children at her death, I give her," &c. the children. were held entitled. And where a testator, by a codicil to his will, desired and earnestly requested his son to make up his mother's jointure 500l. a year, on a bill by the mother against the son, an infant, the jointure was ordered to be made up." So also where N. bequeathed to his wife all his real and personal estate, and added, that he made no provision expressly for his dear daughter, knowing that it was his wife's happiness, as well as his own, to see her comfortably provided for; but in case of death happening to his wife, in that case he requested his friends S. & H. to take care of and manage to the best advantage for his daughter all and whatsoever he might die possessed of; Lord Thurlow directed the whole of the fund, in which the testator's property had been invested, to be appropriated, and the interest to be paid to the wife so long as she maintained the daughter: for it was evident some benefit was intended for the daughter; and none could be assured to her, except by limiting her mother to an interest for life." To raise a trust, however, the property bequeathed, and the objects to whom it is given, must be certain. If the amount of the property is by the terms of the gift left uncertain, the first legatee is absolutely entitled. Where, therefore, it is in his power to diminish the amount of what is bequeathed to him, and he is only desired to give away so much of it as he shall Clifton v. Lombe, Ambl. 519. Le Maitre v. Bannister, cited 2 Bro. 40. Curtis v. Rippon, 5 Mad, 434. Buggins v. Yates, 9 Mod. 122. be possessed of, or as shall be left, at his death;* this, though valid when given in terms of positive and direct devise," is not sufficient to create a trust. So where J. S. devised the residue of his estate to his wife, and desired her to give all her estate at her death to his and her relations, Lord Harcourt thought the words too general to amount to a devise over; but if the testator had desired his wife to give all the estate which he had devised to her, it would have been different. In a late case a testator gave his personal estate to his wife, relying on her, that if she should afterwards marry she would secure to herself whatever she should possess herself of by virtue of his will, and recommended her that she should by her will give what she should die possessed of under his will to certain persons: the V. Chancellor considered the testator had in view the whole property, which she should possess under his will; and that the expression was equivalent to a recommendation to give the whole property, which she should so possess." Where a testator, having two daughters, bequeathed his personal estate to his wife, to be distributed among his daughters during her widowhood, and she married again, and afterwards gave the whole to one of the daughters, the other was relieved, because the wife's power had determined. But where a man devised all his real and personal estate to A. in trust; Att. Gen. v. Hall, Fitzg. 314. 8 Vin. Ab. 103, cited 2 Cox, 355. Bland v. Bland, 2 Cox, 349. Wynne v. Hawkins, 1 Bro. 179. Sprange v. Barnard, 2 Bro. 585. Pushman v. Filliter, 3 Ves. 7. Wilson v. Major, 11 Ves. 205. Bull v. Kingston, 1 Mer. 314. Surman v. Surman, 5 Mad. 123; Palmer v. Schribb, SVin. Ab.289. d Horwood v. West, 1 Sim and Case cited, 1 Ch. Ca. 310. where arte. was compled Prik 493. to give to the testator's children and grandchildren, according to their demerits, and A. gave all the land to one of the children, the Court thought they could not relieve, as the words did not create a certainty of right or interest as to any certain proportion in any of the children or grandchildren; and they were only to come in by the act of the devisee, who was the judge as to their demerits. So neither, when the payment of a legacy is made to depend upon the discretion of the executor, will the Court control his judgment, unless he acts malâ fide. If a person is merely "empowered" to give away 27 at his death property in which he himself takes no interest, this is no trust, and no charge is created unless the power is executed. But it is sometimes Barengh difficult to determine, whether the words of a gift Thilcox & my Cia 93... amount to a trust or confer merely a power. Where there was a bequest a bequest in these words, "I give to my daughter H. 10007. to be ordered and disposed by her, and for the benefit of her children, as she pleaseth, without giving an account to any body," and H. died without making any disposal; the Court was doubtful whether any interest vested in the children by this devise; and the cause, it is supposed, was afterwards compromised." In another case, in which a man gave a legacy to his wife for life, and after her decease to be divided among such of his children, and in such manner and proportions as she should appoint, and to no other use or purpose what " Civil v. Rich, 1 Ch. Ca. 309. 2 Ch. Rep. 141; and see Randal v. Hearle, 1 Anstr. 124. Devese v. Pontet, 1 Cox, 188. French v. Davidson, 3 Mad. 396. Walker v. Walker, 5 id. 424; and Bull v. Vardy, 1 Ves. J. 270; and see Coxe v. Basset, 3 Ves. 155. Hillier v. Hillier, 2 Freem. 110. soever; Lord Hardwicke thought this a mere power, and not a trust; and that there was no gift to the children, otherwise than as they might take by execution of the power, the legacy being to such children as she should appoint, and to nobody else." But where J. B. was authorized and empowered to receive the rents of a leasehold estate, and, after taking 1007. every year for his own use, to employ the remainder to such children cf A. as the said J. B. should think most deserving; and J. B. died in the lifetime of the testator; Lord Alvanley, after great consideration, held that this was not a mere power; and that there was a valid bequest to all the children of A. So again. where a man desired that a third part of his estate be left entirely to the disposal of his wife among such of her relations as she might think proper, and the wife died without making any disposition, her relations were held entitled.c The persons also, we have seen, who are intended to be benefited, must be described with certainty, in order to raise a trust in their favour. Hence where R. H. devised an estate to his son A, for life, remainder to his first and other sons in tail, with remainder to the testator's second, and other sons successively in like manner; and A. by will gave some leasehold estates to the trustees of his father's will to the same uses to which the lands were limited by it, as far as by law he could, and bequeathed all his other leasehold estates to J. his next brother for ever, hoping he would continue them in the family; and J. on the death of A. entered, and devised these leaseholds to his wife, against whom the son next in succession filed his bill, insisting that the devise in the will of A. subjected these estates to the same uses as those declared by the will of R. H.: Lord Thurlow said the will did not import a devise, as the words did not clearly demonstrate an object, and dismissed the bill. It is to be observed, this case did not turn upon the mere uncertainty of the word family, because the testator had two daughters, who were his co-heiresses at law, and next of kin; and unless, therefore, the plaintiff made out from the context that by the word family was meant remainder-men, he did not advance a step. The word family is a sufficient designation of the heir, or next of kin, according as the property given is real or personal. So also the terms "relations" and "descendants," are certain e enough to create a trust. d the warlike A distinction should be noticed between express Zpring 232 trusts for an indefinite purpose, and those cases where, from the indefinite nature of the purpose, the Court concludes that a proper trust could not be intended, though words may have been used which, had the objects been definite, would by construction import a trust. Thus where a testatrix bequeathed all her personal estate to the Bishop of Durham, upon trust, to pay her debts, &c., and to dispose of |