testator gave to his namesake, Thomas Stockdale, the second son of his brother John Stockdale, there being no son of his brother of the name of Thomas, it was held the second son should take the bequest.70 45. And there have been cases where the person precisely answering the name in the will has been rejected, and the bequest given to another, imperfectly answering the name, but evidently intended. As upon a gift to Clare Hannah, the wife of A., whose wife was named Hannah, but who had an infant daughter named Clare Hannah, it was held the wife was clearly entitled, as it was impossible to suppose the testator could have called an infant daughter a wife.71 And in one case, where the testator, after a gift to four children of my cousin A., made a gift to the remaining three children of "my uncle A.," it appearing that the cousin at the time had seven children, and the uncle three grandchildren; one of the uncle's grandchildren having deceased; it was regarded as a gift to the "remaining" three children of the cousin, notwithstanding the will named three children of the uncle, who might in some sense be regarded as represented by the three remaining grandchildren of the uncle.72 46. In a late case,73 in the House of Lords, it was held, that where the testator devised an estate for life, to his "sister, Mary Frances Tyrwhitt Drake," he having no sister, but a sister-in-law 70 Stockdale v. Bushby, G. Cooper, 229; 19 Vesey, 381; Doe d. Cook v. Danvers, 7 East, 299. In this last case the devise was to Mary Cook, wife of Cook, and a married woman of the name of Elizabeth Cook was allowed to take, it appearing the testator had no other relative of that name, and that she was the person intended. 71 Adams v. Jones, 9 Hare, 485. 72 Bristow v. Bristow, 5 Beav. 291. This case may be regarded as somewhat in conflict with the general current, of the English decisions. It sounds more like an American case, where the obvious justice of the particular case had served to disguise the general principle of law upon which the case might have been decided. "Drake v. Drake, 8 Ho. Lds. Cas. 172. of that name; and after other devises, gave the residue to certain persons named, and among the number one was described as "my niece, Mary Frances Tyrwhitt Drake," the testator having no niece who bore that whole name, but nieces who bore one or other of the names, it was held, that this portion of the bequest was void for uncertainty. 47. And where the testator made provision in his will, for all the children of his brother Joseph, "except the oldest son, Thomas," and it was shown, by extrinsic evidence, that the oldest son of his brother Joseph, to the knowledge of the testator at the time of making his will, was possessed of a large fortune, but that it was the youngest son, who was named Thomas," who with the other children, except the oldest, were unprovided for, it was held that the eldest son, and not Thomas, was the one intended to be excepted.74 48. The rule, in regard to what degree of uncertainty will render a will or a devise void, is much the same in the American courts, which we have deduced from the English cases. Thus, it was said, in Townshend v. Downer,75 that a devise is never declared void, upon the mere ground that the description of the subject-matter is indefinite; - but only when, after resort to oral proof, it still remains mere matter of conjecture, what was intended by the instrument. The will must be incapable of any clear meaning. It is not enough that it is obscure, or that its apparent import is absurd.76 49. We have already seen," that where the description of the 74 Hodgson v. Clarke, 1 DeG., F. & J. 394. 75 23 Vt. 225. 76 Wootton v. Redd, 12 Grattan, 196. But it is not enough to invalidate a will, for uncertainty, that all the particulars, which the testator has specified in the will, as descriptive of the subject, or object, of a devise, cannot be made to harmonize with extrinsic facts, or in any way to apply to what is indicated by the other portions of the description. Drew v. Drew, 8 Foster, 489; Hammond v. Ridgely, 5 Har. & J. 245; Woods v. Woods, 2 Jones, Eq. 420. "Ante, § 40. legatee is erroneous, or the name defective, or mistaken, to any extent, it will not defeat the bequest, if the person, whether natural or corporate, is so far identified, either by the name or description, that there is no difficulty in determining the intent of the testator. The words, "members of my family," have been held sufficiently definite.78 50. The question of uncertainty, in regard to wills, or other instruments, has been allowed to have so small an influence in the decisions of the American courts, that there is no general course of decisions in regard to the matter. The rule, if any can fairly be said to be established, is what has already been declared and repeated, in different forms, that it must result in mere guess, or conjecture, after all the aids derivable from extrinsic evidence, what the testator did name. And this is a dilemma, which, with our proverbial fertility in expedients, will very seldom occur. And we are glad to believe, that the English courts are coming, more and more, upon this ground: and that it is the true ground in regard to this subject.79 The rule declared, in the case last cited, was, that a mere misdescription of the legatee does not render the legacy void, unless the ambiguity is such as to render it impossible, either from the will or otherwise, to ascertain who was intended as the object of the testator's bounty. 78 Hill v. Bowman, 7 Leigh, 650; Douglas v. Blackford, 7 Md. 8. But see Janey v. Latane, 4 Leigh, 327, where the devise was held void. 79 Smith v. Smith, 4 Paige, 271; s. c. 1 Edw. Ch. 189; Bull v. Bull, 8 Conn. 47. SECTION II. DEGREE OF CERTAINTY REQUIRED TO CREATE VALID TRUSTS. 1. Where a trust is created for the benefit of objects to be selected by the trustee, it is void for uncertainty. 2. But where the general purpose is pointed out, the court may carry it into effect. 3. To create a binding trust the words must be imperative, and the object, and subject, both certain. 4. Where either the object, or subject, of a trust cannot be ascertained, the trust fails. 5. And where it appears, that the object was defined in some way not known, it will fail. 6. Mere recommendation creates trust, if the subject and object is clearly defined. 7. Courts of equity will aid trustees in carrying their duties into effect, but will not absolutely control them. a. Where a power is connected with a trust, the court will enforce its execution. b. Courts of equity will aid the trustees, by removing obstructions. 8. Decisions in regard to trusts constantly varying, and early decisions not always reliable. 9. Precatory words sufficient, where the intent is clear, to create a beneficial in terest. n. 14. Digest of numerous cases upon this point. 10. The real question in such cases always is, whether testator intended to control the trustee. 11. But there are many exceptional cases, where words of devise have been held obligatory. 12. The proper course seems to be, to follow the natural import of the words. 13. Money given absolutely to the legatee, but for a special purpose. 14. If the trustee has an absolute discretion, it will control the title of cestuis que trust. 15. But where others besides the donee are interested, courts will interfere. a. If the donee is a mere trustee, without interest, he is compellable to act. c. Cases where the gift is absolute, and the wish of the testator expresses n. 45. Cases where there was only a moral, or no obligation before. n. 50. Cases where the gift is to those owing a legal obligation to perform the duty expressed. d. The whole subject of trusts created by precatory words rests on no sound basis. e. Recommendations in favor of tenants, agents, and stewards, enforced in f. courts of equity. But this rule is shaken, if not overruled, in Lawless v. Shaw. g. Some of the American cases seem to favor the same view, as Lawless. Shaw. h. The late English cases manifest the same inclination. i. Trustees having a discretion, under control of courts of equity, if they abuse it. k. Decision of United States Supreme Court upon the question. 1. Mr. Justice McLean's opinion upon the point. m. Early case in Connecticut. n. Subject further considered and rule more definitely established. § 43. 1. Where a person indorsed a promissory note for £2,000, and sent it by letter to another, giving it to her for her sole use and benefit, for the express purpose of enabling her to present to either branch of the donor's family any portion of the principal or interest thereon, as she might consider most prudent, and in the event of the death of the donee, empowered her to dispose of the fund by will or deed to those, or either branch of the family she might consider most deserving thereof, it was held, that this letter created a trust, the objects of which were too undefined to enable the court to execute it, and that the £2,000 formed part of the testatrix's general personal estate.1 2. And a gift to trustees of a fund to be expended in private charity, is too indefinite to enable the court to carry it into effect. A trust to be carried into execution in equity must be of such a nature that it can be under the control of the court. And if the trust be ineffectually created out of personalty, the fund will go to the next of kin. It is here sajd, if any particular object, as the erection of a school, or even a general 2 1 Stubbs v. Sargon, 2 Keen, 255. This case was affirmed, 3 My. & Cr. 507. Ommanney v. Butcher, 1 Turner & Russ, 260. |