The Law of Wills ... - Isaac Fletcher Redfield - Google Buku

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44. This has been carried so far as to reject one name and substitute another 692, 693

45. Some extreme cases occur where description supersedes the name

46. Where the name and description both fail to identify the devisee, the de-

47. But where the description is supported by circumstances, it controls the

48. The will must be incapable of any clear meaning, to be held void for

49. Mere error or defect in name, or description, not sufficient

50. No general course of decisions in American courts in regard to uncertainty

694, 695

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

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

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

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

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 bene-

ficial interest

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

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

b. Where the donce has a joint interest with others, he may also be

compelled to act

c. Cases where the gift is absolute, and the wish of the testator ex-

presses merely his motive

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

e. Recommendations in favor of tenants, agents, and stewards, en-

forced in courts of equity

f. 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 Law-

h. The late English cases manifest the same inclination

i. Trustees having a discretion, under control of courts of equity, if

714-716

k. Decision of United States Supreme Court upon the question

1. Mr. Justice McLean's opinion upon the point.

717, 718

m. Early case in Connecticut .

n. Subject further considered and rule more definitely established
o, and n. 67. Cases in Vermont and other states.

718, 719

719, 720

SUGGESTIONS TO THOSE EMPLOYED IN DRAWING WILLS.

1. The time of making wills, too often deferred till the testator is incom-

n. 1. Care should be exercised, not to assist in making a will, which is not

the act of disposing mind, and memory

2. Great care should be taken, that testators effect what they desire, or

3. Testators often dependent, to a great extent, upon legal advice, as to the

form of their wills.

4. Care is often requisite to translate the testator's language accurately

5. Counsel should be careful to understand testators, and be understood by

6. Mr. Jarman's hints as to description of estates, intermediate profits, and

charge for debts

7. In relation to securing property to wife and children

n. 4. It is always safe to advise testators against embarrassing the trans-

mission of the title to estates

Forms of Wills and Family Settlements, etc., with Notes

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