
    Harrisons v. Harrison’s Adm’x.
    April Term, 1845,
    Richmond.
    [44 Am. Dec. 365.]
    (Absent Cabell, J?.)
    i. Wills Construction Precatory Wordst — Case at Bar. — A testator says, — “In tbe utmost confidence in my wife, I leave to her all my worldly goods, to sell or beep for distribution amongst our dear children, as she may think proper. My whole estate real and personal are left in fee simple to her; only requesting her to make an equal distribution amongst our heirs; and desiring her to do for some of my faithful servants, whatever she may think will most conduce to their welfare, without regard to the interest of my heirs. Of course I wish first of all, that all my debts shall be paid.” Held, 1. That the widow is invested, subject to the payment of testator’s debts, with the legal title to the whole estate real and personal. 2. That she takes the beneficial interest in the estate for her life. 8. That the children of the marriage take a vested remainder in fee in the estate, to commence in possession at the widow’s death; or earlier at her election. 4. That the widow may make advancements to the children, at her discretion, so that they all ultimately receive an «equal share of the estate. 5. That she may employ a reasonable portion of the estate for the benefit of the slaves. 6. That she has power to sell all or any part of the estate, real or personal, for payment of debts, or more convenient enjoyment, advancement or division.
    
      2. Same — Precatory Words -Creation of Trust. — Prec-atory words in a will are sufficient to create a trust, where the subject and the object are certain.
    3. Same — Same—Same.—An uncertain charge upon an estate does not render the subject so uncertain as to prevent the raising of a trust by precatory words in a will.
    ' Randolph Harrison, of Goochland County, died in the spring of 1844, leaving a widow and five children; four of whom were infants. He left a large estate, real and personal, and was considerably indebted. His will, written by himself, was dated the 29th of March 1844, and contained a single clause, which, omitting the introduction, was as follows:
    “In the utmost confidence in my beloved wife, I leave to her all my worldly goods, to sell or keep for distribution amongst our dear children, as she may think proper. My whole estate, real and personal, are left in fee simple to her, only requesting her to make an equal distribution amongst our heirs; and desiring her to do for some of my faithful servants, whatever she may think will most conduce to their welfare, without regard to the interest of my heirs. Of course T wish first of all, that all my debts shall be paid. This is my only will.
    “R. Harrison.”
    This will was duly admitted to record in the County Court of Goochland; and Mrs. Harrison qualified in that Court, as admin-stratrix with the will annexed.
    Some doubt having arisen as to the true construction of this will, the children of Randolph Harrison, (the infants by their next friend,) filed their bill in the Superior Court of Haw and Chancery for the County of Goochland, against Mrs. Harrison in her own right and as administratrix with the will annexed of Randolph Harrison deceased, in which they ask that their interests *under the will of their father may be ascertained and fixed by the decree of the Court.
    Mrs. Harrison answered the bill, claiming that, under the will of her husband Randolph Harri'son, she was entitled in absolute fee to the whole estate. The cause came on by consent to be heard at the September Term of the Court for 1844; when the Court, being of opinion that by the will ,of Randolph Harrison the whole estate was given to Mrs. Harrison, dismissed the bill. From this decree, the Plaintiffs obtained an appeal to this Court.
    Taylor, for the Appellee.
    The question involved in this cause, is the true construction of the will of Randolph Harrison. For the Appellants it is contended, that the widow holds the whole estate in trust for them. We contend, that she takes .the whole estate, free from any trust, except for the payment of .debts.
    In construing this will, it is not now to be questioned that the intention of the testator is to prevail. What, then, was his intent? The two clauses of the will are, obviously, intended to convey the same idea ; and the second is employed to express clearly, what the writer was apprehensive he had not made sufficiently explicit in the first. The second being, therefore, explanatory of the first, is to be taken as expressing his intention.
    It is not disputed, that this second clause of the will gives the whole estate to the widow; and the only question, therefore, is, whether the words, “only requesting,” &c. raise a trust for the heirs.
    The doctrine of the English Courts, relied upon by the other side, that words of recommendation, hope, request, &c., where the object and the subject are certain, will raise a trust, has been regretted in that Country. It has been said, again and again, that the first case in which this doctrine was established, did not expound, but made the will. Meridith v. Hineage, 2 Cond. Eng. Ch. R. 271; Sale v. Moore, Id; 266; Wright v. Atkyns, *1 Ves. & Beame 313. And it may be said with equal truth here, and in this case, that the application of the doctrine to this will, will operate with as much injustice, and as completely defeat the intention of the testator, as it did in the first case decided.
    But however frequently this doctrine may have been acted on in England, I am not aware of any decision, in the Courts of the United States, in which" it has been followed; and as the English decisions are not obligatory upon us, and as these decisions have been regretted, even by the Judges who have felt themselves constrained to follow them; I submit that this Court will not now adopt this doctrine, the manifest effect of which is to defeat the intention of the testator. .
    But, it is not in all cases, where words of recommendation or request are used, that a trust will be implied. The subject and the object, it is admitted, must be certain. And the authorities shew, that though the words used may be precatory in form, they must be imperative in fact; and indicate the intention of the testator that the recommendation or request shall be complied with. 2 Roper on Beg. 373; 2 Story’s Eq. 328, 1 1068, 1069, 1070; Powell on Devises, 209, note 3, 21 Baw Bibr. 208. Does this will, then, indicate that Mrs. Harrison shall have no option as to the giving the property to the children? The testator expresses his warm affection for, and his full confidence in, his wife; he gives her his whole estate, real and personal, in fee simple ; and then adds, “only requesting her to make an equal distribution among our heirs.” The word “only” is an important and operative word in the sentence. Hot commanding, not directing, only requesting, &c. We command, or we direct, in relation to our property; we request, in relation to the property of others; and when the testator will not command or direct, but only requests, it is impossible that this request can be .considered imperative; and the implication of a trust must be excluded.
    *But, not only is the direction not imperative, the subject is uncertain. The provision for the slaves is uncertain as to the amount. It is referred, entirely, to Mrs. Harrison, to select the objects, and apply the subject to their use. No limit is affixed to the amount which may be appropriated to the slaves; and the testator is even careful to direct that the interest of his heirs shall not interfere with her discretion on this subject. It is impossible that a Court of Equity can fix the amount thus to be applied. The allowance which may be enough to-day, may. be too little tomorrow. The objects of the bounty are referred to the knowledge and the conscience of his widow; and the mistress who knows them, is authorized, by the master who knew them, to provide for their wants. With this uncertain provision for the slaves, the subject which the children would take must, of necessity, be uncertain; and the trust, therefore, will not be raised. Curtis v. Ripppn, 5 Mad. R. 434.
    .But, if the Court shall be of opinion that there is a trust for the children, then, I submit that upon the true construction of the will, the widow has a life estate in the property, with a power of sale. The testator requests her to divide the estate among “our heirs.” The persons taking must be heirs of both; and they cannot be ascertained until her death. Nemo est lucres viventis.
    Grattan, for the Appellant.
    The circumstances of this case are peculiar. It is a controversy (though an amicable one) between a mother and her children. Some of these children are infants; and their interests in this large estate are now to be finally settled.
    The first clause of this will, unquestionably, creates an express trust. The property is given to Mrs. Harrison, to sell or keep, for distribution among their children. If it was intended to give it to her absolutely, then, there was no necessity to say a word about her selling, or keeping it. She had full authority to do so, without an ^express provision to that effect. The words must have meaning, and none can be given them, which will not constitute a trust; to create which, no technical words are necessary. Eewin on Trusts, 24 Baw Bibr. 23.
    The second clause of the will is, obviously, not intended to repeal or annul the first, but to make it more explicit. The testator explains, first, what property he intends to dispose of; secondly, what estate he intends to pass to his widow. He does not manifest any change of intention towards his children, but only expresses the wish that the property may be equally divided among them; and he surely did not intend to take away the power to sell or to keep, at the discretion of his widow'. The word “heirs,” in the second clause, must mean children, because there can be no heirs of two jointly; and if the heirs of each separately, then her heirs may be different from his. Take the two clauses together, and we have an estate in fee in the wife, in trust for the children, with a power to sell.
    It is, therefore, scarcely necessary to go into an enquiry as to the force of the words “only requesting.” The doctrine in relation to the operation of precatory words, is clearly stated in Pierson v. Garnet, 2 Bro. C. C 38, and Malim v. Keighley, 2 Ves. jr. 333. In this last case, the Master of the Rolls says: “Wherever any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shews clearly, that his desire expressed is to be controlled by the party; and that he shall have- an option to defeat it. The word ‘recommend’ proves desire, and does not prove discretion. If a testator shews his desire that a thing shall be done, unless there are plain express words or necessary implication, that he does not mean to take away the discretion, but intends to leave it to be defeated, the party shall be considered as acting under a trust.” This doctrine has been sustained in Macey v. Shurmer, 1 Atk. 389; Harding-- v. 1 Atk. v. 17 Ves. 255; S. C. 19 Ves. 299; S. C. 11 Cond. Eng. Ch. R. 83; Eorbes v. Ball, 3 Meriv. 436; Eade v. Eade, 5 Mad. R. 118; Horwood v. West, 1 Cond. Eng. Ch. R. 198; Prevost v. Clarke, 2 Mad. R. 581; Cary v. Cary, 2 Sch. & Bef. 189; Eoley v. Parry, 7 Cond. Eng. Ch. R. 299; Wood v. Cox, 15 Cond. Eng. Ch. R. 317, though the same case is decided contra, 14 Id. 684;' Parsons v. Baker, 18 Ves. 475; Tibbits v. Tibbits, 4 Cond. Eng. Ch. R. 148; Lawless v. Shaw, 10 Id. 453; Cruwys v. Colman, 9 Ves. 319; Podmore v. Gunning, 7 Cond. Eng. Ch. R. 505; Stubbs v. Sargon, 14 Id. 507. These cases, all of them, recognize and enforce the doctrine. The Counsel on the other side has cited some authorities to shew that dissatisfaction with the doctrine has been expressed. All these authorities admit it; nor indeed can a case be found, where the subject and the object were certain, that the doctrine has not been sustained ; except the old case of Cunliffe v. Cunliffe, ■ which has been overruled times without number.
    There are, indeed, a few cases, in which it was held that there was no trust; as Harland v. Trigg, 1 Bro. C. C. 142; Wynne v. Hawkins, Id. 179; Pushman v. Filliter-,-3 Ves. 7; Bechmere v. Bavie, 7 Cond. Eng. Ch. R. 329; Wood v. Cox, 14 Id. 684. But these cases recognize the doctrine; and they were only taken from its influence, by the want' of certainty in the object or the subject of the bequest.
    The cases above cited, shew that the doctrine applies, where the estate is given in fee to the first taker, in the strongest terms; where the strongest confidence is expressed; where the devisee is a wife, a mother, or a son; and where it is expressly given to their sole and separate use. It has been the established doctrine from the time of Hobart to the present day; and it has been sustained by , the most eminent Chancellors that ever sat in *England. . If this doctrine is not Jaw, what principle of the English law is law here?
    ’ The principle is a sound one. ' In' enquir-ing what is the will of the testator, we are not to look merely to the forms of speech which he may employ, but to-the obvious meaning; and whether that meaning be conveyed in the language of command, or direction, or request, or hope, or confidence, it is equally the will of the testator. The questions to be considered are, does the testator intend and expect his' expressed wishes to be carried out? Would his wishes be thwarted, if his request or hope was n’ot-attended to? If we answer these questions affirmatively, then, whatever - the'form of words by-which-he expresses his wish,, that wish is his will; and his will is the object - and the end of the enquiry.
    What, then, was Randolph Harrison’s will, 'as expressed in this- paper? I have already considered the words in the first clause, to sell or keep for distribution, Ac. : The second clause also shews his wishes as to the manner in which his property shall be disposed of. The request is express that it may be equally divided among his children; and there is nothing here to shew that he relied for the accomplishment of this wish, upon 'the disposition of Mrs. Harrison to effect it. As said by the Master of the Rolls in Malim v. Keighley, this must -appear, positively; the presumption is against it. But in this case the proofs accord with the presumption. He directs that Mrs. Harrison shall provide for some of his faithful slaves, “without regard to the interest of his heirs.” If he was giving the whole estate to her, what interest had his heirs? He should have said, without regard to her interest. But he said the interest of his heirs; thereby shewing that he intended and expected that the request which he expressed, should . be complied with. ’And I put the question : If the widow should give away the whole of the estate to strangers, can any *one deny that it would defeat the testator’s manifest intention?
    But it is said that the subject is uncertain, by reason of the provision for the slaves. If this be so, then there is a resulting trust for the appellants, as heirs. Powell on Devises, 21-Baw Bibr. 204; Wood v. Cox, supra; Stubbs v. Sargon, supra; Fowler v. Garlike, 4 Cond. Eng. Ch. R. 403 ; Morice v. Bishop of Durham, 9 Ves. 399; Deslié v. Devonshire, 2 Bro. C. C. 189; Vezey v. Jamsou, 1 Cond. Eng. Ch. R. 36.
    Does the provision for the slaves, render the subject given to the children uncertain? No more certainty is necessary in these cases of implied trust, than where the trust is express. The cases before cited prove this proposition, especially Carj- v. Cary.
    Considering the provision for the slaves as a charge, if the property belongs to the widow, she is, certainly, not bound to comply with it. There is no person to demand an execution of it; and there is no amount directed to be paid. If the trust for the children is (independent of this provision) valid, she is, for the same reasons, no more bound as trustee than in her own right, to' execute this provision. As trustee, she cannot do it voluntarily, if she is not legally bound. An executor cannot pay- a debt barred by the statute of limitations, or where the consideration is gaming; nor can he execute a general charitable trust. See the cases last cited, and Gibbs v. Rumsey* 2 Ves. & B. 294. ‘
    The provision for the slaves, considered as a trust, is void. Both the object and the subject are uncertain. But the fact - that this trust is void, does not avoid the previous trust in favour of the children. They are not- connected, .with, ■ or dependent on, each’ other; - and-it has-been decided, that, of the trusts of the same property, created by the same will, one may be good, and another void. Pushman v. Filliter, 3 Ves. 7; Eade v. Eade, 5 Mad. R. 118.
    - *The Counsel on the other side has cited Curtis v. Rippon, 5 Mad. R. 434. That case cannot rule this. There, the Court did not refuse to imply a trust in favour of the children, because the legatee was directed to consider the church and the poor; but because the benefit intended to the children was uncertain. As to the children', the subject was uncertain; as to the church and the poor, both the subject and object were uncertain.
    But it is said, that if the will creates a trust, it also gives the estate to the widow for life. There is nothing on the face of the will indicating the gift of a life estate to the widow. It is said, indeed, that the trust is for the heirs of the testator and the widow; and as nemo est haeres viven-tis, the cestuis que trust cannot be known during her life. I have already shewn, I hope, that the word “heirs” means children, in this place; and the argument therefore fails. I need not cite authorities to shew, that the interest passing by the will to the children, vested on the death of the testator ; and as the will fixes no time for the distribution of the estate, and certainly does not expressly postpone it, the estate of the children must vest in possession at the time it vests in interest.
    
      
       He was related to the parties.
    
    
      
      Wills — Construction—Trusts.—In Taliaferro v. Day, 82 Va. 79, 91, 92, the testator bequeathed to his wife his estate both personal and real, with all the profits arising therefrom for life, with the privilege of selling any or all of the real or personal estate that she might think proper and investing the proceeds in other property; and with the further privilege of apportioning the estate between three designated children according to her discretion. It was held that the wife took an estate for life in all her husband’s property and was invested with the legal title thereto, not in her own absolute right but in trust in aid of the purposes of the testator, as expressed in the will; and that the three children took vested interests in remainder in fee in such shares as should be apportioned to them by the wife under the authority of her husband’s will. As authority for its holding, the court cited the principal case; Martin v. Kirby, 11 Q-ratt. 67; Rowlett v. Rowlett. 5 Leigh 21; Hansford v. Elliott, 9 Leigh 79.94; Brent v. Washington, 18 Gratt. 526; Corbin v. Mills. 19 Gratt. 472. .
      In Morgan v. Fisher. 82 Va. 418, the will provided that all the personalty and realty of the testator should belong to his wife as long as she remained his widow; and should she marry, all the property, both real and personal, should be equally divided among his children; but that if she remained his widow, she was to divide the estate among his children at such time and in such portions as she might think just and right. Lewis, P., delivering the opinion of the court, said; “There is no doubt or difficulty as to the interpretation of the will. By its plain provisions the widow undoubtedly took an estate for her widowhood, with power, in case she remained the testator’s widow, to divide the estate among the children, in such proportions as she might see proper, either in her lifetime or by her last will and testament. And it is equally certain that she took the estate subject to the rights of creditors (Code 1873, ch. 127, sec. 3), and also affected by a trust for the benefit of the children. Knight v. Yarbrough, Gilm. 27; Harrisons v. Harrison, 2 Gratt. 1; Steele v. Levisay, 11 Gratt. 454; Rhett v. Mason, 18 Gratt. 541.”
      In Hood v. Haden, 82 Va. 588, the will read, “1 give to my wife, Eloise C. Haden, all my property of every kind, in fee simple, to be held by her without division during her life, only using or dividing the annual income from crops or interest received at any time before her death. At her death to leave to our children such sums or portions as the circumstances then existing, may, in her estimation, think it best to do.” The court said that though the language of the will was “I give to my wife all my property of every kind in fee simple” yet that it was clear from the language immediately following that she was entitled to nothing more than the beneficial enjoyment of the property during her life, with power to leave it, at her death, as directed by the will. For this proposition the principal case, Knight v. Yarbrough. Gilm. 27, and Morgan v. Fisher, 10 Va. Law J. 692, were cited as authority.
      In Cresap v. Cresap, 34 W. Va. 310, 12 S E. Rep. 527, 530, the testator used the following language: “T give and bequeath to my beloved wife, A. C. C., in trust and for her support and maintenance during her life, all my estate, both real and personal, with full power and privilege to sell and convey any, all. or so much of my real estate in such a manner as she may see lit, in as full and complete manner as I myself can do, to sell and dispose of my personal estate, or so much as she may see fit, for her own support, according to her condition in life, and for the benefit of my estate, so tar as she may see proper.” It was held that these words did not confer upon the wife either a fee simple in the testator’s real estate or absolute property in his personalty. In delivering the opinion of the court. English, J., after citing the principal case and setting forth its holdings, quotes (beginning at the first paragraph on p. 14) a page or more from Judge Baldwin’s opinion. Continuing, he says: “I have made this extended quotation from the opinion delivered by Judge Baldwin on account of the great similarity between the clause therein construed and the provisions of the will under consideration, and the direct applicability of the reasoning used therein to the questions raised in this case. We cannot resist' the copclusion.that the testator, Cresap, intended to create a trust. The words, ‘in trust and for her support and maintenance during her life,’ coupled with the. clause granting to her his estate both real and personal, will admit of no other construction.”
      In construing the will in Rhett v. Mason, 18 Gratt. 541, 557, Judge Moncdbe, delivering the opinion of the court, quotes with evident approval from the. dissenting opinion of Judge Bbooke, in the principal case. See the principal case also cited by this same judge in the same opinion at p. 566.
      A clause of the will in Wilmoth v. Wilmoth, 34 W. Va. 426, 434, 12 S. E. Rep. 731, 734, reads, “I give and bequeath to my beloved wife, Hester A. Wilmoth, all my personal property (viz., horses, cattle, money, bonds, farming utensils, household and kitchen furniture, and everything else classed as personal property), to be hers absolutely, to be used by her in any way or manner she may wish for her own comfort and for the comfort and benefit of our two children, Troy Wilmoth and Grace Wilmoth.” It was held that this clause gave the wife an absolute estate in the personalty and that no implied or precatory trust was created thereby for the children. The court, in delivering its opinion, reviews many of the Virginia and West Virginia cases on the subject under discussion. The terms of the will in the principal case are set out and its holding approved; but the court said that the principal case was not controlling nor potential in the case at bar.
      On the subject of precatory trusts, see also, footnote to Reid v. Blackstone, 14 Gratt. 363, where the principal case is cited.
      Trustees — How Discretionary Power Conferred on.— See principal case cited in foot-note to Shearman v. Hicks, 14 Gratt. 96; Whelan v. Reilly, 3 W. Va. 611.
    
   BALDWIN, J.

I think it clear that by the will in question, the testator intended to confer upon his wife the ownership of his whole estate, real and personal; but not for her exclusive benefit. There is an express declaration oi a trust in favour of the children of the marriage, by which thej are entitled to distribution of the estate amongst them; a distribution, however, not immediate or unqualified, but subject to a power and discretion on the part of the wife, the effect of which is to limit the trust; and to enable her, at her own election, to enjoy the whole subject during her life for her own benefit. The scheme of the testator’s testamentary disposition *evidently was to place his wife in his own stead, so far as regards the enjoyment of the property during her life, and the equal distribution of it amongst their children; confiding to her the like parental discretion which if living it would be his province to exercise, in making advancements to them from time to time suitable to their condition and wants; and in the ultimate allotment to them of their respective portions of the residue of the estate. The discretion is broad, but not unlimited. It authorizes her to sell the property for payment of debts, or more convenient enjoyment, advancement or division ; or to keep it for the like purposes in kind: but it gives her no power to bestow it upon strangers, or to dispose of it unequally amongst the children.

The effect of the construction contended for on the part of the children, is to entitle them to immediate distribution of the whole property, so as to deprive the widow of all discretion in regard to the periods for allotment to the -children of their respective portions of the estate; and leave her destitute of all provision for her comfort and maintenance. And this, in that view, we must take to have been the testator’s intent; for we cannot suppose that,he con-; templated her breaking through the dispositions of the will, for the purpose of obtaining the means of subsistence provided for her by law. Thus (upon that construction) while expressing for his wifq the utmost love and confidence, devising to her in terms his whole estate in fee simple, and confiding to her the distribution of it amongst their children, we are to hold the, testator’s intent to have been to leave her penniless. Such a construction is impossible. It is against the whole spirit of the will, and unwarranted even by its letter., The distribution contemplated by the testator was a distribution not at his own death, but at that of his wife, or earlier af her option; with a perfect discretion in her as to the times, manner, amount and proportions, subject *only to the requirement of ultimate completeness and equality in the division.

The construction contended for. on the part of the widow, by which she would hold absolutely for her own use and benefit the whole estate, real and personal, with the power of disposing of it according to her, own mere will and pleasure, so as to leave the testator’s children destitute, and enrich strangers to his blood and affections, I regard as equally unfounded. It is true, by one clause of the will the testator leaves to his wife all his worldly goods, doubtless meaning all his estate, real and personal; but in the same clause the purpose expressed is, “to sell or keep for distribution amongst our dear children.” This was surely the declaration of a trust in their favour. And though by the next clause the devise to her is of all his estate, real and, personal, in fee simple, yet it is accompanied with a request, “to make an equal distribution amongst our heirs.” The only foundation of the widow’s claim to absolute and unqualified ownership, is the language of discretion in the first mentioned clause,- and of request in the second. But the words of discretion in the first, “as she may think proper,” have reference to,the executing, and not the defeating of the trust; and the words of request in the second, “only requesting her to make an equal distribution amongst our heirs,” serve but to shew that her ownership was limited merely for the purposes of the trust, and that the testator desired the distribution required by the trust should be equal. The seqond! clause is an explanatory repetition of the first, and in no wise does it impair the trust, or enlarge the ownership of the widow tq the detriment thereof. The two taken together shew it was the testator’s intention that his wife should succeed him to a qualified ownership of his estate; and that theix common offspring should be the joint and equal “heirs” or distributees of Roth; with a parental discretion in her to accelerate, in, the whole, .or in part, the periods of enjoy-> ment by the childrén respectively.

*The doctrine of precatory bequests is not necessary to sustain, though it may serve to strengthen, the foregoing view of the case. Ret us suppose, instead of the express declaration of trust in the first mentioned clause, the language of request had been employed therein, as well as in the second. The whole will from the end of the preamble would then have read thus: ‘In the utmost confidence in my beloved wife, I leave to her all my worldly goods, and request her to sell or keep the same for distribution amongst our dear children as she may think proper. My whole estate real and personal are left in fee simple to her, only requesting her to make an equal distribution amongst our heirs; and desiring her to do for some of my faithful servants whatever she may think will most conduce to their welfare, without regard to the interest of my heirs. Of course, I wish, first of all, that ail my debts shall be paid. This is my only will.” How then would the doctrine of precatory bequests have borne upon, the construction of the will?

That doctrine (applicable to cases where there is such a testamentary disposition of property to one as is susceptible of a trust in behalf of others) is founded upon the cardinal rule in the construction ■ of wills, that the testator’s intent, when ascertained, is to be carried out, by whatever words conveyed. Hence it has come to be well settled, in such cases, that in order to effectuate the testator’s intention, words of request, recommendation, or hope, may be treated as imperative; and shall be so treated where the objects of the precatory language are certain, and the subjects con-r templated are also certain; unless a clear discretion or choice to act or not to act, be given, or the prior dispositions of the property import absolute or uncontrollable beneficial ownership. 2 Story’s Eq. § 1068 to 1070; 2 Rop. on Reg. ch. 21, ? 6; Rewin on Trusts, ch. S, g 2, p. 77, 81, 24 Raw Ribr.; Jeremy Eq. Jurisd. Book I, ch. 1, § 2, p. 99; 210. Exceptions have been taken by some Judges and writers to "'this treatment of precatory words; while, as thus limited, they recognize the doctrine as established by authority. It seems to me to be well justified by principle.

Where a testamentary benefit contemplated is direct and primary, it is obvious that there is no room for a distinction between the force of peremptory and precatory words. Thus in the devise of an estate, or a tenement, or the bequest of a horse, or a sum of money, the effect is the same whether the testator employs the language of gift, grant or conveyance, or that of request, recommendation or even advice, however awkward or inappropriate any of the latter might .in some cases seem. The difficulty arises where there is first a devise or beqiiest of .the property to one, with the addition of words of request, recommendation or hope in behalf of others; and it consists in the question whether the testator’s intent is decisive in their favour, or merely suggestive or advisory to the first taker. Now, to make that question turn upon the precise intrinsic import of the very words employed, upon the supposition advanced by some, that the testator always understands clearly their true force and meaning, would involve us in verbal criticisms, and chain us down to a literal interpretation; with what success in ascertaining the testator’s intention, common sense, the best and safest guide in such matters, will readily answer.

A testator’s desires in regard to the disposition of his property, to be collected from his will, ought not to be the less obeyed because he has confided the execution of them to another, unless it appears that he designs to subject his own wishes and expectations to the caprice or inclination of the person so entrusted. This idea is quaintly, but comprehensively and forcibly, expressed by Rord Alvanly, Master of the Rolls, in Malim v. Keighley, 2 Ves. jr. 335, where he says: “Wherever any person gives property, and points out the object, the property and the way it shall go, that does create a trust, *unless he shews clearly that his desire expressed is to be controlled by the party, and that he shall have an option to defeat it.” If this were not so, I cannot doubt that the confidence of testators would often be abused, and their testamentary plans defeated. The present case may be tested by the mere question, emphatically and vividly put by the Appellants’ Counsel: If the widow should give away the whole of the estate to strangers, can any one deny that it would defeat the testator’s manifest intention? The question gives the answer, and that answer is decisive.

In the application of the doctrine of prec-atory bequests, to this case, it cannot be doubted that the objects are positively certain, to wit, the children of the marriage. But it is urged that the subject is rendered uncertain by the clause in regard to the slaves, by which the testator expresses his desire that his wife shall do for some of his faithful servants whatever she may think will most conduce to their welfare, without regard to the interest of his heirs. Now, this provision, regarded as a trust, is a mere nullity, it being altogether uncertain, as well in respect to the individuals, as. the nature and extent of the benefit contemplated. Regarded as a power given to the wife, it is not an enlargement of her estate; but a charge upon, and at the same time a recognition of, the trust in favour of the children. It occasions no uncertainty as to the existence of an interest in them, but only as to the value of that interest. The power is limited to a great extent, not only by its terms, but by its very nature; and the unreasonable exercise, or abuse of it, would doubtless be restrained by judicial authority. The uncertainty to which the authorities refer, goes to the whole subject, and bears upon the question of intention. It arises sometimes out of the vagueness of the benefit contemplated, but most usually out of the unqualified enjoyment, or unbounded discretion given by the previous dispositions of the will, so as *to render it altogether uncertain whether any thing will be left for the operation of a trust; and which, therefore, it cannot be presumed the testator intended to create. To this extent, the cases go, and no further.

The result of the foregoing views of the case is, that the widow is invested with the legal title to the whole of the testator’s estate, real and personal, with the beneficial ownership thereof during her life, but in trust for the children of the marriage, at her death, subject to her powers of sale, distribution and advancement above indicated, and to her optional benefactions in behalf of some of the testator’s faithful slaves by the will authorized.

ALEEN, J.,

concurred in the opinion of Baldwin, except that he was of opinion the provision for the slaves was void.

STANARD, J.,

was inclined to the opinion that the adjudged cases favoured the conclusion that the widow, while she had under the will, full discretion to sell and apply any part of the estate for the purpose of paying debts, took under it no beneficial interest in the residue left after the payment of debts, but was trustee thereof for the children, with power to make advancements to them at discretion: so, however, as ultimately to make the shares of each substantially equal. He, however, readily deferred to the opinions of his brethren, and acquiesced in the decree that was to be entered as the decree of the Court.

BROOKE, J.

If a testator has complete dominion over his property, and may throw it into the sea, if he so wills, I can see no reason why he may not give it absolutely to his wife. That the testator so intended in this case, I think there can be no doubt, if language can express ideas. That he did not intend she should give it to *a stranger I admit. The answer to that suggestion is, that he did not believe she would give it to any but their children. Such was his confidence in her affection for them, that he intended to place her in the situation he himself occupied as to his property and children: to give to her the control of both. The will is very short, and I think, too plain for criticism. It may be an imprudent will; but we cannot make wills, but construe them according to the language in which they are expressed. Cujus est dare ejus est disponere. I think none of the English cases cited by the bar, would justify the creating a trust for the children in a case like this.

I think the decree ought to be affirmed.

The decree of the Court was as follows:

The court is of opinion, that by the last will and testament of Randolph Harrison deceased, in the proceedings mentioned, his widow, Henningham C. Harrison, the ap-pellee, is invested, subject to the payment of his debts, with the legal title to the whole of his estate, real and personal, and the beneficial ownership thereof during her natural life, but in trust at her death for the children of their intermarriage, who take a vested remainder therein in fee simple, to be enjoyed at her death, or earlier at her election; and that by said will she has authority to make distribution of said estate, real and personal, amongst, or advancements therefrom to, said children, with full discretion on her part as to the periods, amount and proportions, subject to the requirement of ultimate completeness and equality in the division, and to her optional benefactions in behalf of some of the testator’s faithful slaves by the will authorized; and further, that she has power by said will to make sale of all or any of said estate, real or personal, for payment of the testator’s debts, or more convenient enjoyment, advancement or division, or to keep the same for the like purposes in kind, at her discretion. The Court is, therefore, of opinion, *that the said decree of the said Circuit Superior Court is erroneous in declaring that the appellee, by said will, took the whole of the testator’.s estate, real and personal, subject to the payment of his debts, in absolute property, and that the appellants have no interest therein, and in making that declaration the ground of dismissing the bill of the appellants ; whereas the only proper ground for such dismission was that the appellants have shewn no right to present relief: Wherefore it is decreed and ordered, that said decree of said Circuit Superior Court be reversed and annulled, with costs to the .appellants. And this Court, proceeding, to render such decree as said Circuit Superior Court ought to have rendered, it is declared that the rights of the parties are as above set forth: Therefore it is decreed and ordered, that the bill of the appellants be dismissed, but without costs, and without prejudice to their rights as aforesaid, or to such remedies as may hereafter accrue to them to enforce the same, and the due execution of the aforesaid trust.  