means of determining what that provision was to be, [or in what manner or out of what fund to be made.]

Again, in Sale v. Moore, (b) where a testator bequeathed the remainder of what he should die possessed of, after payment of debts and legacies to his dear wife, adding, "recommending to her, and not doubting, as she has no relations of her own family, but that she will consider my near relations, should she survive me, as I should consider them myself in case I should survive her." In a preceding part of the will, the testator had assigned as a reason for his not leaving his brother and sister anything, that they were provided for, and that he could not do so without taking from his wife's property, who was more in need of it.-Sir A. Hart, V. C. held that the effect of the whole was, that no trust for the relations was created.

So, in Hoy v. Master, (c) where a testator willed the whole of his property to his wife for life, and that, after her decease, one-third should devolve to his beloved daughter M., and that the other twothirds should be at the sole and entire disposal of his said wife, L. B.; "trusting that, should she not marry again and have other children, her affection for our joint offspring, the said M. B., would induce her to make her said daughter her principal heir." The wife did not marry again, and disposed of her property to a stranger; whereupon it was claimed by the daughter, on the ground that the wife had a life interest only, with a power of appointment in favor of the children of any future marriage, with an alternative trust for the daughter absolutely. But Sir L. Shadwell held that the wife took the twothirds absolutely.

Again, in Lechmere v. Lavie, (d) where a testatrix made a codicil to her will in the following words :-"I hope none of my children will accuse me of partiality, in having left the largest share of my property to my two eldest daughters, my sole motive for which was to enable them to keep house so long as they remain single; but, in case of their marrying, I have divided it amongst all my children. If they die single, of course they will leave what they have amongst their brothers and sisters, or their children." Sir J. Leach, M. R., considered that these words were not intended to create an obligation upon the two eldest daughters, as they applied not simply to the property given by the testatrix, but to all property which the daughters might

(b) 1 Sim. 534; [See also Reeves v. Baker, 18 Beav. 373.]

(c) 6 Sim. 568.

(d) 2 My. & K. 197.

happen to possess at their deaths, leaving what she gave by her will at their disposition during their lives, and extending to property which might never have belonged to her, and wanting altogether certainty of amount.

It is submitted, however, that the uncertainty in regard to the subject of gift arose, not from the testatrix having combined in the trust with her own property that of her daughters themselves, which she could not dispose of, (e) but from the absence of any clear indication of intention that the trust was to affect all the property which the daughters derived from the testatrix. The expression "what they have" would seem to imply that the legatees might dispose of, as absolute owners, any part they chose, and that the trust should apply only to what remained. This brings the case within the principle of Wynne v. Hawkins, (f) where a testator bequeathed what he should leave behind him to his wife, "not doubting that she would dispose of what should be left, at her death, to their two grandchildren." Lord Thurlow said that the words "not doubting" would be strong enough; but that where, in point of intent, it was uncertain what property was to be given, and to whom, the words were not sufficient, because it was doubtful what the confidence was which the testator had reposed; and, where that did not appear, the scale leaned to the presumption that he meant to give the whole to the first taker.

So, in Horwood v. West, (g) where a testator recommended his wife to give by her will what she should die possessed of under his will in a certain manner-Sir J. Leach, V. C., assumed, that if these words had been uncontrolled by the context, the trust must have been void for uncertainty; but he thought that it was evident, from a direction in the will to the wife to secure to her*self, on a second marriage, whatever she should possess by virtue of his will, that the testator intended the trust in question to be co-extensive with such direction, i. e. to extend to all the property the wife derived from the testator.

It should be observed, however, in regard to the objection of uncertainty, that the preceding cases, though frequently referred to as if they were the subject of a peculiar rule, merely require, in common with all others, that the intention of the testator should be manifested with sufficient certainty to enable the court to act judicially upon it.

[(e) As to this, see Lefroy v. Flood, 4 Ir. Ch. Rep. 1, 12.]

(f) 1 Bro. C. C. 179. As to cases of this class, vide ante pp. *362, *363.

(g) 1 Sim. & St. 387.

So, in Ex parte Payne, (i) where a testator, after devising the property in question to his daughter in fee, proceeded to declare that the estate was intended as some reward for her attention to him, and was kept separate from the other interests she would take under his will as a testimony thereof. And he directed his daughter to keep the premises in good repair; and in case she should marry, he strongly recommended her to execute a settlement of the estate, and thereby to vest the same in trustees, to be chosen by her, for the use of herself for life, with remainder to her husband for life, with remainder to the children she might happen to have, or to such other uses as his daughter should think proper, to the intent that the said estate, in the event of her marriage, might be effectually protected and secured. The question, on petition, was, whether the daughter (who was unmarried) could make a good title to the devised property in fee. It was contended for her that she could, for that neither the persons to take nor the estates themselves were certain; and that, even if the daughter married, she might limit the estate to such uses as she thought proper: and of this opinion was Lord Abinger, C. B.

Williams v.

[And in Williams v. Williams, (k) where the testator by his will bequeathed property to his wife absolutely for her own Williams. use and benefit, and subsequently in a letter to her, wrote as follows: "I hope my will is so worded that everything that is not in strict settlement you will find at your command. It is my wish that *you should enjoy everything in my power to give, using your judgment where to dispose of it amongst your children when you can no longer enjoy it yourself, but I should be unhappy if I thought it possible that any one not of your family should be the better for what I feel confident you will so well direct the disposal of." It was held by Lord Cranworth, V. C., that no trust was created: he thought the words of the codicil could not operate to cut down the absolute interest

(i) 2 Y. & C. 636; see also Knight v. Knight, 3 Beav. 148; [S. C., nom. Knight v. Boughton, 11 Cl. & Fin. 513, 8 Jur. 923; Lefroy v. Flood, 4 Ir. Ch. Rep. 1, (in which great reliance was placed on the fact that the approbation of the devisee was required to the conduct of the persons claiming as cestuis que trust; the [*395]

force of which requisition must, however, depend on circumstances, Bonser v. Kinnear, 2 Gif. 195;) Quayle v. Davidson, 12 Moo. P. C. C. 268; Maud v. Maud, 27 Beav. 615; Scott v. Key, 35 Beav. 291 (as to one-third); but see Malone v. O'Conner, 2 Ll. & Go. 465.

(k) 1 Sim. (N. 8.) 358.

given to the wife: but he relied chiefly on the uncertainty of the objects to whom the precatory words referred.] ()

It will be observed that in all these cases the consequence of holding the expressions to be too vague for the creation of a trust was, that the devisee or legatee retained the property for his or her own benefit; and in this respect these cases stand distinguished from those (m) in which there was considered to be sufficient indication of the testator's intention to create a trust, though the objects of it were uncertain: a state of things which, of course, lets in the claim of the heir or next of kin to the beneficial ownership. In such cases there is no uncertainty as to the intention to create a trust, but merely as to the objects; in the other class of cases it is uncertain whether any trust is intended to be created. [But inasmuch as uncertainty in the object furnishes a strong argument that a testator did not intend to create a trust, it is obvious that the two classes of cases are intimately connected with each other. For the rule that a certain subject and a certain object are necessary to constitute a trust, where the words used are precatory only, does not mean that the subject or object must be so defined that it can in fact be ascertained by the court. A precatory trust "for the benefit of

Meaning of the

rule requiring

certainty of object and subject

for a precatory

trust.

or of "the

person named in such a paper," where no such paper is found, or "for such objects as I have communicated to" the donee, where no such communication has been made, (n) would completely exclude the donee from all beneficial interest, although it leaves the object wholly unascertained. (m) But what is meant by the rule is this: in ascertaining whether the precatory words import merely a recommendation, or whether they import a defi*nite imperative direction to him as to his mode of dealing with the property, the court will be guided by the consideration whether the amount he is requested to give is certain or uncertain, and whether the objects to be selected are certain or uncertain; and if there is a total absence of explicit direction as to the quantum to be given, or as to the objects to be selected by the donee of

7) As to the meaning of "family," see L. R., 6 Ch. D. 600, 8 Ch. D. 542, and post ch. XXIX.

(m) Stubbs v. Sargon, Fowler v. Garlike, Corporation of Gloucester v. Wood, Briggs v. Penny, ante p. *383, et seq.

(n) Bernard v. Minshull, Johns. 276. But where the gift was "subject to such

disposition thereof or of any part thereof as the testator might by deed or writing thereafter direct," it was held there was no trust, the testator not having made up his mind whether he would make any such disposition or not, Fenton v. Hankins, 9 W. R. 300.

the property, then the court will infer from the circumstance of the testator having used precatory words, expressive only of hope, desire or request, instead of the formal words usual for the creation of a trust, that those words are used, not for the purpose of creating an imperative trust, but simply as suggestions on the part of the testator, for the guidance of the donee in the distribution of the property; the testator, placing implicit reliance upon his discretion and leaving him the sole judge whether he will adopt those suggesstions or not, and whether he will dispose of the property in the manner indicated by the testator, or in any other manner at his absolute discretion. The question is not whether the object is so defined that it can be distinctly ascertained by the court, but whether the object is purposely left to be selected by the donee; (p) as, for instance, where the testator expresses a desire that the donees shall "distribute the fund as they think will be most agreeable to his wishes." (q)

Secondly, we are to consider whether in cases where words are added Gift for a speci- expressing a purpose for which the gift is made, such fied purpose. purpose is to be considered obligatory. Where the purpose of the gift is the benefit solely of the donee himself, he can claim the gift without applying it to the purpose, and that, it is conceived,

Where the purpose is the benefit of donee alone,

whether the purpose be in terms obligatory or not. Thus, if a sum of money be bequeathed to purchase for any the gift is abso- person a ring, (r) or a life-annuity, (8) or a house, (t) or to set him up in business, (u) or for his maintenance and education, (x) or to bind him appren*tice, (y) or towards the printing

lute.

(p) See judgment of Wood, V. C., Bernard v. Minshull, Johns. 287, 290.

(q) Stead v. Mellor, 5 Ch. D. 225. (r) Apreece v. Apreece, 1 Ves. & B. 364. (8) Dawson v. Hearn, 1 R. & My. 606; Ford v. Batley, 17 Beav. 303; In re Browne's Will, 27 Beav. 324. It makes no difference whether it be a bequest of a specified sum to purchase an annuity, or a direction to purchase an annuity of a specified amount, Yates v. Compton, 2 P. W. 308.

(t) Knox v. Hotham, 15 Sim. 82. (u) Gough v. Bult, 16 Sim. 45.

(x) Webb v. Kelly, 9 Sim. 472; Younghusband v. Gisborne, 1 Coll. 400; Presant

v. Goodwin, 1 Sw. & Tr. 544, 29 L. J. Prob. 115. It follows that if the legatee die before receiving his legacy, his representative is entitled, Yates v. Compton, 2 P. W. 308; Barnes v. Rowley, 3 Ves. 305; Palmer v. Crauford, 3 Sw. 482; Bayne v. Crowther, 20 Beav. 400; Attwood v. Alford, L. R., 2 Eq. 479.

(y) Barlow v. Grant, 1 Vern. 255; Nevill v. Nevill, 2 Id. 431; but see Woolridge v. Stone, 4 L. J. (O. S.) Ch. 56; see further, Barton v. Cook, 5 Ves. 461; Leche v. Kilmorey, T. & R. 207; Att.Gen. v. Haberdashers' Company, 1 My. & K. 420; Lewes v. Lewes, 16 Sim. 266; Noel v. Jones, Id. 309; in Lockhart v