Lines vs. Darden and Wife-Argument of Counsel. intended to make the children independent of their mother; on the contrary, we think the reverse was the intention of the testator, and that our opinion is the only one fairly and rationally to be deduced from the peculiar provision. In seems as if it was to insure the continuance of a proper respect, that they were made dependent upon the mother's discretion. 2. But such construction of precatory or recommendatory words, (i. e. the creation of a trust,)) will not prevail, where either the objects intended to be benefited are imperfectly described, or the amount of property to which the trust should attach is not sufficiently defined; for the difficulty that would attend the execution of such imperfects trusts, is converted by the Court into an argument that no trust was really intended. Lewin on Trusts, 78. 1 Jarman on Wills, 338. Uncertainty of amount, Lechmere vs. Lavie, 7 Eng., Chy. R., 331. Sale vs. Moore, 2 Eng. Chy. R., 270. Tibbitts vs. Tibbitts, 19 Vesey, 664. Abraham vs. Allman, 1 Russell, 515. Wright vs. Atkins, 11 Eng. Chy. R., 83. Gilbert vs. Chapin, 19 Conn. R., 342-5. The indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the Court as evidence that the mind of the testator was not to create a trust. Per Lord Eldon. Morice vs. Bp. of Durham, 10 Vesey R., 536. Pope vs. Pope, 10 Simons R., 1. A wife, having a discretion given her, was held to take an absolute estate for life, without any binding trust in favor of the children. Thorp. vs. Owen, 2 Hare R., 607, cited in 2 Crabb on real property, Sec. 1773. None of the cases where precatory words were held to be a trust, are like the case before the Court; they are all with respect to some estate to be enjoyed after the death of the person to whom the power is confided. There is not Lines vs. Darden and Wife-Argument of Counsel. one where a child, who is the heir at law, has been held a trustee for remoter kindred as to the estate devised. None where grand-children who are to take in remainder have been allowed to take a lion's share out of the life estate devised to the heir at law. The quantum of property to be loaned is indefinite; the provision is, "shall receive a portion." Nothing can be more indefinite and uncertain, and it seems to illustrate most forcibly the principle of equity stated by Lord Eldon. It is evidence of the intention of the testator that he did not intend to create a trust, but confided entirely to the discretion of his daughter. As to the cases of uncertainty and indefiniteness in the subject matter of a disposition by devise or bequest, see collection of them in 1 Jarman on Wills, 315, et seq. See also Lechmere vs. Lavie, 7 Eng. Chy. R., 331. Stubbs vs. Sargon, 2 Keen's R., 255-274. Ommauney vs. Butcher, 11 Eng. Chy. R., 144. Fowler vs. Garlike, 4 Eng. Chy. R., 403. In Henry vs. Hancock, there was a devise to a female and if she married a man with less fortune than the property devised, then over to another so far as the deficiency existed. It was held that the devise over was void for uncertainty, 2 Dow's Parlm. Cases, 145-191. In Peck vs. Halsey, a bequest of "some of my best linen" was held void for uncertainty. 3 P. Wms. R., 387. In Bull vs. Kingston, a bequest of personal property to a trustee for the use of a married woman, with power to dispose of the same by will, and if no disposition, then as to what should be left over to others; held void for uncertainty. 1 Merivale R. 314. In Wynne vs. Hawkins, a bequest to the wife of all testator's property, not doubting but that she will dispose of what should be left at her death to two grand-children, Lines vs. Darden and Wife-Argument of Counsel. held uncertain what property was to be given, and therefore no trust raised. 1 Brown Ch. C., 179. In Jubber vs. Jubber, a bequest of "a handsome gratuity" to the executor held void for uncertainty. R., 509. 9 Humphries, 302. 9 Simons Those cases which were cited by the Counsel for com plainant in the argument below, of seemingly very uncertain amounts, or values of property which had been supported as trusts, are clearly distinguishable from the case at bar. Here there is not only uncertainty in the description of "a portion," but there is nothing in the will by which it may be rendered certain. There is no rule given to govern the loan, nor is there any state of facts by which the portion is to be or can be measured, and therefore the Court cannot "look with the eyes of trustees," and subst!tute its judgment for that of the individual. For instance, in the case of Hewitt vs. Hewitt, cited in Lewin on Trusts, from 2 Eden's R., 332, was upon the subject of a fall of Timber by tenant for life, subject to the approval of certain trustees; there the Court substituted its officer in the place of the trustees, because this matter of cutting timber is, in England, reduced to a certain rule, being held to extend only to timber which was mature, and therefore fit to cut. The interposition of the trustees was to prevent waste by the tenant cutting such as were unfit. In Maberly vs. Turton, cited from 14 Vesey, 499, the maintenance of the children was the question; a fact which could be ascertained, and therefore was referred to the master, to report upon the propriety of the application. The principal authority on the subject, is said to be Gower vs. Mainwaring, and is cited in Lewin on Trusts, p. 578, and in which Ld. Hardwicke lays down the rule in these terms:-"Where trustees have power to distribute 66 Lines vs. Darden and Wife-Argument of Counsel. generally, according to their discretion, without any object pointed out, or rule laid down, the court interposes not, unless in case of a charity, which is differ"ent," &c. In that case, there was a rule given to the trustees; they were to distribute among the settler's relations "where they should see most necessity." &c. The case of Knight vs. Yarborough, cited from 1 Gilmer's Va. Reports, 27 was a question of illusory appointment, by will, by tenant for life disposing of the fee in the property, under a power, and is wholly inapplicable to ine case at bar. So also Hudson vs. Hudson, cited from 6 Munf., 352, 356. A widow holding a life estate, with power of appointment after its determination of the fee among the testator's children, it was held that she could not exclude one of them. Neither is all applicable to the question involved herein. VS. The only analogous case which we have been able to bring to the notice of the court, is that of Burdett Young. There the testator gave the residuum of his estate to his wife for her life. By a subsequent clause, he gave £1,000 each to two grand-children, on their attaining the age of twenty-one years, or marrying. The grand-children having married, brought their bill to obtain the legacies. Baron Price, who heard the cause, decreed that the legacies were payable only on the death of the tenant for life; this decree was reversed by the Lord Chancellor on appeal, but his decree was reversed in the House of Lords, and the decree of Baron Price affirmed. See 3 Brown's Parliament Cases, 45. W. G. M. Davis for appellees. 1. The language of the third clause of the will is imperative, and is addressed to the executor and executrix as such. Lines vs. Darden and Wife-Argument of Counsel. The bill of Robinson, the testator, should be construed as the will of the parent, he having put himself in loco parentis to the children. Story Eq., Vol. 2, Sec. 1111 and 1114. The words used are such as have always been held to create a trust, unless controlled by the general intent. Harding vs. Glynn, 1 Atkins, 469; Ecles et ux. vs. England et ux., 2 Vernon, 466; 5 Iredell (1844) p. 422, 454; 3 Merivale, 437. Technical words, or others which have received a legal definition, will be taken in the legal sense, unless, from the contents of the will, it plainly appear that the testator intended them in a different sense. Lovelass on Wills, 276. The court will abide by the prima facie intention, the settled meaning of the words, unless driven out by strong, solid and rational interpretation, and plain inference drawn. from the rest of the will. Dean vs. Test, 9, Vesey, Jr., 152, 154; Jones vs. Colbeck, 8 Vesey Jr., 42. The language is addressed to the executor and executrix as an express direction, and not to the legatee or devisee, Sarah A. Lines, and is not within the authorities cited as to bequests. 9 Pick., 395, 401; 10 Smede & Mar., 466; 1 Richardson S. C. Eq. R., 324; Lott vs. Meacham, Flor. R. '51, p. 144; 6 Mass., 37; 2 Story Eq., 976. 2. A totally different rule exists in cases where the testator addresses a direction as to his estate to an Executor, from that which prevails in cases of recommendations, requests &c., addressed to a person to whom a previous absolute estate has been given. Pierson vs. Garnett, 2 Brown C. C., 226; Cloudesly vs. Pelham, 1 Vernon, 411; Nolligan vs. Nolligan, 1 Brown C. Cases, 491; Remarks of Sir William Grant in case 8 Vesey, 22; Ericcson vs. Willard, 1 N. Hamp., 217; Burrough vs. Philcox, cited at page 345, |