and bequeath what she shall die possessed of under and by virtue of that his
will, in manner therein stated; and if these words were uncontrolled by any
other part of the will, it would be to be implied that he had in his view only
what she should happen to have left at her death, and not all that he had
;06 POWER COUPLED WITH TRUST.
given to her. But in a prior part of the will he directs, that, upon a second
marriage, whenever that may happen, the whole of the property which he
gives to her, and not such part only as may have been then undisposed of by
her shall be secured to her separate use. A second marriage was at all times
possible until her death ; and whenever a second marriage happened, the whole
of his property was to be secured ; and a power to dispose of any part of the
property absolutely, at any time during her life, is not to be reconciled to that
provision, when he recommends her to give, in the manner stated, what she
should die possessed of under his will. I must, therefore, consider that he
had in view the whole property which she should possess under his will ; and
that the expression is equivalent to a recommendation to give the whole pro-
perty which she should so possess."
*Thirdly, Tlie objects or persons intended to have the benefit of the
L J recommendation or wish must be certain. — In Borland v. Trigg. (1
Bro. C. C. 141,) where a testator gave leaseholds to his "brother for ever,
hoping he will continue them in the family," Lord Thurlow, C, held, that
no trust was created. "I take," said his Lordship, "the rule of law to be
this, that two things must concur to constitute these devises, — the terms and
the object. Boping is in contradistinction to a direct devise; but whenever
there are annexed to such words precise and direct objects, the law has con-
nected the whole together, and held the words sufficient to raise a trust ; — but
then the objects must be distinct; — where there is a choice it must be in the
power of the devisee to dispose of it either way. If he had sold these lease-
holds, the family could not have taken them from the vendee, or if he had
given them to any one part of the family, the others could have no remedy."
In a subsequent, and much discussed case, the question arose, what was to
be the construction of the word "family," where freeholds were devised to a
person and her heirs for ever, in the fullest confidence that after her decease
she would devise the property to the testator's family; but it was unnecessary
to decide whether a trust was created, and for whom. See Wright v. Atkyns,
17 Yes. 255 ; 1 V. & B. 313 ; 19 Ves. 299 ; G. Coop. Ill, 125 ; T. & R. 1G2.
With reference to this case, Sir Edward Sugden observes, "It was treated
as clear, that the words were sufficient to raise a trust if the objects were
clearly ascertained. The result of the investigation seems to show, that it
will be difficult to maintain that the will clearly points out objects in whose
favor the trust can be enforced. At all events, it cannot now be held, con-
sistently with the opinions already expressed and acted upon by the House,
that the trust was for the testator's heir-at-law at his death, and that the
widow was a bare trustee, and had no power of appointment or of selection :"
Sugd. Prop. 388. See also and consider Green v. Marsden, 1 Drew. 646;
Williams v. Williams, 1 Sim., N. S. 358; Gregory v. Smith, 9 Hare, 708.
In re Terry's Will, 19 Beav. 580.
In Meredith v. Beneagc, (1 Sim. 542,) where the testator gave real and
personal estates to his wife, in full confidence she would distinguish the heirs
of his late father by devising the whole of his estate, together and entire, to
HARDING V. GLYN. 507
such of his father's heirs as she might think hest deserved her preference, the
Lord Chief Baron, though his opinion was formed mainly upon another point,
thought the objects were not certain, — whether the testator had pointed out
the heirs-at-law of his father, as the objects to take the personal as well
as the real estate, or the *heirs and next of kin, or the next of kin L -*
only.
In Sale v. Moore, (1 Sim. 534,) where a testator bequeathed the residue of
his property to his wife, not doubting that she would consider his near rela-
tions as he would have done if he had survived her, the Vice-Chancellor
held the objects to be uncertain. " Did the testator," he asked, " mean re-
lations 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 V
Where, however, the power is to be exercised by the donee by will, or at
his death, or, as in the principal case, "at or before his death," the objects
will be considered to be those who answer a particular description at the death
of the donee, and there will be no uncertainty : Pierson v. Garnet, 2 Bro. C.
C. 38, 226; Atkynsv. Wright, 17 Ves. 255; 19 Ves. 299; G. Coop. Ill;
I T. & R. 162 ; Meredith v. Ileneage, 1 Sim. 558 ; Knight v. Knight, 3
Beav. 173; 11 C. & F. 513.
In Griffiths v. Evan, (5 Beav. 241,) A. devised an estate to B. in tail ;
and for want of issue of her body, " he empowered and authorized" her to
settle and dispose of the estate to such person as she thought fit, by her will,
" confiding" in her not to alienate or transfer the estate from his " nearest
family." B. appointed to her husband for life, with remainders over. It
was held by Lord Langdale, M. R., that the appointment was void, the ex-
pression " nearest family" being equivalent to heirs, and that the co-heirs of
the testator were entitled.
The tendency of the later decisions, as has been before observed, is against
construing precatory or recommendatory words, as trusts. If, therefore, the
giver accompanies his expression of wish or request 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, no trust will be created : see Bull v. Hardy, 1 Ves. jun.
270 ; Meggison v. Moore, 2 Ves. jun. 630 ; Knight v. Knight, 3 Beav. 148 ;
II C. & F. 513. Thus, the words " free and unfettered," accompanying the
strongest expressions of request, were held to prevent the words of request
from being imperative : Meredith v. Ileneage, 1 Sim. 542 ; 10 Price, 230 ;
Eoy v. Master, 6 Sim. 568. So, where there was a gift of stock to a person,
and there was added, parenthetically (to enable him to assist such children of
my deceased brother as he may find deserving of encouragement,) it was held
an absolute bequest, and that no trust was created for the children : Benson v.
Whittam, 5 Sim. 22 ; * Wright v. Atkyns, T. & R. 157, 163. r*§W\
In Shaw v. Lawless, (5 C. & F. 129,) a testator devised certain
real estates to trustees, for the use of W. Shaw for life, with remainders over,
508 POWER COUPLED "WITH TRUST.
and he directed the residue of his personal estate to be invested in the pur-
chase of other real estates. He gave a legacy of £100 to B. E. Lawless, as a
token of esteem. The will then contained this clause : — " And it is iny par-
ticular desire, that my said executors, whilst acting in the management of all
or any of my affairs under this my will, as also my friend W. Shaw, when he
shall enter into the receipt and perception of my said rents of K. V. and K.,
shall continue the said B. E. Lawless in the receipt and management thereof,
and likewise shall employ and retain him in the receipt, agency, and manage-
ment of the rents and issues of such other lands and premises as shall and
may be purchased and settled in pursuance of the directions hereinbefore con-
tained, at the usual fees allowed to agents, he having acted for me since I
became possessed of the said estates fully to my satisfaction." It was held
by the House of Lords, reversing the decision of Sir Edward Sugden, re-
ported L. & Gr. t. Sugd. 154, who had reversed the decision of his predecessor,
Lord Plunket, and in affirmance, therefore, of his decree, that these words did
not create a trust in favor of B. E. Lawless. Lord Cottenham, C., with
whose opinion Lord Brougham's coincided, observed, that the question was,
whether the words amounted to a trust, or only to an expression of opinion
and advice ; that, during the life of the testator, Lawless was his agent ; but
then, he was agent only during the testator's pleasure ; and by the terms of
the will, the testator desired that he should continue in the agency. ^Vas
that desire to be considered a command ? If he was to continue to act as
agent, the natural presumption was, that he was to continue on the same
terms as during the life of the testator. If so, that was during the pleasure
of the holder of the estate, and that negatived the presumption of an estate or
interest vested in Lawless. That Shaw was tenant for life, and had the legal
estate, but if Lawless's title was what it had been argued to be, he had an
equitable charge on the legal estate of Shaw ; and as he was to have the usual
fees of £5 per cent., the result would be, that Lawless would not only be an
equitable incumbrancer to that amount, but would have a right to manage and
direct the estate, and would have full power over the conduct of the property.
If so, the testator must have intended that Shaw, to whom he gave the estate
for life, should not have the direction of his own estate ; for the two powers
r*80"N °f direction and management are inconsistent with each other. The
testator, on this view of the case, must be taken to have intended
that the legal devisee for life should not have the management, but that
the equitable incumbrancer should have the control and management of
the property. But the trustees of the will were, during a considerable part
of the time, to have not only the management of the estate which the testator
devised, but were authorized and directed to lay out part of the personalty, —
the residue, in the purchase of other lands. If Lawless was the equitable
incumbrancer to the amount of one-twentieth part of the income of the estate,
he had a clear interest in the residue, for he might take one.-twentieth part of
the residue, he might file a bill to control the application of the residue, and
claim to be absolutely interested in what he was entitled to receive ; namely,
HARDING V. GLYN. 509
the one-twentieth part. That, when it was seen to what absurd extent that
construction of the will necessarily led, no one could hesitate in coming to the
conclusion, that it was at least very doubtful how far this could possibly have
been the intention of the testator. That it was true, that all the Court re-
quires is, that the subject and object should be defined and certain. Then,
what was the subject in the present case ? It was the right to be employed
in the receipt of the rents, and the agency and management of the lands of
another person, upon the usual fees. What was the necessary effect of this
alleged right ? It went to exclude Shaw from the management of his own
estate, or from the receipt of the rents themselves. Then this question
arose : — Suppose that he parted with the estate, would it, in the hands of a
purchaser, be subject to the same liability to this claim of agency on the part
of Lawless ? Was it the desire or the wish of the testator that it should be
so ? — or did he merely wish that his devisee should employ a man whose con-
duct had given satisfaction to himself '(
The rule said by Lord Cottenham to have been laid down by the House of
Lords in Shaw v. Lawless, is this, that though recommendation may, in some
cases, amount to a direction and create a trust, yet, that being a flexible term,
if such a construction of it be inconsistent with any positive provision in the
will, it is to be considered as a recommendation, and nothing more : Finden v.
Stephens, 2 Ph. 142 ; Knott v. Cottee, 2 Ph. 192 ; Johnson v.. Rowlands, 2
De G. & S. 356.
In Knight v. Knight, 3 Beav. 148, the testator being entitled to real estates
in tail male, with remainder to his cousins in tail, with remainder to himself
in fee, as right heir of the settlor, as to part under a settlement made by his
grandfather, and as to other part under the will of his grandfather, suffered a
^recovery and acquired the fee simple. He afterwards made his r*gQ2]
will, by which he devised all his estates, real and personal, to his
brother, Thomas Andrew Knight, if living at his decease, and if not, to his
son ; and in case he should die before the testator, to his eldest son, or next
descendant in the direct male line of his said grandfather, according to the
purport of his will, under which the testator had inherited those estates his
industry had acquired. He constituted the person who should inherit his said
estates his sole executor and trustee, to carry the same and every thing therein
duly into execution, " confiding in the approved honor and integrity of his
family to take no advantage of any technical inaccuracies, but to admit all the
comparatively small reservations which he had made out of so large a property
according to the plain and obvious meaning of his words." He then gave
some small legacies, and proceeded thus : — " I trust to the liberality of my
successors to reward any other of my old servants and tenants according to
their deserts, and to their justice in continuing the estates in the male succes-
sion, according to the will of the founder of the family, my above-named
grandfather." Thomas Andrew Knight survived the testator. It was held
by Lord Langdale, M. R., that Thomas Andrew Knight took absolutely,
observing, after an elaborate examination of the authorities, that, " on the
510 POWER COUPLED WITH TRUST.
whole he was under the necessity of saying, that, for the creation of a trust,
which ouo-ht to be characterised by certainty, there was not sufficient clearness
to make it certain that the words of trust were intended to be imperative ; or to
make it certain what was precisely the subject intended to be affected; or to make
it certain what were the interests to be enjoyed by the objects."
Upon appeal to the House of Lords, the decision of Lord Langdale was
affirmed, Lord Chancellor Lyndhurst coming to the conclusion, upon the
whole of the will, that the testator had no intention of creating a trust ; and,
moreover, that it was doubtful to what property the recommendatory words
applied, — whether it was to be confined to the estates the testator took from
his grandfather, or whether personal as well as real property was to be included ;
and he considered the circumstance, that an indefinite portion of the personal
property was to be disposed of according to the liberality of his successors,
raised another difficulty in the way of considering this as an imperative trust.
Lord Cottenham came to the conclusion, that the judgment ought to be
affirmed, because, assuming that the property was sufficiently described, and
which way it should go, there was sufficient upon the face of the will, accord-
r*^fm * n » to t ^ ie * ru ^ e ^^ down by Lord Alvanley in Malin v. Keighley, 2
^ Ves. jun. 335, to show that the testator did not intend to take away
from the devisee the discretion of defeating the devise he expressed. See
Knight v. Boughton, 11 C. & F. 513.
The Court will not imply a gift to a class, where there is an express gift
over, in default of appointment, to or among that class : Davidson v. Proctor,
14 Jur. 31. And see Walsh v. Acton, 4 Ves. 171 ; Bird v. Wood, 2 S. &
S. 400.
Clear words of gift to a devisee for his own benefit, free from control, will
not be cut down by subsequent words, which may operate as an expression of
desire, without disturbing the previous devise : Meredith v. Heneage, 10 Price,
306; 1 Sim. 588; Sugd. Prop. 391. See, also, Brook v. Brook, 3 Sm. &
Giff. 280.
In White v. Briggs, 15 Sim. 33, the testator gave his consumable articles,
linen, china, &c, entirely to his wife's use, and added, that the same, together
with all his jewels, trinkets, clocks, watches, and ornaments, might be finally
appropriated as she pleased, with the sum of £4000 in money, but which sum
Tie recommended her to divide in shares, which he specified, amongst persons
whom he named. Sir L. Shadwell, V. C, said, that, in Heneage v. Mere-
dith, the objects of the recommendation were uncertain; but here, both the
objects and the subjects were certain, and he therefore thought a trust was
created. However, Lord Lyndhurst reversed the decree, upon the ground
that the words, " to be finally appropriated as she pleased," applied to the
£4000 as well as to the jewels, &c, and therefore the case was to be governed
by Meredith v. Heneage : Sugd. Prop. 400.
Where there is an absolute gift by will, followed by words sounding like a
power, with a gift over if it be not exercised, there the court gives effect to
the absolute gift as such, and the gift over is held inconsistent with that abso-
HARDING V. GLYN. 511
lute gift, and is therefore void. Per Sir W. Page Wood, V. C, In re Mortlock's
trust, 3 K. & J. 456, 457. And see in re Yalden, 1 De Gr., Mac. & G. 53.
Where a trust has been created in favor of certain objects, by words of
recommendation, such part of the property as is not wanted for the purposes
of the trust will belong to the person upon whom the property has been con-
ferred, subject to the trust, no resulting trust arising for the next of kin or
heir-at-law : see Wood v. Cox, 2 My. & Cr. 684, overruling the judgment of
Lord Langdale, M. R., reported 1 Kee. 317.
It is most important to observe that, although vagueness in the object will
unquestionably furnish reason for holding that no trust was intended, yet this
may be countervailed by other considerations *which show that a trust r*qn.n
was intended, while at the same time such trust is not sufficiently cer-
tain and definite to be valid and effectual, and it is not necessary to exclude
the legatee from a beneficial interest that there should be a valid or effectual
trust ; it is only necessary that it should clearly appear that a trust was in-
tended. Thus, in Briggs v. Penny, 3 Mac. & Gr. 546, the testatrix after
giving among other legacies a sum of £3000 to Sarah Penny, and a like sum
of £3000 in addition for the trouble she would have in acting as executrix,
bequeathed all her residuary personal estate and effects unto the said Sarah
Penny, " well knowing that she will make a good use, and dispose of it in a
manner in accordance with my views and wishes." The testatrix appointed
Sarah Penny sole executrix of her will. It was held by Lord Truro, C, affirm-
ing the decision of Sir J. L. Knight Bruce, V. C, (reported 3 De Gr. & Sm.
525,) that Sarah Penny did not take the residue for her own benefit. " There
is nothing," said his Lordship, " on the face of the words which necessarily
implies what is vague or indefinite, as in those cases where the Court has held
that the uncertainty of the object has afforded evidence that no trust was in-
tended. ... I agree with the Vice-Chancellor in interpreting ' views and
wishes, to mean 'designs and desires.' And the very expression of confidence
that Miss Penny would make a good use and dispose of the property in a man-
ner in accordance with the testatrix's designs or desires, or intentions, appears
to me to amount to a declaration that Miss Penny was to hold the property
for that purpose, or in other words, to the same import, upon trust. It
seems to me to be tantamount to a bequest upon trust, and if so, that is suffi-
cient to exclude Miss Penny from taking the beneficial interest. Such views
and wishes may be left unexplained, such trust be left undeclared; but still
in such case it is clear a trust was intended, and that is sufficient to exclude
the legatee from a beneficial interest. Once establish that a trust was intended,
and the legatee cannot take beneficially. If a testator gives upon trust, though
he never adds a syllable to denote the objects of that trust, or though he
declares the trust in such a way as not to exhaust the property, or though he
declares it imperfectly, or though the trusts are illegal, still in all these cases,
as is well known, the legatee is excluded, and the next of kin take. But there
is peculiar effect in the word ' trust.' Other expressions may be equally indi-
cative of a fiduciary intent, though not equally apt or clear. In this case,
512 POWER COUPLED WITH TRUST.
however, we are not left to spell out a trust from the residuary clause alone :
the fact that, besides a legacy of *£3000, another legacy is expressly
*- given to Miss Penny, ' in addition for the trouble she will have in act-
in°- as executrix/ clearly shows that she was not intended to take the residue
beneficially ; because, if Miss Penny was to take the whole residue beneficially,
as the testatrix must be presumed to have acted upon the belief, which the
fact warranted, that her estate was abundantly sufficient to satisfy all the
bequests, there could be no object in taking out of that residue, of which
she was to have the whole, £3000 for her trouble : the fact of the legacy not
only strongly confirms, but is only consistent with the hypothesis, that the whole
residue was not to be taken beneficially. It cannot be referable to the trouble
she would have in the execution of the bequests in the will itself, or the
proved codicils, for though the bequests are numerous, not one of them involves
any amount of trouble ; whereas the views and wishes of the testatrix to which
she alluded, might be such that the carrying them into effect might involve
the executrix in very difficult trusts." See also Langley v. Thomas, 6 De
G., Mac. & G. 045.
Powers in the nature of Trusts.'] — Hitherto, those cases arising upon words
of recommendation have been considered, by which a trust simply has been
held to be created. There is, however, another class of cases within which
the principal case falls, and is a leading authority, of a similar nature, where
powers are given to persons, accompanied with such words of recommendation
in favor of certain objects, as to render them powers in the nature of trusts;
so that the failure of the donees to exercise such powers in favor of the objects
will not turn to their prejudice, since the Court will, to a certain extent, take
upon itself the duties of the donees. See Gower v. Mainwaring, 3 Ves. 87;
Doyley v. Attorney- General, '1 Eq. Ca. Ab. PJ4; Gude v. Worthington, 3 De
G. & Sm. 389.
" It is perfectly clear," observes Loid Eldon, " that where there is a mere
power of disposing, and that power is not executed, this Court cannot execute
it. It is equally clear, that, wherever a trust is created, and the execution of
that trust fails by the death of the trustee, or by accident, this Court will
execute the trust. But there are not only a mere trust and a mere power, but
there is also known to this Court a power which the party to whom it is given
is intrusted and required to execute; and with regard to that species of power,
the Court considers it as partaking so much of the nature and qualities of a
trust, that if the person who has that duty imposed upon him does not dis-
charge it, the Court will, to a certain extent, discharge the duty in his room
r*8061 anc ^ P^ ace - Upon that ^principle, the case of Harding v. Glyn, (1 Atk.
409,) proceeded ; that case cannot be got rid of by saying it is a singular
case, and that it is difficult to reconcile all subsequent cases with it ; for that case
has been treated as a clear authority, probably for the whole, certainly, by my
own experience, for a very considerable part of the time elapsed since that
judgment was pronounced. Mr. Joddrell's note of that case is to the follow-
ing effect : — ' This case was argued upon three points ; 1st, whether, by the
HARDING V. GLYN. 513
devise, the property vested solely in the wife; 2ndly, whether, after her death,
it was to be considered undisposed of; 3rdly, if not, who were entitled under
the will. It is plainly intended that the wife should take beneficially only
during her life. I mark the word " beneficially/' for the first words vest it
in her absolutely. The word " but" is a restriction. Upon the second point —
it is not undisposed of, for there are no technical words, but it is sufficient if
the intention appears ; and the word " desire" amounts to a devise. 3rdly,
if the description of persons is so uncertain, that it is impossible to know who