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§ 1101. Where Words Merely Express Motive for Gift, No Trust Is Created.

No trust will be implied merely from words indicating the motive or reason of the testator for making the gift, as, for instance, where a legacy is given in order that the devisee may "support himself and his family," or like expressions.59

Wherever the prior disposition of property imports uncontrolled ownership, or where compliance with the recommendations of the testator rests absolutely in the discretion of the beneficiary named, equity will not construe a trust from the language employed." Thus, a be

27 L. Ed. 1089, 3 Sup. Ct. 575. See, also, Colton v. Colton, 21 Fed. 594.

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In Foose v. Whitmore, 82 N. Y. 405, 37 Am. Rep. 572, the will read: "I . . give and bequeath all my property, real and personal, to my beloved wife, Mary, only requesting her, at the close of her life, to make such disposition of the same among my children and grandchildren shall seem to her good." It is very clear that these are precatory words. The testator gives everything to his wife absolutely, with a mere suggestion as to the disposition she shall make of the property at the close of her life. The wife, vested with absolute title and living many years, the estate at her death might be necessarily expended, or improvidently wasted. The testator's words evidently created no trust or charge. - Collister v. Fassitt,

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163 N. Y. 281, 79 Am. St. Rep. 586, 57 N. E. 490.

In Clarke v. Leupp, 88 N. Y. 228, the testator gave all his property to his wife, closing with the words, "and do appoint my wife. my true and lawful attorney and sole executrix of this my will, to take charge of my property after my death, and retain or dispose of the same for the benefit of herself and children above named." It was held that the widow took an absolute title, and that the succeeding words did not limit the gift.

59 Cresswell's Admr. v. Jones, 68 Ala. 420; Bryan v. Howland, 98 Ill. 625; Giles v. Anslow, 128 Ill. 187, 196, 21 N. E. 225; Major v. Herndon, 78 Ky. 123; Knefler v. Shreve, 78 Ky. 198.

60 Randall v. Randall, 135 Пl. 398, 25 Am. St. Rep. 373, 25 N. E. 780.

See § 1104.

quest to a testator's widow "during her lifetime, for the support of herself and my children," does not create a trust.1 In such a case the beneficiary takes an absolute estate or interest in the property.62

§ 1102. Words Used Must Be Intended to Impose an Imperative Obligation, or No Trust Is Created.

One question to be determined is whether or not the precatory expressions contained in the will were used in an imperative sense, intended to impose an obligation on the beneficiary to carry out the desires of the testator, or whether the entire matter is one discretionary with the donee. If he is to take the gift solely for his own benefit, it being discretionary with him as to whether or not he shall part with any of the property or use it for the benefit of another mentioned in the will, no trust is created. In order to make the donee a trustee, it must appear that the testator intended by the expressions used to impose upon him an imperative obligation.63

61 Billar v. Loundes, 2 Demarest (N. Y.) 590; Wood v. Seward, 4 Redf. (N. Y.) 271; Foose v. Whitmore, 82 N. Y. 405, 37 Am. Rep. 572; Clarke v. Leupp, 88 N. Y. 228.

62 Succession of Hutchinson, 112 La. Ann. 656, 36 So. 639; Lloyd v. Lloyd, 173 Mass. 97, 53 N. E. 148; Pratt v. Miller, 23 Neb. 496, 501, 37 N. W. 263.

63 Williams v. Williams, 1 Sim. N. S. 358; Howarth v. Dewell, 6 Jur. N. S. 1360; In re Hutchinson and Tenant, L. R. 8 Ch. Div. 540; Burnes v. Burnes, 137 Fed. 781, 70 C. C. A. 357; Cockrill v. Armstrong, 31 Ark. 580; Estate of Pforr, 144 Cal. 121, 77 Pac. 825;

Estate of Mitchell, 160 Cal. 618, 117 Pac. 774; Estate of Purcell, 167 Cal. 176, 138 Pac. 704; Estate of Browne, (Cal.) 165 Pac. 960; Hughes v. Fitzgerald, 78 Conn. 4, 60 Atl. 694; Haight v. Royce, 274 Ill. 162, 113 N. E. 71; Pierce v. Pierce, 114 Me. 311, 96 Atl. 143; Olliffe v. Wells, 130 Mass. 221; Hillsdale College Trustees V. Wood, 145 Mich. 257, 108 N. W. 675; State v. McVeigh, 181 Mo. App. 566, 164 S. W. 673; Hunt v. Hunt, 11 Nev. 442; Foose v. Whitmore, 82 N. Y. 405, 37 Am. Rep. 572; Post v. Moore, 181 N. Y. 15, 106 Am. St. Rep. 495, 2 Ann. Cas. 591, 73 N. E. 482; Biddle's Appeal,

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While discretionary expressions, which leave the application of the subject of the devise entirely to the caprice of the donee, will prevent a trust from attaching, a mere discretion in regard to the method of the application of the subject matter has been held not inconsistent with a trust.65 Thus, the language employed

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80 Pa. St. 258; Van Amee v. Jackson, 35 Vt. 173; Hays v. Harris, 73 W. Va. 17, 80 S. E. 827.

A devise of property to a son "save and except I desire that he pay out of said property to C. MCG. the sum of $200, and to E. J. the sum of $200," did not create a trust. Cameron V. Ah Quang, (Cal.) 165 Pac. 961.

Precatory words do not always or necessarily create a trust. The question is one of intention, and the real question is whether the direction is imperative, and if the matter is left to the decision of the donee such words would not create a trust.-People v. Brunstrom, (Ill.) 113 N. E. 74.

"To create a precatory trust it must clearly appear that the testator intended to govern and control the conduct of the party to whom the language of the will is addressed, and did not design it as an expression or indication of that which the testator thought would be a reasonable exercise of a discretion which he intended to repose in the legatee or devisee." -Warner v. Bates, 98 Mass. 274. "A precatory trust is not to be inferred from expressions of confidence or desire on the part of

the testator contained in the will regarding the use to be made of the property devised or bequeathed, unless it fairly appears from the will that the testator contemplated and intended to create such trust, and especially no such trust will be implied when it clearly appears that the testator intended to give the devisee full discretion in the use of the property."-Corby v. Corby, 85 Mo. 371,

393.

To create a precatory trust it must clearly appear that the words are imperative.-Carter v. Strickland, 165 N. C. 69, Ann. Cas. 1915D, 416, 80 S. E. 961.

It is provided by the code in Georgia that precatory or recommendatory words will create a trust if they are sufficiently imperative to show that it is not left discretionary with the party to act or not, and if the subjectmatter of the trust and the beneficiary be defined with sufficient certainty, and if the mode in which the trust is to be executed be clearly pointed out.-Ga. Code, (1882) § 2318.

64 Corby v. Corby, 85 Mo. 371.

65 Harding v. Glyn, 1 Atk. 469; s. c., 2 Lead. Cas. Eq. 950; Shovel

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may be imperative in fact, though not in form, and convey the intention of the testator in terms equivalent to a command, leaving the donee no discretion to defeat the wishes of the testator, although the donee may have discretion to fulfill them by a choice of methods, or even to define and limit the extent of the interest conferred.66 If the power vested in the trustee be abused, the cestui que trust may resort to a court of equity for relief.67

§1103. "Will" a Word of Command.

The word "will," in other than a legal sense, is sometimes used as synonymous with choice, wish or please, and at other times it is used in the sense of command,

ton v. Shovelton, 32 Beav. 143; Olliffe v. Wells, 130 Mass. 221.

66 Colton v. Colton, 127 U. S. 300, 32 L. Ed. 138, 8 Sup. Ct. 1164; Toms v. Owen, 52 Fed. 417, 423; In re Dewey's Estate, 45 Utah 98, 143 Pac. 124, 127.

A will by which a testator directed his wife, whom he nominated as executrix and made residuary devisee, to use so much of his residuary estate for the support and benefit of his niece as the wife should, from time to time, in her discretion think best, and also created a trust fund, the income of which was to be paid to his wife during life, and at her death one thousand dollars per annum of the income were to be paid to such niece until she married, or if she never married, then during her life, creates a trust in favor of the niece during the life

of the wife which a court of equity will enforce against the latter by requiring her to honestly and intelligently exercise the discretion vested in her.-Collister v. Fassitt, 163 N. Y. 281, 79 Am. St. Rep. 586, 57 N. E. 490.

67 Costabadie v. Costabadie, 6 Hare 110; Collister v. Fassitt, 163 N. Y. 281, 79 Am. St. Rep. 586, 57 N. E. 490.

Where by a will a wife is required to pay a niece of the testator out of the residuary estate bequeathed the former so much as she shall, from time to time, think best for the support and benefit of the niece, a court may ascertain the amount and decree the payment of a reasonable sum for the support of such niece, where the wife fails to honestly and fairly exercise her discretion. Collister v. Fassitt, 163 N. Y. 281, 79 Am. St. Rep. 586, 57 N. E. 490,

direction or resolution. But when employed in connection with testamentary dispositions, it has universally received a mandatory signification. The word "will," in testamentary instruments, is given the effect of an imperative direction as distinguished from words of recommendation and request,69 and is distinct from the word "wish."70 A "will" is the lawful intent of a competent person, legally expressed, regarding his estate and effective after his death," and is imperative since it is what the testator wills to be performed after his death.72

§ 1104. Precatory Words Referring to Dependents: Where No Trust Is Created.

Where words of confidence, expectation, hope, purpose, or the like, are used with reference to dependents of the beneficiary, and the will contains no provision in effect directing the beneficiary to apply the property for the maintenance and support of those referred to, such words are not deemed imperative.73 Bequests to enable the legatee to support himself and child, or to maintain himself and family, or to a beneficiary absolutely with confidence that he will provide for his children or that they will not be left in want, have been held to be expressions of motive only and not to create a trust.74

68 McRee's Admrs. v. Means, 34 Ala. 349.

69 Gilbert v. Chapin, 19 Conn. 342, 351.

70 Brunson v. King, 2 Hill Eq. (S. C.) 483, 490.

71 See § 23.

72 Eeles v. England, 2 Vern. 466; Forbes v. Ball, 3 Mer. 437; Post v. Moore, 181 N. Y. 15, 106 Am. St.

Rep. 495, 2 Ann. Cas. 591, 73 N. E. 482.

73 Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. 144.

74 Benson v. Whittam, 5 Sim. 22; Van Gorder v. Smith, 99 Ind. 404; Williams v. Worthington, 49 Md. 572, 33 Am. Rep. 286; Hunt v. Hunt, 11 Nev. 442; Parsons v. Best, 1 Thomp. & C. (N. Y.) 211;

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