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it shall go, that does create a trust, unless he shows clearly that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it.” The precatory word in this case was “ recommend."
This statement of the rule is cited because it has been very often quoted and approved; as, for example, in the case of Knight v. Boughton, 11 Cl. & Fin. 513, 551 (A. D. 1844), by Lord-Chancellor Lyndhurst and Lord Cottenham; and in the case of Homer v. Shelton, 2 Met. 194, 207, by Wilde, J. It is criticised, and yet adopted as sufficiently accurate, by Lord Chief Baron Richards, in Heneage v. Andover, 10 Price, 230.
Perhaps, therefore, when it is said, in relation to precatory trusts (Adams, Eq. 31), that: “ The question in each particular case is merely of construction on the terms of the instrument," the matter is not stated with entire accuracy. The remark, at any rate, is less significant than it would seem to be at first sight; and it is not to be considered as denying that there is a canon of construction applicable to precatory words.
In England, the rule is admitted, on all hands, to be an estab lished one; and it runs back, in that country, through a series of approved decisions, for more than a century and a half. Eales v. England, 2 Vern. 466 (A. D. 1702); Harding v. Glyn, 1 Atk. 469 (A. D. 1739); Pierson v. Garnet, 2 Bro. C. C. 38, 226 (A.D. 1786); Paul v. Compton, 8 Ves. 375 (A.D. 1803); Cary v. Cary, 2 Sch. & Lef. 173, 189 (A. D. 1804); Forbes v. Ball, 3 Mer. 437 (A. D. 1817); Wright v. Alkyns, 1 Turn. & Russ. 143 (A. D. 1823); Wood v. Cox, 1 Keen, 317 (A. D. 1836); Shaw v. Lawless, 5 Cl. & Fin. 129 (A. D, 1838); Knight v. Boughton, 11 Cl. & Fin. 513 (A.D. 1844); Williams v. Williams, 1 Sim. N. s. 358 (A. D. 1851); Briggs v. Penny, 3 Macn. & G. 546 (A. D. 1851); Bernard v. Minshull, H. R. V. Johns. 276 (A. D. 1859); Bonser v. Kinnear, 2 Gif. 195 (A.D. 1860); Shovelton v. Shovelton, 32 Beav. 143 (1. D. 1863); Irvine v. Sullivan, L. R. 8 Eq. 673 (A. D. 1869). And see Mc Cormick v. Grogan, I. R. 1 Eq. 313 (A. D. 1867); S.C. L. R. 4 H. L. 82.
It has also been generally adopted in this country. Reed's Adm'r v. Reed, 30 Ind. 313 (A. D. 1868); Warner v. Bates, 98 Mass. 274 (A.D. 1867); Van Amee v. Jackson, 35 Vt. 173 (A. D. 1862); Negroes v. Plummer, 17 Md. 165 (A. D. 1860); Anderson
V. Mc Cullough, 3 Head, 614 (A. D. 1859); Ingram v. Fraley, 29 Geo. 553 (A. D. 1859); Lines v. Darden, 5 Florida, 51 (A. D. 1853); Mc Konkey's Appeal, 13 Penn. St. 253 (A. D. 1850); Lucas v. Lockhart, 10 Sm. & M. 466 (A. D. 1848); Harrison v. Harrison's Adm'r, 2 Gratt. 1 (A. D. 1845); Coates's Appeal, 2 Penn. St. 129 (A.D. 1845); Tolson v. Tolson, 10 G. & J. 159 (A.D. 1838); Bull v. Bull, 8 Conn. 47 (A. D. 1830); Erickson v. Willard, 1 N. H. 217 (A. D. 1818). See also Harper v. Phelps, 21 Conn. 257. .
And it is laid down in the best text-books as an established rule. 1 Jarman on Wills (3d Lond. ed.), 356; 2 Washb. Real Prop. (3d ed.) 469; Adams' Eq. 30, 31; Hill on Tr. 71; Lewin on Tr. 104.
Nevertheless, the doctrine as to precatory trusts has long been, and is still, fiercely assaulted in many quarters. One might gather from the language of some text-writers, and occasionally of some judges, that there never had been any good reason for adopting it, and that such reasons as there were, had been wholly exploded. Pennock's Estate, 20 Penn. St. 268 (A. D. 1853); Van Duyne v. Van Duyne, 1 McCarter, 397 (A. D. 1862); 2 Story's Eq. Jur. § 1069; Tiff. & Bull. on Tr. 224; 1 Redf. Wills, 713.
These attacks have not always come from the best instructed quarters. Thus, in the year 1853, in Pennock's Estate, 20 Penn. St. 268, a very extraordinary and elaborately considered case, the court say: “ We may now add that we know of no American cases wherein the antiquated English rule has been adopted.” In view of the American cases cited above, is it too much to say that the court ought to have known of half a dozen ?
But in some instances these objections have proceeded from judges of high authority, e.g., Lord Eldon in Wright v. Atkyns, 1 V. & B. 313, 315. See also Heneage v. Andover, 10 Price, 230, 265; s. c. on appeal, sub nom. Meredith v. Heneage, 1 Sim. 542; Sale v. Moore, 1 Sim. 534, 540; Green v. Marsden, 1 Drew. 646 ; the judicial comments of this sort, however, have, we believe, uniformly been made in cases which were held not to come within the scope of the rule. Among the text-writers who object to the rule now under consideration, Judge Redfield (1 Redf. Wills, 713) goes so far in his strictures as to say: “ This” (to wit, that nothing obligatory is meant], “ we think, is what is always intended by testators, in the use of these hortatory expressions in
their wills, towards the recipients of their bounty. There is scarcely one man in a thousand who would, in such cases, use any such indefinite and optional forms of expression towards those whom he expected to assume a binding duty and obligation. ... So that, probably, in nine cases out of ten, where the courts have raised a trust out of such mere words of wish and exhortation, it has been done contrary to the expectation of the testator, and more out of regard to the moral than the legal duty of the donee."
The italics are our own. These phrases are, certainly, sufficiently broad.
Is this sort of comment upon the doctrine of precatory trusts just ? And upon what grounds, if any, may we look to see that doctrine continue to hold its own?
The rule is but one among many; it is a secondary and auxiliary rule, - always subordinate to the cardinal principle that the intention of the testator is to govern. Indeed, it is a rule that has its whole support in a supposed conformity with that principle; and it gives way at once when the two are shown to conflict. There is no sort of difficulty in accepting the rule where it does not conflict with the testator's intention, for no technical words are necessary to create a trust. The difficulty exists in cases where, without the application of this rule, there is no plain indication of the intent.
Where the doctrine is an established one, as in England, it may safely be assumed that it always accords with the intention of the testator, when the will is drawn artificially and with technical skill.
It is to be noted that, in its strictest definition, it is a rule of very restricted application. It will seldom happen that some indication or other, and some prevailing indication, of a testator's intention, in the use of precatory words, may not be drawn from the facts to which the will is applicable, or from the other language or the structure of the instrument. Thus, in the late and well-considered case of Warner v. Bates, 98 Mass. 274, the language under discussion was the following clause in a testamentary gift from a wife to her second husband : “ In the full confidence that, upon my decease, he will, as he has heretofore done, continue to give and afford my children ” [naming all her children by both husbands] “ such protection, comfort, and support as they or either of them may stand in need of;” it appeared that some of the children were adults, and without property; that during their whole life they had all been supported at the mother's house and out of her property, and had lived together as one family; that she gave all her property to the husband for life, and left the children nothing at all during that period, unless through the operation of the clause above quoted; and that upon the husband's death she gave all her property to the children, by both husbands, equally; the court were clear in the opinion that, under circumstances like these, the established rule as to the construction of precatory words accorded well with the intention of the testatrix.
It is a trite qualification of the rule as to precatory trusts, and one that has been ingeniously applied so as to take many a case out from the operation of it, that the subject-matter and the person, or object, must be clearly pointed out. But a good deal more significance has been attached to this observation than it deserves. It is a qualification that is not peculiar to precatory trusts. Where the technical phrases for creating a trust are used, and there is no room for question as to the intention, the want of clearness in pointing out the person or property to which it relates, can have only the effect of nullifying that admitted intent. Where precatory words are used, this uncertainty has the same effect, so far as any intention to create a trust is made out; and so far as there is a doubt as to the intention, it also has a bearing upon the solution of that question. The intention being made out, however, no greater effect is to be given to the want of clearness in the one case than the other; the rule being equally applicable always, that in order to create a trust there must be, - 1, sufficient words; 2, a certain subject; and 3, a certain object. Williams v. Williams, 1 Sim. N. S. 358, 369, 370; Briggs v. Penny, 3 Macn. & G. 546, 556; 1 Jarman on Wills (3d Lond. ed.), 359. In Bernard v. Minshull, H. R. V. Johnson, 276, we have a case where precatory words availed to prevent the donee from taking a beneficial interest, although the intended trust failed for uncertainty. This case shows, first, that a want of certainty is not conclusive as to
the effect of precatory words; and, second, that it is fatal to a trust of any sort.
What are called precatory words are of very different degrees of force. One of them, the word “confidence,” is a very strong one; indeed, in legal usage, it comes near being the equivalent of “ trust.” It is often mated with it; “ trusts and confidences” is the phrase used in the Statute of Uses and elsewhere; and under the term “Trust,” Burrill's Law Dictionary, after giving “ a confidence” as one of its definitions, goes on to add: “ The radical idea of a trust is confidence, and this is the word employed by Lord Coke in his definition of a use, which has been adopted by Mr. Butler and Mr. Lewin as the best and most exact definition of a trust.” In Meredith v. Heneage, 1 Sim. 542, 556, with reference to the words “ in full confidence and with the firmest persuasion,” the court say, “ unquestionably these words are extremely strong.” Surely they are. It was considered in that case that there was enough else to outweigh them ; but in the absence of a clear indication to the contrary, one may well wonder how it should ever be thought that a testator, in laying a donee under such solemn and stringent injunctions, could intend that he might keep the gift while he disregarded them.
There are many other words — of wish, recommendation, desire, entreaty, expectation, and so forth — which have not, intrinsically, so much force. To all of them alike, however, one powerful consideration applies, — they are used in an instrument whose primary purpose it is to transfer property; and they are used as a part of the phraseology for transferring it. A will may be, and is, sometimes, availed of, incidentally, for the expression of the testator's mere wishes or opinions; but that is not its purpose, nor is it ordinarily or mainly used for such communications. It seems to be reasonable, — where these expressions are found in such a document, and where one who has a right to order, expresses, without qualification, his expectation, or his wish, that something shall be done, — to say that “the expression of his wishes is deemed to be the expression of his will” (Wilde, J., in Whipple v. Adams, 1 Met. 445), and that “ the mode is only civility” (Lord Loughborough in 1 Malim v. Keighley, 2 Ves. Jr. 529, 532). How shall one determine that the testator would give any thing if he did not suppose that his “expectation,” or “wish,” or “confidence,” would be