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more in need of it.' Why does he
not take it from her ? He miglit
have made her a 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
])ossessed 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 be-
quest to a person, " well knowing
that he will remember " certain
objects {Bardsicell v. Bardswell, 9
Sim. 319), "do justice to," or
" deal justly and properly to and
by them " {Lc Maitre v. Bannister,
Prec. Ch. by Finch, 200, n. 1;
Pope V. Po2')e, 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. Whithread, 17 Beav.
299 ; Winch v. Briitton, 14 Sim.
379 ; Beeves v. Baker, 18 Beav.
372 ; Fox v. Fox, 27 Beav. 301 ;
Greene v. Greene, 3 I. R. Eq. G29.

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 pro-
perty ; for the Coui-t, m its acute-
ness to extract the meaning, con-
ceives it to be inconsistent with
the intention to create an impera-
tive 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. Henearje, 1 Sim.
556 ; and see Curtis v. Papon, 5
Madd. 434. There the testator,
after appomting his wife guardian
of his children, gave all his pro-
perty to her, " trusting that she
would, in fear of God and 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, re-
membering always, accordmg to
circumstances, the Church of God
and the poor." Sir 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 bemg at Hberty at her
pleasure to diminish the capital,
either for the Church or the
poor ; and that the plain inten-
tion of the testator was to leave
the children dependent on the
wife. See also Eaton v. Watts,
4 L. R. Eq. 151.

So, where there is an absolute
gift of property to a person, and a
recommendation to give to a cer-



974



HARDING V. GLYN.



tain object, "what shall be left "
at his death, or " what he shall die
seised or possessed of" (Wynne
V. Haivkins, 1 Bro. C. C. 179;
Sprange v. Barnard, 2 Bro. C. C.
585 ; Bland v. Bland, 2 Cox, 349 ;
Pushman v. FilUter, 3 Ves. 7 ;
Wilson V. M({jor, 11 Ves. 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 {Coivman \. Harrison, 10 Hare,
234), or '* the bulk of his said
residuary estate " (Palmer v. Sim-
monds, 2 Drew. 221) ; " under no
restriction to any stated property,
but quite at liberty to give and
distribute what and to whom she
may please " (In re Bond, Cole v.
Halves, 4 Ch. D. 238) ; the sub-
ject will be considered as uncer-
tain. See and consider Constable
V. Bidl, 3 De G. & Sm. 411.

In the case of Re Pedrottis
Will, 27 Beav. 583, a testator be-
queathed the income of his resi-
due to his widow for life, but
desired *' that in case anything
shoidd occur that her income was
not sufficient, she shall be at
liberty to go to the principal,"
and he gave the residue to his
brothers. TJie residue only pro-
duced 30L a year, and the widow
claimed the whole capital. It
was held bj' Sir John Bomilly, M.
K., that she was only entitled to
so much of the capital as, with
the income, would afford her a



maintenance suitable to her station
in life.

In Eade v. Fade (5 Madd. 118),
the testator bequeathed the residue
of his personal property to his
wife, requesting that she would at
her death leave 200Z. to each of
the Miss Nortons, and leave the
remainder of her property to his
nephews George and William
Eade, in such proportions as she
thought proper. It was held by
Sir John Leach, V. C, that the
Miss Nortons were entitled to the
200L each, but that no trust was
created for the nephews. "A
request or recommendation," ob-
served his Honor, " will raise a
trust, if the objects and the pro-
perty are described with such
certainty that the Court can exe-
cute it. The defendants, the
Miss Nortons, are plainly entitled
to the legacies of 2001. each ; and
if the testator had requested his
wife at her death to leave the re-
mainder of his j)roperty to George
and William Eade, there would
have been a clear trust in their
favour, because the remamder 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 his property. It
must be understood to mean such
property as she happened to pos-
sess at her death, from whatever
source derived. This testator
having therefore, in effect, left his
wife at liberty to deal with the
remainder of his estate as she



HARDING V. GLYN.



975



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 desu'e that a certain
jierson shoukl be emplo3^ed as
agent, receiver, and manager of
his estates whenever his trustees
shoukl have occasion for the
services of a person in that ca-
pacity ; it was held by Lord Cotten-
hmn, 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 follow-
ing : — " The plaintiff has not, and
does not pretend to have, an}^
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 trust, unless the sub-
ject be certain." See, also, Shaio
V. Lawless, 5 C. &. F. 129 ; but
see Williams v. Corbett, 8 Sim. 349.

But it may be implied, from
other parts of the will, controUing
a recommendation to leave merely
what property under the will the
legatee was possessed 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 Horivood v.
West, 1 S. & S. 887, 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 Johii Leach, V. C, that the
wife's executor was a trustee of the
whole of the j^roperty possessed
by her under the will, for the
persons named. " It is true," said
his Honor, "that, in terms, his
recommendation is, that she shaU,
by her last will and testament, give
and bequeath what she shall die
possessed ofunderandby vu'tue 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
given to her. But in a jjrior part
of the will he dii'ects, that, upon
a second marriage, whenever that
may happen, the whole of the pro-
perty 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
aU times possible mitil her death ;
and whenever a second mai'riage
happened, the whole of his pro-
perty was to be secured ; and a
power to dispose of any jjart of
the property absolutely, at any
time during her hfe, is not to be
reconciled to that provision, when
he recommends her to give, in the
mamier stated, what she should



076



HARDING V. GLYN.



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 property which
she should so possess."

Thirdly, The objects or persons
ini ended to have the benefit of the
recommendation or tvish must be
certain.— In Reid v. Atkinson, 5
I. E. Eq. 373, a testator left his
real and personal property to his
wife for her Hfe, with power to
dispose of all the property, both
real and personal, as she might
judge best and wisest, he relying
with confidence on her discretion,
and that she would make such a
distribution or disposal of it as
woidd thoroughly accord with his
wishes on the subject, with all
of which she was perfectly ac-
quainted. There was some evi-
dence of the testator having
communicated some wishes to
his wife, but none as to what
they were. It was held by the
Court of Appeal in Ireland, re-
versing the decision of the Vice-
Chancellor (reported, 5 I. R. Eq.
1()2), that the wife took the real
and personal property absolutely,
inasmuch as the terms of the
gift did not amount to a precatory
ti'ust, and even if it had done so,
t^ere were no objects of the
trust mentioned in the will. In
Ilarland v. Trlrifi (1 Bro. C. C.
Ill), where a testator gave lease-



holds 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. Hoping is in contradis-
tinction to a dii'ect devise ; but
whenever there are annexed to
such words precise and direct ob-
jects, the law has connected 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 leaseholds, the fa-
mily 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 dis-
cussed case, the question arose,
what was to be the construction
of the word " family " yvh.er& free-
holds 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. Atkins, 17 Ves.
255 ; 1 V. efe B. 313 ; 19 Ves. 299 ;
G. Coop. Ill, 125; T. & R. 162.
With reference to this case, Sir
Edward Sugden observes, " It was
treated as clear, that the words



HARDING V. GLYN.



977



were sufficient to raise a trust if
the objects were clearly ascer-
tained. The result of the investi-
gation seems to show that it will
be difficult to maintam that the
will clearly points out objects in
whose favoiu' the trust can be
enforced. At all events, it can-
not now be held, consistently 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 ;
Bernard v. Minshull, Johns. 276.

In Meredith v. Heneage (1 Sim.
542), where the testator gave real
and personal estates to his wife,
in full confidence she would dis-
tinguish the heirs of his late father
by devising the whole of his
estate, together and entire, to
such of his father's heirs as she
might think best 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 tlie
heirs and next of kin, or the next
of kin only.

In Sale v. Moore (1 Sim. 534),

VOL. II.



where a testator bequeathed the
residue of his propert}' to his wife,
not doubting that she would con-
sider his near relations as he would
have done if he had survived her,
the Vice-Chancellor held the ob-
jects to be uncertain. " Did the
testator," he asked, " mean rela-
tions 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 ? "

Where, however, the power is
to be exercised b}'- the donee by
will, or at his death, or, as in
the principal case, "at or before
his death," the objects will be con-
sidered to be those who answer
a particular description at the
death of the donee, and there will
be no uncertainty : Pierson v. Gar-
net, 2 Bro. C. C. 38, 226 ; Atkyns
V. Wright, 17 Ves. 255 ; 19 Ves.
299; G. Coop, 111; 1 T. & R.
162 ; Meredith v. Heneage, 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 autho-
rised " her to settle and dispose
of the estate to such person as
she thought fit, by her will, " con-
fiding " in her not to alienate or
transfer the estate from his
" nearest family." B. appointed
to her husband for life, with re-
mainders over. It was held by
Lord Langdale, M. R., that the
appomtmeut was void, the expres-

3 R



978



HARDING V. GLYN.



sion, " nearest family " being equi-
valent to heirs, and that the co-
heirs of the testator were entitled.

AVhere a trust has been created
in favour 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
conferred, subject to the trust, no
resulting trust arising for the next
of kin or heir-at-law ; see JVood v.
Cox, 2 My. & Cr. 684,- overruling
the judgment of Lord Langdale,
M. K., reported 1 Kee. 317.

The case of Irvine v. Sullivan,
8 L. E. Eq. 673, proceds on the
same principle. There the testator
after a devise of all his property to
three trustees (whom he afterwards
appointed executors) upon trust to
sell, directed that, " the moneys
arising from the said sale, and
otherwise forming or representing
my estate and effects, after jiay-
ment of my just debts and funeral
and testamentary exj)enses, and
the expenses of carrying out the
trusts of this my will, shall be
paid by my said trustees, and I
liereby give and bequeath the
same to E. D. Irvine, widow, ab-
solutely, trusting that she will
carry out my wishes with regard
to the same, with which she is
fully acquainted. The testator
had shortly before the date of his
will, expressed to E. D. Irvine,
to wliom he had been for some
time engaged to be married, his
wi.sh that she would, out of the



property he should leave her,
make gifts to certain persons.
E. D. Irvine, after leaving the
testator, wrote down his wishes,
but the paper was not submitted
to or signed by him. It was held
by Sir W. M. James, V. C, that
E. D. Irvine took the testator's
estate beneficially, subject only to
the performance of the testator's
wishes communicated to her,
which were treated as legacies
carrying interest at 4L per cent,
from the expiration of one year
from the testator's death : see also
Slielley v. Shelley, 6 L. E. Eq.
540.

It is most important to observe
that, although vagueness in the
object will unquestionably furnish
reasons for holding that no trust
was intended, yet this may be
comitervailed by other considera-
tions which show that a trust was
intended, while at the same time
such trust is not sufficiently
certain 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 intended. Thus, in Briggs
V. Penny, 3 Mac. & G. 546, the
testatrix after giving among other
legacies a sum of 3000Z. to Sarah
Penny, and a like sum of 3000L
in addition for the trouble she
would have in acting as executrix,
bequeathed all her residuary per-
sonal estate and effects unto the



HARDING V. GLYN.



979



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, affirming the decision of Sir
J. L. Kn'ujht Bruce, V. C. (re-
ported 3 De G. & 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 Cornet has
held that the micertainty of the
object has afi'orded evidence that
no trust was intended. ... I agree
with the Vice-Chancellor in inter-
preting ' 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 pro-
perty in a manner in accordance
with the testatrix's designs or de-
sires, or intentions, appears to me
to amount to a declaration that
Miss Penny was to hold the pro-
perty 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 sufficient
to exclude Miss Penny from tak-
ing the beneficial interest. Such
views and wishes may be left un-
explained, such trust be left unde-
clared ; 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 in-
tended, and the legatee cannot
take beneficially. If a testator
gives upon trust, though he never
adds a sjdlable to denote the ob-
jects of that trust, or though he
declares the trust in such a way
as not to exliaust 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 efi"ect in the word
' trust.' Other expressions ma^^
be equally indicative of a fiduciary
intent, though not equally apt or
clear. In this case, however, we
are not left to spell out a trust
from the residuary clause alone :
the fact that, besides a legacy of
3000Z., another legacy is expressly
given to Miss Penny, * in addition,
for the trouble she will have in
acting 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 abimdantly sufficient to satisfy-
all the bequests, there could be
no object in taking oat of tliat
residue, of which she was to have
the whole, 3000Z. for her trouble :
the fact of the legacy not only
strongly confirms, but is only
consistent with the hypothesis,
3 R 2



980



HARDING V. GLYN.



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 carrymg them into effect might
involve the executrix in very
difficult trusts." See Langley v.
Thomas, 6 De G. Mac. & G. 645 :
Bernard v. Minshidl, Johns. 276.
Some doubt has recently been
thrown upon the correctness of
the decision in Briggs v. Penny (3
Mac. & G. 546), and it seems
questionable whether words of so
vague a character will ever again
be held to create a trust. See
Stead V. Mellor, 5 Ch. D. 225.
There a testatrix gave all her per-
sonal estate to trustees upon
trust, after payment of her funeral
and testamentary expenses, debts,
and legacies, to hold the residue
*' in trust for such of my nieces,
A. and B., as shall be living at
my death, my desire being that
they shall distribute such residue
as they think will be most agree-
able to my wishes." A. and B.
both survived the testatrix. It
was held by Sir G. Jessel, M. R.,
that they both took the residue
for their own benefit. " Beyond
general i)rinciples," said his Lord-
ship, "I find nothing in Briggs v.
Penny to guide me to a conclusion



in the present case. It was a de-
cision on the particular words of
a will. It has never been followed
as far as I know ; at any rate I am
not aware of any case in which
words so vague and so indefinite
have been held to create a trust.
The words were ' well knowing that
she ' the legatee ' will make a good
use and dispose of it in a manner
in accordance with my ' the testa-
trix's * views and wishes,' Lord
Truro appears to have been of
opinion that the words * well
knowing ' were equivalent to, if
not synonymous with the expres-
sion * in the fullest confidence,'
and that they were used in such
a manner as to exclude all option
or discretion. With all deference
to his Lordship, that is a most
unsatisfactory reason. Why should
the words * well knowing ' bear
any other than their natural mean-
ing ? No reason is given why
they should. However, that is
the decision. Whether the case
of Briggs v. Penny was rightly or
wrongly decided (and I must not
forget that it affirmed the decision
of a very learned judge, the Vice-
Chancellor Knight Bruce) it is
distinguishable from the present
case, and as the words are not
the same, and I am not bound to
regard it as a binding authority
on the construction of the parti-
cular will now before me, I am
free to inquire what the testatrix
did really mean, and unless I find
in the will something equivalent
to a declaration that the residuary



HARDING V. GLYN.



981



legatees take as trustees, I must
hold that they take a beneficial
interest. The testatrix gives
all her personal estate, except
what she otherwise bequeathed by
her will or any codicil thereto, to
trustees upon trust to convert the
same into money. It is clear that
she knew how to create a trust.
And then, after payment of her
personal and testamentary ex-
penses, and debts and legacies,
she directs her trustees to hold
the residue of her money upon
trust for her two nieces, her desire
being that they shall distribute
such residue, not * in accordance
with my views and wishes,' as in
the case before Lord Truro, or
' as they know will be most agree-
able to my wishes,' but * as they
tliink will be most agreeable to
my wishes.' What is that but to
make them judges of the mode of
distribution, and place the residue
at their absolute disposal ? But
for the case of Briggs v. Penny,
this case would not have been
arguable."

Powers in the nature of Trusts —
7vhen executed by the Court.] —
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 prin-
cipal case falls, and is a leading
authority, of a similar nature,
where powers are given to persons,
accompanied with such words of



recommendation in favour of cer-
tain objects, as to render them
powers in the nature of trusts ; so
that the failm-e of the donees to
exercise such powers in favour of
the objects wiU not turn to their
prejudice, since the Com't will, to
a certain extent, take upon itself
the duties of the donees. See
Gower v. Mainwaring, 2 Ves. 87 ;
Doyley v. Attorney -General, 2 Eq.
Ca. Ab. 194 ; Gude v. Worthing-
ton, 3 De G. & Sm. 389 ; Reid v.
Eeid, 25 Beav. 469 ; Izod v. Izod,
32 Beav. 242 ; Be CapUn's Will,
34 L. J. N. S. (Ch.) 578.

It is perfectly clear that where
there is a mere power of disposing,
and that power is not executed,
the Court cannot execute it. Per
Lord Eldon in Brown v. Higgs, 8



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