vert; or that the profits of the land shall be applied to a particular purpose;2 or by precatory words to the effect that the devisee will leave the land to certain persons or to certain uses, should he die without issue, or in any other contingency, because mere words of desire or recommendation do not create a trust in an absolute devisee or legatee, unless by express words of the testator it appears that the recommendation was intended to be obligatory, as where there are words expressive of desire as to the direct disposition of the estate; or by words restricting or forbidding the sale of the land by the devisee, even where followed by a devise over on the death of the first taker; or after giving an estate in fee providing that under certain circumstances the devisee may sell the estate; or by provision that the devisee may dispose of the estate by will, or by a provision that the land devised shall not be left to a certain person; or by providing that if the devisee "shall die seized of the estate herein bequeathed, or any part thereof, without lawful issue, then the estate of him so dying seized, is hereby bequeathed and shall descend" to other heirs; or the provision for the devise of the fee, that the devisee shall pay certain designated legacies, and on his failure to do so, that the executor of the will may sell a part or all of the land devised for that purpose, where there is no devise over, and where an estate has been devised in trust, the addition of the words "for her and her heirs' sole use and benefit," will not affect the equitable fee devised, 10 9 § 2. Ancient rule as to precatory words.— It is said by the Supreme Judicial Court of Massachusetts, in the case of Hess v. Singler," that "it is a settled 1 Shult v. Rambo, 57 Penn. St. 149. Thompson v. Swoope, 24 Penn. St. 474. 3 Batchelor v. Macon, 69 N. C. 545; Second Reformed Pres. Church v. Disbrow, 25 Penn. St. 219; Pennock's Estate, 20 id. 268; S. C., 59 Am. Dec. 718. 4 Burt v. Herron, 66 Penn. St. 402. 3 Kepple's Appeal, 53 Penn. St. 211; Walker v. Vincent, 19 id. 369; Reifsnyder v. Hunter, id. 369; McCollough's Heirs v. Gilmore, 11 id. 370. Grant v. Carpenter, 8 R. I. 36. That an estate for life has been limited to a person is not a sufficient indication of intent that the devisee shall have a life estate only, to prevent a fee-simple in the same land being given to him by subsequent words, Geyer v. Wentzel (68 Penn. St. 85.) Barnard v. Bailey, 2 Harr. (Del.) 56. 8 Van Horne v. Campbell, 100 N. Y. 287. 9 Hanna's Appeal, 31 Penn. St. 53. 10 Korn v. Cutler, 26 Conn. 4. 11 114 Mass. 56, 59. doctrine of courts of chancery that a devise or bequest to one person, accompanied by words expressing a wish, entreaty or recommendation that he will apply it to the benefit of others, may be held to create a trust, if the subjects and the objects are sufficiently certain. Some of the earlier English decisions had a tendency to give to this doctrine the weight of an arbitrary rule of construction. But by the latter cases, in this as in all other questions of the interpretation of wills, the intention of the testator, as gathered from the whole will, controls the court. In order to create a trust it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed upon mere words of recommendation and confidence." 1112 It is said in the case of Pennock's Estate, 18 that the ancient rule is fading away even in England; that the disrelish with which it is received by the legal and judicial minds of that country may be seen in the doctrine of extreme certainity required as to the subject and object of the recommendation.14 And also in the fact that it is degraded into the class of implied or constructive, and not express trusts. 15 And that it is everywhere regarded as frustrating the will of the testator. 16 Words of entreaty or recommendation are not now regarded in England as creating a trust, unless on the whole they ought to be construed as imperative." The rule is a mere artificial one that is to be strictly limited to the demands of authority. It looks upon the words as prima facie words of trust.18 Yet any words or expressions are eagerly seized hold of as 12 See Van Duyne v. Van Duyne, 14 N. J. Eq. 397; Spooner v. Lovejoy, 108 Mass. 529; Warner v. Bates, 98 id. 274, 277; Pennock's Estate, 20 Penn. St. 268; S. C., 59 Am. Dec. 718; Knight v. Knight, Beav. 148, 172; S. C., sub nom; Knight v. Boughton, 11 Cl. & Fin. 513; Lambe v. Eames, 10 L. R. Eq. 267; S. C., 6 L. R. Ch. 597. 13 20 Penn. St. 268; S. C., 59 Am. Dec. 718, 723. 14 Harland v. Trigg, 1 Bro. C. C. 142; Tibbits v. Tibbits, 19 Ves. 664; Wright v. Atkyns, 1 Ves. & B. 313; S. C., Turn. & R. 157; Ex parte Payne, 2 You. & C. 636. 15 Hill v. Bishop of London, 1 Atk. 619; Jeremy Eq. Jur. 99; Lewin Trusts, 66; 2 Rop. Leg. 380, etc.; 2 Story Eq. Jur., § 1074. 16 Meredith v. Heneage, 1 Sim. 551; Sale v. Moore, id. 540; Wright v. Atkins, 1 Ves. & B. 315; 2 Story Eq. Jur., §§ 1069-1074. 17 Macnamara v. Jones, 1 Bro. C. C. 481; Meggison v. Moore, 2 Ves. Jr. 632; 2 Spence Eq. Jur. 65. 18 Podmore v. Gunning, 7 Sim. 665; Berkley v. Ryder, 2 Ves. Sr. 533; Worsley v. Granville, id. 335. indications of a contrary intent.' Where it is apparent that the kindness or justice or discretion of the devisee is relied on no trust aim. And if it can be implied from the words that a discretion is left to withdraw any part of the subject of the devise from the object of the wish or bequest, or to apply it to the use of the devisee, no trust is created.3 There is no American case wherein the antiquated English rule has been adopted. § 3. Rule of the American courts · Jackson v. Bull. - In this case of Van Horne v. Campbells the court says that the States upon this question are equally uniform. 6 Ide v. Ide, decided in 1809 by Chief Justice Parsons, is perhaps the earliest case in the country upon the subject. The action was ejectment. In that case the testator devised real estate to his son P., his heirs and assigns forever, and also bequeathed to him personal estate in words denoting an absolute interest, and in a subsequent clause declared, and further, it is my will, that if my son P. shall die and leave no lawful issue, what estate he shall leave, to be divided between my son J. and my grandson N., etc. P. conveyed the land in his lifetime and died leaving no issue. The court held that the limitation over was void for repugnancy to the disposing power, and on that ground decided the case for the plaintiff, making no reference to the fact that P. had exercised the power by a convey 1 1 Knight v. Knight, 3 Beav. 172; Harland v. Trigg, 1 Bro. C. C. 143; Shaw v. Lawless, 5 Cl. & Fin. 147, 153; Foley v. Parry, 2 Myl. & K. 144; White v. Briggs, 15 Sim. 33, 300; Meredith v. Heneage, 1 id. 550, 552. 2 Knight v. Knight, 3 Beav. 148, 172, 176; Curtiss v. Rippon, 5 Madd. 434; Pope v. Pope, 10 Sim. 1, Bardswell v. Bardswell, 9 id. 319; Young v. Martin, 2 You. & C. (N. S.) 482, 590; Malim v. Keighley, 2 Ves. Jr. 530, 533. 3 Flint v. Hughes, 6 Beav. 342; Knight v. Knight, 3 id. 173, 174; Sprange v. Barnhard, 2 Bro. C. C. 585; Wynne v. Hawkins, 1 id. 179; Bland v. Bland, 2 Cox. 354; Eade v. Eade, 5 Madd. 121; Lechmere v. Lavie, 2 Myl. & K. 201; Pope v. Pope, 10 Sim. 5; Horwood v. West, 1 Sim. & S. 389; Pushman v. Filliter, 3 Ves. Jr. 7. As to that rule, see Coate's Appeal, 2 Penn. St. 129, 131; Flint v. Hughes, 6 Beav. 342; Sprange v. Barnhard, 2 Bro. C. C. 585; Wynne v. Hawkins, 1 id. 179; Bland v. Bland, 2 Cox, 354; Williams v. Williams, 5 Eng. L. & Eq. 49; Eade v. Eade, 5 Madd. 118; White v. Briggs, 15 Sim. 33; Meredith v. Heneage, 1 id. 542; Pushman v. Filliter, 3 Ves. Jr. 7; Ex parte Payne, 2 You. & C. 636. ance. The power of disposition was held to be implied from the words "what estate he shall leave.” Melson v. Doe, decided by the Supreme Court of Virginia, in 1833, was a case where a testator devised land to his son W. and his heirs, and if he should die without a son, and not sell the land, then to the testator's son G. It was held, as stated in the head note, that the devise gave W. absolute power to sell a fee-simple, and, therefore, whether he sold or not, he took a fee-simple, and the devise over was void. The same principle was declared in a prior case, in the same State where the power of disposition was held to be implied from the words, "so much of the estate as may remain undisposed of." Cook v. Walker involved the construction of a marriage settlement of real and personal property which provides for the devolution of the property if the wife "should die intestate, without making any disposition," etc. Lumpkin, J., in delivering the opinion of court, said: "We hold it to be an incontrovertible rule, that whenever an estate is given in Georgia, either by deed or will, to a person, generally or indefinitely, with an unlimited power of dispensation annexed, it invariably vests an absolute fee in the first taker, and that neither a remainder nor an executory devise can be limited on such an estate." The cases of Flynn v. Davis1o and McRea's Administrators v. Means11 declare the same rule. In Pickering v. Landon it was held that a gift over of real and personal estate, of "what remains" on the death of the first taker, was void; and in Ramsdell v. Ramsdell13 it was declared that the doctrine of Jackson v. Bull was settled law. The doctrine that an absolute power of disposi tion in the first taker was fatal to a limitation over and was also declared by the court of North Carolina, 15 and also by the courts of Tennessee in two cases, Williams v. Jones16 and Davis v. RichardAfter a somewhat diligent examination I have been unable to find any decision in any court in this country adverse to the doctrine declared in Jackson v. Bull, 18 and I think it may safely be affirmed that the doctrine of that case is the settled son. 17 § 4. Same Doctrine of Smith v. Bell. - In the case of Smith v. Bell' a testator gave a legacy to his wife "to and for her own use and benefit and disposal absolutely, and the remainder of said estate, after her decease, to be for the use of the testator's son," the court held that the latter clause qualified the former, and showed the wife only took a life estate. In construing the language of the devise, Chief Justice Marshal, after observing that the operation of the words "to and for her own use and benefit and disposal absolutely," annexed to the bequest, standing alone, could not be questioned, said: "But suppose the testator had added the words during her natural life,' these words would have restrained those which preceded them, and have limited the use and benefit and the absolute disposal given by the prior words, to the use and benefit and to a disposal for the life of the wife. The words then are susceptible of such limitation. It may be imposed on them by other words. Even the words "disposal absolutely" may have their character qualified by restraining words connected with and explaining them to mean such absolute disposal as a tenant for life may make. " The doctrine of Smith v. Bell has not met with the approval of the courts, being doubted in Massachusetts, questioned in New York and denied in Maine.1 The Supreme Judicial Court of Massachusetts say that the authurity of this decision is somewhat impaired by the circumstance that no counsel were heard on behalf of the party against whom it was made, and that the attention of the court does not seem to have been drawn to the authorities in favor of the opposite conclusion; that the decision is made to rest upon the fact that the remainder was the only special provision made by the will for the testator's only child, and that there were no words directly extending the wife's interest beyond her life." § 5. Provision for disposal by will does not reduce estate. In Spooner v. Lovejoy the testator provided as follows: "I give, bequeath and devise all the rest, residue and remainder of my property and estate, whether real, personal or mixed, to my be 131 U. S. 68; bk. 8 (L. ed.) 322; followed in Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 333; bk. 23 (L. ed.), 927, 928; S. C., 16 Am. L. Reg. 403. ? See Gifford v. Choate, 100 Mass. 343, 346; Albee v. Carpenter, 66 id. 382, 383; Homer v. Shelton, 43 id. 194, 199, 201. 3 See Campbell v. Beaumont, 91 N. Y. 465, 469. 4 See Copeland v. Barron, 72 Me. 206; S. C., 39 Am. Rep. 318, 319, note. 5 Gifford v. Choate, 100 Mass. 343, 346. Campbell v. Beaumont, 91 N. Y. 464, 468. 108 Mass. 329, 333. 7 loved wife, Elizabeth, Elliot Spooner, principal and income, to her own use, and to be disposed of at her decease according to the terms of any will or testamentary document that she may leave," the court held that the provision allowing her to dispose of the property by her last will would not reduce her estate under the general bequest to a mere life estate. In the latter case a tenant in fee-simple devised land to his wife, her heirs and assigns, forever, "with the intention that she may enjoy the same during her life, and by her will dispose of the same as she thinks proper." The court held that the wife took a fee, though in the latter part of the will the devisor limited lands in fee by using the words "heirs and assigns forever," without any additional words." fee. § 6. "To her sole use, benefit and disposal" carry In Davis v. Maileys a testator gave to his wife all his real and personal estate, "to her sole use, benefit and disposal;" and provided that 'whatever may be left of my estate, if any, she may by will or otherwise give to those of my heirs that she may think best, she knowing my mind on that subject. I am willing to leave the matter entirely with her, feeling satisfied that she will do as I have requested her to do in the matter." The court held that the wife took all the estate which the testator could devise, with the absolute right of disposing of it as she saw fit. § 7. "Unfettered and unlimited" preclude trust.In the case of Meredith v. Heneage a devise of a testator's estate to his wife, "unfettered and unlim ited, in full confidence, and with the firmest persuasion that, in her future disposition and distribution thereof, she will distinguish the heirs of my late father, by devising and bequeathing the whole of my said estate, together and entire, to such of my said father's heirs as she may think best deserves her preference," was held by the House of Lords, upon the advice of Lord Eldon and Lord Rosedale, not to create a trust, because the words "unfettered and unlimited" precluded the inference of such an Defendant was on trial for an assault committed by him on his mother-in-law. The prosecuting attorney announced that his evidence was closed. "Why," said the judge to him, "you haven't called the mother-in-law." "We expect to produce her, your honor," interposed counsel for the defense, "as a mitigating circumstance." ́ ́ Citing Doe, d. Herbert, v. Thomas, 3 Ad. & E. See 123; S. C., 30 Eng. C. L. 77. 8 134 Mass. 588. 91 Sim. 542. BUILDERS OF LAW DURING QUEEN VIC- bustling bigwig of his time, who, busy as he was, TORIA'S REIGN. SIR ROBERT PHILLIMORE. N same that Sir an 0 other me deny judge, George Jessel diueror There rolls the sea where grew the tree, So sings the late laurcate; but no less wonderful than the changes of the earth's face have been the changes of the old order yielding place to new." Few men have witnessed more of such changes than Sir Robert Phillimore, and in many that he saw he bore a leading part. yet Seemed busier than he was. Shrewd Mr. Pepys, who was in the office, and knew more about maritime muters any nice. body else, was quite right. The court was only in its infancy. Its "two businesses" were soon to multiply, as our commerce and our empire grew, into scores and hundreds - the rivulet to become a mighty stream and this in spite of the jealousy of the common lawyers, who did their best to thwart and circumscribe the jurisdiction of the court. It finally established its local habitation at Doctors' Commons, under the shadow of St. Paul's. There, in the old Doctors' Commons, says a writer in the Times, existed, forty or fifty years ago, a subdivision of forensic labour and judicial rewards which is now nearly forgotten. The main stream of legal business flowed, of course, through the The old Court of Admiralty, whose jurisdiction inns of court, the circuits and Westminister Hall. he inherited, reaches back to the reign of our Eng-But there were also quiet backwaters not to be delish Justinian, Edward I. It was then the Court of the Lord High Admiral of England, and was held on shipboard in a summary way, velo levato. It seems to have been first established in a more permanent fashion by Edward III, for the trial, in accordance with the laws of Oleron and the procedure of the civil law, of all matters relating to merchants and mariners which happened on the high seas. The sittings of the court were originally held within the ebb and flow of the tide, in the time of Henry IV at a wharf in Southwark, and in the time of Henry VIII, at Horton's Quay, near London Bridge. In 1597, part of the church of St. Margaret-onthe-Hill was used, as Stow in his survey tells us, for this purpose, and here it was that on the 17th of March, 1883, Pepys attended the sittings of the court. He enters in his diary for that day: "To St. Margaret's Hill in Southwark, where the judge of the admiralty come, and the rest of the doctors of the civil law, and some other commissioners, whose commission of Oyer and Terminer was read, and then the charge given by Dr. Exton (the then dean of arches and judge of the Admiralty Court), which methought was somewhat dull, though he would seem to intend it to be very rhetorical, saying that justice had two wings, one of which spread itself over the land, and the other over the water, which was this Admiralty Court. I perceive that this court is yet but in its infancy, and their design and consultation was I could overhear them how to proceed with the most solemnity and spend time, there being only two businesses to do, which of themselves could not spend much time." Readers of Chaucer will doubtless remember the "Serjeant of the law, both ware and wise," of the "Canterbury Tales," and Chaucer's sly hit at the spised by patient anglers, known as the College of Advocates, the Admiralty, Arches and Prerogative Courts, and the Chancery Courts of the Bishops. The career of an ordinary barrister was then much what it is now. He ate, as he still eats, his dinners in the hall of his inn. He read in his chambers, was called to the bar, went circuit and sessions, frequented the courts, and perhaps at last sat upon the bench. The alternative career which existed when Sir Robert Phillimore entered upon practice began by a course of study at Oxford or Cambridge, ending with a decree in law. The young civilian was then capable of being admitted on the fiat of the Archbishop of Canterbury to the College of Advocates at Doctors' Commons, hard by St. Paul's Cathedral. Thereupon, after his year of silence, he was allowed to appear as an advocate in all the courts which administered the civil and canon law; that is to say, the courts having jurisdiction in matters testamentary, matrimonial, maritime and ecclesiastical. In these courts his right of audience was exclusive, and he was instructed, not by solicitors or attorneys, but by a close body of proctors. The doctors and proctors formed in the good old days a happy family party. Readers of "David Copperfield" will remember how when Mr. Splenlow, the proctor, was driving his newly-articled pupil down to Norwood to spend the day, that memorable day when David was forever enslaved by the curls and blushes of the enchanting Dora, the said Mr. Spenlow descanted on "The Commons" and its advantages. "I asked Mr. Spenlow "it is David who is speaking- "what he considered the best sort of professional business? He replied, that a good case of a disputed will, where there was a neat little estate them, while the fur-tippeted proctors occupied a table below. It was to this court sitting at Doctors' Commons that Robert Phillimore was admitted as an advocate in the year 1839. Heine remarks somewhere that the most important thing in life is to select your parents wisely, and this Phillimore may be said to have done. His father, Joseph Phillimore, of Shiplake House, Henley-on-Thames, was a distinguished civilian and writer, so was John Phillimore. Ballantine says he made the ablest speech he ever heard at the bar. Law and letters ran in the blood of the race, and Westminister and Christ Church added fine scholarship to these natural aptitudes. Once admitted an advocate at Doctors' Commons he rose of £30,000 or £40,000, was, perhaps, the best of all. In such a case, he said, not only were there very pretty pickings, in the way of arguments at every stage of the proceedings, and mountains upon mountains of evidence on interrogatory and counterinterrogatory (to say nothing of an appeal lying first to the delegates and then to the Lords); but, the costs being pretty sure to come out of the estate at last, both sides went at it in a lively and spirited manner, and expense was no consideration. Then he launched into a general eulogium on the Commons. What was to be particularly admired (he said) in the Commons was its compactness. It was the most conveniently organized place in the world. It was the complete idea of snugness. It lay in a nutshell. For example, you brought a divorce case or a restitution case into the consistory. Very good. You tried it in the consistory. You made a quiet little round game of it, among a family group, and you played it out at leisure. Suppose you were not satisfied with the consistory, what did you do then? Why you went into the arches. What was the arches? The same court, in the same room, with the same bar, and the same practitioners, but another judge, for there the consistory judge could plead any court day as an advocate. Well, you played your round game out again. Still you were not satisfied. Very good. What did you do then? Why, you went to the delegates. Who were the thing, a liberal-conservative, whose creed is in the delegates? Why, the ecclesiastical delegates were the advocates without any business, who had looked on at the round game when it was playing in both courts, and had seen the cards shuffled, and cut, and played, and had talked to all the players about it, and now came fresh as judges to settle the matter to the satisfaction of everybody! Discontented people might talk of corruption in the Commons, closeness in the Commons, and the necessity of reforming the Commons, said Mr. Splenlow, solemnly, in conclusion, but when the price of wheat per bushel had been highest, the Commons had been busiest, and a man might lay his hand npon his heart, and say this to the whole world, ' Touch the Commons and down comes the country.'' and Beware of prophesying. The family party was broken up and the round game spoilt by a series of acts, beginning with the Probate Act of 1857, ending ending with the Judicature Acts, and the country still lives and thrives. The college, eulogized so highly by Mr. Splenlow, was last rebuilt in 1672. It contained a dining hall, a garden, a fine library of civil and canon law, a quadrangle formed by the chambers and residences of the doctors, and a handsome court where the scarlet-robed advocates sat in a raised semicircle, the judge, primus inter pares, in the midst of rapidly. He had that genius which Buffon defines as the capacity for taking pains, great legal learning and a gift of facile oratory to set it off to the greatest advantage. He was soon engaged in all the most important cases in the Admiralty, Probate and Divorce Courts, and succeeded to the offices, one after another, of master of the faculties, commissary of the deans and chapters of St. Paul's and Westminister, official to the archdeaconries of Middlesex and London, and chancellor of the diocese of Chichester and Salisbury. In 1853 he entered Parliament as member for Tavistock. He called himself that comprehensive motto: 66 Be not the first to leave the old, nor the last to join the new. The Duke of Wellington's advice for speaking in the House of Commons was, Say what you have to say, don't quote Latin, and sit down." Phillimore followed this "rugged maxim hewn from life." He spoke on subjects which he understood, and only when he had something to say, and as a result he won the ear of the House. The most burning question with which he had to do was that of church rates. As a staunch churchman he roundly declared that there was no legal right in the kingdom more ancient or more certain than that of the church to levy a rate for maintaining the fabric of the church, and providing for the decent order of the services; but, as a Liberal, he saw that the perpetuation of church rates had become impossible an anachronism and he wisely recommended the surrender of them in the interests of the church and of peace. The speech in which he argued for their abolition is an extremely able one, lucid, temperate, learned a sort of speech that we might look for in vain in the Parliament of to-day. He helped too, to amend the law with respect to simony "one of those tears," as he calls it, "which the enemy sowed early in the church." But, from a legal point of view, the most useful of his reforms was the act which, with Brougham's help, he passed |