of a book, the profits on which are to be for his benefit, (2) the legatee may claim the money without applying it or binding himself to apply it to the specified purpose; and even in spite of an express declaration by the testator, that he shall not be permitted to receive the money. (a) These cases rest on the principle that the court will not compel that to be done which the legatee may undo the next moment, Principle of as by selling the thing to be purchased or giving up the the cases. business and we shall hereafter see, (b) that the same principle applies where property is directed to be converted, for the donee may claim it in its original state; but of course, in such case, if there be more than one donee interested in the gift, the deviation from the testator's directions cannot be made without the consent of all, as if the house when purchased was to be conveyed to or settled on two or more persons. So, if the annuity is to be held by trustees for the annuitant with a gift over in case he should alienate or become bankrupt, his right to receive the fund is intercepted. (c) If the gift is not immediate, but is postponed until the death of a tenant for life, and the annuitant dies before the tenant for life without alienating or becoming bankrupt, it should seem on principle that, as the event on which his interest was to be defeated has not happened, such interest, which originally and apart from the gift over was vested and transmissible, (d) remains intact, and that his representatives are entitled to the fund; and so it was decided in Day v. Day. (e) Where the amount to be applied for the benefit of the legatee is left to be fixed at the discretion of trustees, the legatee where interest has no right to any more than the trustees in their dis- of legatee is left cretion will allow. *Thus, where real and personal estate Hardy, 9 Beav. 379, a legacy to a devisee to pay off a mortgage debt on the estate devised to him was held good, though the mortgage was foreclosed in the testator's lifetime. And see Earl of Lonsdale v. Countess Berchtoldt, 3 K. & J. 185; In re Colson's Trusts, Kay 133 (enjoyment of repairing fund accelerated by disentailing the estate); and cases cited ante p. *311, n. (8) (z) In re Skinner's Trusts, 1 J. & H. 102, in which it was a question of some difficulty, whether the principal object of the bequest was the benefit of the person named, or the publication of the testator's opinions. to discretion of trustees. (a) Stokes v. Cheek, 28 Beav. 620. (c) Hatton v. May, 3 Ch. D. 148; per (e) Sup. But the point was decided otherwise by Malins, V. C., Power v. Hayne, L. R., 8 Eq. 262. was given to trustees upon trust to apply the whole or any part of the rents and annual income towards the maintenance of A, and the trustees applied a part only, and then A died; it was held that his representatives were not entitled to the surplus rents and income. (ƒ) And in a case where a testator authorized his trustees to apply any sum not exceeding a stated amount in the purchase of church preferment for A, and A died before any sum had been so applied; it was held that the gift failed; a discretion was vested in the trustees as to the amount of the legacy, and as to the mode and occasion of raising it, and A could not in his lifetime have claimed payment of it to himself. (g) But as soon as the trustees exercise their discretion by making a purchase for the object of their power, the thing purchased becomes the absolute property of the latter; (h) and instead of applying a sum specifically the trustees may hand it over to the object. (i) pose not for alone, three constructions, Where the motive or purpose of the gift is the benefit of other Where the pur- persons as well as the primary donee, three constructions benefit of donee obtain, according to the language used. The purpose may be so peremptorily expressed as to constitute a perfect trust; or may be such as to leave entirely in the discretion of the primary donee the quantum of benefit to be communicated to the other persons, provided that such discretion is honestly exercised; or lastly, the expression of motive or purpose may be merely nugatory and not operate to abridge the previous absolute gift to the primary donee. In the following cases, illustrating these distinctions, the decisions will be found on examination of the reports to turn in many instances on minute distinctions, which it would require too much space to particularize; and some cases will be found almost irreconcilable with others: the preponderance, however, seems to lean in favor of giving the primary donee a discretion which he must honestly exercise, or in default, subject himself to the control of the court, with a tendency, however, rather to narrow than to extend the effect heretofore ascribed to words expressing the purpose or motive of the gift. (f) In re Sanderson's Trust, 3 K. & J. 497. Compare Beevor v. Partridge, 11 Sim. 229. If the whole income is needed for maintenance the result is the same as if there were an absolute trust, Rudland v. Crozier, 2 De G. & J. 143. (g) Cowper v. Mantell, 22 Beav. 231. (h) Lawrie v. Bankes, 4 K. & J. 142. (Commission in the army purchased, and soon after sold by the object.) (i) Messeena v. Carr, L. R., 9 Eq. 260; Palmer v. Flower, L. R., 13 Eq. 250. In the latter case the power was to purchase promotion in the army, and, in the meantime, purchase was abolished. In In re Ward's Trusts, L. R., 7 Ch. 727, it was held otherwise in case of a deed. complete trust. a. As to the cases in which a complete trust is created. A *gift to A, to dispose of among her children, (k) or for bringing a. Cases of up her children, (l) gives A no interest, but creates a complete trust for the children. And in Taylor v. Bacon, (m) where the testator bequeathed the dividends of stock to R., the wife of his son G., for the benefit of his son G., of herself and of their children, and after the decease of G., the stock to remain in trust for the benefit of R. and her children during her lifetime, if she should remain a widow; it was held that the wife was a trustee of the interest for herself, her husband and children. In Jubber v. Jubber, (n) the bequest was to the testator's wife for the benefit of herself and her unmarried children, that they may be comfortably provided for as long as my wife may remain in this life, with a bequest over upon her death. The widow and unmarried daughters were held to be entitled in equal shares to the income during the widow's life, whether as joint-tenants or tenants in common was not decided. In Wetherell v. Wilson, (o) the testatrix, under a general power, bequeathed a sum of stock in trust for her children at twenty-one or marriage, and directed the trustees, in the meantime, to pay the interest of the fund to her husband, in order the better to enable him to maintain the children of the marriage, until their shares should become assignable to them. Lord Langdale decided that the husband took nothing beneficially, but was bound to apply the income for the benefit of the children. In Wilson v. Maddison, (p) the testator bequeathed "to A. W. with her little girl and two little boys, for their joint maintenance, their mother to have the care of bringing them up to the best of her power, till they are able to do for themselves,-£30 a year, to be paid to the said mother, as above, half-yearly, as may best suit;" and it was held that the four persons were constituted joint-tenants, and that while three were minors, the fourth, being an adult, should receive the annuity for their maintenance. (g) (k) Blakeney v. Blakeney, 6 Sim. 52. (1) Pilcher v. Randall, 9 W. R. 251. (m) 8 Sim. 100; see also Chambers v. Atkins, 1 S. & St. 382; Fowler v. Hunter, 3 Y. & J. 506; In re Camac's Trust, 12 Jur. 470; Barnes v. Grant, 26 L. J., Ch. 92; Bibby v. Thompson, 32 Beav. 646. (n) 9 Sim. 503. (0) 1 Kee. 80. (p) 2 Y. & C. C. C. 372. (9) See also In re Harris, 7 Exch. 344. [*399] b. Cases in which there is a discretion liable to be controlled. b. As to the cases in which the court has considered the primary donee to have a discretion liable to be controlled, if not honestly exercised. (r) In Hamley v. Gilbert, (8) the residue was given to E. G. H., to be laid out and expended by her at her *discretion, for or towards the education of her son F. G. H., and that she should not at any time thereafter be liable and subject to account to her said son or to any other person whatever for the disposal or application of such residue or any part thereof. It was held that E. G. H. was absolutely entitled to the residue, subject to a trust, to apply a part to the education of her son during his minority, (t) and it was referred to the master to inquire what would be a sufficient sum to be appropriated for that purpose. In Gilbert v. Bennett, (u) the testator bequeathed all his property to his wife and two other persons in trust, to pay the income to his wife for the education and support of his children by her; but none of his property was to be disposed of, but the income arising therefrom to be applied as above, to their maintenance and support, and advancement in life and support of his children; and after her death, he gave the property to be divided among his children. The V. C. said, the natural construction of the will was, that the testator intended the whole of the income to be paid to his wife for her life, and to impose on her the burden of maintaining and educating the children out of it. In Hadow v. Hadow, (x) Leach v. Leach, (y) Browne v. Paull, (2) and Longmore v. Elcum, (a) words nearly similar received the same construction. It. appears, as the result of these authorities, that where the interest of the children's legacies is given to a parent to Result of the authorities. (r) The mode and extent of interference exercised by the court depend on the will in each case. See Castle v. Castle, 1 De G. & J. 352. (8) Jac. 354. (t) As to the confinement of the trust to minority, see Gardiner v. Barber, 2 Eq. Rep. 888, overruling Soames v. Martin, 10 Sim. 287, contra. But where the income of a fund is to be applied for the maintenance or education of the legatee during the life of A or during any other specified period, the trust does not cease on the legatee attaining majority or dying in A's lifetime, Longmore v. Elcum, 2 Y. & C. C. C. 363; Bayne v. Crowther, 20 Beav. 400; Brocklebank v. Johnson, Id. 211, 212. So even where the trust is for maintenance, education, and bringing up, Badham v. Mee, 1 R. & My. 631. As to cesser of the trust on marriage of a daughter, see Camden v. Benson, cit. 8 Beav. 350; Bowden v. Laing, 14 Sim. 113; Carr v. Living, 28 Beav. 644; Scott v. Key, 35 Beav. 291. (u) 10 Sim. 371. (z) 1 Sim. (N. S.) 92; see also Bowden v. Laing, 14 Sim. 113. (a) 2 Y. & C. C. C. 363. be applied for or towards their maintenance and education, there, in the absence of anything indicating a contrary intention, the parent takes the interest subject to no account, provided only that he discharges the duty imposed upon him of maintaining and educating the children; (b) and that a contrary intention is not indicated by a direction, that in case of the parent's death, other trustees should make the application of the fund, in which case, however, such trustees would take nothing beneficially. (c) Crockett v. *In Crockett v. Crockett, (d) where the testator directed that all his property should be at the disposal of his wife for herself and children, the only point decided was that the wife and Crockett. children were not joint tenants; but Lord Cottenham was of opinion that the wife had a personal interest in the fund, and that as between herself and her children she was either a trustee with a large discretion as to the application of it, or had a power in favor of the children, şubject to a life estate in herself. The former construction would have been the more consistent with the previous authorities. The latter would not only have introduced a limitation of the wife's interest not expressed in the will, but would have left that diminished interest still subject to the charge of maintaining the children. A "recommendation" not to diminish the principal but to vest it in government or freehold securities, has been held to require this construction. (e) Raikes v. Ward, In Raikes v. Ward, (ƒ) the gift was to the testator's wife, "to the intent she may dispose of the same for the benefit of herself and our children in such manner as she may deem most advantageous." The court, in deciding against the claim of the children to an absolute interest, said it could not deprive the widow of the honest exercise of the discretion which the testator had vested in her, or refuse its assistance to inquire into or sanction any reasonable arrangements which she might desire to make. Expressions somewhat similar to those found in the last two cases have received the same construction in the cases of Conolly v. Farrell, (g) Woods v. Woods, (h) and Costabadie v. Costabadie. (i) (b) Per Lord Cranworth, 1 Sim. (N. S.) strong, L. R., 7 Eq. 518. 103. (c) Id. 105. (d) 2 Phil. 553, reversing the decision, 5 Hare 326 (which seems to have proceeded on some misapprehension of the decree, 1 Hare 451). See also Scott v. Key, 35 Beav. 291; Armstrong v. Arm Other cases. (e) Hart v. Tribe, 18 Beav. 215; but see per Turner, L. J., 1 D., J. & S. 418. (f) 1 Hare 445. (g) 8 Beav. 347. (h) 1 My. & Cr. 401. (i) 6 Hare 410; and see Cowman v. Harrison, 10 Hare 234; Smith v. Smith, |