been allowed to receive the legacy without In several cases, (k) the court has held the donee entitled to receive The donee has the legacy or dispose of the property devised or bequeathed and receive the proceeds, without saying whether he was being declared. absolutely entitled or bound honestly to exercise a discretionary trust. In such cases it was merely decided that there was no absolute trust. his interest Distinction first instance absolutely. But here, as in the case of precatory trusts, if the property is given in the first instance for the absolute benefit, or to be at where given in the disposal, of the donee, especially if such donee be the parent, no trust will be created by subsequent words showing that the maintenance of the children was a motive of the gift. And, although it is not directly denied that the court may control the execution of a trust where the shares of the beneficiaries are left to the discretion of the donee (for the court is in the constant habit of ascertaining the amount required for maintenance of children), yet increased weight is given to that indefiniteness as showing that no trust whatever was intended. Thus, in Lambe v. Eames, (1) where a testator gave his estate to his widow "to be at her disposal in any way she may think best for the benefit of herself and family;" the widow made a will disposing of part of her husband's estate, and giving an interest therein to a natural son of one of his children; and the questions were whether there was a trust, and if there was, whether it had been duly executed. Crockett v. Crockett, and other cases cited above, were pressed on the court; but with reference to them Sir W. James, L. J., expressed a strong disapproval of the "officious kindness" of the court in interposing trusts where none were intended, and said, "If the case stood alone, I should say that no sufficient trust was declared by the will; but if there be any such obligation, I think it has been fairly discharged by the way in which she (the widow) has made her will." (m) mary donee c. Where pri- c. Lastly, as to cases where the primary donee was held absolutely held to be absolutely entitled. entitled. 2 Jur. (N. S.) 967; Godfrey v. Godfrey, 2 N. R. 16; Dixon v. Dixon, W. N. 1876, p. 225. (k) Cooper v. Thornton, 3 B. C. C. 96; Robinson v. Tickell, 8 Ves. 142; Woods v. Woods, 1 My. & Cr. 401; Wood v. Richardson, 4 Beav. 174; Pratt v. Church, Id. 177; Briggs v. Sharp, L. R., 20 Eq. 317. (1) L. R., 6 Ch. 597. See also Mackett v. Mackett, L. R., 14 Eq. 49. But see Scott v. Key, 35 Beav. 291. (m) In Willis v. Kymer, 7 Ch. D. 181, a precatory trust for children, simpliciter, was held well executed in regard to daughters by limiting their shares to their separate use. In Brown v. Casamajor, (n) a legacy was given to a father, the better to enable him to provide for his younger children. Brown v. CasaThe father consented to secure the principal for the major. benefit of his younger children, but the court, on his petition, held him entitled to the past arrears of interest. The report suggests no reason for this decision, but that which appears to be the reasonable one, viz., that the legacy was originally absolute to the father, and remained so except so far as his consent to settle it had deprived him of his interest. Again, in Hammond v. Neame (o) there was a gift to a trustee of a sum of stock, upon trust to pay the income to the testa- Hammond v. tor's niece, "for and towards the maintenance, education Neame. and bringing up of all and every her children, until he, she, or they shall attain *twenty-one;" and then the stock was given equally among them. The niece having no children at the testator's death, it was held that she was entitled to the interest of the stock.] Whittam. So, in Benson v. Whittam, (p) a testator bequeathed certain annuities to be paid out of any money arising from whatever Benson v. dividends he might die possessed of in the Bank of England, and the residue of the dividends to his brother A, (to enable him to assist such of the children of the testator's deceased brother F as he might find deserving of encouragement,) to be paid to the several persons as they became due. Sir L. Shadwell, V. C., decided that the words in the parentheses did not raise any trust in favor of the children of F; they merely expressed the motive or cause of the gift, and he commented on other passages corroborating this conclusion. [In Thorp v. Owen, (q) the testator desired that everything should remain in its present position during the lifetime of his Thorp . wife, and after her decease gave his real and personal Owen, property to other persons, and then added, "I give the above devise to my wife, that she may support herself and her children according to her discretion and for that purpose." Sir J. Wigram, V. C., decided that the widow took absolutely for her life. He said, "The cases should be considered under two heads; first, those in which the court has read the will as giving an absolute interest to the legatees, and as expressing also the testator's motive for the gift; and, secondly, those cases in which the court has read the will as declaring a trust (n) 4 Ves. 498. (0) 1 Sw. 35.] (p) 5 Sim. 22. upon the fund or part of the fund in the hands of the legatee. (r) A legacy to A, the better to enable him to pay his debts, expresses the motive for the testator's bounty, but certainly creates no trust which the creditors of A could enforce in this court; and again, a legacy to A, the better to enable him to maintain or educate and provide for his family, must, in the abstract, be subject to a like construction. It is a legacy to the individual, with the motive only pointed out. This is very clearly, and, in my opinion, rightly laid down by the V. C. in Benson v. Whittam; and the cases of Andrews v. Partington, (8) Brown v. Casamajor, and Hammond v. Neame, illustrate the same principle. At the same time, a legacy to a parent, upon trust to be by him applied, or in trust for the maintenance and education of his children, will certainly give the children a right, in the court of equity, to enforce their natural claims against the parent in respect of the fund on which the trust is declared." And the V. C. added: (t) “If you give property to persons to accomplish an object, increusing their funds, so that they might be better able to do it, that is, in point of fact, a gift to them, and there is no trust which others can enforce." This is an important distinction, clear in principle, but often difficult of application. Bequest to A to maintain B. In Biddles v. Biddles, (u) under a gift to A, to bring up and maintain B, A was held to be absolutely entitled. And in Byne v. Blackburn, (x) where the testator bequeathed a sum of money to trustees, in trust after the death of his daughter M., to pay the dividends to her husband during his life, "nevertheless to be by him applied for or towards the maintenance, education or benefit of the children of M.," it was held that no trust was created in favor of the children, and that A was entitled absolutely for his life; on the ground that if the testator had intended A to be merely a trustee, he would not have made the bequest in the first instance to other trustees; and that where there is a gift to a parent, coupled with a direction that he shall perform certain parental duties, (which are (r) This second head has in the text 907; Jones v. Greatwood, 16 Beav. 528; been split into two divisions. Hart v. Tribe, 18 Beav. 215 (as to the (8) 2 Cox 223. Fewkes, 2 H. & M. 60. (t) Page 614. Compare Barrs v. £100); Wheeler v. Smith, 1 Gif. 300; (u) 16 Sim. 1; see also Berkeley v. Swinburne, 6 Sim. 613; Oakes v. Strachy, 13 Sim. 414; Leigh v. Leigh, 12 Jur. (x) 26 Beav. 41. See also the judgment in Lambe v. Eames, L. R., 6 Ch. 597.] legal obligations as regards a father, but are merely moral obligations in the case of a mother,) it is a gift to and a beneficial interest in the person to whom it is made. Yet nothing is more common in trusts for the maintenance of children, than to direct the trustees to pay the money over to the children's guardian, to be by him applied for their benefit; and with regard to the second reason, it is difficult to reconcile it with Sir J. Wigram's remarks cited above.] Such, then, is the long train of decisions arising from the neglect of testators clearly to distinguish between expressions which Remarks upon are meant to impose a trust or obligation, and those which the cases are intended merely to inculcate the discharge of a moral duty, [or point out the motive of the gift.] At one period the courts seem to have been so astute in detecting an intention to create a trust when wrapped in the disguise of vague and ambiguous expressions, as almost to take from a testator the power of intimating a wish without creating an obligation, unless, indeed, by the use of words distinctly negativing the contrary construction. But though *a sounder principle now prevails, the practitioner will perceive, in the state of the authorities, the strongest incentive to caution in the employment of words which may give rise to a question of this nature. If a trust is intended to be created, this should be done in clear and explicit terms; and if not, any request or exhortation which the testator may choose to introduce, should be accompanied by a declaration, that no trust or legal obligation is intended to be imposed. Sometimes a testator's recommendation in favor of a third person is not of a nature to create a simple absolute trust for his benefit, but has for its object the placing or continuance of such person in some office or capacity connected with the property that is the subject of disposition, involving the performance of a certain duty. As Direction to where a testator directs that the tenants of the devised to continue in property shall be allowed to continue in its occupation, occupation; either with or without a condition or restriction as to rent, cultivation, &c. permit tenants As in Tibbits v. Tibbits, (y) where a testator made a devise to his son, recommending him to continue his cousins A and B "in the occupation of their respective farms in the county of W. as heretofore, and so long as they continue to manage the same in a good and husband (y) 19 Ves. 656. [Compare Quayle v. Davidson, 12 Moo. P. C. C. 268. like manner, and to duly pay their rents," it was held to be a trust for the cousins, who had been tenants at will. particalar steward, &c. bert. It has been much discussed whether a direction or injunction to --to employ a employ a particular agent or steward, imposes on the devisee an obligation in the nature of a trust in favor of the person so named, subject, of course, to the implied condition to Hibbert v. Hib- faithfully discharge the duties of the office. [Thus, in Hibbert v. Hibbert, (z) the testator, whose only real estates were in Jamaica, directed that his friend H. should be appointed receiver of his real and personal estates, adding that he made this appointment for the sake of benefiting H. in a pecuniary point of view. Sir W. Grant, M. R., held that H. was entitled to be receiver, agen: and consignee for the Jamaica estates, upon his personal recognizance, without (as would have been required if he had not been appointed by the testator) giving the usual security.] Williams v. So, in Williams v. Corbet, (a) where a testator devised his estates to trustees upon trust to let the same, and apply the *rents Corbet. in paying off certain encumbrances, and appointed A to be auditor of the accounts during the execution of the trusts, and directed the trustees to pay him the usual annual remuneration. Sir L. Shadwell, V. C., held that the trustees were not justified in removing A from the office, there being no imputation on his conduct, for that he had as much right to be the auditor as any one of the devisees had to the estates. Lawless v. Direction to employ a par [On the other hand] in Lawless v. Shaw, (b) where a testator, after devising his estates, charged with certain annuities, to his friend William Shaw (then aged twenty years) for life, ticular steward. With remainders over in striet settlement, and after bequeathing to his friend and agent B. E. Lawless £100 as a token of the testator's esteem for him, and after directing his executors to pay his agent £150, to be distributed among the poor of his estates, declared it to be his particular desire that his executors, whilst acting in the management of all or any of his affairs, as also his friend W. Shaw, when he should enter into the receipt of the rents of his estates, should continue Lawless in the receipt and management thereof, and likewise should employ and retain him in the agency and management (z) 3 Mer. 681. See also Saunders v. Rotherham, 3 Gif. 556 (direction to continue testator's trade and employ A as manager).] (a) 8 Sim. 349. |