heeded? Assuming, as we do, that he has given no plain indication of his intention in other ways, we have the two facts, that property is given to A. B., and that the giver in bestowing it, desires that it shall be applied in a particular way. Why shall it not be so applied? "He uses," says Redfield (1 Redf. Wills, 713), "such precatory words, because he desires to leave it to the discretion of the donee; and if he intended to control that discretion, he would adopt very different language." This is easily said, but it is not convincing. One has only to reply, "Why, then, does he not say that he intends to leave it to the discretion of the donce? Why does he not at least intimate it, so as to lift from the conscience of the donee that weight which his language must needs lay upon it?" Every man feels the moral stringency of such injunctions. No person in giving property, and coupling these expressions with the gift, can fail to be aware how impressive they are they are, and are meant to be, extraordinarily weighty. It seems to us, therefore, that the law is wise and prudent in assuming that where a testator intends that such injunctions shall have no other force than that of suggestions to the discretion of a donee, he will indicate it; and in requiring, wherever he does not indicate it, and the conscience of the donee is found to be evading them, that they shall be taken up and enforced by "the general conscience of the realm, which is Chancery."

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As to the objections, then, which are taken to the doctrine of precatory trusts, it may be said generally,

I. That so far as they amount merely to saying that the cases have sometimes been decided on grounds too narrow and technical, or that the rule has sometimes been pressed with too little reference to other rules equally operative, - they may be admitted to have much force.

II. That so far as they serve to indicate a desire for a broader statement of the rule, so as to include certain admitted limitations of it, one would hardly care to find fault with them.

III. That so far as it is desired to insist chiefly on the primary rule as to the intent of the testator, to be collected from the whole instrument, there is no need to contend against them. Thus Redfield cites, with approbation (1 Redf. Wills, 707), the language of Lord Cranworth in Williams v. Williams, 1 Sim. N. s. 358, 368, to wit: "The real question in these cases always is, whether the

wish or desire or recommendation that is expressed by the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party; leaving it, however, to the party to exercise his own discretion." well enough; but it hardly touches the difficulty, relating to the admission of a subordinate rule of presumption to assist in settling this "real question."

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That is all which is one

IV. That, upon the whole, the strong language of Bigelow, C. J., is, perhaps, not too strong, when he says, in Warner v. Bates, 98 Mass. 274,277: "The criticisms which have been sometimes applied to this rule by text-writers and in judicial opinions, will be found to rest mainly on its application in particular cases, and not to involve a doubt of the correctness of the rule itself as a sound principle of construction. Indeed, we cannot understand the force or validity of the objections urged against it, if care is taken to keep it in subordination to the primary and cardinal rule that the intent of the testator is to govern, and to apply it only where the creation of a trust will clearly subserve that intent."

THE HOWLAND WILL CASE.

THE city of New Bedford lies on the southern coast of Massachusetts, and has long been the principal seaport of southern New England. Settled a generation after the landing of the Pilgrims by a hardy people containing a large infusion of Quaker stock, it has steadily grown in prosperity, so that now, with a population somewhat over twenty-five thousand, it is said to own a greater proportionate wealth than any city in New England. To them, above all others, had been applied the glowing tribute of Burke to the inhabitants of our colder States. No ocean but what had been vexed by their fisheries, no climate but had witnessed their toils. Pursuit of whales had long been to them the pursuit of wealth. Yet with the hardy virtues engendered by such enterprise and perseverance had come, if we may credit evidence, a correlative failing. "Thrift, thrift," had been their motto for many generations. Of this stock came Sylvia Ann Howland, -in 1865, a childless old woman full of years, and with two millions of dollars to abandon to the world when she should quit it. Upon the disposition of these dollars arose the litigation known as the "Howland will case," upon which was brought to bear the resources of many of the ablest counsel in New England,' and the skill of the most ingenious scientific experts of the United States. A volume of printed evidence of over a thousand pages, a collection of arguments which occupied a week in the delivery, and a pile of innumerable photographic exhibits, testify to the thoroughness and ability with which the cause was tried, while the record of the Probate Court of Bristol County showing over one hundred and fifty thousand dollars to have been expended in costs and counsel fees during a period of two years, adds a final and convincing proof of the intensity of the struggle. Upon the hearing before the Circuit Court, a decision was made disposing of the case on a point of law involving but a single and preliminary question, and necessarily leaving all the other questions of law, and all the issues of fact,

1 Sidney Bartlett, B. R. Curtis, F. C. Loring, J. H. Clifford, D. Thaxter, W. W. Crapo, and Francis Bartlett, for the plaintiff. B. F. Thomas, T. D. Eliot, and T. M. Stetson, for the defendants.

unsettled. Before the appeal taken from this decision was reached by the Supreme Court of the United States, an adjustment was made, and these issues remain for ever undecided. The case is however far too interesting, both in law and fact, to be known only to such as may have both the opportunity and curiosity to seek an acquaintance with it through the unpublished records of the court, and it is proposed to give in these pages a brief account of it.

The Howland family had long been inhabitants of New Bedford. Before the revolutionary war, Captain John Howland, of New Bedford, had captured, in the strait of Belle Isle, a whale yielding an extraordinary number of barrels of oil. When, in 1778, the town was burned by the British, Isaac Howland's distil house was among the buildings destroyed. The family had thrived with the thrift of the town, and coming to later times, and turning to the evidence in the case, we find a later Isaac Howland, in 1826, bequeathing his bank and insurance stock to his second wife Ruth; his dwelling-house after his wife's decease to his granddaughter Sylvia Ann Howland; and making the latter, with his other granddaughter, Abby S. Howland, his residuary legatees. Ten years later, in 1836, Gideon Howland, who married Isaac's daughter, makes his will, leaving his property principally between his daughters, these same ladies, Sylvia Ann and Abby (the latter being then the wife of Edward Mott Robinson, of New York), and appointing Thomas Mandell his executor.

Of this family came the complainant Hetty H. Robinson, only child of Edward Mott and Abby S. (Howland) Robinson, only niece of Sylvia Ann Howland, only granddaughter of Gideon Howland, and only great-granddaughter of Isaac Howland. Thus she was the only person in the fourth generation of this family, and heir-at-law to them all as well as to her father. It is somewhat important to bear in mind these genealogical facts throughout the consideration of the case.

Isaac Howland, the great-grandfather, died in 1833, leaving personal estate to the amount of $218,000, and realty valued at $30,000. One-half of the bulk of this property went to his granddaughter Sylvia Ann Howland; and of the $109,000 received by her, $80,000 was placed to her credit on the books of the firm of her grandfather, which still retained its old name of Isaac Howland, Jr., & Co., and of which the surviving partners were her father, Gideon Howland, and Thomas Mandell, and the balance

was left to be managed by Mandell, for her private account. The other half of Isaac Howland's personalty was paid to his granddaughter Abby's husband, Mr. Robinson: $69,000 being placed to his credit upon the books of the firm, and $40,000 being given by a joint deed of the husband and wife to Thomas Mandell, to hold in trust for the benefit of Mrs. Robinson. Mr. Robinson and Miss Sylvia Ann Howland, thus both became members of the firm of Isaac Howland, Jr., & Co.

Gideon Howland, the grandfather, dying in 1847, left property to the amount of $650,000, which was equally divided between Mr. Robinson and Miss Howland, the amount standing to his credit on the books of the firm being passed to their respective credits.

The firm continued prosperous; Miss Howland's property, in 1846, was $244,000; in 1850, $617,000; and from $878,000 in 1854, in 1863 it had grown to $1,442,000. This was exclusive of her real property and personalty outside the firm. Her realty at this date was estimated at $75,000; and her separate personalty had grown from $31,000 in 1836, to $508,000 in 1863, giving a total of $2,025,000,- a comfortable estate for a childless old lady of simple habits, dwelling in a country town.

There had been thrift and ability, too, on the father's side of the house. The inventory and appraisement of Edward Mott Robinson's estate, made in 1865, shows his personal estate to have then amounted to the little sum of $5,680,022.09.

There was slight chance, then, that Hetty, the heir-at-law, should come to want, though in 1862 her sole possessions were a house valued between $8,000 and $9,000, and some $20,000 in stocks, a present from her aunt.

Upon the death of Mrs. Robinson, in 1860, much doubt was entertained to whom the property held by Mr. Mandell, under the trust deed already alluded to, should be conveyed. The question was submitted to Hon. B. F. Thomas (afterwards senior counsel for the defendants in this suit), and was thought by him to be one of great difficulty; but it was finally decided that the realty should go to the daughter, the personalty to the husband. The parties acquiesced in this decision, and gave a release to the trustee, who conveyed the property under it. But as the personalty now amounted to $120,000, and the realty to but $8,000, considerable feeling was created in the hearts of both the daughter and her