to one of the children, to the exclu-
sion of the others. In Lucas v. Lock-
hart, 10 Smedes & Marshall, 466,
the first clause of the will gave all
the testator's real and personal pro-
perty to his wife, during widow-
hood, and the fourth contained the
following provision : " During my
wife's widowhood, she is to have the
entire use, profits, and control of my
estate, and to her discretion do I en-
trust the education and maintenance
of my children, during that time ;
but in case of her death, or marriage,
before the time appointed for division,
as aforesaid, then it is my desire, that
my children be all supported, and that
the girls under sixteen, and the boys un-
der eighteen, be as well educated, out of
the annual profits of my estate, as they
will allow up to the time of division ;
the profits to be first applied to their
support ; and in case of a deficiency,
then to educate all the children em-
braced in the last clause; the balance
to be applied in educating the younger
in preference to the older children."
The court said, that to convert words
of wish or recommendation into a
trust, they must be sufficiently clear
and certain, to show, not only what the
testator meant to give, but the per-
sons to whom he designed to give it,
HARDING V. GLYN.
521
but held, that both these conditions
were met and satisfied^by the terms
of the will in question, and that the
property having been given for the
benefit of the children, could not be
taken in execution for the debts of
the mother.
In Harrison v. Harrison's AtFr,
2 Grattan, 1, the words of the will
were as follows : " In the utmost con-
fidence in my wife, I leave to her all
my worldly goods, to sell or keep for
distribution amongst our dear chil-
dren a3 she may think proper: my
whole estate, real and personal, are
left in fee simple to her; only request-
ing her to make an equal distribution
amongst our heirs ; and desiring her
to do for some of my faithful servants,
whatever she may think will most con-
duce to their welfare, without regard
to the interest of my heirs ;" and
were held to confer a beneficial in-
terest in the estate on the widow for
life, and a remainder in fee on the
children, with a power to her to acce-
lerate the period at which the remain-
der would vest in possession, by mak-
ing advancements to them or other-
wise, and to sell all or any part of the
estate, for the payment of debts, or
its more convenient enjoyment or di-
vision. " By oue clause of the will,"
said Baldwin, J., " the testator leaves
to his wife all his worldly goods,
doubtless meaning all his estate, real
and personal ; but in the same clause
the purpose expressed is, ' to sell or
keep for distribution amongst our dear
children.' This was surely a decla-
ration of trust in their favor. And
though by the next clause the devise
to her is of all his estate, real and
personal, in fee simple, yet it is ac-
companied with a request, l to make
an equal distribution amongst our
heirs.' The only foundation of the
widow's claim to absolute and unqua-
lified ownership, is the language of
discretion in the first-mentioned
clause, and of request in the second.
But the words of discretion in the
first, ' as she may think proper,' have
reference to the executing, and not
the defeating of the trust ; and the
words of request in the second, ' only
requesting her to make an equal dis-
tribution amongst our heirs,' serve
but to show that her ownership was
limited merely for the purposes of the
trust, and that the testator desired
the distribution required by the trust
should be equal. The second clause
is an explanatory repetition of the
first, and in no wise does it impair
the trust, or enlarge the ownership of
the widow to the detriment thereof.
The two taken together, show it was
the testator's intention that his wife
hould succeed him to a qualified
ownership of his estate ; and that
their common offspring should be the
joint and equal ' heirs' or distributees
of both ; with a parental discretion in
her to accelerate, in the whole, or in
part, the periods of enjoyment by the
children respectively." So in Bull
v. Bull, 8 Conn. 47, a devise to the
testator's two brothers, whom he ap-
pointed executors, " in the full confi-
dence that they will settle my estate
according to this my will, and dispose
of the residue that may accrue in
their hands among our brothers and
sisters, and their children, as they
shall judge most in need of the same,
according to their best discretion,"
was held to create a trust in favor of
the brothers and sisters, and their
children, to the exclusion of the im-
522
POWER COUPLED "WITH TRUST.
mediate devisees, which would be car-
ried into effect by chancery, notwith-
standing the death of the executors
without executing it. A similar de-
cision was made in Tolson v. Tolson,
10 Gill & J. 159 ; while in Cole v. Lit-
Jield, 35 Maine, 439, a direction that
the income of the estate should be ap-
propriated to the use of the testator's
wife, for her own support and that of
her children ; " the said children to re-
ceive a good English education, and
be liberally but economically support-
ed •" followed by a provision, that the
surplus which remained after supply-
ing the wants of the wife, should be
invested and applied to make good
any deficiency which might occur at
a subsequent period ; or if not needed
for that purpose, accumulated and di-
vided equally among the children,
when of age; was interpreted as a
trust; which entitled the wife to re-
ceive the whole income, subject, ne-
vertheless, to the duty of applying it
in conformity with the wishes of the
testator, under the control and super-
vision of the court, in case of any
abuse of the discretion with which
she was invested. The same view
was taken by the Supreme Court of
Pennsylvania, when the question was
first brought before them for adjudica-
tion ; " and a devise to a widow, of
the use, benefit, and profits of the tes-
tator's real estate, for life, and his
personal estate of every description,
absolutely, ' having full confidence
that she will leave the surplus to be
divided justly among my children;'
held to entitle her to the income of
the estate merely, and create a trust
for the principal, in favor of the chil-
dren ;" Coates' Appeal, 2 Barr, 129.
The general principle, that no gift
or bequest can be good, unless reason-
ably certain, or capable of being re-
duced to certainty ; or in other words,
unless the giver has expressed his
purpose with sufficient clearness to
show what he wished to give, and to
whom he meant to give it, applies to
this class of trusts, as well as to all
others; and they are also subject to
the equally general rule, that when a
will discloses two different and incon-
sistent designs or purposes, which can-
not both stand, without conflicting
with each other, or with the policy of
the law, that which is less direct and
primary, shall be passed over or sacri-
ficed, as the only means of giving
effect to the other. Hence, in order
to convert words of wish or recom-
mendation into a trust, they must be
sufficiently clear and explicit, to show
that the testator meant to bind the
conscience of the person to whom
they were addressed, instead of ap-
pealing to it ; and must not only de-
signate the cestui que trust, but spe-
cify the quantum of estate or interest
which each is to have, with sufficient
accuracy to enable the court to super-
vise the proceedings of the trustee,
and control or remedy any act or part
which deviates from, or contravenes
the purpose for which the trust is
called into being. The law was so
held in Gilbert v. Chapin, 19 Conn.
312, and " a devise of all the testator's
estate, real and personal, to his wife
and her heirs forever, recommending
her ' to give the same to my children,
at such time, and in such manner, as
she shall think best/ said to vest the
estate absolutely in her, free from any
trust in favor of the children."
The same view was taken in Harper
v. Phelps, 21 Conn. 259, and a bequest
HARDING V. GLTN.
523
of an annuity of two thousand dollars,
out of the income of the testator's
estate, to his niece, Mrs. Phelps, dur-
ing her life, " for the support of her-
self, and of the nephews and nieces
whom she now has under her care,
and of such other persons as she may
from time to time wish, and request
to be members of her family," held
to vest the absolute and uncontrolled
dominion over the fund thus bequeath-
ed, in the legatee, free from any charge
or trust for the nephews and nieces
referred to in the will, or of the other
relations of the testator. " The lan-
guage of the testator," said Ellsworth,
J., in delivering the opinion of the
court, " whatever else may be said of
it, imposes no legal obligation on Mrs.
Phelps, in the use or distribution of
the annuity. He expresses, perhaps,
the motive or cause of the gift; but
he does not put a condition upon it,
and place her under a legal responsi-
bility to others. The disposition of
the annuity belongs to that class of
cases, where it is the intention of the
testator to leave the whole subject of
disposition, as a pure matter of discre-
tion, to the judgment and pleasure
of the party enjoying his special con-
fidence ; and where his expressions of
desire are intended as mere moral
suggestions, to excite and aid that
discretion, but not absolutely to con-
trol and govern it; or, in the lan-
guage of Church, C. J., in Gilbert
v. Chapin, 19 Conn. R. 348, 'no
trust will be raised by expressions in
a will importing recommendation,
hope, confidence, desire, &c, unless
there be certainty as to the parties
who are to take ; nor if a discretion,
whether to act or not, be left with a
devisee, or so-called trustee.' It is
a principle of equity, well established
by numerous cases, that to raise a
trust, it must be ascertained what pro-
portion each beneficiary is to take ;
JBardsweM v. Bardswett, 9 Sim. 320 ;
Pope v. Pope, 10 Id. 1 ; Curtis v.
Rippon, 1 Madd. 434; Knight v.
Knight, 3 Beavan, 148; 1 Jarm. on
Wills, 338. Now, who will assert,
that in this article in Mr. St. John's
will, the beneficiaries, or their propor-
tions, except Mrs. Phelps', are defi-
nitely ascertained and fixed ; or that
any practicable rule for ascertaining
either, is given ; she may invite into
the family whom she pleases, relatives
or strangers ; but this election is too
indefinite as a rule of property, and
as such, must therefore be held void
and inoperative. Besides, the two
nieces, Mary Jane and Lucinda Ame-
lia, ' now under her care,' though al-
luded to, in the manner of her enjoy-
ing the legacy, as possibly to be mem-
bers of her family; the nephews,
William A. and George S., are not
so alluded to ; nor were they ever sub-
jects of her care, nor nearer to her
than the other nephews and nieces of
herself, or of the testator. Wherever
the objects of the supposed recom-
mendatory trust are not certain or de-
finite, or wherever the property to
which it is to be attached, is not cer-
tain or definite ; or wherever a clear
discretion and choice to act, or not to
act, is given ; or wherever the prior
dispositions import absolute and un-
controllable ownership; in all such
cases, courts of equity will not create
a trust from words of this character ;
2 Story, Eq. §§ 1069, 1070 ; 3 Bea-
van, 148; Gilbert v. Chapin, 19
Conn. R. 342; and cases there cited."
The case of Gilbert v. Chapin, was
524
POWER COUPLED WITH TRUST.
also cited and followed by the Supreme
Court of Florida, in Lewis v. Darden,
5 Florida, 51, where the question arose
out of a gift of all the testator's es-
tate, real and personal, to his daugh-
ter during her life, and after her
death, to be equally divided between
her children ; followed by a declara-
tion, that it was his will and desire,
that if any of the children desired to
receive a portion of the estate as a
loan, on arriving at full age, or mar-
riage, it should be paid over to him
accordingly, and remain subject to
his control and disposition, until the
estate should be finally settled, when
it should be repaid, and distributed
in the same manner as the residue;
and the court were clearly of opinion,
that the primary purpose to make a
gift to the daughter, being clear and
unequivocal, could not be controlled
by the subsequent expression of a de-
sire that what was thus given should
be loaned out to others, which might
have the effect of depriving her of
the possession of the whole of the
fund, and leaving her without other
means of support, than a precarious
dependence upon the interest which
might be paid from time to time, for
the loan, by the children. And the
general principle, that words of wish
and expectation, or even of will and
desire, will not create a trust, unless
they are sufficiently full and specific,
to show those who are to take, and
what is to be taken, with reasonable
certainty, was laid down by the court
with great clearness, on the strength
and under the authority of the ad-
judged cases ; and anything which fell
short of this, said to be, at best, a
mere power, which a court of equity
might aid, but could not enforce or
execute.
The general rules laid down in this
case, and in Harper v. Phelps, are
unquestionable, and there can be little
reason to question the propriety of their
application, whatever doubt may be felt
with regard to the soundness of the
decision in Gilbert v. Chopin, which
was determined by a divided court,
"Waite, and Ellsworth, J. J., dissent-
ing. But it should at the same time
be remembered, that although a mere
power cannot be enforced as a trust,
a trust may be coupled with a power,
and the one given as a means of car-
rying the other into execution. The
law has been so held in a number of
instances in England, which were
cited and followed in Withers v. Yea-
don, 1 Richardson, Equity, 324 ; and
a devise of all the testator's estate
for life, to his son, " upon the trust and
confidence that he should and would
give, devise, and appoint the said es-
tate, by deed or will, unto all or any
of his children, in such way and man-
ner, in such proportions, and for such
uses, estates, and interests as he should
think proper," interpreted as a trust
which equity would uphold and en-
force, by an equal division among all
the children. And it was said to be
well settled, under the principal case ;
Marlborough v. Godolphin, 2 Vesey,
61 ; Brown v. Higgs, 5 Id. 595 ; 8
Id. 566 ; and other authorities of the
same import; ante, p. 515 ; that when
property is given, with a view of en-
abling the donee to exercise a discre-
tion for the benefit of others, his fail-
ure or refusal will not be allowed to
defeat the purpose of the testator, or
deprive the objects of his bounty of a
HARDING V. GLYN.
525
benefit to which they are as much enti-
tled, as if it had been conferred upon
them directly; and that the difficulty
will be obviated by interpreting and en-
forcing the power as a trust, and substi-
tuting an equal division among all the
beneficiaries, for a distribution at the
discretion of the trustee. The deci-
sion thus made, shows, and it would
seem plain, on principle, that when
the purpose to create a trust is clear
and indisputable, the mere fact that
the shares or purparts of the cestui
que trust are not specified, or are left to
the choice and discretion of the trus-
tee, will not be an insuperable obsta-
cle to its execution ; and that it will,
on the contrary, be presumed that the
primary purpose of the testator was
to give, and the interposition of the
trustee merely a mode or means of
accomplishing the main object.
The case of Lavett v. Beirne, 21
Conn. 1, affords a striking illustra-
tion of the same principle, by show-
ing that a trust may exist, and be so
far obligatory, that no portion of the
trust fund can be diverted from the
object which the donor had in view,
and yet be absolutely subject to the
discretion of the trustee, as to the
time and manner of its execution,
and even as to the amount to be ap-
plied to the use of each of the par-
ties, for whose benefit it was called
into being. "What," said Waite,
J., in delivering the opinion of the
court, " are the provisions of the will
in this case ? The testator, after giv-
ing several legacies, directs the bal-
ance of his property to be divided
equally among his children, subject
to the following provisions and con-
ditions. Those relating to his daugh-
ter's share are briefly these : all the
property given to her is for the exclu-
sive use of her and her children, free
from any debts or control of her hus-
band ; and to secure the same to their
unimpaired enjoyment; he gives the
same in trust, to his sons, George P.
Beirne, and Oliver Beirne, with full
authority to apply the property as to
them shall seem best, for their exclu-
sive benefit, during the life of the
daughter, and after her death, to di-
vide the same equally among her chil-
dren.
" Now, in the opinion of a majority
of this court, the trustees, by the
terms of the will, are clothed not only
with the legal title to the property,
but the power to apply it, as to them
shall seem best ; or, in other words,
according to their discretion. They
must, indeed, apply it for the benefit
of the daughter and her children;
and were they to appropriate it to any
other use, a court of chancery might
then interfere, because they would
then transcend their authority. But
so long as they continue to use the
funds for the benefit of their sister
and her children, it is for them to ap-
ply them according to their judgment.
" Suppose she should be of opinion,
that a particular mode of investment
would be best faprtier and her family,
and the trusties should be of an en-
tirely different opinion, and therefore
refuse a compliance with her request,
whose judgment is to govern? hers
or theirs ? This question is to be de-
termined, not by inquiring whose
judgment is the best, but which has
the power of deciding.
" It seems to us, that the language
of the will leaves no possible doubt
upon the subject. They have full
authority to apply the property as to
526
POWER COUPLED "WITH TRUST.
them shall seem best, and not as may-
seem best to her. Suppose the trus-
tees had carefully examined the facts
in relation to the purchase of the furni-
ture, and had come to the conclusion,
perfectly satisfactory to their minds,
that such purchase was not best for
their sister and her children, and
therefore should refuse their appro-
bation of the purchase, can a court of
equity review their decision, and re-
verse it, if they find it to be wrong ?
We think the court has no such power."
The language thus held, renders it
plain, that the existence of a binding
trust for another, is not inconsistent
with the largest discretion on the part
of the trustee ; and it follows by an
equally necessary sequence, that the
mere fact that such a discretion exists,
and is the only means of giving effect
to the end in view, is not a sufficient
reason why the end should be defeat-
ed, or the trust diverted to other pur-
poses.
This view is sustained by the case
of Steele v. Levlmy, 11 G rattan, 454,
where the court were obviously of
opinion, although the point was not
actually before them for adjudication,
that a power of distributing a fund
among a particular class of persons,
at the discretion of the person to
whom it is given in the first instance,
is not inconsistent with an implied
trust for their benefit, in case the
power is not exercised ; and derives
additional confirmation from the opi-
nion of the Supreme Court of Penn-
sylvania, when the will which "had
been construed in Coates' Appeal,
ante, was again brought before them
for consideration, in M'Konkey 's Ap-
peal, 1 Harris, 253, that the language
of the testator conferred a power un-
der which the legatee might have
distributed those portions of the es-
tate, which she did not use for her
own purposes, in such proportions,
among her children, as she thought
proper, short of making a merely il-
lusory appointment; but also gave
birth to a trust which the court would
execute, in default of the execution
of the power, by making an equal dis-
tribution of the fund among the ces-
tuis que trust. And the decision which
had been made on the first hearing of
the cause, was further qualified by the
remark, that the use of the word "ab-
solutely," in the bequest to the wife,
implied that she was to have the con-
trol and disposition of the whole of the
property while she lived, and that the
trust was to attach to so much only as
remained undisposed of at her death.
"When, however, the court below pro-
ceeded to act under the principles
thus laid down, a third appeal was
taken, by one of the parties litigant,
and another argument had before the
Supreme Court, which resulted in a
decision, that the two former judg-
ments had not brought the question
within the rule which forbids the fur-
ther agitation of matters which have
been finally adjudicated; and that no
trust existed, either as to the whole
body of the bequest, or that portion
of it which had not been disposed of
by the legatee; Lowrie, J., saying,
that the rule might have been a rea-
sonable one, when originally introduc-
ed into the Roman law, or borrowed
from it by equity in England; but
that whatever reason it once possessed
has passed away, or become inapplica-
ble to the present state of things in the
United States. The decision thus
made may have been eminently just
HARDING V. GLYN.
527
and proper, so far as it regards the
particular will in view ; but we may
be permitted to doubt, whether a prin-
ciple which has traversed so many cen-
turies, and been applied under so many
different circumstances, can be want-
ing in essential reason, or entirely un-
suited to the wants and requirements
of civilized society, in any stage of its
progress or retrogression ; man, the
unit of which the whole is compact-
ed, being everywhere substantially the
same, and the aggregate being neces-
sarily made up of, and in most re-
spects equivalent to, the sum of its
parts. And instances will, no doubt,
arise from time to time, on this side
of the Atlantic, and in this century, as
they have arisen at other times and in
other places, in which the purpose of
a father, or other person, standing in
loco parentis, to make a gift to a
mother the means of a safe and per-
manent support for herself and her
children,' will not be less plain or less
worthy of the aid and support of equi-
ty, because the testator has used words
of desire and expectation, instead of
employing the peremptory and un-
equivocal language of command;
and whenever this happens, a trust
will, in all probability, be decreed as
heretofore, in reliance upon, and
with the aid of the principles and pre-
cedents, furnished by the jurispru-
dence of Rome and England ; In re
Harris, 7 Exchequer, 344.
But, although we may doubt whe-
ther a trust, which has been clearly
intended should be allowed to fail,
merely because the trustee is invested
with a power of distribution, or even
of diverting a portion of the fund to
other purposes, it would seem very
plain, that the primary import of
words of wish or desire, is not that of
command or obligation ; that the tes-
tator should be presumed to know the
use and meaning of language ; and
that the terms which he employs
should not be deprived of their natu-
ral and obvious meaning, and subject-
ed to an arbitrary or strained inter-
pretation, merely for the purpose of
raising a trust in favor of those whom
the court may consider deserving ob-
jects, and for whom the testator has
expressed a kind intention, without
carrying it to the extent of an actual
gift or bequest ; Erunson v. King, 2
Hill, Ch. 483, 490; Skrine v. Walker,
3 Richardson, Eq. 262 ; Ellis v. Ellis,
15 Alabama, 296; Thompson v.
MKisick, 3 Humphreys, 631. Thus
in Ellis v. Ellis, a bequest of all the
testator's real and personal estate, to
his wife, recommending her at the
same time to make some small allow-
ance, at her convenience, " to each of
my brothers and sisters, say, to each
one thousand dollars," was held to
vest the whole in her absolutely, free
from any responsibility to, or trust for
others ; while the same interpretation
was put, perhaps with less reason, in
Thompson v. M'Kisick, on a gift of