trusts. Where property not distinctly ascertained, Recommenda- and in such proportions as they pleased, provided that he should tion not raising not dispose of it to any present or future wife; but if her son died without leaving issue, then that it should revert to the testatrix's family, and interest at the rate of five per cent. should be paid by her executors, for what should be in their hands till the whole should be paid. The surviving executor directed the legacy to be paid to the son with interest after a certain time, which had expired. The question was, whether the son was entitled for life only, with an implied trust after his death, without leaving issue, for the testatrix's family; or whether he was entitled absolutely, which involved the question, whether the power was well executed by the surviving executor. Lord Hardwicke was of opinion that it was; that if the clause rested upon the first part, he should have thought the former construction correct; but, taking the latter part of the clause into consideration, the direction to the executor to pay interest till the whole was paid, shewed the testatrix meant it for a personal benefit; and the legacy was accordingly decreed to the son. Again, in Bland v. Bland (r), the testatrix gave her manor of W. and all other her real and personal estates to her son B. his heirs, executors, administrators and assigns, subject to the following clause; "and it is my earnest request to my son, in case of failure of issue of his body, that he would, in his lifetime, settle the said estate, or so much thereof as he should stand seised of at his death, that the same may come to and be enjoyed by my daughter, and the heirs of her body," with other remainders over: and Lord Hardwicke, held this clause not to raise a trust for the daughter, &c., as the words "so much as he should die seised of," gave the son the absolute ownership; and the other expressions amounted to nothing more than words of recommendation, leaving it to the discretion of the party, whether he would comply with her request or not. Again, in Le Maitre v. Bannister (s), the testatrix gave her fortune to B., and if he should die without issue, she recommended it to him to do justice to A. and her children, if he thought them worthy of it; but if any unforeseen accident should make the whole or any part acceptable or serviceable to himself, he might dispose of it as he should think proper: and this was held no trust for A. and her children. So in Wynne v. Hawkins (t), the words of the will were, "and (r) Pre. Ch. in notis ed. Finch, 201; 6 Cru. Dig. 159, edit. 4. (8) Pre. Ch. 201, in notis. trusts. Where pro tained. as I have lately received the melancholy account of the death Recommendaof my dear son William Wynne, at Bengal, who has left a tion not raising widow and two small children, and I am informed he died worth five times the fortune I shall leave behind me, which will be a perty not dishandsome provision; and as I shall leave behind me, over and tinctly ascer above the legacies before given, only sufficient for a decent maintenance for my loving wife, Mary Wynne, by whose prudence and economy, I have saved the greatest part of the fortune I shall die possessed of, not doubting but that she will dispose of what shall be left at her death, to our two grandchildren." All the residue of the testator's personal estate he bequeathed to his wife, whom he appointed sole executrix. The question was, whether the wife was entitled to the residue absolutely, or a trust was created by the above clause, for the grandchildren after her death; and Lord Thurlow, C., was of opinion, there was no trust: observing that, if the intention were clear, what was to be given, and to whom, he should think the words not doubting strong enough; but where, in point of context, it is uncertain what property was to be given, and to whom, the words are not sufficient, because it is doubtful what is the confidence the testator has reposed; and where that does not appear the scale leans to the presumption, that he meant to give the whole to the first taker. Again, in Strange v. Barnard (u), Susannah Strange bequeathed (by virtue of a power) as follows: "I bewill to my husband, Thomas Strange, the sum of 3007. new joint stock annuities, for his sole use, and all that is remaining in the stock, that he has not necessary use for, to be equally divided between my brother John Crapps, and sister Wickenden, and sister Banden." The question was, whether these words raised a trust for the testatrix's brother and sisters, after the husband's death? and it was determined in the negative; and that the husband was entitled to the 3004 absolutely. Again, in Pushman v. Filliter (x), John Pushman bequeathed the residue of his personal estate unto his wife Mary, desiring her to provide for his daughter Ann out of the same, so long as she, his wife, should live, and at her death to dispose of what should be left among his children, in such manner as she should judge most proper. The question was, whether these words raised a trust for the children, after the death of the mother: and it was urged that the words, "what should be left," referred (x) 3 Ves. 7. (u) 2 Bro. C. C. 586. trusts. Where property not distinctly ascertained. Recommenda- to the provision to be made for Ann, and that the testator tion not raising intended what should then remain should go to the other children; so that the fund to go over to them was certain; but the Court thought otherwise; Lord Loughborough, C., deciding that it was an absolute gift to the wife, clothed only with a trust for Ann, who, his Lordship admitted, could have filed a bill, but no one else. In the course of his judgment, his Lordship made a similar observation to that of Lord Thurlow in Wynne v. Hawkins, namely, that if a bill had been filed during the wife's lifetime, the Court could not have impounded the property; and after appropriating a sufficient part for Ann, have directed that the mother should have the rest for life only, and that it should go over after her decease. In this place, it will be proper to notice the case of Cunliffe v. Cunliffe (y). There the testator bequeathed his moiety of certain sugar-houses and stock in trade in Chester, subject to certain charges, to his son Ellis Cunliffe; but if his son happened to die without a son born in his lifetime, or in due time after his death, then the testator recommended it to him to give and devise the sugar-houses and joint stock in trade there to his brother Robert. The question was, whether this was a trust or devise in favour of Robert, after the death of Ellis; and Lords Commissioners Smythe and Aston were of opinion that it was not. In Malim v. Keighley (z), Lord Loughborough assigned the reason of that opinion as follows: "I have looked into the note I have of Cunliffe v. Cunliffe. It brings the principle to my recollection, for I am perfectly satisfied even upon my note, which is not much longer than that in Ambler, that the ground principally argued, and upon which the decision turned, was, that Ellis had the absolute property of the sugar-houses, as well as of the other stock in trade. The point on which the decision turned must have been, that the absolute property in the sugarhouses being given, that could not be controlled by any words added, intimating a desire in what manner it should be disposed of by him. It turned on the nature of the property, not upon the critical interpretation of the words." In Pushman v. Filliter, before stated, Lord Loughborough observes upon Cunliffe v. Cunliffe thus: "The Lord Chancellor, in Malim v. Keighley, seems to think the Lords Commissioners (y) Amb. 686. (z) 2 Ves. jun. 532, supra, p. 1420. did not intend to break in upon the rule; I cannot but still think Recommendathat it is overruled by Pierson v. Garnet." tion not raising trusts. Where pro tained. It will appear to the reader from the cases before adduced on the present subject, that the authority of Cunliffe v. Cunliffe perty not discan only be supported on the principle stated by Lord Lough- tinctly ascerborough: for Pierson v. Garnet, and the other cases before cited, have settled beyond controversy, that where the property and object are certain, words of recommendation or desire will amount to a trust or devise. In Wilson v. Major (a), Thomas Major bequeathed the residue of his personal estate to his wife Dorothy for her maintenance, upon full trust and confidence in her justice and equity, that at her decease she would make a proper distribution of what effects might be left, in money, goods, or otherwise, to his children, accounting what they had already received in money or effects as part of their shares; and he appointed his wife executrix. Sir William Grant, M. R., decreed the widow absolutely entitled to the personal estate. In Eade v. Eade (b), George Eade bequeathed the residue of his personal estate to his wife, Alice Eade Eade (the plaintiff), "requesting that she would, at her death, leave 2007. to each of the Miss Nortons, and leave the remainder of her property to his nephews, George and William Eade, in such proportions as she thought proper." The questions were, whether the Miss Nortons were entitled, as vested interests in them, to the legacy of 2007. on the death of the plaintiff; and whether George and William Eade were entitled to the remainder of the testator's property after the death of the plaintiff; or whether the plaintiff was entitled to the property absolutely? Sir John Leach, V. C., was of opinion, that the Miss Nortons were clearly entitled to the legacies of 2007.; and that if the testator had requested his wife to leave the remainder of his property to George and William Eade, there would have been a clear trust in their favour, because the remainder of the testator's property could have been ascertained; but his Honor observed, he could not say, that by the remainder of her property the testator meant the remainder of his property; and that the testator having left his wife at liberty to deal with the remainder of his estate as she pleased, his request, as to the uncertain property of which she might be possessed at her death, would not create a trust. (a) 11 Ves. 205; see also Bull v. Kingston, 1 Meriv. 314. (b) 5 Madd. 118. Recommenda trusts. Where pro perty not distinctly ascertained. In Curtis v. Rippon (d), William Curtis, by will, appointed his tion not raising wife Elizabeth guardian of all his children by his first and second marriage; and then bequeathed thus: "I give, devise, and bequeath all my real and personal estates and effects whatsoever, whereof I have any disposing power, to my said wife Elizabeth, her heirs, executors, and administrators; trusting that she will, in fear of God, and in love to the children committed to her care, make such use of it as shall be for her own and their spiritual and temporal good, remembering always, according to circumstances, the church of God and the poor." The wife died, and made her will; and upon a bill filed by legatees under her will, for an account, &c., the question was, whether the words of the testator's will created a trust for the children, or gave his wife the absolute disposal; and Sir John Leach, V. C., held the wife absolutely entitled; there being no ascertained part of the property provided for the children, and the wife being at liberty, at her pleasure, to diminish the capital either to the church or the poor; that the plain intent was to leave the children dependent on the wife. In Abraham v. Alman (e), the testator bequeathed to his son Isaac the sum of 60l. per annum for ever; "also to provide for the two daughters of my child Hannah Embden, namely, Sarah Embden and Esther Embden. The remainder of my property to the two children of my daughter Sukey Alman." The question was, whether the words of the bequest created a trust either on the son's annuity or on the remainder of the testator's property. Lord Gifford decided in the negative, observing that the testator meant no doubt to make a provision for the children of Hannah, but unfortunately had not sufficiently expressed his purpose; and that all the testator had said respecting this intended bounty was so uncertain that it was impossible for the Court to decree any provision for the children of Hannah Embden. In Bourn v. Gibbs (f), a testator bequeathed the residue of his personal property to his wife for her own use and to be at her absolute disposal, adding a proviso that if not disposed of by her in her lifetime or by her will, it should go over to his nephews and niece equally. The wife made a will disposing of all her personal estate, but without reference to her husband's (d) 5 Mad. 434. (e) 1 Russ. 509; see also Sale v. Moore, infra next page, and Meredith v. Heneage, supra, 1428. (ƒ) 1 Russ. & M. 614. |