ize her to settle and dispose of the estate to such persons as she shall think fit by her will, confiding in her not to alienate the estate from my nearest family;" (u) "advise him to settle;" (x) "my dear daughters, is, that you do give my granddaughter £1000, this is my last wish;" (y) "require and entreat; " (2) "trusting that he will preserve the same, so that after his decease it may go and be equally divided, &c.; " (a) "well knowing;" (b) "under the conviction that she will dispose, &c.; " (c) " to apply the same;" (d) and by a direction to trustees to convey to the eldest son at twenty-one, "but so that the settlor's wish and desire may be observed, which is hereby declared, that the other children may be allowed to participate." (e) ness not suffi *But] if the testator's language amounts merely to a general expression of good will towards the objects in question, and does Mere expresnot intimate any definite disposing intention in their favor, sions of kindas where he adds, "I have no doubt but A. B. (the legatee) cient. will be kind to my children," such words are inoperative to qualify the legatee's interest. (f) And the same construction has prevailed in some instances in which the indefiniteness was of a less palpable character, as where a testator gave leasehold estates at S. to his brother J. H. forever, "hoping he will continue them in the family. (g) Doubtful expressions ex plained by con text. [Expressions sufficient per se to create a trust may be deprived of their effect by a context expressly declaring, (h) or by implication showing that no trust was intended; as, if a testator, after settling a fund on his daughters and their children, by codicil revokes that bequest on account of the inconvenience of having the money tied up, and leaves the property "to be disposed of by the husbands for the good of their families:" no trust (u) Griffiths v. Evan, 5 Beav. 241. The devise to the donee of the power was in tail. If it had been in fee, a trust would scarcely have been created without the word "confiding;" see Brook v. Brook, 3 Sm. & Gif. 280; Alexander v. Alexander, 2 Jur. (N. S.) 898. (x) Parker v. Bolton, 5 L. J. (N. S.), Ch. 98. (y) Hinxman v. Poynder, 5 Sim. 546. 3 M. & Gord. 546; per Wood, V. C., Johns. 289. But see per Jessel, M. R., 5 Ch. D. 227. (c) Barnes v. Grant, 26 L. J., Ch. 92, 2 Jur. (N. S.) 1127. (d) Salusbury v. Denton, 3 K. & J. 529. (e) Liddard v. Liddard, 28 Beav. 266. (f) Buggens v. Yeates, 8 Vin. Ab. 72, pl. 27. [See also In re Bond, 4 Ch. D. 238.] (g) Harland v. Trigg, 1 B. C. C. 142. 582. will be created in favor of the wives and children; otherwise the inconvenience complained of would continue. (i) And where the words of a gift expressly point to an absolute Where the gift is for the donee's absolute use, precatory words do not create a trust. Meredith v. enjoyment by the donee himself, (j) the natural construction of subsequent precatory, (k) words is that they express the testator's belief or wish without imposing a trust. Thus,] in Meredith v. Heneage, (1) where the testator, after having given his real and personal estate in the fullest terms to his wife, declared that he had devised the whole of his real and personal estate to his wife, "unfettered and unlimited," in full confidence, and with the firmest persuasion that in her future disposition and distribution thereof she would distinguish the heirs of his late father by devising and bequeathing the whole of his said estate together and entire to such of his said father's heirs as she might think best deserved her preference; it was held in D. P. that the wife was absolutely entitled for her own benefit, Lord Eldon considering that the testator intended to im*pose a moral but not a legal obligation on his wife; for which he relied much (as did also Lord Redesdale) on the words "unfettered and unlimited." Lord Eldon also adverted to the great difficulty of reconciling the testator's direction that the estate should go "entire" with his direction respecting its "distribution." So, in Wood v. Cox, (m) a testatrix gave all her estate, real and personal, to A (and B, their,) his heirs, executors and Wood v. Cox. assigns, "for his and their own use and benefit for ever, trusting and wholly confiding in his honor that he will act in strict conformity to my wishes." And she appointed A and B executors. On the same day the testatrix executed a testamentary paper, by which she gave several annuities and legacies, (among others a legacy of £100 to her father, who was her sole next of kin,) and which concluded with the following words in the testatrix's handwriting: (i) Alexander v. Alexander, 2 Jur. (N. S.) 898, not appealed on this point, 6 D., M. & G. 593. See also Shepherd v. Nottidge, 2 J. & H. 766; Eaton v. Watts, L. R., 4 Eq. 151; M'Cormick v. Grogan, L. R., 4 H. L. 82. (j) "Absolute" properly means not only unlimited in estate, but unfettered by trust or condition. Per James, V. C., Irvine v. Sullivan, L. R., 8 Eq. 673; and per Wood, V. C., Godfrey v. Godfrey, 2 N. R. 16. (k) Secus, if the words are imperative, (2) 1 Sim. 542, 10 Pri. 306. "Such is the will of Sarah Compton." The words "and B their," originally written in the will, were obliterated by the direction of the testatrix. Lord Langdale, M. R., held that A was a trustee for the next of kin, [but his decision was reversed by Lord Cottenham, (n) who said that to make A a trustee of the whole property, the words "for his own use and benefit" must be expunged from the will, or, by reason of some irresistible evidence derived from other parts of the testamentary disposition, treated as if they had never been inserted, a construction which nothing but absolute necessity could justify. Rowlands. In Johnston v. Rowlands, (o) the gift was to the testator's wife, to be disposed of "by her will in such way as she shall think Johnston v. proper," but he recommended her to dispose of one moiety among her own relations, and the other among such of his own as she should think proper. Sir J. K. Bruce, V. C., said, "That the word 'recommend' may amount to a command in a particular instrument, and may create a binding trust, is certain. It is equally certain that the word is susceptible of a different interpretation, of an interpretation consistent with the legal and equitable power of the person recommended to depart from the recommendation." He thought that no trust was created. the principle And in Webb v. Wools, (p) where the gift was "to J., her execu*tors, administrators and assigns, to and for her and their Webb. Wools, own use and benefit, upon the fullest trust and confidence recognized. reposed in her that she shall dispose of the same to and for the joint benefit of herself and my children," Sir R. Kindersley, V. C., said that if he put on the latter part of the sentence a construction which would have the effect of creating a trust for the benefit of the children, he should make the two branches of the sentence contradictory; but he might fairly say that the latter part was not introduced for the purpose of creating any trust, but merely for the purpose of declaring that, giving all his property to J. for her own use and benefit, he reposes full confidence that she will dispose of it for the benefit of herself and children, without imposing any obligation which the court could enforce. [(n) 2 My. & Cr. 684. See also Irvine v. Sullivan, L. R., 8 Eq. 673, a very similar case. (0) 2 De G. & S. 356. (p) 2 Sim. (N. S.) 267. See also White v. Briggs, 15 Sim. 33; Parnall v. Parnall, 9 Ch. D. 97; and the following cases bearing on the subject, Winch v. Brutton, 14 Sim. 379; Bardswell v. Bardswell, 9 Sim. 319; Williams v. Williams, 1 Sim. (N.S.) 358, post *394; Huskisson v. Bridge, 15 Jur. 738; Fox v. Fox, 27 Beav. 301; Green v. Marsden, 1 Drew. 646; M'Culloch v. M'Culloch, 11 W. R. 504. Ware v. Mallard, contra; It remains to notice the case of Ware (or Wace) v. Mallard, (q) where the testator devised and bequeathed all his real and personal property to his wife, her heirs, executors, administrators or assigns, to and for her sole use and benefit, in full confidence that she would in every respect appropriate and apply the same unto and for the benefit of all his children. Sir J. Parker, V. C., decided that the widow took a life estate with a power of appointment among the children. No reasons are reported. If the words "in full confidence," &c., created a trust, it is difficult to see how the widow could take any beneficial interest whatever and if they did not, it is equally difficult to understand how she could be entitled to less than the whole. The authority of the V. C. has given some currency to this decis -questioned. ion. (r) But the better opinion is, that in such a case no trust is imposed on the widow. Thus, in In re Hutchinson and Tenant, (8) where a testator gave all his real and personal estates to his "dear wife absolutely, with full power for her to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so," it was held by Sir G. Jessel, M. R., that the wife took absolutely. He considered the case undistinguishable from Lambe v. Eames, (t) where a testator gave his estate to his widow "to be at her dis*posal in any way she may think best for the benefit of herself and family,"-upon which a strong opinion was expressed by the L. JJ. that no trust was created; but assuming that there was, it could not be extended to mean a trust for the widow for life with remainder for the children in such shares as she might think fit to direct. It should be observed that in some of the cases where Sir J. Parker's construction has prevailed there has been a reference to the donee's death as the time when the recommended disposition was to take effect; (u) and this may have been taken as marking the point of time (g) 21 L. J., Ch. 355, 16 Jur. 492. (r) Gully v. Cregoe, 24 Beav. 185; Shovelton v. Shovelton, 32 Beav. 143; Curnick v. Tucker, L. R., 17 Eq. 320; Le Marchant v. Le Marchant, L. R., 18 Eq. 414. Qu. whether in Curnick v. Tucker a dictum of Kindersley, V. C., in Palmer v. Simmonds, 2 Drew. 221, was correctly interpreted as a surrender by him of the principle which he enforced in Webb v. Wools. Were not his remarks directed exclusively to the words "confidence." (t) L. R., 6 Ch. 597. See also Mackett v. Mackett, L. R., 14 Eq. 49. See these cases referred to again, post. (u) Gully v. Cregoe, 24 Beav. 185; Le Marchant v. Le Marchant, L. R., 18 Eq. 414; Cholmondeley v. Cholmondeley, 14 Sim. 590 (but here the words were only, when the interest of the other beneficiaries was to commence, as well as negativing the widow's right to dispose of the corpus in her lifetime. (x) But the distinction is discountenanced by Meredith v. Heneage, and Johnston v. Rowlands, and in expressing his dissent from the construction in question, Sir G. Jessel drew no distinction between the cases where such a reference existed and where it did not. Limits of the catory trusts. And with regard to the general question of precatory trusts (i. e., where the terms used do not expressly point to an absolute enjoyment by the donee himself,)] the courts seem to be doctrine of presensible that they have gone far enough in investing with the efficacy of a trust loose expressions of this nature, which, it is probable, are rarely intended to have such an operation. (y) Accordingly we find, of late, a more strict and uniform requisition of definiteness in regard to both the subject-matter and objects of the intended trust, than can be traced in some of the earlier [and a few of the more modern] adjudications. Instances of too indefinite trust. words being to create a Thus, in Curtis v. Rippon, (2) where a testator gave all his real and personal estate to his wife, trusting that she would, in love to the children committed to her care, make such use of it as should be for her own and their spiritual and temporal good, remembering always, according to circumstances, the church of God and the poor. Sir J. Leach, V. C., held the wife to be absolutely entitled, the testator's intention evidently being to leave the children dependent on her. So, in Abraham v. Alman, (a) where a will contained the *following passage: : "I do likewise will and bequeath to my only son J. the sum of £60 sterling per year forever; also to provide for the two daughters of my child H. E., namely, S. E. and E. E., and the remainder of my property to the two children of my daughter S. A.” Lord Gifford, M. R., held that the words in question did not create a trust on the £60 a year, or the remainder of the property bequeathed to the children of S. A.; the former was a distinct, independent bequest; and it was not clear that the testator intended to make a provision for the daughters of H. E. out of the latter; the court had no "to be hers independent of her husband" -as to which see also Stubbs v. Sargon, 3 My. & Cr. 513). (x) In Hart v. Tribe, 18 Beav. 215, 1 D., J. & S. 418, there was an express "recommendation" not to do so. (y) See this opinion adopted by James,· L. J., Lambe v. Eames, L. R., 6 Ch. 599.] (2) 5 Mad. 434. (a) 1 Russ. 509. |