In re CONOLLY. CONOLLY v. CONOLLY. [1909 C. 2102.] Will-Construction-Absolute Gift-Gift on Condition-Precatory Trust for Testator gave to his brother W. his share in a leasehold house "and to my sisters A. and L. equally the rest of my stocks and shares, subject to a legacy, duty free, provided by the above three legatees of 10007. to my cousin E. R. C., the said E. R. C. to be, with my brother W., my co-executor and trustee for my sisters A. and L." Then, after making a further specific bequest, the will concluded as follows: "I specially desire that the sums herewith bequeathed shall, with the exception of the 10007. to E. R. C., be specifically left by the legatees to such charitable institutions of a distinct and undoubted Protestant nature as my sisters may select, and in such proportions as they may determine":Held, that the sisters took their legacies absolutely. ADJOURNED SUMMONS. The testator Arthur Conolly by his will, dated in 1898, gave to his brother William his share in a leasehold house, "and to my sisters, Anne and Louisa, equally the rest of my stocks and shares, subject to a legacy, duty free, provided by the above three legatees of 1000l. to my cousin E. R. Conolly, the said E. R. Conolly to be, with my brother William, my co-executor and co-trustee for my sisters Anne and Louisa." Then, after making a further specific bequest, the will concluded as follows: "I specially desire that the sums herewith bequeathed shall, with the exception of the 1000l. to Colonel E. R. Conolly, be specifically left by the legatees to such charitable institutions of a distinct and undoubted Protestant nature as my sisters may select, and in such proportions as they may determine." The testator died on May 21, 1909, and letters of administration with the will annexed were granted to William Conolly. This was an originating summons taken out by the administrator raising the question (inter alia) "whether the property bequeathed to or in trust for the testator's sisters belonged to them absolutely, or whether a valid or binding charitable trust JOYCE J. 1909 Dec. 15. JOYCE J. 1909 CONOLLY, In re. CONOLLY v. was by the will created of such property after their respective deaths or the death of the survivor of them." Church, for the plaintiff. Sargant, for the Attorney-General. This is a good precatory CONOLLY. trust for charity. Previous to the recent authorities, beginning with In re Hamilton (1), there would have been no doubt about this will creating a trust for charity. [JOYCE J. In the case which I decided the other day, In re Burley (2), there were separate testamentary instruments.] Under the older authorities, where the property to be subject to and the objects to be benefited by the trust were sufficiently certain, a trust was implied from words of request and entreaty, such as "desire," "dying request," "wish and request," "wish and desire," &c.: see Harding v. Glyn (3); Pierson v. Garnet (4); Foley v. Parry (5); Liddard v. Liddard. (6) The cases of In re Hamilton (1), In re Williams (7), and In re Oldfield (8) are supposed to have considerably narrowed the implication of precatory trusts from particular words of desire or request. The Court has to consider whether words which in form are polite and not imperative are really in effect imperative, or whether precatory words used by the testator are intended by him to be equivalent to a command. Here if no trust were intended the appointment of trustees for the two sisters would be unintelligible, because the gift to the sisters in the first place is absolute. The words "especially desire" very nearly approach "I will"; moreover, the property is to be specifically left by the legatees to charity, the objects being carefully pointed out. Although the word "trust" is not used, there is something imperative, something equivalent to a polite command. In Comiskey v. Bowring-Hanbury (9) Lord Halsbury L.C. laid stress upon the fact that in that case it was the intention of the testator that the property should remain intact until the death of his widow, and that at her death she should devise the JOYCE J. same property. [JOYCE J. Then there was a positive direction.] Unless there be a trust in this case, then no trust can be created without the use of the word "trust" or such expressions as "I will" or "I direct." It is submitted that words of polite request may still amount to a declaration of trust. Hughes, K.C., and Gutch, for the testator's sister Louisa and for the representatives of Anne, who had died since the testator were not called upon. JOYCE J. In this case it is contended that the concluding clause in the will cuts down the gift previously made to the testator's sisters to a life estate, and imposes a trust with reference to the disposition of what they take, or a proportion of what they take for their lives on their death. To my mind there are various elements of uncertainty in this case. The clause in question says "I specially desire that the sums herewith bequeathed." There are no sums, strictly speaking, bequeathed to them. "The rest of my stocks and shares, subject to a legacy," are bequeathed to them. "Sums" may mean stocks and shares, or only what they take in money. There is an element of uncertainty there. There is another element of uncertainty in this. It is to be specifically left to such charitable institutions, &c., "as my sisters" (that is the two) "may select, and in such proportions as they may determine." Possibly that ought to be read, if any effect had to be given to it, that each sister's share was to be left in such proportions as they severally should determine, that as to each sister's share it was to be dealt with as that sister should determine. There seem to be difficulties in the way of the Attorney-General making out here that there is a definite and imperative trust. But I go beyond merely these considerations, and I think that I am bound by the authorities with reference to precatory trusts; and by the recent cases, beginning with In re Hamilton (1), to hold that where in a will words of gift are used, which, by themselves, are sufficient to give the legatee, devisee, or VOL. I. 1910. (1) [1895] 2 Ch. 370. R 1 1909 JOYCE J. donee perhaps I should say, the whole property in the subjectmatter of the gift, then the interest of that devisee or legatee will not be cut down to a trust estate, or to a life estate with a trust for disposal after the determination of the life, by the mere expression of a desire, such as "I desire that the property shall be left by the donees to some charitable purpose," or to somebody else. I think that is what follows from the authorities as they now stand. CONOLLY, In re. CONOLLY บ. This being so, I hold that in this case these ladies take absolutely what they do take, and that there is no definite trust created for a charity, or any one else, in what they do take. I think that that is the result of the authorities with reference to precatory trusts. I think that the rule which I have already mentioned in former cases applies here. Here the property is given to these two ladies. Can I take it away? I cannot take it away by words which are of a doubtful or uncertain meaning, and words as to the effect of which there is any serious doubt. To my mind there is very serious doubt here as to whether the property is taken away by these words, and therefore I hold that these ladies take absolutely whatever is given to them, namely, the stocks and shares belonging to the testator. Solicitors: Eardley Holt, Lightly & Co.; Solicitor to the Treasury. G. A. S. In re DEHAYNIN (INFANTS). [1909 D. 092.] Practice-Vesting Order-Infant-Stock in Name of Infant and another to which Infant is entitled-Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 35, sub-s. 1 (ii.) (a)—Infants Property Act, 1830 (11 Geo. 4 & 1 Will. 4, c. 65), s. 32-Form of Order. Where stock to which an infant was beneficially entitled had been invested in the joint names of himself and another person : Held (reversing the decision of Joyce J.), that the Court had jurisdiction under s. 35, sub-s. 1 (ii.) (a), of the Trustee Act, 1893, notwithstanding some slight difference in the language of this section and sub-sections as compared with s. 3 of the Trustee Extension Act, 1852, to make an order vesting the right to transfer such stock in the infant's guardian. Per Farwell L.J.: The words "(ii.) Where a trustee entitled alone or jointly with another person to stock or to a chose in action-(a) is an infant," apply to a case where one of the trustees is an infant and the stock is held in trust for the infant. In re Harwood, (1882) 20 Ch. D. 536, and In re Barnett's Estate, [1889] W. N. 216, approved. APPEAL from a decision of Joyce J. In January, 1907, the late Charles Albert Dehaynin, a domiciled Frenchman, and the natural grandfather of two infants, a boy then aged fifteen and a girl aged thirteen, transferred a sum of 20,000l. Consols into the joint names of one Charles Albert Theodore Zynen and the boy, and a like sum of 20,000l. Consols into the joint names of the said Charles Albert Theodore Zynen and the girl, as a provision for these infants respectively, who were the natural children of a deceased son. At the date of the petition hereinafter mentioned these sums of Consols were still standing in the above-mentioned joint names. It appeared that the said Charles Albert Theodore Zynen had in 1897, after the death of the infants' father, been appointed the dative guardian of the infants by the family council; but since that appointment the law of July 2, 1907, had come into force, under which the guardianship of children born out of wedlock was granted to the father and mother who had formally acknowledged the same as their children, and in accordance with the said law one Mary White, having formally C. A. 1909 Dec. 6. |