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Pr Ecato Ry Words

trust, confidence, ch, create, held, mass, property, colton, gift and eq

PR ECATO RY WORDS. Expressions in a will praying or requesting that a thing shall be done. A trust created by such words, which are" more like words of entreaty and permission, than of command or certainty. Examples of such words, which the courts have held sufficient to constitute a trust, are "wish and request," "have fullest con fidence," "heartily beseech," and the like; Rap. and Lawr. L. Diet.

Although recommendatory words used by a testator, of themselves, seem to leave the devisee to act as he may deem proper, giving him a discretion, as when a testator gives an estate to a devisee, and adds that he hopes, recommends, has a confidence, wish, or de sire that the devisee shall do certain things for the benefit of another person, yet courts of equity have formerly construed such prec atory expressions as creating a trust ; Ves. Ch. 380; Bac. Abr. Legacies (B) ; War ner v. Bates, 98 Mass. 274; Van Amee v. Jackson, 35 Vt. 173 ; Murphy v. Carlin, 113 Mo..112, 20 S. W. 786, 35 Am. St. Rep. 699. See, contra, In re Pennock's Estate, 20 Pa. 268, 59 Am. Dec. 718; 2 Story, Eq. Jur. § 1069; Eberhardt v. Perolin, '49 N. J. Eq. 570, 25 Atl. 510; Bacon v. Ransom, 139 Mass. 117, 29 N. E. 473 ; Bisph. Eq. 73.

But this construction will not prevail when either the objects to be benefited are imperfectly described, or the amount of prop erty to which the trust should attach is not sufficiently defined; 1 Bro. C. C. 142; 1 Sim. 556.

While the expression of confidence, if the context shows that a trust is intended, may create a trust, yet, if upon the whole will the confidence is merely that the legatee will do what is right in disposing of the property, a trust is not imposed; 4 Kent 305; [1895} 2 Ch. 370; In re Gardner, 140 N. Y. 122, 35 N. E. 439; Boyle v. Boyle, 152 Pa. 108, 25 Atl. 494, 34 Am. St. Rep. 629; Durant v. Smith, 159 Mass. 229, 34 N. E. 190. The words in the fullest confidence were held to create a trust ; 1 Turn. & R. 143.

The current of decision in England with regard to precatory words is said to be now to restrict the practice which deduces a trust from the expression of a wish, etc., regarding property absolutely bequeathed ; Burnes v. Burnes, 137 Fed. 781, 70 C. C. A. 357; L. R. 10 Eq. Cas. 267•; Foose v. Whit more, 82 N. Y. 406, 37 Am. Rep. 572.

A trust will not be created where the tes tator shows an intention to leave property absolutely; 27 Ch. Div. 394. See Appeal of Paisley, 70 Pa. 153; Gilbert v. Chapin, 19 Conn. 351. The leaning of the courts is against the implication of a trust; 1 Jarm. Wills 365. It is a question of what was the intention, not of what particular word was used ; [1895] 2 Ch. 370. But it was held that a testamentary gift with added words of entreaty or recommendation, or express ing a hope or confidence will constitute a trust ; Loring v. Loring, 100 Mass. 340; Mc Ree's Adru'rs v. Means, 34 Ala. 349. See the cases in 1 Jarm. Wills 385, on this subject.

"The true rule, upon principle, and • ac cording to the weight of more recent au thorities, is said to be that the whole will must be examined to determine whether the words used were to impose an obliga tion or to give the devisee full discretion."

4 Kent 305, note b, citing 8 Ch. D. 540; Howard v. Carusi, 109 U. S. 725, 3 Sup. Ct. 575, 27 L. Ed. 1089 ; Barrett v. Marsh, 126 Mass. 213 ; Bohn v. Barrett's Ex'r, 79 Ky. 378.

Vagueness in the object tends to show that no trust was intended. See L. R. 8 Eq. 673. It has been held that precatory words are prima facie imperative, and create a trust; Nunn v. O'Brien, 83 Md. 200, 34 Atl. 244; Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Ed. 138.

Precatory words do not always create a trust. The question in every case is one of intention. Expressions per se sufficient to create a trust may be deprived of that ef fect by a context especially declaring or by implication showing no trust was intended. The question in all cases is, was the direc tion imperative? The real question to be de termined when such words are used is whether the confidence, hope, or wish- ex pressed is meant to govern the donee, or whether it was a mere indication of that which the testator thinks would be a rea sonable or suitable use of the property con veyed, leaving the matter ultimately to the decision of the donee; 1 Jarm. Wills 406, n.

When property is given by will absolutely and without restriction, a trust is not to be lightly imposed, upon 'mere words of recom mendation and confidence ; but if the ob jects of the supposed trust are definite and the property clearly pointed out, if the rela tions between the testator and the supposed beneficiary are such as to indicate a motive on the part of the one to provide for the other, and if the precatory clause warrants the inference that it is peremptory, then it may be held that a trust is created ; Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Bd. 138, where there was a gift to the wife, followed by the words : "I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judg ment. will be best ;" it was held that the mother and sister took a beneficial interest.

There is a simple, sure and familiar form of gift to raise a trust—to the legatee in trust for the beneficiary—and the failure to use it indicates an intention to avoid the creation of a trust. Words of desire, re quest, recommendation or confidence ad dressed by a testator to a legatee whom he has the power to command, create no trust, unless (1) the intent to make the desire, etc., imperative upon the legatee, leaving him no option, clearly appears; (2) the subject matter of the wish is certain, and (3) the beneficiaries are clearly designated; Burnes v. Burnes, 137 Fed. 781, 70 C. C. A. 357; citing Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. Ed. 138; Warner v. Bates, 98 Mass. 277.

"Precatory trusts" is nothing more than a misleading nickname. A clear gift to one for his own benefit shall not be cut down by subsequent words which may operate as an expression of a desire without disturbing the previous devise; [1897] 2 Ch. 12, C. A., per Rigby, L. J.