Infra, § 15. Fitzg. 314. same might come to be enjoyed by her daughter, and the heirs of her body; with several remainders over. Sir J. Bland disposed of the manor of Withington by his will. Lord Hardwicke said, that in law, Sir John Bland clearly had a power of disposing; the devise being to him and his heirs, not subject to any trust: but whether he had such an estate in equity was the doubt; which depended upon the request in Lady Bland's will, whether imperative or not; for if it was the former, Sir J. Bland must then be considered as a trustee for the uses in the will. In order to make such construction, the party must declare his will, and not leave it purely to the option of the devisee, whether he will or will not give the estate. There had been many cases in the Court of Chancery where clauses directory had been taken for a disposition; as in those of Mason v. Limbery, and Massey v. Sherman, where there were the words trust and confidence. But as it was so in some instances, it might be otherwise in others; and the request to be complied with barely at the devisee's discretion. In the present case he thought Lady Bland did not mean her request to her son as imperative, but discretionary; for he was not desired to settle any part of the lands, but might sell the whole if he pleased; and this was a bare request, not obligatory, but subject to his judgment, as to such parts as he should die seised of. He might have have sold them for a valuable consideration, might have advanced a son or daughter in marriage with them, or put them to any other use he should think fit. It was said that the debts and charges to which the lands were liable, answered the doubt arising from the words so much. But the payment of debts and legacies, had no sort of connexion with, and bore no relation to, the time of his death; which was the only point of time to which the request related. And this brought it very near to the case of the Attorney General v. Hall, before Lord King; where it was held that the absolute pro perty vested in the son, and that he might dispose of it. Here it was not a bare power, but the fee itself that was given; and his power of disposing was not collateral, but flowed from the nature of the estate given him. He was therefore of this opinion upon the penning of the will, by which he did not mean to contradict former cases, wherein there was a desire to settle a particular thing; here being no such desire, either as to any particular part, or the whole, but all absolutely left in Sir J. Bland's power, to dispose of or not, as he should think fit. Cunliffe, 10. Sir E. Cunliffe devised certain sugar-houses and Cunliffe v. stock in trade to his son Sir E. Cunliffe the plaintiff's cited Prec. in brother; nevertheless, in case Sir E. Cunliffe should Cha. 201. n. die without a son, he recommended it to him to give and devise the said premises to the plaintiff. It was held by the Lords Commissioners, Aston and Smythe, that the word recommend was not sufficient to raise a trust in favour of the plaintiff. Bannister, cited Prec. in Cha. 201. n. 11. A testatrix gave her fortune to A.; and if he Le Maitre v. should die without issue, she recommended it to him to do justice to B. and her children, if she should think them worthy of it. But if any unforeseen accident should make the whole, or any part, acceptable or serviceable to him, he might dispose of it, if he should think fit. It was held to be no trust. Trigg, 142. 12. R. Harland being seised in fee of the manor of Harland v. Sutton, devised it to his eldest son Philip for life, with 1 Bro, Rep. remainder to his first and other sons in tail male, Philip entered upon this estate; and being possessed of leasehold estates in Sutton, some for lives, and others for years, by his will gave his leasehold estate for lives to the trustees of his father's will, to the same uses to which the lands devised by the father's will were limited, so far as by law he could. And then followed this clause,-"All my other leasehold estates in the pafish or township of Sutton, I give to my brother J. Harland for ever, hoping he will continue them in the family." Wynne v. Lord Thurlow held, that the will in this instance did not import a devise, as the words did not clearly demonstrate an object. 13. The words, "not doubting but that she (the 1 Bro. R. 179. devisee) will dispose of what shall be left at her death to our two grand-children," were decreed not to amount to a devise. But sometimes raise a trust Massey v. Bute v. Stuart, 1 bro. Parl. Ca. 476. 14. Notwithstanding the authority of the preceding. determinations, there are some cases in which words of desire and request have been held to be imperative and legatory, and consequently to create a trust; but that was only where the property was certain, and the objects of the testator's bounty clearly pointed out. 15. A person devised a copyhold to his wife in fee; adding these words, "not doubting but that my wife will dispose of the same to and amongst my children, as she shall please." This was held by Lord Hardwicke to be a trust for the children, as she should appoint. 16. E. Wortley devised his coaleries and coal mines to trustees, their heirs, executors, administrators and assigns, upon trust to convey and dispose of the same in such manner as his daughter, whether sole or covert, should direct or appoint by any writing or writings under her hand and seal. And in a subsequent part of the will the testator declared, that although his meaning was to give his said daughter the absolute disposal of the said collieries, to prevent the expence and trouble that must attend the management of affairs of such a nature under the direction of the Court of Chancery, he requested his said daughter to direct the money arising therefrom to be applied in such manner as he had directed the same in default of her direction and appointment. A question having arisen on the construction of this will, whether Lady Bute had an absolute power of disposing of the coaleries, Lord Henley declared that the testator did not intend to empower Lady Bute to direct the trustees to dispose of the premises for her absolute benefit, or without consideration; but that he intended only to give her a power to have the same sold, and that the money arising therefrom should be applied to the purchase of lands, in the same manner as the clear profits of the premises, in case she had made no appointment. And decreed accordingly, which was affirmed by the House of Lords. 17. A testator devised all his manors, &c. unto his mother and her heirs for ever; in the fullest confidence that, after her decease, she would devise the property to his family. It was decreed by Sir W. Grant, M. R. that the words were sufficient to raise a trust, the word family, in a devise of real property, meaning the same as heir at law.* Devises by implication. Willes' Rep. 18. The Courts have in some instances allowed of a devise by implication, where it has been very apparent, in order to support and effectuate the intention of the testator; but in cases of this kind the implication must be a plain, and not merely a possible or probable one; for the title of the heir at law being plain and obvious, no words in a will ought to be construed in such a Moon v. --, manner as to defeat it, if they can have any other sig- 141. nification. And Lord Eldon has said-" With regard to that expression, necessary implication, I will repeat 1 Ves. & what I have before stated from a note of Lord Hard- Beames, 466. wicke's judgment in Coryton v. Hilliar, that in construing a will, conjecture must not be taken for impli- Ante, c. 9. cation; but necessary implication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed." Nowlan v. Nel Vide the cases of Harding v. Glynn, 1 Atk. 469., ligan, 1 Bro. Rep. 489., and Peirson v. Garnett, 2 Bro. Rep. 38.-226., which relating to personal property, are not stated here; and see Forbes v. Ball, 3 Mer. 437., and several authorities there referred to. In Doe v. Wrighte, 2 B. & A. 710., a devise, accompanied with a desire that the devisee would convey to some charitable uses, was held void. Bro. Ab. pl. 52. Cro. 19. The first case in which a devise by implication was allowed, arose in 13 Hen. VII. A man devised his goods to his wife, and that after her decease his son and heir should have a certain house. It was determined that this was a good devise of the house to the wife for life, by implication; for by the express words of the will, the heir was not to take it till after the death of Dyer v. Dyer, the wife; therefore, if she did not take it, no one else could. 1 Merivale 414. Higham v. 20. It was also formerly held, that a devise to a Cro. Eliz. 15. stranger, after the death of the devisor's wife, would give the wife an estate for life by implication. But this determination has been repeatedly contradicted; because in this case two implications arise, the one, that the testator meant his lands should go to his wife; the other, that they should descend to his heir: and therefore the implication in favour of the wife being only a possible, and not a necessary one, the title of the heir must prevail. Thus where a person devised to A. and his heirs, after the death of the devisor and his wife. Smartle v. Fawlkener v. Gardner v. It was determined that the wife took nothing, but that the lands should descend to the heir, during her life. 21. A copyholder devised underwoods to I. S. for twenty years after the death of his wife, to raise portions for his younger children. The question was, whether the wife took an estate for life by implication? Lord Nottingham said, where such a devise was made to the heir, there indeed an estate should arise to the wife by implication; but where it was devised to a stranger, as in this case, there, in the mean time, it should descend to the heir. 22. A person having issue a son, who was his heir apparent, and two daughters, devised in these words: "If it happens my son B. and my two daughters to die without issue, then all my lands shall be and remain to my nephew D. and his heirs." It was held, 1. That no express estate was by this will given to his children. 11. That they did not take any estate by implication; |