devise of the testator's property to his wife for her sole use for ever (Lindsell v. Thacker, 12 Sim. 178), nor in a case where the testator gave his residuary estate to a natural son, his heirs, executors, administrators and assigns, to and for his and their own proper use and behoof. (Ex parte Brettell, 6 Ves. 577).

estates will not pass under a general

devise.

If property is devised upon trust for sale (Ex parte When trust Marshall, 9 Sim. 555), or charged with debts (Roe d. Reade v. Reade, 8 Durn. & E. 118) or annui- devi ties (Duke of Leeds v. Munday, 3 Ves. 348; Ex parte Morgan, 10 Ves. 101), or limited to uses in strict settlement (1 Jar. on Wills, 645), trust estates would not pass under any of such gifts, as the limitations sufficiently indicate that the testator did not intend to dispose of any property beyond that in which he was beneficially interested.

by words of

dation, &c.

A testator not uncommonly associates an abso- Trusts raised lute gift or devise with words of "recommendation," recommenhope," "request," or other terms of a precatory character, which raise the important question whether he intended to impose a trust on the devisee, and often, it is apprehended, the Court of Chancery has been obliged to decide that the devisee must hold the estate saddled with a trust, when there was no such intention on the part of the testator, and when in fact the words have been introduced into the will rather for the purpose of communicating some of the general feelings of the testator and of affecting the conscience of the devisee than with a view to fetter the property in his hands. A word of caution, therefore, seems to be necessary, in consequence of provisions of this

Instances of

trust.

description so often occurring in testamentary instruments. Wherever, therefore, there is a proposition on the part of testators to insert words of this description, and there is no intention to fetter the devise or bequest, the will should contain some words or clause which will make this intention manifest. If, on the other hand, the testator's object is to impose a trust, let the trusts be properly declared, as well as the discretionary powers intended to be vested in the devisee, and care should be taken that there be no uncertainty as to the subject or interest to be given or the objects to be benefited.

The Chancery reports teem with cases on this subject, and the principle which they establish may be stated in the following terms, viz.: When property is given absolutely to one who, by the testator, is recommended or entreated to dispose of it in favour of another, the words create a trust, if they are such as ought to be construed imperative, and the subject to be given and the objects to be benefited are certain, but not otherwise.

The following are instances in which the words of the gift were regarded as indicative of an intention to raise a trust:

A devise to the testator's wife of real and personal estate, in the fullest confidence that after her decease she will devise the property to the testator's family (Wright v. Atkins, 19 Ves. 299), a recommendation to the testator's daughter to dispose of the property among her children (Malin v. Keighley, 2 Ves. 333), and a gift by the testator to his wife, with a recommendation to her to dispose of the property by will, amongst

certain persons whom the testator named (Horwood v. West, 1 Sim. & Stu. 387). A gift of lands to testator's wife, her heirs and assigns, for ever, being fully satisfied that she would dispose of the same by will or otherwise, in a fair and equitable manner to their united relatives. (Reeves v. Baker, 2 W. Rep. 354). A devise of copyholds to testator's wife, not doubting that she would dispose of the same to and amongst her children, as she should please. (Massey v. Sherman, Amb. 520). A gift to a wife for her life, accompanied with the following words: "It being my will and desire, that the principal shall be left entirely to the disposal of my wife among such of her relations as she may think proper." (Buck v. Wade, 3 V. & B. 198; see also Wace v. Mallard, 21 L. J. Ch. 355; Cholmondley v. Cholmondley, 14 Sim. 590; see also 8 Ves. 380; 5 Beav. 241).

But in the following instances it was held that Instances of no trust was created :—

A bequest of dividends to the testator's brother to enable him to assist such of the children of as he should find deserving of encouragement. (Benson v. Whittain, 5 Sim. 22). A devise to the testator's wife that she might support herself and her children according to her discretion, and for that purpose. (Thorpe v. Owen, 2 Hare, 607). A gift to a son for his own use and benefit, well knowing he would discharge the trust reposed in him by remembering his the testator's other sons and daughters. (Bardwell v. Bardwell, 9 Sim. 319). A gift of income to testator's wife, with request to dis.

no trust.

pose of the savings among his children. (Cowman v. Harrison, 17 Jur. 313). A gift to the testator's wife of the capital of a business, trusting that she will act justly and properly to and by all the testator's children. (Pope v. Pope, 10 Sim. 1). A gift to two daughters, associated with the following words:"If they die single, of course they will leave what they have amongst their brothers and sisters, or their children." (Lechmere v. Laire, 2 M. & K. 197). A gift of real and personal estate to A. B., his heirs, executors and assigns, for his and their own use and benefit for ever, trusting and wholly confiding in his honour that he will act in strict conformity with the testator's wishes. (Wood v. Cox, 2 M. & C. 684). A gift to a wife, her executors, administrators and assigns, to and for her and their own use and benefit, upon the fullest trust and confidence reposed in her, that she would dispose of the same to and for the joint benefit of herself and his children. (Webb v. Woolls, 21 L. J. 625. Ch.; see also Winch v. Bratton, 14 Sim. 379; Knott v. Cottee, 2 Ph. 192; Knight v. Knight, 3 Beav. 148; see also Hill on Trustees, 32; Palmer v. Simmonds, 2 W. Rep. 313).

There are also cases in which the trust will fail, in consequence of the interest given to the objects not being sufficiently defined. (Hill on Trustees, 44).

No. CVII.

WILL of REAL and PERSONAL PROPERTY; BEQUEST

DEVISE

AND BE

QUEST OF

PERSONAL

ESTATE UPON TRUSTS FOR

WIFE AND

of Effects, &c., to Wife; LEGACIES to a Sister and
to an Infirmary; DEVISE of FREEHOLDS in county REAL AND
of D. to secure Rent Charge to Wife, and subject
thereto to Trustees for Term of Years, with remainder
to Sons and Daughters successively in tail male;
TRUSTS of TERM to secure Rent Charge, and for CHILDREN.
raising Portions; POWER of LEASING; DEVISE and
BEQUEST of COPYHOLDS and LEASEHOLDS in same
County upon Trusts similar to Freeholds; DEVISE
and BEQUEST of Residue of Real and Personal
Estate to Trustees upon Trust for Sale and Con-
version; TRUSTS of RESIDUARY MONIES to pay
Funeral and Testamentary Expenses, Debts and Le-
gacies, and to invest residue in Government or Real
Securities, with Power to vary the same, and pay the
Produce to Wife for life, and after her death divide
the Residue among Testator's Children; POWERS of
MAINTENANCE, ACCUMULATION and ADVANCE-
MENT; Power to suspend Sale of Real Estate;
Power to Lease Real Estate until Sale; Applica-
tion of Rents and Profits until Sale; Clause in bar
of Dower and Free Bench; Devise and Bequest
of Trust and Mortgaged Estates; APPOINTMENT of
EXECUTORS, and Power to them to compound Debts;
APPOINTMENT of GUARDIANS; Receipts of Trustees;
Power of changing Trustees, and Provision for their
Indemnity.

plate, &c.,

I, A. B., of &c., DO HEREBY revoke all wills, codicils and other Bequest of testamentary dispositions heretofore made by me, and do declare and a pecuniary legacy this to be my last will and testament. I BEQUEATH all my to wife. plate, linen, china, glass, books, pictures, prints, wines, liquors, furniture and other household effects whatsoever to my dear wife [-] absolutely, and I bequeath unto her the sum of £————, which I direct may be paid to her within calendar