1 Smith, Leading Cases, 789, 5th
Am. ed. ; Picquet v. Swan, 5 Mason,
35; equity will follow the law, and
refuse to assume a power which might
further the purposes of justice in par-
ticular instances, but would ultimately
disturb the comity which ought to ex-
ist between the courts of different
nations, by bringing the decisions of
foreign tribunals into conflict with
those of the locus rei sitce ; The North-
ern Indiana Rail Road Co. v. The
Michigan Central Rail Road Co., 15
Howard, 233. But rights growing
out of trust or contract, or founded
upon a fraudulent violation of the
principles of equity, as between man
and man, are purely personal, and will
consequently be upheld and enforced
both by law and equity, -whenever
jurisdiction has been acquired over
the parties, without regard to the na-
ture or situation of the property in
which the controversy has its origin,
and even when the relief sought con-
sists in a decree for the conveyance
of land, which lies beyond the reach
of the authority of the court, and can
only be reached through the exercise
of its powers over the person.
The power of chancery to restrain
the defendant from instituting legal
proceedings, by injunction, must ex-
tend to the prohibition of suits be-
yond its jurisdiction, in order to pre-
vent an evasive recourse to the tribu-
nals of other states or territories. But
although an order that no suit shall
be brought on a particular cause of
action, will extend to all tribunals,
whether foreign or domestic, without
exception, yet an injunction will not
be issued, unless in extreme cases, and
on very special grounds, to suspend
the course of a suit previously brought
in a court, holding its commission
under a foreign power, or deriving its
authority from a different source;
Bicknell v. Field, 8 Paige, 440. It was
consequently decided in Mead v. Mer-
ritt, 2 Paige, 402, that an injunction
would not be granted in Xew York, to
stay legal proceedings, which had been
commenced in Connecticut, because
such a course might involve a conflict
of jurisdiction between tribunals, act-
ing under different sovereign autho-
rities, and recognizing no common
superior; ante, 201. But the rule thus
laid down, is one of comity, rather than
of binding obligation, and will not be
followed when a departure from it is
necessary, for the purposes of justice,
and the proper execution of the decrees
of the court by which the injunction is
issued; Pearcex. Olney, 20 Conn. 544.
HARDING V. GLYN. 499
POWER COUPLED WITH TRUST.
*HARDING v. GLYN. [*789]
JUNE 7, 1739.
REPORTED 1 ATK. 469. x
Power in the Nature of a Trust.] — H., by will, gives a leasehold house and
furniture, goods, and chattels therein, and also plate, jewels, &c., to his wife ;
but did desire her, at or before her death, to give the same unto and, amongst
such of his own relations as she should think most deserving and approve
of The wife, by her will gave the leasehold house to S., who was the son
of one of the next of kin, and after giving several legacies, bequeathed the resi-
due of her personal estate to the defendant G. and two other persons, but
neither gave, at or before her death, the goods in the house, or the jewels, to
her husband's relations. It teas held, that the wife was intended to taJce
â– beneficially only during her life ; that the appointment to S., being a rela-
tion of the testator's, though not one of his next of kin, was a good execu-
tion of the power ; and that so much of the goods and jewels not disposed of
by the wife, according to the power given to her by her husband, in case
they remained in specie, or the value thereof, ought to be divided equally
among such of the relations of the testator as were his next of kin at the
time of the death of his wife.
Nicholas Harding, in 1701, made his will, and thereby gave " to Eliza-
beth his wife all his estate, leases, and interest in his house in Hatton Garden,
and all the goods, furniture, and chattels therein at the time of his death, and
also all his plate, linen, jewels, and other wearing apparel, but did desire her,
at or before her death, to give such leases, house, furniture, good and chattels,
plate and jewels, unto and amongst such of Ms own relations *as she r# ^ Qm
should think most deserving and approve of;" and made his wife exe-
cutrix, and died the 23rd of January, 1736, without issue.
Elizabeth, his widow, made her will on the 12th of June, 1737, " and
thereby gave all her estate, right, title, and interest to Henry Swindell, 2 in
the house in Hatton Garden, which her husband had bequeathed to her in
manner aforesaid ; and, after giving several legacies, bequeathed the residue
of her personal estate to the defendant Glyn and two other persons, and made
them executors," and soon after died, without having given, at or before her
1 S. C, 5 Ves. jun. 501, stated from Reg. Lib. 1738, A.
2 The bequest to Swindell was held good, although he was not one of the next of kin
of the testator, and would not, therefore, have taken anything in the absence of the be-
quest ; but being a son of one of the next of kin, he was a relation, and, therefore, within
the power when exercised by the testatrix. See Brown v. Higgs, 5 Ves. 501; 8 Ves. 572.
500 POWER COUPLED WITH TRUST.
death the °-oods in the said house, or without having disposed of any of her
husband's jewels to his relations. 1
The plaintiffs, insisting that Elizabeth Harding had no property in the said
furniture and jewels but for life, with a limited power of disposing of the same
to her husband's relations, which she had not done, brought their bill in order
that they might be distributed amonst his relations, according to the rule of
distribution of intestates' effects.
The Hon. John Verney, M. R. — The first question is, if this is vested
absolutely in the wife ? And the second, if it is to be considered as undis-
posed of, after her death, who are entitled to it ?
As to the first, it is clear the wife was intended to take only beneficially
during her life. There are no technical words in a will ; but the manifest
intent of the testator is to take place ; and the words " willing" or " desiring,"
have been frequently construed to amount to a trust, (Eales v. England ; 2 )
and the only doubt arises upon the persons who are to take after her.
Where the uncertainty is such that it is impossible for the Court to deter-
mine what persons are meant, it is very strong for the Court to construe it
only as a recommendation to the first devisee, and make it absolute as to him ;
but here the word " relations" is a legal description, and this is a devise to
on such relations, and operates as a trust *in the wife, by way of power
"- of naming and apportioning ; and her non-performance of the power
shall not make the devise void, but the power shall devolve on the Court ; and
though this is not to pass by virtue of the Statute of Distributions, yet that is
a good rule for the Court to go by ; and, therefore, I think it ought to be
divided among such of the relations of the "testator Nicholas Harding, who
were his next of kin at her death ; and do order, that so much of the said
household goods in Hatton Garden, and other the personal estate of the said
testator Nicholas Harding, devised by his will to the said Elizabeth Harding
his wife, which she did not dispose of according to the power given her
thereby, in case the same remains in specie, or the value thereof be delivered to
the next of kin of the said testator Nicholas Harding, to be divided equally
amongst them, to take place from the time of the death of the said Elizabeth
Harding.
" As a general rule," observes Lord Langdale, M. R., in an important
case, " it has been laid down, that, when property is given absolutely to any
person, and the same person is by the giver, who has power to command, re-
commended, or entreated, or wished to dispose of that property in favor of
another, the recommendation, entreaty, or wish, shall be held to create a trust.
1 It appears that the testatrix by her will bequeathed the plate to Caleb Harding, and
it was declared by the decree that it was a good bequest, as being pursuant to the power
in her husband's will. See statement from the Reg. Lib., 5 Ves. 501.
2 Prec. Ch. 200 ; 2 Vern. 466.
HARDING V. GLYN. 501
" First, if tlie words are so used, that, upon the whole, they ought to be
construed as imperative.
" Secondly, if the subject of the recommendation or wish be certain ; and,
" Thirdly, if the objects or persons intended to have the benefit of the re-
commendation or wish, be also certain.
" If a testator gives £1000 to A. B., desiring, wishing, recommending, or
hoping that A. B. will at his death give the same sum, or any certain part of
it, to C. D., it is considered that C. D. is an object of the testator's bounty,
and A. B. is a trustee for him. No question arises upon the intention of the
testator, upon the sum or subject intended to be given, or upon the person or
object of the wish.
" So, if a testator gives the residue of his estate after certain purposes are
answered, to A. B., recommending A. B., after his death, to give it to his
own delations, or such of his own relations as he shall think most r*yg2-i
deserving, or as he shall choose, it has been considered that the resi-
due of the property, though a subject to be ascertained, and that the relations
to be selected, though persons or objects to be ascertained, are nevertheless so
clearly and certainly ascertainable, — so capable of being made certain, that
the rule is applicable to such cases.
" On the other hand, if the giver accompanies his expression of wish or re-
quest by other words, from which it is to be collected that he did not intend
the wish to be imperative ; or if it appears from the context that the first
taker was intended to have a discretionary power to withdraw any part of the
subject from the object of the wish or request ; or if the objects are not such
as may be ascertained with sufficient certainty, it has been held that no trust
is created. Thus, the words ' free and unfettered,' accompanying the strongest
expression of request, were held to prevent the words of bequest being impe-
rative. Any words by which it is expressed, or from which it may be implied,
that the first taker may apply any part of the subject to his own use, are held
to prevent the subject of the gift from being considered certain ; and a vague
description of the object, that is, a description by which the giver neither
clearly defines the object himself, nor names a distinct class out of which the
first taker is to select, or which leaves it doubtful what interest the object or
class of objects is to take, will prevent the objects from being certain within
the meaning of the rule ; and in such cases we are told, that the question
1 never turns upon the grammatical import of words — they may be imperative,
but not necessarily so ; the subject-matter, the situation of the parties, and
the probable intent, must be considered :' Meggison v. Moore, (2 Ves. jun.
632, 633.) And < wherever the subject to be administered as trust property,
and the objects for whose benefit it is to be administered, are to be found in a
will, not expressly creating a trust, the indefinite nature and quantum of the
subject, and the indefinite nature of the objects, are always used by the Court
as evidence that the mind of the testator was not to create a trust ; and the
difficulty that would be imposed upon the Court to say what should be so
applied, or to what objects, has been the foundation of the argument that no
502 POWER COUPLED WITH TRUST.
trust was intended:' Morrice v. Bishop of Durham, (10 Ves. 536;) or, as
Lord Eldon expresses it in another case, ( Wright v. Atkyns, T. & R. 159,)
' where a trust is to he raised, characterised by certainty, the difficulty of doing-
it is an argument which goes to a certain extent towards inducing the Court
to say, it is not sufficiently clear what the testator intended :' " Knight v.
g31 "Knight, 3 Beav. 172 ; S. C, 11 C. & F. 513.
*- J The three requisites, however, mentioned by Lord Langdale, must
co-exist. See Briggs v. Penny, 3 Mac. & Gr. 554 ; Moriarity v. Martin, 3
Ir. Ch. Rep. 31.
First, The words of recommendation used must be such that, tipon the whole,
they ought to be construed as imperative. — As laid down in the principal case,
no technical words are necessary, but the testator's intent is to take place;
and his words, " willing or desiring" that the person upon whom he has con-
ferred property should make a disposition of it in favor of certain objects, will
be construed as imperative, and amount to a trust, {Eales v. England, Prec.
Ch. 200 ; 2 Vern. 466 ;) so, if he " request," {Eade v. Eade, 5 Madd. 118,)
" wish and request," {Foley v. Parry, 5 Sim. 138; 2 My. & K. 138 ;) express
it to be his " last wish," {Hinxman v. Poynder, 5 Sim. 546 ;) his " dying re-
quest," {Pierson v. Garnet, 2 Bro. C. C. 38, 226;) or "recommend," {Fib-
bits v. Tibbits, 19 Ves. 656 ; Jac. 317 ; Horwood v. West, 1 S. & S. 387 ;
Malim v. Keighley, 2 Ves. jun. 333, 539 ; Ford v. Fowler, 3 Beav. 146 ;
but see Cunliffe v. Cunliffe, Amb. 686, and the comments upon it in Pierson v.
Garnet, 2 Bro. C C. 46; Malim v. Keighley, 2 Ves. jun. 532; Pushman v.
Filliter, 3 Ves. 9 ;) " entreat," {Prevost v. Clarke, 2 Madd. 458 ;) " not
doubting," {Parsons v. Baker, 18 Ves. 476 ; Taylor v. George, 2 V. & B.
378;) "under the firm conviction," {Barnes v. Grant, 26 L. J., N. S. (Ch.)
92 ; " have fullest confidence," ( Wright v. Atkyns, 17 Ves. 255 ; 19 Ves.
299 ; G. Coop. Ill ; 1T.&R. 143 ; Palmer v. Simmonds, 2 Drew. 221 ;)
"heartily beseech," {Meredith v. ZTeneage, 1 Sim. 553 ;) "authorize and
empower," {Brown v. Biggs, 4 Ves. 708 ; 5 Ves. 495 ; 8 Ves. 561 ; 18 Ves.
192 ;) " hope," {Harland v. Trigg, 1 Bro. C. C. 142 ; Paul v. Compton, 8
Ves. 375 ;) " full assurance and confident hope," {Macnab v. Whitbread, 17
Beav. 299 ;) " well know," {Bardswell v. Bardswell, 9 Sim. 323 ; Briggs v.
Penny, 3 Mac. & Gr. 546, 554 ;) " or of course he will give," {Robinson v.
Smith, 6 Madd. 194 ;) " in consideration he has promised to give," {Clifton v.
Lombe, Amb. 519.)
The context may, however, show that words of hope, or request, or recom-
mendation, were not intended to interfere with the absolute discretion of the
legatee : ffuskisson v. Bridge, 4 De Gr. & Sm. 245 ; Williams v. Williams, 1
Sim., N. S. 358, 370 ; Webb v. Wools, 2 Sim., N. S. 267 ; Lcfroy v. Flood,
4 Ir. Ch. Rep. 1.
The application of the rule by which words of recommendation are cou-
pon strue d as imperative, is often attended with considerable ^difficulty,
and perhaps ought not, consistently with sound principles of inter-
pretation, to have been ever established. " The first case," observes Sir
HARDING V. GLYN. 503
Anthony Hart, V. C, " that construed words of recommendation into a com-
mand made a will for the testator ; for every one knows the distinction between
them. The current of decisions of late years has been against converting the
legatee into a trustee :" Sale v. Moore, 1 Sim. 504.
Secondly, The subject-matter of the recommendation or wish must be cer-
tain. — Thus, in Buggins v. Yates, 9 Mod. 122, where a testator, who, having
devised real property to his wife, to be sold for payment of his debts and lega-
cies, in aid of his personal estate, declared, that he did not doubt but his wife
would be kind to his children, it was insisted, that this constituted a trust of
the personal estate ; " but the Court was of opinion, that these words gave a
right to no child in particular, or a right to any particular part of the estate,
but that the clause was void for uncertainty."
In Sale v. Moore, 1 Sim. 534, the testator gave and bequeathed to his wife
all his worldly substance of what kind or nature soever, or wheresoever, upon
trust for the following purposes : — 1st, for payment of debts and funeral ex-
penses, and of £100 to a charitable institution, and £50 a year to his sister
for life. He then adds, " My brother being in affluent circumstances, and
my eldest sister being already well provided for by me, will, I trust, be con-
sidered 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 shall die possessed of, after
the payment of the aforesaid debts and legacies, I leave to my dear wife, 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." It was held by Sir Anthony Hart, V. C, that there
was no trust for the next of kin, but that the wife took the residue absolutely.
" Supposing," said his Honor, " that the words in this case would create a
trust, those words are coupled with some degree of uncertainty. Who are the
objects of the trust ? Did the testator mean relations at his own death or at
his wife's death ? Did he mean that she should have the liberty of executing
the trust the day after his death ? Various other considerations might be in-
troduced to show that the objects are uncertain. There is no ground for
taking away from the widow what the testator has not taken from her but
vested in her absolutely. The case of Dawson v. Clark, (15 Ves. 409,) is a
strong *authority to show that the Court ought not to take away an abso- r#7qc-i
lute gift. He gives to her ' all his worldly substance of what nature
or kind soever and wheresoever, upon trust for the following purposes.' He
must, therefore, be intended to have all the purposes in his contemplation.
He then says, ' 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.'
Is not this a conclusive indication, that, in the preceding part of the will, he
had pointed out every trust that he intended should fix upon the property?
He then proceeds : ' As I could not do it without taking from my wife's pro-
perty, who is more in need of it.' Why does he not take it from her? He
504 POWER COUPLED WITH TRUST.
might have made her tenant for life only. But he says, that he takes nothing
from her. Where, then, is the ground upon which a trust could attach ? He
goes on : ' The remainder of what I shall die possessed of,' &c. Now, the
word ' consider' is a relative term. How is she to consider them as he would
have done ? How is the Court to find out how he would have considered his
relations ?" And see Hoy v. Master, 6 Sim. 568.
So, in an absolute devise or bequest to a person, "well knowing that he
will remember," certain objects, (Bardswell v. Bardswell, 9 Sim. 319,) "do
justice to," or "deal justly and properly to and by them," (Le Maitre v.
Bannister, Prec. Ch., by Finch. 200, n. 1 ; Pope v. Pope, 10 Sim. 1,) will
not be construed as a trust, because no particular property is pointed out as
the object of it. And see Flint v. Hughes, 6 Beav. 342; Macnab v. Whit-
bread, 17 Beav. 299; Winch v. Brutton, 14 Sim. 379; Reeves v. Baker, 18
Beav. 372.
Although there are words of recommendation in a will, they will not be
construed as imperative, if an intention appear in any part of the will to give
to the devisee a right or power to spend the property; for the Court, in its
acuteness to extract the meaning conceives it to be inconsistent with the in-
tention to create an imperative trust, that the party should have the right or
power to dispose of the property at his pleasure, and by using that privilege
to any extent, leave nothing, or more or less, to remain the subject of the
trust : Meredith v. Heneage, 1 Sim. 556; and see Curtis v. Rippon, 5 Madd.
434, there the testator, after appointing his wife guardian of his children,
gave all his property to her, " trusting that she would, in fear of God and
in love to the children, committed to her care, make such use of it as should
be for her own and their spiritual and temporal good, remembering always,
according *to circumstances, the Church of God and the poor." Sir
L J J. Leach, V. C, held the wife absolutely entitled to the property,
there being no ascertained part of it provided for the children, and the wife
being at liberty at her pleasure to diminish the capital, either for the Church
or the poor; and that the plain intention of the testator was to leave the chil-
dren dependent on the wife.
So, where there is an absolute gift of property to a person, and a recom-
mendation to give to a certain object "what shall be left" at his death, or
" what he shall die seised or possessed of," ( Wynne v. Haul-ins, 1 Bro. C. C.
179 ; Sprange v. Barnard, 2 Bro. C. C. 585 ; Bland v. Bland, 2 Cox, 349 ;
Pushman v. Filliter, 3 Ves. 7; Wilson v. Major, 11 Yes. 205; Attorney-
General v. Hall, Fitzg. 314; Lechmere v. Lavie, 2 My. & K. 197; Pope v.
Pope, 10 Sim. 1 ; Green v. Marsden, 1 Drew. 646, 651 ;) or what "he may
have saved" out of an estate given for life, (Cowman v. Harrison, 10 Hare,
234,) or " the bulk of his said residuary estate," (Palmer v. Simmonds, 2
Drew. 221,) the subject will be considered as uncertain. See and consider,
Constable v. Bull, 3 De G. & Sm. 411.
In Bade v. Bade, (5 Madd. 118,) the testator bequeathed the residue of
his personal property to his wife, requesting that she would at her death leave
HARDING V. GLYN. 505
£200 to each of the Miss Nortons, and leave the remainder of her property to
his nephews George and William Eade, in such proportion as she thought
proper. It was held by Sir John Leach, V. C, that the Miss Nortons were
entitled to the £200 each, but that no trust was created for the nephews.
"A request or recommendation," observed his Honor, " will raise a trust, if
the objects and the property are described with such certainty that the Court
can execute it. The defendants, the Miss Nortons, are plainly entitled to
the legacies of £200 each ; and if the testator had requested his wife at
her death to leave the remainder of his property to George and William Eade,
there would have been a clear trust in their favor, because the remainder of
the testator's property could have been ascertained. I cannot say, that, by
the remainder of her property at her death, he meant the remainder of Ms pro-
perty. It must be understood to mean such property as she happened to pos-
sess at her death, from whatever source derived. This testator having there-
fore, in effect, 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, cannot create a trust.
In Finden v. Stephens, (2 Ph. 142,) the testator expressed it as his wish
and desire that a certain person should be employed as *agent, re- -.
ceiver, and manager of his estates whenever his trustees should have •- ^
occasion for the services of a person in that capacity; it was held by Lord
Cottenham, C., that no trust was created which such person could enforce.
Amongst other objections to the bill filed by him, his Lordship remarked,
there was the followiug : — " The plaintiff has not, and does not pretend to
have any, present interest, but claims only to be employed as and when the
trustees may have occasion for an agent, manager, or receiver ; but words of
recommendation are never construed as trusts, unless the subject be certain."
See, also, Shaw v. Lawless, 5 C. & F. 129; but see Williams v. Corbet, 8
Sim. 349.
But it may be implied, from other parts of the will, controlling a recom-
mendation to leave merely what property under the will the legatee was pos-
sessed of at his death, that the whole property at the testator's death was
intended; and, in that case, the subject will be certain. Thus, in Horwood
v. West, 1 S. & S. 387, the testator gave to his wife all his personal estate,
relying that if she should marry again, she would secure whatever she should
possess under his will for her separate use ; and he recommended her to give,
by her will, what she should die possessed of under his will to certain persons,
whom he named; it was held by Sir John Leach, V. C, that the wife's exe-
cutor was a trustee of the whole of the property possessed by her under the
will, for the persons named. "It is true," said his Honor, "that, in terms,
his recommendation is, that she shall, by her last will and testament, give