of wills. The intention of the testator has always been regarded as the pole star by which any construction of the testamentary instrument is to be guided. To ascertain the intention is the aim of all well-directed attempts at interpretation. Whenever, therefore, it appears from the language of the will that it was the intention of the testator to create a trust, the courts will give effect to that intention, in whatever words it may be expressed.

The expressions used by testators for the purpose of creating a trust are, of course, almost infinite in variety, but many of them have been grouped into a certain class of expressions which have been characterized by judges and authors under one general denomination-that, namely, of "Precatory Words.” This term (precatory words) includes words of expectation, request, desire, and recommendation; and the rule on this subject may be stated in general language to be, that wherever property is given by will to one person coupled with expressions of expectation, request, desire, or recommendation that he will use or dispose of the same for the benefit of another, the donee will be considered a trustee of the property for the purposes indicated by the testator, unless it appears from other expressions in the will that the application or non-application of the subject to the designated object was intended to be left to the option of the donce. Thus, to take the simplest case: "if a testator gives £1000 to A. B., desiring, wishing, recommending, or hoping that A. B. will, at his death, give the same sum or any certain part of it to C. D., it is considered that C. D. is an object of the testator's bounty, and that A. B. is a trustee for him." So in an early case the words of the will were: "I give to my brother,

1 Per Lord Langdale, M. R., in Knight Dom. Proc, 11 Cl. & F. 513.

e. Knight, 3 Beav. 173. See S. C. in

Robert Mason, £2000, which I desire him at his death to give to his son and his children, and to the children of his late daughter, as he should think fit." Robert Mason died in the lifetime of the testator, after whose death the children of Robert and his daughter were held entitled to the £2000 in equal shares.1

And so, in a modern case, where a woman left her husband the use and income of an estate for his life," in the full confidence that he will, as he has heretofore done, continue to give and afford my children such protection, comfort, and support as they or either of them may stand in need of," it was held that a trust was created for the benefit of her children which was capable of being ascertained and enforced. The same general rule on this subject exists in most, if not all, of the United States.

72. The doctrine of the creation of trusts by precatory words has not been invariably regarded with favor in England,3 and in many cases a disposition has been evinced to qualify it or apply it very guardedly. But it must, nevertheless, be considered the well-settled doctrine of the court of chancery that a testamentary gift, accompanied by words of entreaty or recommendation, or expressing a wish or confidence, will be construed as creating an absolute trust, which the first taker of the gift will not be permitted to defeat."

This doctrine has been followed in many of the United States, and its wisdom and soundness have been very ably vindicated."

Mason v. Limbury, cited in Vernon v.
Vernon, Ambler, 4.

2 Warner v. Bates, 98 Mass. 274.
See Sale v. Moore, 1 Sim. 540; Reid

v. Atkinson, 5 Ir. R. Eq. 373.

♦ Briggs v. Penny, 3 MacN. & G. 546; Johnston v. Rowlands, 2 De G. & Sm. 356; Webb v. Wools, 2 Sim. N. S. 267; Reeves v. Baker, 18 Beav. 372; Hood v. Oglander, 34 L. J. Ch. 528; and McCormick v. Grogan, L. R., 4 H. L. Cas. 82.

5 Eaton v. Watts, L. R., 4 Eq. 155; Bernard v. Minshull, Johnson, 276; Shovelton v. Shovelton, 32 Beav. 143; Gully v. Cregoe, 24 Id. 185; Ward v. Grey, 26 Id. 485; Proby v. Landor, 28 Id. 504; Brooks's Will, 34 L J. Ch. 616;

Constable v. Bull, 3 De G. & Sm. 411;
Irvine v. Sullivan, L. R., 8 Eq. 673.

6 Warner v. Bates, 98 Mass. 274; Harrison v. Harrison, 2 Grattan, 1; Reid's Admr. v. Blackstone, 14 Grattan, 363 (though see Crump v. Redd's Admr., 6 Id. 372); Bull v. Bull, 8 Conn. 47; Dresser v. Dresser, 46 Maine, 48; Erickson v. Willard, 1 N. Hamp. 217; Lucas v. Lockhart, 10 Sm. & Marsh. 466; Collins v. Carlisle, 7 B. Mon. 14; McRee's Admr. v. Means, 34 Alab. 349; though see Ellis v. Ellis, 15 Alab. 296. See also Lines v. Darden, 5 Florida, 51, where the general doctrine was recognized, although the circumstances of the case under consideration forbade its application.

In Connecticut and Pennsylvania, however, the rule under consideration seems to have been regarded with some disfavor. In the former State the earlier decision of Bull v. Bull was disapproved in the more recent case of Gilbert v. Chapin ;1 while in the latter, in Pennock's Estate, the conclusions reached by the court were, that "words in a will, expressive of desire, recommendation, and confidence, are not words of technical, but of common parlance, and are not prima facie sufficient to convert a devise or bequest into a trust; and the old Roman and English rule on this subject is not part of the common law of Pennsylvania;" and that "such words may amount to a declaration of trust, when it appears, from other parts of the will, that the testator intended not to commit the estate to the devisee or legatee, or the ultimate disposal of it to his kindness, justice, or discretion." The general English doctrine upon the subject was, however, recognized in the later case of Burt v. Herron.3

73. It is, of course, almost impossible to state, with certainty, what particular precatory words will or will not, in any case, create a trust; for they are, in most instances, so interwoven with other expressions, that the effect to be given to them must depend very much upon the language of the particular instrument under consideration. The following expressions, however, have been held effective in fastening the character of a trust upon what would otherwise have been an absolute gift: "desire,” "recommend," "not doubting," "in the fullest confidence," "wish and will," "allow," "hope," "entreat," and, in general,

119 Conn. 351.

28 Harris (Pa.), 268-280. See also Paisley's Appeal, 20 P. F. Sm. 153.

16 P. F. Sm. 400.

4 Cruwys v. Colman, 9 Vesey, 319; Mason v. Limbury (supra); Erickson v. Willard, 1 N. Hamp. 217.

5 Malim v. Keighley, 2 Vesey, Jr., 333. 529; Pierson v. Garnet, 2 Bro. C. C. 38, overruling Cunliffe v. Cunliffe, Ambler, 686 (although this last decision is said in Malim v. Keighley, 2 Vesey, Jr., 582, to have turned on the nature of the subjectmatter of the devise); Tibbits v. Tibbits, 19 Vesey, 664; Horwood v. West, 1 Sim. & Stu. 387; Ford v. Fowler, 3 Beav. 146.

6 Massey v. Sherman, Ambler, 520; Parsons v. Baker, 18 Vesey, 476.

7 Wright v. Atkyns, 17 Vesey, 255; 19 Id. 299; T. & R. 145; and see Warner v. Bates, 98 Mass. 274; Harrison v. Harrison's Admr., 2 Grattan, 1; Bull v. Bull, 8 Connecticut, 47; Dresser v. Dresser, 46 Maine, 48; Shovelton v. Shovelton, 32 Beav. 143.

8 McRee's Admr. v. Means, 34 Alab. 349.

Hunter v. Stembridge, 12 Geo. 192. 10 Harland v. Trigg, 1 Bro. C. C. 144. 11 Prevost v. Clarke, 2 Mad. 458; Taylor v. George, 2 V. & B. 378.

any words which indicate a desire that the donee should not take beneficially, but should be merely an instrument to distribute the testator's bounty to others.1

From the decisions upon this subject, and from the principles upon which the general law of trusts is based, certain rules may be derived by which the construction of instruments containing precatory expressions is to be governed. The question in all cases is whether a trust was or was not intended to be created, or, in other words, whether the testator designed to leave the application or non-application of the subject-matter of the bequest to the designated object entirely to the discretion of the donee, or whether his meaning was that his language should be deemed imperative, and that such discretion should be excluded. This is usually considered, by the best authorities, to depend upon three things: first, upon the general terms of the will; secondly, upon the certainty of the subject-matter; and thirdly, upon certainty of the object.2

74. First. Precatory expressions ought, primâ fucie, to be considered as imperative and to exclude discretion; the wish of a testator, no matter how expressed, if expressed clearly, should be regarded as a command. This is the opinion of Lord Redesdale in Carry v. Carry; and although the dicta in some subsequent cases' would seem to be in favor of giving a less decided effect to words of recommendation or request, yet it is conceived that the above statement of the rule is justified by the best considered decisions both in England and in this country. It is seldom, indeed, that expressions of this nature are found standing alone, and not strengthened, or qualified, or controlled by the context, but when they do stand alone they ought to be considered as imposing an obligation, and not merely as constituting a request which the person to whom it is addressed is at liberty to disregard. The reason is obvious. A will, in its very nature, is the

1 See Harding v. Glyn, 2 Lead. Cas. 513; Williams v. Williams, 1 Sim. N. S. Eq. 950 (4th Eng. ed.) and notes. 358.

2 Briggs v. Penny, 3 MacN. & G. 546; Lines v. Darden, 5 Florida, 51; notes to Harding v. Glyn, 2 Lead. Cas. Eq., ut sup. 32 Scho. & Lef. 189.

4 See Knight v. Boughton, 11 Cl. & F.

5 Bernard v. Minshull, Johns. 276; Shovelton v. Shovelton, 32 Beav. 143; Warner v. Bates, 98 Mass. 274; Hawkins on Wills, 160.

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