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and other the personal estate of the said testator Nicholas
Harding, devised by his will to the said Elizabeth Hard-
ing 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 im-
portant 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, recom-
mended, or entreated, or wished
to dispose of that property in
favour of another, the recommen-
dation, entreaty, or wish, shall be
held to create a trust.

" First, if the 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 cer-
tain ; and,

" Thirdly, if the objects or per-
sons intended to have the benefit



of the recommendation or wish
be also certain.

" If a testator gives lOOOL to
A. B., desiring, wishing, recom-
mending, 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 uj)on the in-
tention of the testator, upon the
sum or subject intended to be
given or upon the person or ob-
ject of the wish.

" So, if a testator gives the re-
sidue of his estate after certain
purposes are answered, to A. B.,
recommending A. B., after his
death, to give it to his own rela-



HARDING t\ GLYN.



965



tions, or such of his own relations
as he shall think most deserving,
or as he shall choose, it has heen
considered that the residue 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 cer-
tainly 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 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 dis-
cretionary 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 cer-
tainty, it has been held that no
trust is created. Thus, the words,
' free and unfettered,' accompany-
ing the strongest expression of
request, were held to prevent the
words of bequest being impera-
tive. Any Avords 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 pre-
vent 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 dis-



tinct class out of which the first
taker is to select, or which leaves
it doubtful what interest the ob-
ject 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 * never
turns upon the grammatical im-
port of words — they may be im-
perative, but not necessarily so ;
the subject-matter, the situation
of the parties, and the probable
intent, must be considered : ' Meg-
gison v. Moore (2 Ves. jun. 632,
633). And ' wherever the subject
to be administered as trust pro-
perty, and the objects for whose
benefit it is to be administered,
are to be found in a will, not ex-
pressly creating a trust, the in-
definite 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 trust was in-
tended : ' Morrice v. Bishop of
Durham (10 Ves. 536) ; or, as
Lord Eldon expresses it in another
case {Wright v. Atkyns, T. & K.
159), ' where a trust is to be
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



9G6



HARDING r. GLYN.



what the testator intended : ' "
Knight v. Knight, 3 Beav. 172 ;
S. C.,11 C. & F. 513, nom. Knight
V. Bonghton ; Gary v. Cary, 2 S.
& L. 189.

The three requisites, however,
mentioned by Lord Langdale,
to a precatory trust, must co-
exist. (See Briggs v. Penny, 3
Mac. & G. 554 ; Moriarty v. Mar-
tin, 3 Ir. Ch. Rep. 31. See the
explanation, Bernard v. Minshidl,
Johns. 276). It may, however,
be created by a settlement as well
as b}^ a will : Liddard v. Liddard,
28 Beav. 266.

First, The ivords of recommend-
ation used must he such that, upon
the whole, they ought to be con-
strued 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 conferred property
should make a disposition of it
in favour of certain objects, will
be construed as imperative, and
amount to a trust {Eales v. Eng-
land, Prec. Ch. 200; 2 Vern.
466) ; so, if he "request" {Fade
V. Fade, 5 Madd. 118), "wish
and request " {Foley v. Parry, 5
Sim. 138 ; 2 My. & K. 138 ; God-
frey v. Godfrey, 11 W. R. (V. C.
W.) 554), "wish and desire"
{Liddard v. Liddard, 28 Beav.
266) ; express it to be his "last
wish " {Hinxman v. Poynder, 5
Sim. 546); his "dying request"



{Pier son v. Garnet, 2 Bro. C. C.
38, 226); or "recommend" {Tih-
bits V. Tibbits, 19 Ves. 656 ; Jac.
317 ; Tlorwood v. West, 1 S. & S.
387 ; Malim v. Keighley, 2 Ves.
jun. 333, 539 ; Ford v. Foivler, 3
Beav. 146 ; but see Cimliffe v.
Gunliffc, Amb. 686, and the com-
ments upon it in Pierson v. Gar-
net, 'IBxo. C. C. 46; Malim y.
Keighley, 2 Ves. jun. 532 ; Push-
man V. Filliter, 3 Ves. 9) ; " en-
treat " {Prevost V. Clarke, 2 Madd.
458) ; " not doubting " {Parsons
V. Baker, 18 Ves. 476 ; Taijlor v.
George, 2 V. & B. 378) ; " under
the firm conviction " {Barnes v.
Grajit, 26 L. J. N. S. (Ch.) 92) ;
" in the full confidence " {Ciirnick
v. Tucker, 17 L. R. Eq. 320 ; Le
Marchant v. Le Marchant, 18 L.
R. Eq. 414) ; " have fullest confi-
dence " {Wright y. Atkyns, 17 Ves.
255 ; 19 Ves. 299 ; G. Coop. Ill ;
1 T. & R. 143 ; Palmer v. Sijm-
monds, 2 Drew. 221 ; Gidly v.
Crego, 24 Beav. 185; Shovel-
ton V. Shovelton, 32 Beav. 143) ;
"heartily beseech" {Meredith \.
Heneage, 1 Sim. 553) ; " I beg she
will apportion" {Corbet v. Coi'bet,
7 I. R. Eq. 456); "authorise
and empower " {Brown v. Higgs,
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 confi-
dent hope " {Macnab v. Whitbread,
17 Beav. 299); " absolutely trust-
ing " {Irvine v. SidUvan, 8 L. R.
Eq. 673) ; " well know " {Bards-



HARDING ?•. GL-i-N.



967



2rell V. Bardsivell, 9 Sim. 323 ;
Briggs v. Penny, 8 Mac. & G.*
546, 554 ; but see Stead v. Mellor,

5 Ch. D. 225, 227) ; " or of course
he will give " (Robinson v. Smith,

6 Macld. 194) ; " in consideration
he has promised to give " (Clifton
V. Lomhe, Amb. 519) ; "I would
wish she should have power to
give : " Corhet v. Corbet, 7 I. R.
Eq. 456.

The context may, however,
show that words of hope, or re-
quest, or recommendation, were
not intended to interfere with the
absolute discretion of the legatee :
HusJcisson v. Bridge, 4 De Gr. &
Sm. 245 ; Willia7ns v. Williams,
1 Sm. N. S. 358, 370 ; IVebb v.
Wools, 2 Sm. N. S. 267 ; Lefroij
V. Flood, 4 Ir. Ch. Rep. 1 ; Scott
V. Key, 35 Beav. 291 ; Shepherd
V. Nottidge, 2 J. & H. 766 ; Eaton
V. Watts, 4 L. R. Eq. 151;
M'Cormicky. Grogan, 1 I. R. Eq.
313 ; Greene v. Greene, 3 I. R.
Eq. 90, 629 ; Creagh v. Murphy, 7
I. R. Eq. 182 ; In re Bond, Cole
V. Hawes, 4 Ch. D. 238.

The application of the rule by
which words of recommendation
are construed as imperative, is
often attended with considerable
difficulty, and perhaps ought not,
consistently with sound princi-
ples of interpretation, to have
been ever established. " The first
case," observes Sir Anthony Hart,
V. C, " that construed words of
recommendation into a command
made a will for the testator ; for
every one knows the distinction



between them : " Sale v. Moore, 1
Sim. 504.

The tendency of the later de-
cisions is against construing pre-
catory or recommendatory words
as trusts. lb. 504. If, therefore,
the giver accompanies his expres-
sion of wish or request by other
words, from which it is to be col-
lected that he did not intend the
wish to be imperative, or if it ap-
pears 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 Bidl v.
Vardy, 1 Ves. jun. 270 ; Meggison
V. Moore, 2 Ves. jun. 630 ; Knight
V. Knight, 3 Beav. 148 ; 11 C. &
F. 513. Thus, the words " free
and unfettered," accompanying
the strongest expressions of re-
quest, were held to prevent the
words of request fi'om being im-
perative : Meredith v. Heneage, 1
Sim. 542 ; 10 Price, 230 ; Hoy 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. Wittam, 5 Sim. 22 ;
WrightY. Atkyns, T. & R. 157,163.
So, where it was declared in
a will that a bequest of pro-
perty to a legatee was "in his
entire power " (Eaton v. Watts,



9G8



HAEDIXG V. GLYN.



4 L. R. Eq. 151); or ''left entirely
to his good judgment " (M'Cor-
m'lck V. Grogan, 4 L. R. Ho. Lo.
82) ; and where a testator "recom-
mended but did not absolutely
enjoin " a distribution among
diiughters {Young v. Martin, 2 Y.
& C. C. C. 582), it was held that
there was no trust.

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, and he directed
the residue of his personal estate
to be invested in the purchase of
other real estates. He gave a
legacy of lOOL to B. E. Lawless,
as a token of esteem. The will
then contained this clause : — "And
it is my particular desire, that
my said executors, while 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. Ijawless 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 direc-
tions hereinbefore contained, at
the usual fees allowed to agents,
lie having acted for me since I
became possessed of the said es-
tates fully to my satisfaction." It
was held by the House of Lords,



reversing the decision of Sir Ed-
%vard Sugden, reported L. & G. t.
Sugd. 154, who had reversed the
decision of his predecessor. Lord
Plunkett, and in affirmance, there-
fore, of his decree, that these
words did not create a trust in
favour of E. B. Lawless. Lord
Cottenham, C, with whose opinion
Lord Brougliani' s coincided, ob-
served, 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.
Was that desire to be considered a
command ? If he was to continue
to act as agent, the natural pre-
sumption was, that he was to con-
tinue 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 Law-
less. 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 5Z. 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



HAEDTXG l\ GLYN.



909



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 of di-
rection and management are in-
consistent 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 incum-
brancer 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 ma-
nagement of the estate which the
testator devised, but were author-
ised and dii'ected to lay out part
of the personalt}^, — the residue, in
the purchase of other lands. If
Lawless was the equitable incum-
brancer 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, 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 requires 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 em-
ployed 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 fi'om 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 tes-
tator that it should be so ? — or
did he merely wish that his de-
visee should employ a man whose
conduct had given satisfaction to
himself?

The rule said by Lord Cotten-
ham to have been laid down by
the House of Lords in Sliaw v.
Lawless, is this, that though re-
commendation 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; Johnston v.
Rowlands, 2 De G. & S. 356.

In Knhjht v. Knight, 3 Beav.



970



HARDING ?\ GLYN.



148, the testator being entitled to
real estates in tail male, with re-
mainder 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,
suifered a recovery and acquired
the fee simple. He afterwards
made his will, by which he de-
vised all his estates, real and per-
sonal, to his brother, Thomas An-
drew Knight, if living at his de-
cease, 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 ad-
quired. He constituted the per-
son who should inherit his said
estates his sole executor and trus-
tee, to carry the same and every-
thing therein duly into execution,
" confiding in the approved honour
and integrity of his family to take
no advantage of any technical in-
accuracies, but to admit all the
comparatively small reservations
which lie 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
my old servants and tenants ac-
cording to their deserts, and to
their justice in continuing the es-



tates in the male succession, ac-
cording 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. E.,
that Thomas Andrew Knight took
absolutely, observing, after an ela-
borate examination of the authori-
ties, that, " on the whole he was
under the necessity of saying,
that, for the creation of a trust,
which ought to be characterised
by certainty, there was not suffi-
cient clearness to make it certain
that the words of trust were in-
tended 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 Lang-
dale was affirmed. Lord Chancellor
Lyndhurst coming to the conclu-
sion, upon the whole of the will,
that the testator had no intention
of creating a trust ; and, moreover,
that it was doubtful to what pro-
perty 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 dis-
posed of according to the liberahty
of his successors, raised another
difficulty in the way of consider-



HARDING r. GLYN.



971



iiig this as an imperative trust.
Lord Cottenham came to the con-
clusion, 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, according to the
rule laid down by Lord Alvanley
in Malim v. Keighley, 2 Ves. jun.
385, to show that the testator did
not intend to take away from the
devisee the discretion of defeat-
ing the devise expressed. See
Knight v. Boughton, 11 C. & F.
513 ; Scott V. Keg, 35 Beav. 291.

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. Procter, 14 Jur»
31. And see Walsh v. Acton, 4
Ves. 171 ; Bird v. Wood, 2 S. &
S. 400 ; Goldring v. Inwood, 3 Giff.
139, 143.

Clear words of gift to a devisee
for his own benefit, free from
control, will not be cut down by
subsequent words, which may ope-
rate 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, miglit he finally



ajijjrojjviatcd as site pleased, with
the sum of 4000L in money, hut
ivhich sum he recommended her to
divide in shares, which he speci-
fied, amongst persons whom he
named. Sir L. Shadivell, V. C,
said, that, in Heneage v. Mereditli,
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 de-
cree, 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 hy Meredith v. Heneage:
Sudg. Prop. 400.

Where there is an absolute gift
by will, followed by words sound-
ing 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-
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 G. Mac. & G. 53 ; Brook v.
Brook, 3 Sm. & G. 280 ; Howorth
V. Dewell, 29 Beav. 18 ; Scott v.
Key, 35 Beav. 291 ; Lamhe v.
Eaines, 10 L. R. Eq. 267, 6 L. R.
Ch. App. 596.

Secondly, The subject matter of
the recommendation or wish must
he certain. — Thus, in Buggins v.
Yates, 9 Mod. 122, where a tes-



97i



HARDING V. GLYN.



tutor, who, having devised real
property to his wife, to be sold
for payment of his debts and
legacies, in aid of his personal
estate, declared, that he did not
doubt but his ivife 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, nor a right to any par-
ticular part of the estate, but that
the clause was void for uncer-
tainty."

In Sale v. Moore, 1 Sim. 534,
the testator gave and bequeathed
to his wife all his worldly sub-
stance of what kind or nature
soever, or wheresoever, upon trust
for the following purposes : — 1st,
for payment of debts and funeral
expenses, and of 100^. to a chari-
table institution, and 501. a year
to his sister for life. He then adds,
" My brother being in affluent cir-
cumstances, 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 with-
out taking from my wife's pro-
perty, 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 doubt-
ing, as she has no relations of her
own family, but that she tvill con-
sider nuj near relations, should
she surclcc me, as I should con-



sider tlicm myself in case I should
survive her.'' It was held by Sir
Afithony 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 abso-
lutely. 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-
lute gift. He gives to her * all
his worldly substance of what
nature or kind soever and w^here-
soever, upon trust for the following
purposes.' He must, therefore,
be intended to have all the pur-
poses 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 bythem 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



HAEDIXG V. GLYN.



973



had pointed out every trust tiiat
he mtended should fix upon the
property? He then proceeds: 'As
I could not do it without taking
from my wife's property, who is



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