case eales versus England ante vern vern S c Mod Fitzgibbon I Eq Abr pl S c Eq  Abr c vin to atk vezey see also vern Mod salk brown parliament case vol ib  brown Rep burn Ea law title bishop a devise pound to b which he will he to  give c his daughter at his death or soon if there be occasion for her better  preferment a die before the testator but c survive and die at the age of year  this be not a lapse legacy but shall go to the representative of c b be only  in the nature of a trustee Elizabeth Heydon make her will and devise in these  word I give to b pound one pound whereof he owe I by bind which I intend to  have give his daughter precedent in chancery er p but my will be that he give  the say pound precedent in chancery to c at his death or soon if here be  occasion for her better preferment and make the defendant executor b die  before the testatrix and c survive the testatrix but die about the age of year  and the plaintiff take administration to her and the question be whether this  be not a void legacy b die before the testatrix it be say for the plaintiff  that c be in nature of Cestuique trust and therefore the legacy not lose by  the death of the trustee before the testatrix and she can not mean any benefit  to b because if a match have offer lie will have be compellable to pay it  before his death on the other side it be say the gift be to b and the trust  for c only for particular occasion which by her death be at a end suppose p  have survive the testatrix and c can her executor have take it from he the  case of Lord Kennet versus duke of Bedford be the same case of a real estate  that the devisee shall at his death devise the land to the Lord gore and per  Lord Nottingham decree only a recommendation not a trust for the plaintiff it  be far urge that the question here be only between the administrator of c and  the executor of Elizabeth suppose the use have be give to b for life and after  to c though b have die before Elizabeth v et c will have it present and the  desire be absolute to give c at his death a man give pound to the mother  Willing her to devise it over to the daughter it be decree at the roll it  shall go to the representative of the daughter and that decree be affirm by my  Lord summer the master of the roll say there be in the will a devise of all  the rest and residue not before devise therefore this can go back to the  executrix as a lapse legacy but be as if it be give to b for life then to c  then it will certain have go over and c may have have a bill for it in his  life if there have precedent in chancery be occasion and he have survive  Elizabeth and word of recommendation and desire in a will be always expound a  devise and here b be but a trustee which will not prejudice Cestuique trust if  the trustee die without heir the lord by escheat will have the land at law yet  subject to the trust here therefore lie decree it for the plaintiff to the  above reference may be add the follow authority Bland v Bland ms in can Feb  Reg lib fol a dame Ann Bland have land subject to a equitable charge of pound  and to a mortgage of pound execute by herself devise to her son sir John Bland  his heir executor administrator and assign all her manor of Withington and  other real and personal estate whatsoever add the follow clause and it be my  earnest request to my son in case of failure of issue of his body that my son  will in his lifetime settle the say estate or so much thereof as he shall  stand seize of at his death that the same may come to and be enjoy by my  daughter and the heir of her body and in failure of issue with diverse  remainder over and make her son executor it be hold by Lord Hardwicke to be no  trust inasmuch as the word so much as he shall die seize of give he the  absolute ownership and the other expression amount to nothing more than word  of recommendation leave it to the direction of the party whether he will  comply with her request or not Cunliffe v Cunliffe can ms easter term that may  in person lord commissioner Aston and smith Reg lib fol a the testator sir p  Cunliffe devise certain sugarhouse and stock in trade unto his son sir e  Cunliffe the plaintiff brother nevertheless in case sir e shall die without a  son he recommend it to he to give and devise the say premise unto the  plaintiff sir r Cunliffe it be hold that the word recommend be not sufficient  to raise a trust in favour of t plaintiff Le maitre v Bannister in can ms  November the testatrix give her fortune to captain roach and if he shall die  without issue she recommend it to he to do justice to a and her child if he  shall think they worthy of it but if any unforeseen accident shall make the  whole or any part acceptable or serviceable to he he may dispose of it if he  shall think fit it be hold to be no trust Pierson v Garnet at the roll ms  march that John Garnet late bishop of clogher by his will date that October  give his personal property to Samuel salt Esq in trust to pay several annuity  and then proceed as follow and subject to the say annuity it be my will that  the say S salt his executor c shall and do pay or permit and stiff my kinsman  p Pierson to receive the whole of the precedent in chancery er p residue of  the proceed interest and profit of the say fund so to be place but at interest  after the payment of the say annuity for and during the term of his natural  life with the full benefit of the say annuity if they or any of they shall  cease during his life and from and after the death of the say annuitant I  bequeathe the say residue to the say p Pierson his executor administrator and  assign and it be my die request to the say p Pierson that if he shall die  without leave issue live at his death that the say p Pierson do dispose of  what fortune he shall receive under this my will to and among the descendant  of my late aunt Ann Coppinger his grandmother in such manner and proportion as  he shall think proper the bill be file by p Pierson the residuary legatee  against the several descendant of Ann Coppinger and other necessary party pray  the usual account that the right of the plaintiff to the residue of the  testator fortune may be declare and establish and other necessary direction  four question arise at the hear three of which do not respect the present  point the first question be whether the word use in the recite clause be  recommendatory only or imperative so as to raise a trust in favour of the  descendant of Ann Coppinger master of the roll after state the material clause  in the will and the several question decree as follow in respect of the  present point with regard to the first and most material question if it be one  of those duty of imperfect obligation only as the civilian term they which  bind the moral character of the man but in which this court can interfere it  will not entitle I to do so in the present case who can go beyond those rule  which have bind court of justice it be better to adhere to those principle  upon which other have decide than to vary from they by spell out little  circumstance in a case as the ground of determination the principle appear to  be these as recognize by Lord Thurlow in the authority of Harland v trigg and  Wynn v Hawkins that where the property be certain and the object to who it be  give be certain there a trust be to be create and it will be a lamentable  circumstance if this court be to raise distinction upon such slight word as  peto funeral pyre trust tu engage and such expression of the civil law if  decision of case be to turn upon such ground proper will be without any rule  whatsoever the principle be not first lie down by Lord Thurlow but extract by  he with great wisdom from the decision of his predecessor upon point of this  nature I wish to refer to a case which I have not hear cite Richardson v  chapman which be first hear before Lord Northington and afterward in the house  of lord it be accurate state in burn ecclesiastical law title bishop that case  assert that in this court a request in a will be at this day imperative but  there must be a particular object name or point out with certainty it may be  right to examine whether these principle have be support or impugn by former  decision and how these case come to be so decide as to the general rule it may  be sufficient to refer to Harland v trigg and Wynn v Hawkins as to the other  authority which have be cite there be one which take a distinction very  apposite to the point in question it be Eq Abr palmer v scrib viner though  this book be not a book of the first authority yet the case contain so much  good sense as induce I to rely upon it in conjunction with the other authority  and conform to the opinion I have form in the present case as to Bland v Bland  that case fall within the rule the property be not certain be the whole of  what the devisee shall be seize of at his death it be leave the party a  absolute control over it during his life one of the branch necessary to create  a trust be manifest want as to Cunliffe v Cunliffe that the decision of that  case break in upon my opinion I ready admit I can distinguish that case from  the present and the decree I shall pronounce be in direct contradiction to it  it be absurd to lie a stress upon the word recommend in the one case and not  upon it be my die request in the other to say that one expression shall create  a trust and the other not when they be equal strong the ground upon which I  get rid of that case be that the lord commissioner in deliver their opinion  rest upon Bland v Bland and Pynsent v Pynsent which be not to be find that  case of Cunliffe v Cunliffe be not like Bland v Bland certainty of the  property a main circumstance be want in Bland v Bland and therefore it be  erroneous to adopt it in Cunliffe v Cunliffe Glynn v Harding be precise in  point the reason be not full report by atkins but the word be I desire and  they be hold imperative therefore where these two circumstance concur the  certainty of the property and the certainty of the object to who it be give  all the case uniform precedent in chancery er p determine except Cunliffe v  Cunliffe which can be rely on for the reason mention warrant I to pronounce  that it be a trust as to Le maitre v Bannister the word be to do justice to a  and her child but if any circumstance shall make it necessary the devisee be  to be at liberty to dispose of it one of the circumstance be want for the  devisee have the sole power over it during life with respect to the difficulty  and impracticability of carry this trust into execution that argument have no  weight with I suppose a express trust have be insert in the will in favour of  the descendant it must have be execute though it will have be attend with all  the trouble and impracticability as urge in this case however arduous the  trust this court be bind to execute it as well as it can the argument that be  once give it can be give again in analogy to the rule that a fee can be mount  upon a fee be beg the question for word create a fee have in innumerable  instance be cut down by subsequent word to a inferior estate I think no stress  can be lie upon the word executor administrator and assign it will be equal  reasonable to lie a stress upon the estate for life in the precede clause  these reason and the authority operate so strong upon my mind as to induce I  to pronounce that the word be imperative so as to create a trust in favour of  the descendant of Ann Coppinger