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Entered according to Act of Congress, in the year 1870, by
LITTLE, Brown, & Co., in the Clerk's Office of the District Court of the District of Massachusetts.
PRESS OF JOHX WILSON AND SOX.
CONTENTS OF No. IV.
In Quayle v. Davidson, 12 Moore, P. C. 268, it was held that a court of equity “ will, if necessary, construe words importing a trust as an expression of hope or confidence.” In precatory trusts, on the other hand, words expressing hope or confidence are construed as importing a trust. In each case the courts apply “one of the fixed rules of equitable construction, that there is no magic in particular words.” Hill on Tr. 65.
The intention of the testator, of course, is to govern in all cases. So that no informality in words will prevent the creation of a trust where it clearly appears that a line of duty is marked out for the donee, and not merely suggestions made to his discretion : and neither precatory words nor any other will avail to create a trust where a contrary intent is made out.
But the doctrine of precatory trusts is something more than the converse of the principle in Quayle v. Davidson; it does not stop with saying that precatory words may, under stress of a plainly indicated intent, be construed as importing a trust. It is stated as a rule of presumption ; and, in the absence of countervailing circumstances, or in the equipoise of such as conflict, it requires that precatory words shall be so construed. The rule was thus expressed by Sir R. P. Arden, Master of the Rolls, in the case of Malim v. Keighley, 2 Ves. Jr. 333, 335 (A. D. 1795): “I will lay down the rule as broad as this: whenever any person gives property, and points out the object; the property, and the way in which.