tator should give his reasons for creating such a trust; neither is it necessary that the will shall in express terms contain all the restrictions and qualifications incident to such trust. But if, upon consideration of the whole will, it appears that the testator intended to create a spendthrift trust, his intention will be given effect.59 59 Wagner v. Wagner, 244 Ill. 101, 18 Ann. Cas. 490, 91 N. E. 66; Wallace v. Foxwell, 250 Ill. 616, 50 L. R. A. (N. S.) 632, 95 N. E 985; Sherman v. Havens, 94 Kan. 654, Ann. Cas. 1917B, 394, 146 Pac. 1030; Baker v. Brown, 146 Mass. 369, 15 N. E. 783. CHAPTER XXXIX. PRECATORY AND SECRET TRUSTS. § 1088. Precatory trusts defined. § 1089. Early rule of construction as to precatory words. § 1090. Modern tendency to restrict the rule. § 1091. Essential elements of precatory trusts. § 1092. Effect of uncertainty of subject matter or objects of the trust. § 1093. Points to be considered in construing the effect of precatory words. § 1094. The same subject: Relationship of parties. § 1095. Precatory words are imperative in effecting primary gifts. § 1096. Distinction where expressions are addressed to executors and not beneficiary. § 1097. No particular form of language required to create a precatory trust. § 1098. Intention of testator governs: No universal rule of construction. 1099. The same subject. § 1100. Where absolute gift is not diminished by subsequent precatory words. § 1101. Where words merely express motive for gift, no trust is created. § 1102. Words used must be intended to impose an imperative obligation, or no trust is created. § 1103. "Will" a word of command. § 1104. Precatory words referring to dependents: Where no trust is created. § 1105. The same subject: Where trust is created. § 1106. Precatory expressions which have been construed as cre § 1107. Precatory expressions which have been construed not to create trusts. § 1108. Various precatory words considered. § 1109. The same subject. § 1110. Gift upon "understanding" or "promise." § 1111. Secret trusts, creation and effect of. § 1112. The same subject: Necessity of promise by beneficiary. § 1088. Precatory Trusts Defined. The term "precatory trust" has been frequently used, but seldom defined. The word "precatory" has reference to the manner of the creation of the trust, for the effect of such a trust is the same as if created in express terms. A precatory trust has been defined as one "created by certain words which are more like words of entreaty and permission than those of command or certainty." Words of recommendation, entreaty or the like are construed as imperative in character and equivalent to a command. The desire regarding a power given may be so expressed as to render its exercise imperative. The courts will consider such a power as in the nature of a trust imposing a duty which must be discharged by the one to whom it is directed, and in case of default the courts will enforce the obligation.2 1 Black's Law Dictionary, quoted in Simpson v. Corder, 185 Mo. App. 398, 170 S. W. 357. See, also, Bohon v. Barrett's Exr., 79 Ky. 378, 381. Precatory trusts are distinguished by the creative words being words of entreaty. — Keplinger v. Keplinger, (Ind.) 113 N. E. 292. 2 Harding v. Glyn, 1 Atk. 469; Brown v. Higgs, 8 Ves. Jun. 561, 570, per Lord Eldon; Cole v. Wade, 16 Ves. Jun. 27, 42; Salusbury v. Denton, 3 Kay & J. 529; Brown v. Pocock, 6 Sim. 257; Croft v. Adam, 12 Sim. 639; In re Caplin's Will, 34 Law J. Ch. N. S. 578; Minors v. Battison, L. R. 1 App. Cas. 428; Collins V. Carlisle's Heirs, 7 B. Mon. (46 Ky.) 14; Gibbs v. Marsh, 2 Metc. (43 Mass.) 243; Chase v. Chase, 2 Allen (84 Mass.) 101; Smith v. Bowen, 35 § 1089. Early Rule of Construction as to Precatory Words. Upon the theory that the "wish of a testator, like the request of a sovereign, is equivalent to a command," the English courts of chancery, at an early date, following the rule of the civil law, were disposed, in construing a will, to seize upon expressions of recommendation, entreaty, hope, wish, desire or expectancy, and impart to such provision the prima facie effect of a command, discretion in the beneficiary being excluded.3 Thus where, by will, property was given absolutely to one person and the testator, by the terms of the will, requested, recommended, expected, desired, or wished the person to whom the gift was made to hold, use or dispose of the property in whole or in part for the benefit of another, the precatory words were given an imperative character, and held to create a trust in favor of the one regarding whom they were used, provided the subject matter and the object of the trust were certain. This doctrine or rule of construction was early adopted in the United States and has been uniformly recognized, except that N. Y. 83; Withers v. Yeadon, 1 Courts of equity may declare and enforce a trust, but they have no authority whatever to create a trust or to make a contract for the parties, where they did not see fit to make the contract themselves; nor can we impose a restriction which the parties themselves did not see fit to place upon the transaction.-Bliss v. Bliss, 20 Idaho 467, 119 Pac. 451, 457. 3 Bernard v. Minshull, Johns. 276; Shovelton v. Shovelton, 32 Beav. 143; Cary V. Cary, 2 5 Schoales & L. 189; Bohon v. Barrett's Exr., 79 Ky. 378; Warner v. Bates, 98 Mass. 274; Burt v. Herron's Exrs., 66 Pa. 400, 402. 4 Massey V. Sherman, Ambl. 520; Paul v. Compton, 8 Ves. Jun. 375; Eade v. Eade, 5 Madd. 118; Gully v. Cregoe, 24 Beav. 185; Shovelton v. Shovelton, 32 Beav. 143; Eaton v. Watts, L. R. 4 Eq. 151. 5 Creswell's Admr. v. Jones, 68 Ala. 420; Bull v. Bull, 8 Conn. 47, 20 Am. Dec. 86; Lines v. Darden, 5 Fla. 51; Hunter v. Stembridge, 12 Ga. 192; Major v. Herndon, 78 in Pennsylvania it has never been accepted as a rule of the common law. The modern tendency, however, while recognizing the rule, is to make its application more strict. § 1090. Modern Tendency to Restrict the Rule. To create a trust by the use of words of recommendation, desire, entreaty, or the like, it is necessary to give such words a different meaning from their common acceptance. For this reason the modern tendency is to limit the application of the doctrine of precatory trusts, and words of desire, recommendation, and the like, will be given their ordinary significance and will not be held to create a trust unless, from the terms and dispositions of the will and the circumstances relevant to proper construction, it clearly appears that such expressions were used in an imperative sense, and that the testator intended to create a trust. However, in New Jersey it has Ky. 123; Lucas v. Lockhart, 10 6 Matter of Pennock, 20 Pa. St. 268, 59 Am. Dec. 718; Bowlby v. Thunder, 105 Pa. St. 173; Presbyterian Board etc. v. Culp, 151 Pa. St. 467, 25 Atl. 117; Boyle v. Boyle, 152 Pa. St. 108, 34 Am. St. Rep. 629, 25 Atl. 494. 7 See § 1090. 8 In re Hutchinson and Tenant, 8 Ch. Div. 540; In re Adams and the Kensington Vestry, L. R. 27 Ch. Div. 394; Gregory v. Edmondson, L. R. 39 Ch. Div. 253; Mussorie Bank v. Raynor, L. R. 7 App. Cas. 321; Lambe v. Eames, L. R. 10 Eq. 267; In re Oldfield, (1904) L. R. 1 Ch. Div. 549; Russell v. United States Trust Company, 127 Fed. 445; Burnes v. Burnes, 137 Fed. 781, 70 C. C. A. 357; Colton v. Colton, 127 U. S. 300, 32 L. Ed. 138, 8 Sup. Ct. 1164 (although held to create a trust); Kauffman v. Gries, 141 Cal. 295, 299, 74 Pac. 846; Cockrill v. Armstrong, 31 Ark. 580; Estate of Mitchell, 160 Cal. 618, 117 Pac. 774; Estate of Purcell, 167 Cal. 176, 138 Pac. 704; Cameron v. Ah Quong, (Cal.) 165 Pac. 961; Gilbert v. Chapin, 19 |