derman v. Mayor, etc. of Baltimore, 8 Md. 555; Needles v. Martin, 33 Md. 609; and Church, etc. v. Smith, 56 Md. 397. It requires no argument to show that, the trust in this will falls within the rule established by these decisions, and must therefore be held to be void. The consequence of this is that, if we are right in holding this to be a trust, the property goes to the heirs at law and next of kin.

But it has been strenuously argued that, where precatory words are used, the very fact that the objects or parties to be benefitted, or to be selected for that purpose, are uncertain, is conclusive that no trust is created, and in such case the donee takes the property absolutely. In other words, the contention is that no trust arises by force of any precatory words unless there is certainty in the object, as well as in the subject. This doctrine, no doubt, receives support from statements contained in some of the text-books,and is apparently sustained by some of the decisions; but we do not find that the authorities have laid it down as an inflexible rule applicable to all cases, and wholly irrespective of the intention of the testator or donor to create a trust. Lord Eldon, in the noted case of Morice v. Bishop of Durham, 10 Ves. 522, went no further than to say:

"Wherever the subject to be administered as trust property, and the objects for whose benefit it is to be administered, are to be found in a will not expressly creating a trust, the indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the courts as evidence that the mind of the testator was not to create a trust; and the difficulty that would be imposed upon the court to say what should be so applied, or to what objects, has been the foundation of the argument that no trust was intended."

On the other hand, Lord Chancellor Truro, in the case of Briggs v. Penny, 3 Macn. & G. 546, (decided in 1851,) deduces the principles from the then state of the authorities thus:

"I conceive the rule of construction to be that words accompanying a gift or bequest, expressive of confidence, or belief or desire or hope that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions: First, that they are o used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not; secondly, the subject must be certain; and, thirdly, the objects expressed must not be too vague or indefinite to be enforced."

And then, in reference to this third condition, he says:

"It is most important to observe that vagueness in the object will unquestionably furnish reason for holding that no trust was intended; yet this may be countervailed by other considerations which show that a trust was intended, while at the same time such trust is not sufficiently certain and definite to be valid and effectual; and it is not necessary to exclude the legatee from a ben

Once establish that a trust was intended, and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the objects of the trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded, and the next of kin take. But there is no peculiar effect in the word 'trust.' Other expressions may be equally indicative of a fiduciary intent, though not equally apt and clear."

He then refers to the fact that in the will before him, as in the will before us, another legacy had been given to the legatee, as clearly showing "that she was not intended to take the residue beneficially," and dismissed the appeal, which was taken from a decree passed by Vice-chancellor Sir Knight Bruce, whose opinion in the case is reported in 3 De Gex & S. 525.

So, in the more recent case of Bernard v. Minshull, Johns. Eng. Ch. 276, (decided by Vicechancellor Sir Page Wood in 1859,) 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, is again examined and explained, and it was again held that, to constitute such a trust as shall exclude the donee to whom the precatory words are addressed, it is sufficient if it appears a trust was intended, although the object of such trust is uncertain and cannot be ascertained. The conclusion reached by this learned judge was that, although the certainty of both subject and object may clearly indicate the existence of a trust, the converse of the proposition is by no means true; and that, however uncertain may be the objects of the testator's bounty, if it clearly appear that such objects were intended by him to have the benefit of the gift, it will exclude the donee, and create a trust.

And, as strongly sustaining the same proposition, reference may be made to the antecedent cases of Ommanney v. Butcher, 1 Turn. & R. 260: Ellis v. Selby, 1 Mylne & C. 286; Stubbs v. Sargon, 3 Mylne & C. 513; and Corporation of Gloucester v. Osborn, 1 H. L. Cas. 272.

It is also to be remarked that the distinction between this class of cases, and others in which precatory words have been held not to create a trust, is recognized in 1 Jarm. Wills, (4th Amer. ed. 693, where the learned author says:

"It is to be observed that in all these cases the consequence of holding the expressions to be too vague for the creation of a trust was that the devisee or legatee retained the property for his or her own benefit; and in this respect these cases stand distinguished from those in whice there was considered to be sufficient indication of the testator's intention to create a trust, thongh the objects of it were uncertain—a state of things which,

of course, lets in the claim of the heir or next of kin to the beneficial ownership. In such cases there is no uncertainty as to the intention to create a trust, but merely as to the objects. In the other class of cases it is uncertain whether any trust is intended to be created."

In this country, also, adjudications are to be found in which the same doctrine is approved. Even in the case of Pennock's Estate, 20 Pa. St. 26, where the court decided that the old Roman and English doctrine, that precatory words will be sufficient to convert a devise or bequest into a trust, was not part of the common law of Pennsylvania, they yet held that such words may amount to a declaration of trust when it appears from other parts of the will that the testator intended not to commit the estate to the devisee or legatee, or the ultimate disposition of it to his kindness, justice, or discretion. The case of Ingram v. Fraley, 29 Ga. 553, is directly in point. There the decision in Briggs v. Penny was approved and followed, and it was held that a trust was created by precatory words, though not sufficiently declared, and that the legatee did not take the estate beneficially, but as trustee for the next of kin.

In short, our examination of the authorities, both English and American, have led us to the same conclusions that were reached by the commentators to Hill, Trustees, (4th Amer. Ed.) 116, and which are also cited with approval in Perry, Trusts, § 114, note 4. Among the rules there laid down as fairly deducible from the adjudged cases are these: (1) Discretionary expressions which leave the application or non-application of the subject of the devise to the objects contemplated by the testator entirely to the caprice of the devisee, will prevent a trust from attaching, but a mere discretion in regard to the method of application of the subject, or the selection of the object, will not be inconsistent with a trust; (2) precatory words will not be construed to confer an absolute gift on the first taker, merely because of failure or uncertainty in the object or subject of the devise; and (3) failure or uncertainty will be an element to guide the court in construing words of doubtful significance adversly to a trust.

But our own decision in Taylor v. Plaine, 39 Md. 58, if not conclusive, goes very far to settle the question now before us. In that case a devise of property, real and personal, to certain named parties, "to be disposed of according to their verbal directions, or the directions of either of them," was held to be upon trust; and, as the terms of the trust had not been declared in the will, a trust arose by operation of law in favor of the heirs and personal representatives of the testator. Several passages in the opinion in that case have a direct application to this. After stating that no positive rule can be laid down which shall determine in all cases what terms or expressions will carry a beneficial interest, or what will create a trust, the court say:

"The words 'trust' and trustees' have, it is true, a defined and technical meaning, and are more generally as well as more properly used, but it is well settled that there is no magie in particular words, and any language which satisfactorily indicates an intention to stamp upon the devise the character of a trust will be sufficient."

Again after comparing the several provisions of the will with each other, they say:

"We think it may be fairly inferred that the testator did not design to give to these donees, who were neither his heirs nor next of kin, but strangers in blood, a beneficial interest in the property, but that they should take it in trust."

The trust failed for uncertainty in the objects, no cestuis que trust being named, and the property was adjudged to belong to the heirs and next of kin.

If, after the bequest and devise to Mr. Bowers, the words "in trust" had been used, conceded, and all the authorities show, he would have taken no beneficial interest whatever, by reason of the failure of the trust for uncertainty in its objects. But other words plainly indicating an intention to create a trust are used, and it is manifest from the whole will that the testator never intended to give him this property in his own right and for his own use. We have given our reading of this clause, and we think no one can read this will, or hear it read, without saying at once that the testator never intended to make an absolute gift of the residue of his estate to Mr. Bowers, or to give him any beneficial interest therein. Can, then, the omission of the words "in trust," coupled with the fact that the law, as laid down by the courts, declares that the tes ́ator's intentions are too vague and indefinite to be carried into effect, work an absolute gift of the property to one whom he never intended should be recipient of such a gift? A result like this could only be attained by disregarding intention, and relying upon some arbitrary, inflexible, and technical rule of construction which has no foundation in reason; and we have shown that no such rule has been sanctioned by any controlling weight of authority.

The practical effect of the decree appealed from is to give this property to the heirs at law and next of kin of the testator, and we affirm it.

NOTE. The case presents two questions, first, whether the language used in the will creates a trust at all, and secondly, whether, if it does, the trust so created, is valid and operative, or too remote and consequently void. That the words used are "precatory" and therefore within the general rule on that subject, there can be no doubt. In the words of Lord Eldon:1 "The cases upon words of recommendation have, I take it, now settled this rule; whether the terms are those of recommendation, or precatory, or expressing hope, or that the testator has no doubt, if the objects with respect to whom such terms are used are certain,

and the subjects of the property given are also certain, the words are considered imperative and create a trust." And in a later case Lord Eldon reiterates this exposition of the law on the subject 2 And almost any form of words expressing a wish, hope, desire, expectation, have been held to be precatory words, and to authorize a trust. Lord Thurlow said: 3 "If the intention is clear, what was to be given, and to whom, I should think the words 'not doubting' would be strong enough." He held however, that a devise to a wife "not doubting that she will give what may be left to my grand-children," was not sufficiently certain to raise a

trust.

There are two certainties necessary or no words howsoever precatory can raise a trust; a certainty as to what is to be given, and a certainty as to whom. The point in the case last cited was that the wife had the power to spend as much of the estate as she chose and leave as little as she chose. In another case however, the same words, "not doubting but that my wife will give it (a copyhold estate) to and amongst my children" were used and the trust sustained, because both the property and the beneficiaries were certain.

A trust, however, will not be created if such a construction is inconsistent with any positive provision of the will. And this limitation may be added to the uncertainties of the subject and the object of the gift. Sir R. P. Arden, Master of the Rolls in 1795,6 states the rule thus: "Whenever any one gives property and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shows clearly that his desire expressed, is to be controlled by the party; and that he shall have an option to defeat it."

These words, it will be observed, tend to limit still further the operation of precatory words in creating a trust, but have been generally approved and adopted by English judges as embodying the true doctrine. They are cited and commended by Lord Lyndhurst,7 by Lord Cottenham, and by Chief Baron Richards, although with some qualification by the latter, and by many of the later English judges and Chancellors. Indeed the rule as stated by Lord Alvanley, (then Sir R. P. Arden,) is the established law of England, and has been so held from 1702 down to 1869 in an unbroken line of adjudged cases.9

In the United States the rule has generally been accepted, though the tendency of late years has been to

2 Dashwood v. Peyton, 18 Ves. 41. See also Malim v. Keighley, 2 Ves. 333; Harland v. Trigg, 1 Bro. Ch. R. 142; Wynne v. Hauk, 1 Bro. Ch. R. 179; Brown v. Higgs,4 Ves. 709; s. C., 5 Ves. 495; 8. C., 8 Ves. 561; Tibbetts v. Tibbetts, Jacob R. 317.

8 Wynne v. Hawkins, 1 Bro. Ch. 179.

4 Massey v. Sherman, Amb. 520.

5 Shaw v. Lawle-s, 5 Clark & F. 129.

6 Malim v. Keighley, 2 Ves. Jr. 333, 335.

7 Knight v. Boughton, 11 C1. & F. 513, 551.

8 Heneage v. Lord Andover, 10 Price, 230, 264.

Eades v. England, 2 Vern. 466 (1702); Harding v. Glynn, 1 Atk. 469 (1739); Pierson v. Garnett, 2 Bro. C. C. 38, 226 (1786); Paul v. Compton, 8 Ves. 375 (1803); Cary v. Cary, 2 Sch. & Lef. 173, 189 (1804); Forbes v. Ball, 3 Meriv. 437 (1817); Wright v. Atkins, 1 Turn & Russ. 143 (1823); Wood v. Cox, 1 Keen, 317 (1836); Shaw v. Lawless, 5 Clark & Fin. 129 (1839); Knight v. Boughton, 11 Clark & Fin. 513 (1844); Williams v. Williams, 1 Sim. (N. S.) 358 (1851); Briggs v. Penny, 3 McN. & G. 546 (1851); Benser v. Kinnear, 2 Giff. 195 (1860); shovelton v. Shovelton, 32 Beav. 143 (1863); Irvine v. Sullivan, L. R. 8 Eq. 673 (1869); McCormick v. Grogan, L. R. 4 H. L. 82.

apply it much more gingerly than formerly. In Indiana it is recognized as law, though not clearly applicable to the facts,10 in Massachusetts there is a similar recognition of the general principle. So also, in Vermont,12 and in Tennessee,13 and in Maryland,14 and in Georgia, in Florida,16 in Mississippi,17 in Connecticut,18 and in Newhampshire.19

In Pennsylvania after having, in 1845, recognized the rule in a well considered case,20 and in another in 1850,21 re-affirmed the ruling with reference to the same will, and the same property, the Supreme Court in 1853, still treating the same will, overrules both these cases and.says: "We may now add that we know of no American cases in which the antiquated English rule has been adopted."22

The objection to the view of precatory and hortatory words as creating a trust, is not confined to Pennsylvania nor to this side of the Atlantic. Lord Eldon, although an authority on the other side, says: "This sort of trust is generally a surprise on the intention; but it is too late to correct that.23 And Vice-Chancellor Sir Anthony Hart said:24 "The first case that construed words of recommendation into a command, made a will for the testator, for every one knows the distinction between them."

66.

In

In America there is a like current of opposition among legal thinkers. Judge Story says: more modern times a strong disposition has been indicated not to extend this doctrine of recommendatory trusts; but as far as the authorities will allow, to give to the words of a will their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense." 25

Judge Redfield goes even further than Judge Story in his opposition to the rule under consideration. He says: 26 "This," (meaning that nothing obligatory is meant,) "we think is what is always intended by testors, in the use of these hortatory expressions in their wills." We are strongly inclined to the same opinion, although the word "always" may be a trifle too sweeping. Every person competent to make a will at all, knows the difference between words of command and words of entreaty, and may fairly be presumed to know his own mind when he makes his will, and to say in it what he means. We fully concur with Vice Chancellor,Sir Anthony Hart in his remark that: "The first case that construed words of recommendation into a command made a will for the testator." 27 And we think we may safely add that far more than half of the cases that have followed the ruling have done the same thing.

10 Reed v. Reed, 20 Ind 313.

11 Warner v. Bates, 98 Mass. 274.

12 Van Amee v. Jackson, 35 Vt. 174.

13 Anderson v. McCullough, 3 Head, 614.

14 Negroes v. Piummer, 17 Md. 165; Tolson v. Tolson, 10 Gill. & J. 159.

15 Ingram v. Fraley, 29 Ga. 553.

16 Lines v. Darden, 5 Fla. 51.

17 Lucas v. Lockhart, 10 Sm. & M. 466.

18 Bull v. Bull, 8 Conn. 47; Harper v. Phelps, 21 Conn. 257.

19 Erickson v. Willard, 1 N. H. 217.

20 Coates' Appeal, 2 Penn. St. 129.

21 McKonkey's Appeal, 13 Penn. St. 253.

22 Pennock's Estate, 20 Penn. St. 268.

23 Wright v. Atkins, 1 Ves & Beames, 313, 315. 24 Sale v. Moore, 1 Sim. (1827) 534, 540.

25 2 Story Eq. Juris., § 1069.

26 1 Redfield on Wills, 713. 27 Sale v. Moore, supra.

The other question considered in the principal case, whether, if a trust be raised by precatory words, it can be held void for uncertainty without holding that the bequest is absolute,and that the trust was not raised . at all, is so fully and ably treated in the principal case that we abstain from any comment upon it. ED. CENT. LAW JOURNAL.

STATUTE OF FRAUDS-INSTRUCTIONS TO AGENT MEMORANDUM.

HASTINGS v. WEBER.*

Supreme Judicial Court of Massachusetts, July 2, 1886.

1. Statute of Frauds Memorandum Lease Agent Telegram. In an action of contract for breach of an agreement to take a lease, it appeared that the defendants' agent wrote to the defendants a letter containing a description of the premises, and stating the annual rent for a term of five years; the questions of the letter being whether the premises and amount of rent were satisfactory to the defendant, but the letter did not state or refer to the particular terms or conditions of a lease. The defendants, in answer, sent the following telegram: "If basement included at four thousand, secure five years' lease." A letter sent by the agent to the defendants on the day the telegram was received by him stated that the lease at $4,000 included the basement,and that he would close the matter the next day. The agent had no authority to accept a lease. Held, that there was not a sufficient memorandum in writing to satisfy the statute of frauds; also held, that letters written by the defendants subsequently, referring to an incomplete lease, had no bearing on the question.

This was an action of contract for breach of an agreement to take a lease. The defense relied on was the statute of frauds. Hearing in the superior court, before Bacon, J., upon facts which appear in the opinion, who ruled that there was not sufficient evidence of any written memorandum of the contract to satisfy the statute of frauds, and directed a verdict for the defendants. The letter of January 3d, referred to in the opinion, was written by the defendants' agent to the defendants after the receipt of the telegram mentioned, and stated that the lease at $4,000 per annum included the basement, and that he, the agent, would close the matter the next day.

A. E. Pillsbury, for plaintiff; C. J. Noyes, for defendant.

ALLEN, J. delivered the opinion of the court. *S. C., 7 N. East R., 846.

The declaration alleges a contract with the defendants by which the plaintiff agreed to let to them certain premises for the term of five years from the first day of February, 1883, at the yearly rent of $4,000, and the defendants agreed that they would hire the premises, and execute and accept thereof for such term at said rent, and would pay the rent of $4,000 a year during said term.

There was no written contract, and the plaintiff relied upon a verbal contract between herself and the agent of the defendants; and the only question presented by the exceptions is whether there is a sufficient memorandum, in writing, of the contract to satisfy the statute of frauds. The memorandum must be found, if anywhere, in the letters of the defendants' agent to them of January 2d and 3d, and in the telegram of the defendants to their agent of January 3d. There is no evidence that the agent had any authority to sign a memorandum, and the only paper signed by the defendants is the telegram. This was sent in answer to the letter of January 2d, and before the letter of January 3d was received by the defendants. It is contended that it is so connected with the letter of January 2d as to incorporate that into itself, and make the letter and telegram together a memorandum signed by the defendant. Assuming, without deciding, that such is the correct construction of the two papers, we think they do not constitute a memorandum of the contract declared on, or of any contract. It is clearly not a memorandum of a completed contract, and the most that can be claimed is that it constitutes an offer by the defendants to the plaintiff, the subsequent verbal acceptance of which by the plaintiff gave it effect as the contract of the defendants. If we could adopt the assumption upon which this argument must rest, and hold that the telegram must be taken to include the letter of January 2d, and that the presentation of this telegram to the plaintiff on January 3d was in legal effect the exhibition of the letter and telegram to the plaintiff by the defendant through their agent, the principal question, and the only one we need ccnsider, would be presented: Does the telegram import a promise by the defendant to the plaintiff to accept a lease described in it and the letter

The correspondence is not between the parties to the supposed contract, but between one of the parties and his own agent, and it is to be construed accordingly. The agent was directed to look for a store for the defendants, and to negotiate for a lease of it. He had no authority, unless from the telegram, to accept a lease, or to make a contract, or to determine any of the terms of a lease or of a contract. His letter informed the defendants that he had been looking at the store of the plaintiff, contained a description of the premises, and stated the annual rent asked for a term of five years, as information to the defendants as the basis of further instructions. The question of the letter was whether the premises and the amount of rent were satisfactory to the defendants. It did not refer to

the particular terms or conditions of a lease; such as, when the term should commence; when the rent should be payable; what alterations should be made in the premises, or what condition they should be put in by the owner; what alterations might be allowed to be made by the defendants; what rights the defendants should have as to underletting, and other particulars which might enter into the lease. The answer was, with brevity of correspondence, by telegraph: "If basement included at four thousand, secure five years' lease." This was obviously intended only as instructions to the agent that, if the rent would be of the amount stated, he should continue his negotiations, and procure a lease, the only contract contemplated, to be submitted to the defendants for their acceptance and execution.

The instructions in the telegram do not excluee but accord with, other instructions, as to the contents of the lease that may have been given by the defendants to their agent; and, as between the parties to the correspondence, they contain in legal effect the additional words, "according to instructions which have been or may be given." Instructions to the agent referring only to the particulars mentioned in the letter to which they were in reply cannot be construed as including a promise or offer to the plaintiff to accept a lease containing only those particulars. The plaintiff had no right to so treat it; and that she did not, in fact, so regard it, appears from her declaration, which alleges that the term was to commence on February 1, and not immediately, as would be implied from the writings; and also from the evidence that she understood that the defendants were not to have the power or underleasing, which could not have been inferred from the writings. Whether a correspondence between one party to a verbal contract, and his agent, before the completion of the contract, can, under any circumsiances, constitute a memorandum of the contract, we need not consider. The correspondence in this case shows only instructions for an agent, not including authority to contract, and the disclosure of the instructions to the other party cannot convert them into a memorandum of contract.

The letters subsequent to January 3d, and th lease signed by some of the defendants, but not accepted or delivered, refer to the incomplete contract of a lease, and have no bearing upon the question whether the defendants had agreed to execute the lease, unless as showing that they did not consider themselves under any contract to do so, and cannot go to make up a memorandum of

such a contract.

Judgment on the verdict.

1. AGENCY.-Principal and Agent-Unauthorized Act-Ratification-Assumpsit-Trover and Conversion. Where goods are purchased by A. in the name of B., and on his credit, but without his authority, B. is not liable; and because the goods were shipped in his name, and a bill of them sent to him, it is not a ratification of the unauthorized act when he did not have knowledge that the goods were purchased upon his credit, or that they were not paid for by A., although B. did not notify the plaintiff, when he received the invoice, that the act of A. was not authorized by him. When the plaintiff's property has been wrongfully taken or appropriated, and converted into money or its equivalent, he may waive the tort, and recover in assumpsit; but it must appear that the defendant has actually received money to the use of the plaintiff, or that which he considers its equivalent; as a promissory note or money demand. Saville v. Welch, S. C. Vt., August 18, 1886; 5 Atl. R. 491. 2. BANKING.- Draft taken for Collection-Insolvency of Banker.-The proceeds of a draft received by a banker for collection, will not pass into his assigned estate; the owner of the draft may require payment out of that estate, as against creditors, though no part of it can be shown to be composed of the proceeds of the draft. That the owner of a draft delivered to a banker for collection has proved his claim against the banker's assigned estate, will not deprive him of his right to claim the amount of the draft out of the estate as against creditors. McLeod v. Evans, S. C. Wis., May 15, 1886; 22 Rep. 221.

3. BETTERMENTS.-"Supposed Legal Title."-One occupying land under a deed which gives him a remainder in fee on condition that he furnishes support for the life tenant there, does not hold the premises under a "supposed legal title," within the statute relating to betterments. Walker v. Walker, S. C. N. H., July 3. 1786; 6 East. Rep. 425. 4. CHANCERY PRACTICE.-Accounts and ReportsJudicial Sales-Trust Deeds.-When commissioner's report, based upon accounts of long standing and great confusion, is confirmed by lower court it will not be disturbed in the appellate court unless error is apparent. In selling real estate under trust deeds or mortgages, courts of chancery will adopt the terms agreed upon by the parties to such deeds. Pairo v. Bethell, 75 Va. 825. Stimpson v. Bishop, S. C. App. Va., June, 1886; 10 Va. Law Journal, 543.