a disposition. But if he had desired that she should have given to a particular person; it would have been a good devise, and a trust. Bland, 9. Lady Bland devised her manor of Withington, Bland v. subject to her debts and charges, to her son Sir John Hil. 1745. Bland, his heirs, executors, administrators, and assigns MSS. Rep. for ever; and did thereby earnestly request her said son, that in case of failure of issue of his body, he would some time in his lifetime, either by will, or any other writing, convey and settle the said real estate so devised by her to him, or so much thereof as he should stand seised of at the time of his death, so and in such manner as that after failure of issue of his body, the same might come to be enjoyed by her daughter, and the heirs of her body; with several remainders over. Sir J. Bland disposed of the manor of Withington by his will. Lord Hardwicke said, that in law, Sir John Bland clearly had a power of disposing; the devise being to him and his heirs, not subject to any trust: but whether he had such an estate in equity was the doubt; which depended upon the request in Lady Bland's will, whether imperative or not; for if it was the former, Sir J. Bland must then be considered as a trustee for the uses in the will. In order to make such construction, the party must declare his will, and not leave it purely to the option of the devisee, whether he will or will not give the estate. There had been many cases in the Court of Chancery where clauses directory had been taken for a disposition; as in those of Mason v. Limbery, and Massey v. infra, § 15, Sherman, where there were the words trust and confidence. But as it was so in some instances, it might be otherwise in others; and the request to be com Fitzg. 314. Cunliffe v. cited Prec. in plied with barely at the devisee's discretion. In the present case he thought Lady Bland did not mean her request to her son as imperative, but discretionary; for he was not desired to settle any part of the lands, but might sell the whole if he pleased; and this was a bare request, not obligatory, but subject to his judgment, as to such parts as he should die seised of. He might have sold them for a valuable consideration, might have advanced a son or daughter in marriage with them, or put them to any other use he should think fit. It was said that the debts and charges to which the lands were liable, answered the doubt arising from the words so much. But the payment of debts and legacies, had no sort of connexion with, and bore no relation to, the time of his death; which was the only point of time to which the request related. And this brought it very near to the case of the Attorney General v. Hall, before Lord King; where it was held that the absolute property vested in the son, and that he might dispose of it. Here it was not a bare power, but the fee itself that was given; and his power of disposing was not collateral, but flowed from the nature of the estate given him. He was therefore of this opinion upon the penning of the will, by which he did not mean to contradict former cases, wherein there was a desire to settle a particular thing; here being no such desire, either as to any particular part, or the whole, but all absolutely left in Sir J. Bland's power, to dispose of or not, as he should think fit. 10. Sir E. Cunliffe devised certain sugar-houses and stock in trade to his son Sir E. Cunliffe the Cha. 201. n. plaintiff's brother; nevertheless, in case Sir E. Cunliffe should die without a son, he recommended it to him give and devise the said premises to the plaintiff. It was held by the Lords Commissioners Aston v. Smythe, that the word recommend was not sufficient to raise a trust in favour of the plaintiff. 11. A testatrix gave her fortune to A.; and if he Le Maitre v. should die without issue, she recommended it to him Bannister, cited Prec. in to do justice to B. and her children, if she should Cha. 201. n. think them worthy of it. But if any unforeseen accident should make the whole, or any part, accept able or serviceable to him, he might dispose of it, if he should think fit. It was held to be no trust. 12. R. Harland being seised in fee of the manor of Harland v. Trigg, Sutton, devised it to his eldest son Philip for life, with 1 Bro. Rep. remainder to his first and other sons in tail male. 142. Philip entered upon this estate; and being possessed of leasehold estates in Sutton, some for lives, and others for years, by his will gave his leasehold estate for lives to the trustees of his father's will, to the same uses to which the lands devised by the father's will were limited, so far as by law he could. And then followed this clause," All my other leasehold estates in the parish or township of Sutton, I give to my brother J. Harland for ever, hoping he will continue them in the family." Lord Thurlow held, that the will in this instance did not import a devise, as the words did not clearly demonstrate an object. 18. The words, "not doubting but that she (the Wynne v. devisee) will dispose of what shall be left at her Hawkins, death to our two grand-children," were decreed not to amount to a devise. 1 Bro.R. 179. a Trust. 14. Notwithstanding the authority of the preceding But somedeterminations, there are some cases in which words times raise of desire or request have been held to be imperative and legatary, and consequently to create a trust; Richardson v. Chapman, where the property was certain, and the objects of 7 Bro. Parl. the testator's bounty clearly pointed out. Ca. 318. Massey v. Harding v. Nowlan v. Nelligan, 1Bro. R. 489. Bute v. Stuart, 1 Bro. Parl. Ca. 476. 15. A person devised a copyhold to his wife in fee; adding these words, "not doubting but that my wife will dispose of the same to and amongst my children, as she shall please." This was held a trust for the children, as she should appoint. 16. N. Harding devised to Elizabeth his wife all his estate, leases, and interest in his house, &c. "But did desire her, at or before her death, to give such leases, houses, &c. unto and amongst such of his own relations as she should think most deserving and approve of." And made her his executrix. The wife survived; but died intestate. It was decreed, that as the word relations was a legal description; this was a devise to such relations, and operated as a trust in the wife, by way of power of naming and appointing; and her nonperformance of the power did not make the devise void, but the power devolved on the court. It was therefore decreed, that the property devised (being personal) should be divided according to the 'statute of distributions. 17. E. Wortley devised his collieries and coal mines to trustees, their heirs, executors, administrators and assigns, upon trust to convey and dispose of the same in such manner as his daughter, whether sole or covert, should direct or appoint by any writing or writings under her hand and seal. And in a subsequent part of the will the testator declared, that although his meaning was to give his said daughter the absolute disposal of the said collieries, to prevent the expence and trouble that must attend the management of affairs of such a nature under the direction of the Court of Chancery, he requested his said Idaughter to direct the money arising therefrom to be applied in such manner as he had directed the same in default of her direction and appointment. A question having arisen on the construction of this will, whether Lady Bute had an absolute power of disposing of the collieries, Lord Henley declared that the testator did not intend to empower Lady Bute to direct the trustees to dispose of the premises for her absolute benefit, or without consideration; but that he intended only to give her a power to have the same sold, and that the money arising therefrom should be applied to the purchase of lands, in the same manner as the clear profits of the premises, in case she had made no appointment. And decreed accordingly, which was affirmed by the House of Lords. 2 Bro. R. 38. 226. 18. Doctor Garnet, bishop of Clogher, devised the Pierson v. Garnet, residue of his personal estate to P. Pierson, his executors, administrators, and assigns, adding these words, -"And it is my dying request to the said P. Pierson, that if he shall die without leaving issue living at his death, that the said P. Pierson do dispose of what fortune he shall receive under this my will, to and among the descendants of my late aunt Ann Coppinger, his grandmother, in such manner as he shall think proper." It was decreed by Sir L. Kenyon (M. R.), and affirmed by Lord Thurlow, that these words were imperative; and created a trust in favour of the descendants of Ann Coppinger. Wright v. Atkins, 313. 9 Ves. 323. Devises by 19. The Courts have in some instances allowed of a devise by implication, where it has been very ap- Implication. parent, in order to support and effectuate the intention of the testator; but in cases of this kind, the implication must be a plain, and not merely a possible or |