Palmer v Simmonds

2 Drewry 221, 61 ER 704

Report Date: 1854
[2-Drewry-221] PALMER v SIMMONDS. March 7, 1854.
[SC 2 W. R. 313. See Curnick v Tucker, 1874, LR 17 Eq. 322; Le Marchant v Le Marchant, 1874,
LR 18 Eq. 417; Fordham v Speight, 1875, 23 W. R. 783.]
Precatory Words. Trusts.
Testatrix gave her residuary estate to A. his heirs, executors, administrators and assigns for ever, for
his own use and benefit, as she had full confidence in him that, if he should die without lawful
issue, he would, after providing for his widow during her life, leave the bulk of her said residuary
estate to B., C. D. and E. equally. Held, that this language did not describe the subject of gift with
sufficient certainty to create a precatory trust.
The will of Henrietta Rosco contained the following gifts
" I give to my nephew, the Rev. Thomas Harrison, and my grandnephew, William Fountain
Simmonds, their executors, administrators and assigns, the sum of £2500, Upon trust, to invest the
same in their names in the public stocks or funds of Great Britain, and to pay and apply the
dividends and annual produce thereof in or towards the maintenance and education or otherwise for
the benefit of Henrietta Rosco Markham, the daughter of Robert Markham, of Laceby, in the county
of Lincoln, until she shall again the age of twenty-one years; and in the event of her attaining the
age of twenty-one, then in trust, to assign and transfer the principal of the said trust fund to the said
Henrietta Rosco Markham; but if she shall not attain twenty-one, then in trust to divide the principal
of the said trust fund equally between them the said Thomas Harrison and William Fountain
Simmonds, for their own use and benefit. I give to the said Thomas Harrison and William Fountain
Simmonds, their executors, administrators and assigns, the sum of £800, upon trust, to invest the
same in their names in the public stocks or funds of Great Britain, and to pay the dividends and
annual produce thereof to my grandnephew Thomas Elrington Simmonds, of Laceby, in the county
of Lincoln, for his life, and after his decease then as to the capital of the said trust fund, in trust, to
assign and transfer the same unto and equally between the children or child, if only one, of the said
Thomas Elrington [2-Drewry-222] Simmonds living at the time of his decease; but in case the said
Thomas Elrington Simmonds shall leave no child living at his decease, then in trust to divide the
capital of the said trust fund equally between them the said Thomas Harrison and William Fountain
Simmonds, for their own use and benefit. As to all the residue and remainder of my personal estate
and effects which may remain after payment of my debts, funeral and testamentary expenses and
legacies, and all my real estate (if any), I give and devise the same unto the said Thomas Harrison,
his heirs, executors, administrators and assigns for ever, for his own use and benefit, as I have full
confidence in him, that if he should die without lawful issue he will, after Providing for his widow
during her life, leave the bulk of my said residuary estate unto the said William Fountain
Simmonds, James Simmonds, Thomas Elrington Simmonds and Henrietta Rosco Markham
equally."
This was a special case, and the question was whether, by the above clause, a precatory trust
was created in favour of W. F. Simmonds, James Simmonds, S. E. Simmonds and H. R. Markham.
Harrison was dead, without issue, having made a will. W. F. Simmonds was dead: the other three
were living.
Mr. Campbell and Mr. Law, for the representatives of the testatrix Henrietta Rosco, stated
the will and submitted the question.
Mr. Teed and Mr. Pownall, for James Simmonds, S. E. Simmonds and H. R. Markham.
There is a trust (Thomas Harrison having died without leaving issue). The word confidence is
equivalent [2-Drewry-223] to trust, and is an imperative word: Wood v Cox (I K. 317, and 2 Myl. &
Cr. 684); Horwood v West (1 Sim. & Stu. 387). The only difficulty is on the words, " the bulk of
my residuary estate: " but the intention was to provide for the widow for life, and that points at a
disposition of the income;
2 Drewry 224, 61 ER p705
and then the word bulk means, by juxtaposition with the other antecedent disposition, the corpus of
the property.
Mr. Rendall, for the representatives of W. F. Simmonds. The question does not turn entirely
on the specific meaning of the word bulk. The construction is this; Harrison had a discretion or
power to provide for his wife; he might have given a part of the property to purchase an annuity for
her; and then the remainder, or the bulk, would go over If the testatrix did not create a trust in
favour of the persons named, then she gave to Harrison absolutely. Now that cannot have been her
intention; for Harrison's widow at any rate is to have a provision. Further, the word bulk, whatever
may be its popular meaning, has here a construction put on it by the other gift; and the testatrix
speaks of the residue as her estate, and the trust is for the nominees equally. Both of these
circumstances are inconsistent with an intention to benefit Harrison exclusively. He cited Malim v
Keightley (2 Ves. jun. 333) and Ware v Mallard (16 Just. 492). That is exactly this case. Webb v
Wools (2 Sim. (N. S.) 267), which will be cited on the other side, is distinguishable. There, there
was an express power to dispose of part of the property. So is Green v Marsden (1 Drew. 646).
There, 1stly, the gift was to the sole use of the wife; 2dly, the objects were not certain; 3dly, the [2-
Drewry-224] direction to give what should be remaining rendered the subject of gift uncertain.
These points distinguish it from this case.
Mr. Baily and Mr. Ellis, for the parties claiming under Harrison. 1stly. There is no trust: to
constitute a trust, there must be sufficient words; and the subject of gift must be certain. Here
neither of those circumstances exists. The testatrix is not creating a trust by the use of the word
"confidence," she is merely assigning her reason for giving to Harrison absolutely. In Webb v
Wools there were the same words as here, and it was held no trust. 2dly. There is here uncertainty
as to the quantity given. The word bulk does not mean the entirety, but the greater part; and then
there is of course uncertainty. If Harrison could, and it is clear he could, diminish the property at all,
he might diminish it ad libitum; and now is what is to go over to be ascertained? And if it cannot be,
how can there be a trust? They referred to Knight v Knight (3 Beav. 148); Cowman v Harrison (10
Hare, 234).
Mr. Teed, in reply.
[THE VICE-CHANCELLOR confined the reply to the question whether the word bulk did
or did not create uncertainty in the subject of gift.]
The word bulk does sometimes mean the whole. Here it may mean the corpus, after
providing, out of-the income, for the widow. It is really no more after all than a trust of the whole
for the persons named, subject to a [2-Drewry-225] power in Harrison to make a provision for his
widow. He cited Constable v Bull (3 Deg. & Sm. 41 1).
THE VICE-CHANCELLOR [Sir R. T. Kindersley]. In most of the cases of this class the
Court is called upon to do what it is persuaded was never the intention of the testator; for when a
testator expresses his confidence that the devisee will do so and so, what he really means is to say
that he expresses the confidence, because he does not mean to create a trust. He gives absolutely,
because he has confidence. But then this Court has said that is a reason why the Court should create
a trust.
In this case the testatrix has expressed herself in the following manner. [His Honor referred
to the residuary gift, and expressed a clear opinion that, so far as regarded the words "as I have full
confidence," they were sufficient to create a trust. He then proceeded.] But the question is whether
the subject is certain; the objects and purposes are clearly certain. Now, in describing the subject as
to which the testatrix expresses her full confidence that Harrison will leave it, that subject is
described as "the bulk of my said residuary estate." If she had said " my residuary estate," I must,
according to the cases, have held that there was a trust. But the question is whether the words "the
bulk of my residuary estate " mean the same thing as "my residuary estate," or anything precise and
definite. The testatrix has here used a term which is not a legal term; a term which has not in law
any appropriate meaning. She has chosen to use a term which may have two different senses; it may
have a strict sense, according to its derivation, or what I may term its classical sense: 2dly, it may be
used [2-Drewry-226] according to its popular sense. But if its strict or classical sense and its
popular sense are coincident, then no difficulty can arise as to the sense in which the testatrix uses
it. Now it is to be observed that in this

2 Drewry 227, 61 ER p706

will, when the testatrix means to give a remainder, whether absolutely or only on the happening of
certain events, she has used proper legal terms. [His Honor referred to the £2500 gift, page 221.]
Then there is another instance of the use of legal terms. [His Honor referred to the £800 gift.]
These shew that, when she wishes to describe persons to take in remainder, whether the gift over is
absolute or only in certain events, she uses appropriate terms. Still more when she gives her
residuary estate does she use appropriate legal terms. But when we come to the clause in question,
we find her using this language: she expresses her confidence that Harrison will give " the bulk of
my said residuary estate." Now what she there meant could not be her residuary estate, which she
had already in clear terms given; but the bulk of it. Then it is said that word is to be construed by
the clause for providing for the widow; and that what is intended is to give a power to make
provision for the widow, and then the bulk means what remains; or else that it means a provision for
the widow for life out of the income, and then the word bulk means the corpus of the estate. But the
answer is that, as to either of these constructions, the term bulk is not appropriate. No such term is
used by the testatrix when giving capital as distinguished from income; nor is the term appropriate
to express what remains after Harrison shall have exhausted some of the capital. What is the
meaning then of bulk? The appropriate meaning, according to its derivation, is something which
bulges out, &c. [His Honor referred to [2-Drewry-227] Todd's Johnson and Richardson's Dictionary
for the different meanings and etymology of the word.] Its popular meaning we all know. When a
person is said to have given the bulk of his property, what is meant is not the whole but the greater
part, and that is in fact consistent with its classical meaning. When, therefore, the testatrix uses that
term, can I say she has used a term expressing a definite, clear, certain part of her estate, or the
whole of her estate? I am bound to say she has not designated the subject as to which she expresses
her confidence; and I am therefore of opinion that there is no trust created; that Harrison took
absolutely, and those claiming under him now take.