Bernard v Minshull
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 1859 |
| Date | 11 May 1859 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 427
HIGH COURT OF CHANCERY
S. C. 28 L. J. Ch. 649; 5 Jur. (N. S.) 931. See Irvine v. Sullivan, 1869, L. R. 8 Eq. 678; In re Eyre, 1883, 49 L. T. 260; In re Bagot [1893], 3 Ch. 359.
Trust. Precatory Words. Certainty of Object. 7 Will. 4 and 1 Vict. c. 26, s. 27. Feme Coverte. Separate Use. Power of Appointment. Residuary Beguest. "All Other."
[276] bernard v. minshtjll. April 30, May 2, 11, 1859. [S. C. 28 L. J. Ch. 649; 5 Jur. (N. S.) 931. See Irvine v. Sullivan, 1869, L. E. 8 Eq. 678 ; In re Eyre, 1883, 49 L. T. 280; In re Bagot [1893], 3 Ch. 359.] Trust. Precatory Words. Certainty of Object. 7 Will. 4 and 1 Viet. c. 26, s. 27. Feme Coverte. Separate Use. Power of Appointment. Residuary Beguest. " All Other." The maxim, that a certain subject and a certain object are necessary in order to constitute a trust where the words used are precatory only, explained. To constitute such a trust as shall exclude the donee to whom the precatory words are addressed, it is sufficient if it appears that a trust was intended, although the object of such trust cannot be ascertained. The 27th section of the late Wills Act (7 Will. 4 and 1 Viet. c. 26) applies to married women having testamentary powers of appointment exercisable during coverture, equally with persons sui juris. And so also the 10th and other sections of the Act-obiter. Testamentary appointment by a wife of £13,000 to her husband "absolutely," 428 BERNARD V. MINSHOLL JOHNS. 277. followed thus :;-"But it is my request that, after reserving for his own absolute use and benefit" £2000, part of that sum, "and applying all the interest, &c., arising from the above settled property to his own sole use and benefit during his life, he will make such disposition of the remainder by will, deed or settlement as he may deem most desirable to carry out my wishes, often expressed to him by word." The testatrix had never expressed to her husband, by word or otherwise, any intention or wish as to the disposition of the remainder. Held, nevertheless, that, as to the remainder, a trust was intended, and, a trust being intended, that the husband was excluded. The husband admitted that " it was his opinion, judging from conversations with his wife, that it was her wish at her decease that her own relations of different degrees, or some of them, should be the parties benefited. Held, that, even if the husband had admitted that he knew the testatrix intended a class so vague and indefinite to be the parties benefited, the Court could not raise on that admission, upon the principle of Brown v. Higgs (8 Ves. 561), a trust in their favour. But held, that the property in question passed to the husband under a subsequent bequest to him in the will of "all and singular other the testatrix's property," notwithstanding the clear intention to except it from the earlier appointment in his favour. The question in such cases is whether the property is excepted in order to take it away, under all circumstances and for all purposes, from the person to whom the rest is given, or whether merely for the purpose of giving it to someone else. The Plaintiff's late wife, Martha Bernard, deceased, by a will or testamentary appointment executed by her in 1850, after reciting, as the fact was, that her late father, by his will and by certain codicils thereto, had bequeathed to trustees a sum of £13,000 sterling, and also certain shares in other real and personal property in the said will and codicils, or one of them, particularly mentioned or referred to, upon trust for her use and benefit during her life, with a power to her in certain events therein named to appoint and dispose of by will the said sum of £13,000 and other trust property, proceeded as follows :-" Now, it is my intention to exercise the said power of appointment, and accordingly I hereby appoint the said £13,000 and the [277] said other trust property so vested in trustees by the will and codicils of my late father to go as follows, that is to say, the whole to my husband Thomas Bernard," meaning the Plaintiff, " absolutely; but it is my request to him that, after reserving for his own absolute use and benefit the sum of £2000, and applying all the interest^ rents, and dividends arising from the above settled property to his own sole use and benefit during the term of his natural life, he will make such disposition of the remainder by will, deed, or settlement, as he may deem most desirable to carry out my wishes often expressed to him by word. And as to all and singular other my property and estate, real and personal, whatsoever and wheresoever situate, whether secured to me by marriage settlement or otherwise, I give, devise, and bequeath the same absolutely to my said husband Thomas Bernard. And I appoint my said husband my sole executor of this my last will and testament." Difficulties having arisen as to the construction of her will, the bill was filed by the husband of the deceased against her next of kin under the Statutes of Distribution, to determine the rights of the parties. The bill contained in the seventh paragraph the following statement, with which the Defendants, by their counsel at the Bar, expressed their desire to rest satisfied, as the utmost within the Plaintiff's power to admit with reference to the wishes of his deceased wife referred to in her will:- "The said Martha Bernard never during her life expressed to the Plaintiff, by word or otherwise, any intention or wish as to the disposition of the said sum of £13,000 (less the sum of £2000), given to the Plaintiff for his absolute use and benefit, or of the said other trust property over which she had a power of disposition, and of which she disposed [278] by her will, or of any part thereof respectively. She often, in conversations with the Plaintiff, referred to a disposal of her property, but never expressed herself definitely on the subject; and the Plaintiff believes, from such conversations, that, at the date of her will, and also at the time of her JOHNS. 279. BERNARD V. MINSHULL 429 decease, she had not made up her mind for whose benefit she would wish the said trust funds, or any part thereof, to be applied after the decease of the Plaintiff. It is, however, his opinion, judging from conversations which he had with her during her last illness, that it was her wish at the period of her decease that her own relations of different degrees, or some of them, should be the parties benefited (exclusively of the children of the Plaintiff, whose mother was her second cousin). This conclusion the Plaintiff has drawn from the tenor of her observations to him respecting her own kindred; but she was averse to giving and never gave to the Plaintiff any specific plan to guide him, nor did she ever name any specific object or any specific class of objects in whose favour she wished to bestow any benefit, nor did she ever name any specific sum or sums as the amount she desired any object or class of objects to receive. She apparently had not confidence in her own judgment on the subject, and often spoke of future circumstances which might occur to affect the condition of her kindred; and under the circumstances aforesaid there is no person or object, nor class of persons or objects, in whose favour the Plaintiff could by will, deed or settlement dispose of the said trust funds, or any part thereof, after his decease, in pursuance of any wish or desire ever expressed to him by his said wife, the said Martha Bernard." The bill prayed that it might be declared that, by the will -of the testatrix, Martha Bernard, the legacy of £13,000, and all other the real and personal estate over which, by virtue of her father's will, she had any power of testamen-[279]-tary appointment, were well and effectually appointed to the Plaintiff, for his .own absolute use and benefit; and it prayed for a transfer and payment to the Plaintiff of the securities and moneys representing the said legacy, in accordance with that declaration. It was admitted at the Bar that the testatrix had also, under her father's will, a further sum of £2000, and under her marriage settlement certain other property, all of which was settled to her separate use, with an absolute power of appointment by will or otherwise, whether coverte or sole. Mr. Dart, in the absence of Mr. Bolt, Q.C., for the Plaintiff. The Plaintiff is entitled to the whole of the £13,000 :-First, under the appointment of that specific sum in. the earlier part of the will. It is true that, as to £11,000, part of that sum, the appointment is coupled by a request that, subject to his life interest therein, the Plaintiff will make such disposition of it as he may deem most desirable to carry out what the testatrix calls " my wishes, often expressed to him by word." But the Plaintiff distinctly avers, and all parties accept his averment as true, that the testatrix never in her life expressed to him, by word or otherwise, any intention or wish as to the disposition of the property. The object, therefore, is left in total uncertainty; and it has been well settled by numerous authorities that, in order to create a trust where apt words are not used for that purpose, and the expressions are merely precatory, expressive of request or hope, the object, as well as the subject-matter of the trust, must be certainly defined [280] by the will: Gary v. Gary (2 Sch. & Lef. 189), Knight v. Knight (3 Beav. 173; S. C. nom. Knight v. Boughton, 11 01. & F. 513), Sale, v. Moore (1 Sim. 534), Meredith v. Heneage (Id. 542), Bardswell v. Bardswell (9 Id. 319), Johnston v. Rowlands (2 De G-. & Sm. 356), Macnab v. Whifbread (17 Beav. 299), Green v. Marsden (1 Drew. 646) and Palmer v. Simmonds (2 Id. 221). Here, therefore, no trust has been created. the vice-chancellor. Does it follow that the Plaintiff is entitled 1 According to Briggs v. Penny (3 M'N. & G-or. 546) he may be excluded, although the Court...
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