adds some expression importing a "confidence," "firmest persuasion," a "request," a "hope," a "desire," an "expectation," a "recommendation" or other words of a like nature that that person will deal with the property in a particular manner.

There are very numerous reported decisions from early days down to the present time, but practically speaking no one will is of much (if any) assistance in construing any other will in this respect, and it is noteworthy that no single reported case is mentioned in any of the judgments delivered in the House of Lords in the recent case of Comiskey v. BowringHanbury, [1905] A. C. 84.

Two examples may be given in illustration of the general principles :

(1) A testator gave, devised and bequeathed to his wife "the whole of my real and personal estate and property absolutely in full confidence that she will make such use of it as I should have made myself and that at her death she will devise it to such one or more of my nieces as she may think fit and in default of any disposition by her thereof by her will or testament I hereby direct that all my estate and property acquired by her under this my will shall at her death be equally divided among the surviving said nieces."

Neither the Court of Appeal, [1904] 1 Ch. 415, nor the House of Lords was unanimous, but it was held by the latter (reversing the former) that upon the true construction of the will there was an absolute gift of the testator's real and personal estate to his wife, subject to an executory gift of the same at her death to such of his nieces as should survive her, equally if

more than one, so far as his wife should not dispose by will of the estate in favour of such surviving nieces or any one or more of them. Comiskey v. Bowring-Hanbury, [1905] A. C. 84.

It should be observed that the contention that some of the nieces were at all events to have the property was much assisted by the last clause commencing" and in default"; but for this clause it is at least probable that the widow would have taken the whole unfettered by any gift over. The terms of the obligation and the persons to benefit by it were sufficiently definite, the only doubt being whether an intention had been shown to impose an obligation. (2) A testatrix gave all her property equally amongst her two daughters as tenants in common for their own absolute use and benefit "and added "My desire is that each of my said two daughters shall, during the lifetime of my son, pay to him one-third of the respective incomes of my said two daughters accruing from the moneys and investments under this my will." It was held that the above clause was merely intended to express a wish, and not to impose an obligation, and that no trust was created in favour of the son. In re Oldfield, [1904] 1 Ch. 549.

Where (as is frequently the case) the gift is to a parent, with ambiguous words which may or may not create a trust for his children, the same principles apply; the main point to be considered is whether the children are at all events to take something; if so, the gift may be cut down to a life interest to the parent with remainder to the children, or to a gift to the parent with an executory gift over to surviving children (if any), which is practically the same thing

in the event of there being any surviving children; but if it appears to be left to the discretion of the parent whether the children are to have anything at all, no trust will be inferred.

The Court in modern times is not so eager as formerly to infer "obligations," i.e., trusts, from ambiguous language.

'In some of the older cases obligations were inferred from language which in modern times would be thought insufficient to justify such an inference." In re Williams, [1897] 2 Ch. 12.

M.W.

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CHAPTER XXXII.

SECRET TRUSTS.

IT sometimes occurs that a testator does not fully disclose in his will the trusts upon which he desires his property or some part of it to be held, but relies upon verbal or written instructions to a legatee, and the question arises whether and to what extent such trusts are enforceable, and if they fail wholly or partially who is entitled to the proceeds.

The cases fall into two main divisions:

First. Where the testator purports upon the face of the will to give the property absolutely, but it is alleged that he intended it to be held upon some secret trust.

Secondly. Where the testator gives property to persons in such terms as to show that they are to hold it as trustees, but the trusts are not declared upon the face of the will.

First. Where property is, in terms, given absolutely to A., but a secret trust is alleged.

In order to establish a trust, the persons alleging it must prove affirmatively.

(1) That the testator, so far as his own mind and intention was concerned, gave the property to A. in order that he might take, not beneficially, but as trustee for the accomplishment of some trust.

(2) That the mind and intention of the testator was made known to A. before the testator's death, and

was accepted either expressly or tacitly by A. upon that footing. Jones v. Badley (1868), 3 Ch. 362; and In re Pitt-Rivers, [1902] 1 Ch. 403.

In the absence of proof of both the above points A. will take the property for his own benefit. But if they be satisfactorily proved, evidence can also be given of the terms of the trust.

Parol evidence is admitted to establish the trust.

It may be thought that the principle of admitting parol evidence conflicts with s. 9 of the Wills Act, which enacts that no will (including every part of a will) shall be valid unless it is in writing and executed in the prescribed manner, and it is true that this case is to some extent an exception, for it is obvious that the parol trust cannot be admitted to Probate and yet it is enforced as part of the testator's dispositions.

The principle of admitting parol evidence is justified upon one (or both) of two grounds.

In Jones v. Badley, Lord Cairns states the matter thus: "Where a person, knowing that a testator, in making a disposition in his favour, intends it to be applied for purposes other than for his benefit, either expressly promises or by silence implies that he will carry the testator's intention into effect, and the property is left to him upon the faith of that promise or undertaking, it is in effect a case of trust, and in such case the Court will not allow the devisee to set up the Statute of Frauds or rather the Statute of Wills, by which the Statute of Frauds is now in this respect superseded, and for this reason; the devisee, by his conduct, has induced the testator to leave him the property, and as the Lord Justice Turner says in Russell v. Jackson (10 Hare, 204), no one can doubt that if the devisee had stated that he would not carry into effect the intentions of the testator, the disposition in his favour would not have been found in the will. But in this the Court does not violate the spirit of the statutes; but for the same end, namely, prevention of fraud, it engrafts the trust on the devise by admitting evidence which the statute would in terms exclude, in order to prevent a devisee from applying property to a purpose foreign to that for which he undertook to hold it. (Quoted from Wallgrave v. Tebbs (1855), 2 K. & J. 313.) Another test which is