will. Sir John Leach, M. R., held that the widow took an Recommendaabsolute interest, and that the property passed by her will. tion not raising trusts. jects not dis tinctly ascer 3. We lastly advert to the cases, wherein the objects of the 3. Where obrecommendation are not distinctly ascertained; for where this is the case, one of the requisite ingredients to raise a trust by implication is wanting. : Thus in Harland v. Trigg (g), the plaintiff's father settled by will his freehold property upon his sons Philip, John, and Richard (the plaintiff), in strict settlement, with other remainders over. After his death, Philip, his eldest son, entered; and being possessed of leasehold estates in the parish of Sutton, some for lives, others for years, he devised his leaseholds for lives to the trustees of his father's will to the same uses to which the lands devised by his father's will were limited, so far as he could by law and then followed this clause: "And all other my leasehold estates in the parish or township of Sutton, I give to my brother, John Harland, for ever, hoping he will continue them in the family." After Philip's death, John, the second son, entered, and also died, having first bequeathed these leaseholds for years to his widow. The question was, whether John had a right to bequeath the leaseholds under the words of the above clause in his brother's will, which depended on a further question, whether the effect of that clause was to subject them to the uses of the father's will. It was contended for the plaintiff, that John was entitled for life only, and that the words in the will of Philip were sufficient to raise a trust. On the other hand it was insisted, for the widow and legatee of John, that by the word "family," Philip had not pointed out any particular branch of the family; that in the devise of the leaseholds for lives, he had given the lands he meant to go together, to trustees, in accurate language, so that if he meant the other leasehold property to be subject to similar trusts, he would have adopted similar words; and Lord Thurlow, C., was of the same opinion: and he thought the words hoping, &c. were to be considered precatory, and not imperative; but that had they been annexed to precise and direct objects, they would have been sufficient to raise a trust. His Lordship accordingly dismissed the bill against the widow and legatee of John. In the case of Sale v. Moore (h), the testator bequeathed to Sargon, 2 Keen, 255; 3 Myl. & Cr, 507. (g) 1 Bro. C. C. 142; see also Wright v. Athyns, 1 Turn. 143. (h) 1 Sim. 534; see also Stubbs v. tained. trusts. Where objects not distinctly ascertained. Recommenda- his wife, Mary Moore, all "his worldly substance whatsoever, tion not raising upon trust for the following purposes; 1st, to pay his debts and funeral expenses." The testator then gave two legacies, one of which was to his sister, Fanny Moore, and then proceeded thus: "my brother being in affluent circumstances, and my eldest sister being already well provided for by me, will, I trust, be considered by them as a sufficient reason for my not leaving them anything in this my will, as I could not do it without taking from my wife's property, who is more in need of it. The remainder of what I die possessed of, after payment of the aforesaid debts and legacies, I leave to my dear wife aforesaid, 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. And I hereby appoint my said wife sole executrix of this my will." The testator died in 1812, leaving John Moore, Fanny Moore, and Mary Moore, his brother and sisters, his only next of kin. The testator's widow, by her will, in 1822, (which did not refer to the will of the testator), gave legacies to the testator's brother and other persons, and annuities to the sisters, and died shortly after the date of her will. It was insisted, on behalf of the testator's brother and sisters, that his widow only took a life interest with a power of appointment among the testator's near relations, and that they were entitled under the constructive trust in their favour, as his next of kin, subject to the appointment in favour of Mary Moore, by the widow. Sir Anthony Hart, V. C., decided in the negative, on the ground that such trust could not be implied as the objects were uncertain, it not appearing whether the testator meant relations at his own or his wife's death; his Honor was also of opinion that the testator had pointed out every trust that he intended should fix upon the property, having expressly declared his intention not to take anything from his wife, and that the Court could not find out how the testator would "consider" his relations. Upon the subject of the present subdivision it is to be observed, that if the Court is unable to ascertain the objects of recommendation, not because the expressions in the will are equivocal, but because the testator has referred to some other document as specifying the objects, and that document is not forthcoming, in such a case the Court will not allow the legatee to take the legacy for his own benefit discharged from the trust (i). (i) Corporation of Gloucester v. Wood, 3 Hare, 131. SECT. VII. Of implied bequests generally. In the preceding section we considered the cases, wherein of implied implied trusts would be raised by words of recommendation, bequests. desire, &c.: we now proceed to the subject of implied bequests generally; and observe, that wherever a necessary and unavoidable implication arises upon the face of the will, that the legatee should have a legacy, on an event, which the testator has not accurately described, there the defect will be supplied, and the legatee shall have the benefit of such necessary implication. The following class of cases may be considered to form a branch of a subsequent section (j), but for the convenience of the reader, and more easy reference, it is thought advisable to arrange them in a distinct section (k): and 1. First we adduce instances relating to survivorship, where 1. Survivorship implied. it was not accurately provided against. Thus in Scott v. Bargeman (1), a testator, having three daughters, directed 9007. to be laid out by J. S., at interest, upon trust to pay his wife the interest, so long as she should continue his widow; and after her death or marriage, in trust to divide the 9007. equally among his three daughters, at their respective ages of twenty-one or marriage: Provided that if all his three daughters should die before their legacies should become payable, then the mother should have the whole. The testator's widow married the defendant; the two eldest daughters died under age, and unmar ried; and the youngest attained twenty-one. The question being, whether she was entitled to the whole, or only part of the 9007., Lord Macclesfield, C., decided that she was entitled to the whole. Again in Harman v. Dickenson (m), the testator made a bequest in favour of his two daughters; and, if one should die without issue, then to the surviving daughter and her issue. One of the daughters married, and died, leaving issue; and then the unmarried daughter died; and Lord Thurlow, C., determined that the money went to the issue of the married daughter, although she did not survive her sister. To these the case of Hill v. Smith (n), may be added. There William Hill bequeathed to his son William 3,000l. three per (j) Sect. Ix. post. (1) 2 P. Wms. 68. (m) 1 Bro. C. C. 91. quests. Of implied be- cent. consols and reduced, the interest of which was to be appropriated to his maintenance and support, under the direction of the trustees named in the will, whom the testator appointed trustees of his son, until he attained twenty-four. The testator then bequeathed the residue of his personal estate, to be sold, and the produce to be invested in the funds, and the interest thereof paid to his wife Betsy for life, if she remained a widow; and after her decease or marriage, he bequeathed the said stock and interest arising from his residuary estate unto any child or children he might have by his wife Betsy, equally to be divided between them that attained twenty-one; the survivor of his children to possess what was there bequeathed to the other; and the testator added; "but should not either of my children attain the age of twenty-one years, or live to possess what is here bequeathed to them, I then further will and bequeath unto the children of my aforesaid sister, Ann Pashley, widow, by her late husband Robert Pashley, the 3,000l. stock in the three per cent. consols and reduced, left to my son William on their attaining twenty-one, equally, &c.; the interest on which my said sister may receive during her natural life, &c." At the date of his will, the testator had two children, the plaintiff his only son by a former wife, and by his second wife a son, who died in infancy during the testator's life. After the death of the testator and his widow, the plaintiff, having attained twenty-four, filed his bill against the executors for a transfer of the 3,000l. stock, and the question was, whether, in the events which had happened, he was entitled; the children of Mrs. Pashley contending that, in the event of the testator's leaving no children by his second wife, who should attain twenty-one, the provision for his son by his first wife was to be devested. But Sir Thomas Plumer, M. R., thought otherwise, being of opinion that, although the intention was not accurately expressed, the testator having bequeathed legacies to each class of his descendants, intended that the survivor should take the whole, in preference to collaterals: and his Honor accordingly decreed the plaintiff entitled to the 3,000% stock, and the residue of the testator's personal estate. In Doyne v. Cartwright (o), real and personal property was given to trustees, upon trust to pay the annual income to the testator's two nieces, in equal moieties during their lives; and after the death of either of them unmarried, then upon trust to pay the whole income to the survivor during her life. One of the (0) 1 Coll. 482. nieces died, having married. Sir K. Bruce, V. C., held upon the of implied bewhole scope of the will, that the surviving niece was entitled to quests. the income. In the preceding cases the inference of intention was considered by the Courts as clear in favour of survivorship; but, unless it be clear, although there may be some ground of inference, the implication will not be admitted. The case of Bargrave v. Whitwicke (p) is an instance of this. There the testator bequeathed to his two daughters 600l. a piece, to be paid at twenty-one; and he gave the residue of his personal estate to his son; and declared that if either of his said children should die in their minority, the survivors should be heirs in equal proportion. The son died young: and the Court thought that the residue was not subject to any contingency or survivorship, but the interest in it vested in the surviving daughters, whether of age, or not; and confined the words devesting the interest of a child dying under twenty-one in favour of the survivors to the two sums of 600l. given to the daughters. In Taniere v. Pearkes (q), where the gift in a French will was to F., and at her death in equal portions to her two daughters, “à leur décès, à leurs enfans,” and one of the daughters died without children, it was held, that the children of the surviving daughter took only their mother's share; there being no words, which could carry the daughter's share to the surviving daughter or her children (r). Exception. vision is made 2. Of instances of implied bequests, where a provision is given 2. Where proout of a fund to a legatee, until a certain event; (e. g.) until the age of twenty-one, or marriage; and then no further bequest is added. out of a fund for legatee, un til an event, and nothing ఈ Thus in Peat v. Powell (s), Giles Powell gave the residue of further added. his real and personal estate to his executors, in trust for his younger son Giles, till he should attain twenty-one; and then directed that the trust should cease. Giles the son attained twenty-one; and Lord Keeper Henley decided that the testator intended Giles should take the whole beneficial interest in the residue; and that the bequest was the same, as if the testator had said, "I give the residue of my estate to trustees in trust for Giles till twenty-one; and then to Giles and his heirs." (p) Finch. Rep. 436. (q) 2 Sim. & Stu. 383; see also Cooper v. Pitcher, 4 Hare, 485, aff. by Lord Cottenham, C., Nov. 1846. (r) For survivorship of life inte. rest, see sub-div. 5, infra. (s) 1 Eden, 479. |