he intended to impose a trust on the devisee, and often, it is apprehended, the Court has been obliged to decide that the devisee must hold the estate saddled with a trust, when there was no such intention on the part of the testator, and when in fact the words have been introduced into the will rather for the purpose of communicating some of the general feelings of the testator, and of affecting the conscience of the devisee, than with a view to fetter the property in his hands. As a general rule it has been laid down that when property is given absolutely to any person, and the same person is by the will recommended or entreated or wished to dispose of it in favour of another, the recommendation, entreaty, or wish, will create a trust― 1st, if the words are so used that upon the whole they ought to be construed as imperative; 2ndly, if the subject of the recommendation or wish be certain; and 3rdly, if the objects or persons intended to have the benefit of the recommendation or wish, be also certain (e). The following are instances in which the words of Instances of gift have been held to create a trust:— A devise to the testator's wife of real and personal estate, in the fullest confidence that after her decease she will devise the property to the testator's family (ƒ); a recommendation to the testator's daughter to dispose of the property among her children (g); a gift by the testator to his wife, with a recommendation to her to dispose of the property by will amongst certain persons whom the testator named (h); a devise of copyholds to testator's wife, not doubting that she would dispose of the same to and amongst her children as she should please (i); a gift to a wife for her life, accompanied with the following words: "It being my will and desire that the principal should be left entirely to the (e) Knight v. Knight, 3 Beav. 148, 173; Bernard v. Minshull, 1 John. 276. (f) Wright v. Atkyns, 19 Ves. 299. (g) Malin v. Keighley, 2 Ves. 333. (h) Horwood v. West, 1 Sim. & Stu. 387. (i) Massey v. Sherman, Amb. trust. Instances of no trust. disposal of my wife among such of her relations as she may think proper" (k). But in the following instances it was held that no trust was created : A bequest of dividends to the testator's brother to enable him to assist such of the children of as he should find deserving of encouragement (1); a devise to the testator's wife that she might support herself and her children according to her discretion, and for that purpose (m); a gift to a son for his own use and benefit, well knowing he would discharge the trust reposed in him by remembering his, the testator's, other sons and daughters (n); a gift of income to testator's wife, with request to dispose of the savings among his children (o); a gift to the testator's wife of the capital of a business, trusting that she would act justly and properly to and by all the testator's children (p); a gift to two daughters, associated with the following words:-"If they die single of course they will leave what they have amongst their brothers and sisters, or their children "(); a gift of real and personal estate to A. B., his heirs, executors, and assigns, for his and their own use and benefit for ever, trusting and wholly confiding in his honour that he will act in strict conformity with the testator's wishes (r); a gift to a wife, her executors, administrators and assigns to and for her and their own use and benefit, upon the fullest trust and confidence reposed in her that she would dispose of the same to and for the joint benefit of herself and his children (s); a gift of a legacy to a "wife to be disposed of by her will in such way as she shall think proper, but I recommend her to dispose (k) Birch v. Wade, 3 V. & B. 198. See also Briggs v. Penny, 3 M. & G. 546; Wace v. Mallard, 21 L. J. Ch. 355; Cholmondeley v. Cholmondeley, 14 Sim. 590; Paul v. Compton, 8 Ves. 380; Griffiths v. Evan, 5 Beav. 241; Alexander v. Alexander, 4 W. Rep. 470; Bonser v. Kinnear, 2 Giff. 195; Foley v. Parry, 2 M. & K. 138. (1) Benson. Whittan, 5 Sim. 22. (m) Thorp v. Owen, 2 Hare, 607. (n) Bardswell v. Bardswell, 9 Sim. 319. (0) Cowman v. Harrison, 10 Hare, 234. (p) Pope v. Pope, 10 Sim. 1. 197. (r) Wood v. Cox, 2 M. & C. 684. Webb v. Wools, 21 L. J. Ch. 625. of one-half to her own relations, and one-half among such of my relations as she shall think proper" (t); a gift to wife "being fully satisfied that she will dispose of same by will or otherwise, in a fair and equitable manner to our united relatives, bearing in mind that my relatives are generally in better circumstances than hers are" (u); a gift to wife " to and for her own use and benefit absolutely, having full confidence in her sufficient and judicious provision for my dear children" (x); a gift to wife "to be at her disposal in any way she may think best for the benefit of herself and family" (y); a gift to a married woman "for her own proper use and benefit" separately from her husband, "the proceeds to be applied by her in the maintenance of all her children "(2). intended or not. In some of the cases above referred to, the words Will should state expressly were held not to create a trust on the ground that the whether trust interest given to the objects was not sufficiently de- is fined (a). It follows that in the preparation of a will for a testator who wishes his devisee to dispose of the subject of the devise in a particular manner, but does not intend to create a trust binding on him, the will should contain some words or clause to make this intention manifest. If, on the other hand, the testator's object is to impose a trust, the trust and the nature of the discretion intended to be vested in the devisee should be declared in clear and formal language; and care should be taken that there is no uncertainty as to the subject or interest to be given, or the objects to be benefited. (t) Johnston v. Rowlands, 2 De G. & Sm. 356. (u) Reeves v. Baker, 18 Beav. 372. See also Winch v. Brutton, 14 Sim. 379; Knott v. Cottee, 2 Ph. 192; Knight v. Knight,_3 Beav. 148. See also Hill on Tr. 32; Palmer v. Simmonds, 2 Drew. 221; Green v. Marsden, 22 L. J. Ch. 1092. (x) Fox v. Fox, 27 Beav. 301. Lambe. Eames, L. R. 10 (a) Hill on Tr. 44. VOL. II. K K Personal estate vests in payment of debts. X. The effect of a charge of debts and the implied power of sale thereby created. All the personal estate of a deceased person (inexecutors for cluding his leasehold lands) vests in his executors in the first instance, although specifically bequeathed, and may be disposed of by them for the payment of the testator's debts, and the purchaser is not bound to see to the application of his purchase-money. And there is no particular time at which a presumption arises that the debts have all been paid, and consequently that the executors' right to sell has ceased (b). By the common law the real estate of a deceased person was not liable to his general debts, but if the testator by his will expressly charged his real estate with the payment of his debts, such a charge was, and of course still is, effective in equity. Real estate formerly not liable to debts unless charged by will. In what cases a general direction for payment of debts creates a charge. In what cases a direction that the A general direction, or an expression of desire in a will that the testator's debts shall be paid, creates a charge on the real estate for their payment (c). But if such a direction or expression of desire is followed by the gift of a particular property for the purpose of paying debts, the implied charge will be considered as limited by the subsequent gift, and will be confined to the property included in such gift (d). Where, however, the will contains an express charge of debts upon the real estate, such express charge will not be cut down by the subsequent creation of a fund for the payment of the debts (e). A direction that the debts shall be paid by the executors does not of itself charge the real estate (f). If, debts shall be however, the executors are also made devisees, the question whether the estate devised to them is thereby charged with the debts is one of intention to be col paid by the executors is a charge. (b) In re Whistler, 35 C. D. 561. 2 Jarm. on Wills, 4th ed. p. 503; Ballv. Harris, 4 My. & Cr. 264; Harding v. Gandy, 1 Dr. & W. 430. (d) Thomas v. Britnell, 2 Ves. sen. 313; Palmer v. Graves, 1 Keen, 545. But see Jones v. Williams, 1 Col. C. C. 156. (e) Coxe v. Basset, 3 Ves. 155; Wrigley v. Sykes, 21 Beav. 337. (f) Keeling v. Brown, 5 Ves. 359; Wasse v. Heslington, 3 M. & K. 495. lected from the whole of the will. Thus it has been held that a charge is created, where the devise is of all the real estate to the executor (there being only one) either beneficially or on trust, or to all the executors jointly (g), but not where one only of several executors is the devisee (h), or where the executors take unequally (i), or where part only of the real estate is given to them, and the rest given to others (k). debts confers a power of A charge of debts confers a power of sale for the pur- A charge of pose of giving effect to it. It was frequently a difficult question in the case of wills coming into operation be- sale. fore the passing of the Act about to be mentioned, who was or were the person or persons in whom the power of sale for payment of debts was vested (1). It is now, however, provided by sects. 14 to 18 inclusive of the 22 & 23 Vict. c. 35, as follows: estate is in trust may raise money to pay them. debts, devisee SECT. 14. Where by any will which shall come into operation Where real after the passing of this Act, the testator shall have charged charged with his real estate or any specific portion thereof with the payment of his debts, or with the payment of any legacy or other specific sum of money, and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debt, legacy, or sum of money out of such estate, it shall be lawful for the said devisee or devisees in trust, notwithstanding any trusts actually declared by the testator, to raise such debts, legacy, or money as aforesaid, by a sale and absolute dis (g) Henvell v. Whitaker, 3 Russ. 343; Finch v. Hattersley, 3 Russ. 345, n.; Hartland v. Murrell, 27 Beav. 204; In re Tanqueray Willaume, &c., 20 Ch. D. 465. (h) Warren v. Davies, 2 My. & K. 49. (i) Symons v. James, 2 Y. & C. C. C. 301. (k) In re Bailey, 12 Ch. D. 268. (1) Elliott v. Merryman, Barn. 78; Walker v. Smallwood, Amb. 676; Eland v. Eland, 4 M. & C. 420; Shaw v. Borrer, 1 Keen, 559; Ball v. Harris, 4 M. & C. 264; Colyer v. Finch, 5 H. of L. Ca. 905; |