delivered the opinion of the Court.
The bill of complaint in this case was filed by the appellees, claiming as devisees and legatees under the will of their late father, Brice T. B. Worthington, for the purpose of enforcing an alleged trust, in favor of their testator, under the will of Dr. Asa Anderson, deceased.
The appellants, respondents below, who claim as executor, devisees and legatees under the will of Mrs. Eliza Anderson, deceased, demurred to the bill, and have appealed from the decision of the Circuit Court overruling the demurrer. The question presented' by the appeal is the construction of Dr. Anderson’s will, which contains the following clause, relied on as creating the trust: £‘ It is my will and desire, and I hereby devise and bequeath all my property real, personal and mixed, of what kind or nature soever, and wheresoever situated, to my dear wife Eliza Anderson, and her heirs and assigns forever, and it is my request and desire that my wife Eliza Anderson *579should, by last will and testament, devise and bequeath all of the said property at her death remaining in her possession, to my friend Brice T. B. Worthington of Annapolis, and to Elizabeth Williams, daughter of Theodore Williams, of Prince George’s County, to the said Brice T. B. Worthington and Elizabeth Williams, and their heirs and assigns forever, equally share and share alike.”
With respect to the disposition of the property to be made by his wife, the testator does not use imperative language, but expresses his wish and desire merely.
It is not denied or questioned however, by the appellants, that precatory words such as these, may create a trust. They have been so construed in a great many decided cases which need not be particularly cited. These will be found collected in the elementary works. Perry on Trusts, sec. 112, et seq.; Lewin on Trusts, 104, et seq.; Hill on Trustees, 108, &c.; and 2 Story’s Eq. J., secs. 1068 to 1078.
‘'The eifeet of expressions of this nature in creating a trust depends entirely on the supposed intention of the donor (or testator) to be gathered from the tenor of the instrument.” Hill on Trustees, 114.
In 17 Md., 165, (Negro Chase vs. Plummer,) it was said, " It has been frequently decided both in England, and in this country, that words of recommendation, desire, hope and such like, will raise a trust to be executed by the persons to whom they are addressed. But such expressions aie not always imperative ; they are flexible in character, and whether they are to prevail in a particular case is always a question of construction upon the whole will.” It is not easy to extract from the decided cases any very clear or well defined rule to govern us in the construction of the will under consideration ; that must necessarily depend upon its particular provisions, and the intention of the testator to be derived from its terms.
It may be laid down, however, as well settled upon all the authorities, that in order to justify the Court in con*580struing precatory words in a will as creating a trust, it must appear that the property which is the subject of the trust is definite and certain.
In this case the will gives Mrs. Anderson the absolute estate in fee, and then requests and desires that she should at her death devise all the said property remaining in her possession to B. T. B. Worthington and E. Williams.
The trust is sought to be established, not with respect to all the property devised by Dr. Anderson to his widow, not with respect to any specific part thereof described in the will, but with respect to so much thereof as might remain in her possession at her death. Now how can it be said that the subject of the supposed trust is certain and definite.
Having the absolute estate, Mrs. Anderson undoubtedly possessed the power of disposing of the property, according to her own discretion, unless by the terms of the will her discretion and power of disposition were fettered and controlled. If the precatory words had related to the whole of the property devised to her, there are many decided cases which hold that the words indicating the ultimate disposition which the testator desired her to make would charge the property with a trust in favor of the persons named, notwithstanding the gift to her was in fee. Such are the cases of Mace vs. Mallorn, 21 L. J. (Ch.,) 355; Gully vs. Cregoe, 24 Beav., 185, and Shovelton vs. Shovelton, 32 Beav., 143, cited by the appellees, and other cases might be referred to, to the same effect.
But in this case, it appears to us, the power of disposition by Mrs. Anderson, implied in the absolute gift of the property to her, cannot be said to be limited or controlled by the subsequent words, which have reference only to such property as might remain in her possession at the time of her death.
“Where there is a right in a donee to spend the subject of the gift, that is inconsistent with the nature of such-*581a precatory trust to bequeath it over to any other person.” Cowman vs. Harrison, 17 L. & Eq. R., 290.
In construing wills containing precatory words, a distinction has been drawn between cases where the gift to the first devisee is for life only, and those in which the gift is absolute, with superadded words. Howarth vs. Dewell, 6 Jur. (N. S.,) 1360.
We have found no well considered case in which a trust of this kind has been supported, where the gift to the first devisee was absolute in its terms, followed by precatory words, indicating the disposition to be made of what might he left, or what might remain of the property, at the death of the first devisee.
In such case the attempt to establish the trust has failed, first, for the reason that such expressions in the will can properly be construed only as conferring on the first devisee unlimited discretion and power of disposition, and secondly, because in such case the subject of the supposed trust is altogether indefinite and uncertain.
Many cases are cited in Lewin on Trusts, 108. We refer to some of them that appear to be analogous to the present.
In Bland vs. Bland, 2 Cox’s Ch. Cases, 349, (decided in 1745,) the devise was in fee, with the request “ as to the said premises, or so much thereof as he (the devisee) shall stand seized of at the time of his death.”
Lord Hardwick decided that the previous devise in fee imported a power in the devisee to diminish the property.
He said, “It was the same as if the testator had said I leave it to you to dispose of it as you think fit, but I will be glad if you will give so much as you can spare, so and so.”
In Wynne vs. Hawkins, 1 Bro. Ch. R., 179m, (decided in 1782,) the will after leaving certain legacies, proceeded as follows : “ And as I shall leave behind me, over and above the said legacies, only sufficient for a decent maintenance *582for my loving wife, Mary Wynne, by whose prudence and economy I have saved the greatest part of the fortune I shall die possessed of, not doubting but that she will dispose of what shall be left at her death to our two grand-children ; all the rest and residue of my personal estate, goods, chattels, moneys in the stocks, plate, jewels, watches and household furniture, and whatever else I shall be possessed of at the time of my decease, I give and bequeath to my loving wife Mary, hereby constituting and appointing her sole executrix.” A bill was filed by a surviving grandchild against the representatives of the wife, to enforce the supposed trust under the will. But the trust was not supported.
The Lord Chancellor said in delivering his judgment, . “If the intention is clear what was to be given, and to whom, I should think the words ‘ not doubting ’ would be strong enough. But where in point of context it is uncertain what property was to be given, and to whom, the words are not sufficient, because it is doubtful what is the confidence which the testator has reposed, and where that does not appear the scale leans to the presumption that he meant to give the whole to the first taker.”
In Pushman vs. Filliter, 8 Ves., 7, the testator gave the residue, &c. of personal estate to his wife, “ desiring her to provide for my daughter Anne out of the same, as long as she my said wife shall live, and at her decease, to dispose of what shall be left among my children, in such manner as she shall judge most proper.” On a bill being filed by the children against the executor of the wife, it was decided that no trust was created by the will in their favor ; that it was an absolute gift of the property to the wife, to be disposed of to any use she might think fit, subject only to a trust in favor of the testator’s daughter Anne.
In Wilson vs. Mayor, 11 Ves., 204, there was an absolute gift to the wife, “ upon full trust and confidence *583that she would make proper distribution of what effects may be left in money, goods or otherwise, to his (testator’s) children.” It was held that the wife took the absolute estate, unfettered by a trust. This case was decided by Sir Wm. Ghant, M. E. in 1805.
We refer also to Cowman vs. Harrison, 17 L. & E. R., 290, before cited, and the language of Lord Eldon in Tibbets vs. Tibbets, 19 Ves., 655.
These decisions rest upon the distinct proposition that where the gift to the devisee is absolute, precatory words, with regard to what is-left at the death of the devisee, will not create a trust, because the property to which they refer, as the subject of the trust, is not certain and definite. Here the precatory words apply to the property that may remain in Mrs. Anderson’s possession at the time of her death; which in our judgment is an equivalent expression, and means the same, as if the will had used the words, “ the property that may be left.”
In support of the position that this is not such an uncertainty as defeats the trust, the counsel for the appellees rely upon the expression of Sir John Leaoii, V. C., in Eade vs. Eade, 5 Mad. Ch. R., 118. There the precatory words were construed to refer to the remainder of the wife’s property. The Vice Chancellor said, “if the testator had requested his wife at her death to leave the remainder of his property to G. and W. E., there would have been a clear trust in their favor because the remainder of testator’s property could have been ascertained.” By reference to the will then under consideration it will be seen that if the expression, “the remainder of his property” had been used, the whole property of the testator would have been subject to the trust, after deducting therefrom £200, named in the will. That the expression of the Vice Chancellor is not susceptible of the construction put upon it by the appellees’ counsel we think is evident, not only from the case itself, but also from the decision of the same Vice *584Chancellor, rendered three years afterwards in Harwood vs. West, 1 Sim. & Stuart, 387. In that case he held that the words “what she should die possessed of under his will,” were too uncertain ; hut construing the other parts of the will, he said, “it was clear that the testator had in his view the whole property she should possess under his will, and that the expression was equivalent to a recommendation to give the whole property.”
We do not think that the clause in the will manumitting such of the testator’s negroes, in the possession of his wife at the time of her death, as shall prefer to go to Liberia, in any respect changes the construction of the other provisions of the will, or furnishes any support to the trust claimed by the appellees with respect to the other property.
It is evident from the face of the will, that the testator fully understood the difference between positive and peremptory language, and mere precatory words. Accordingly in conferring manumission upon the negroes, he used the plain and positive terms “ and 1 hereby manumit such negroes for that purpose. ’ ’
The- effect of this provision was to qualify the antecedent gift to the wife, and to give her a mere life estate in the negro slaves, without the power of selling, or disposing of them. But with respect to the other property, according to our construction of the will, the testator intended to give the same to his wife absolutely, leaving the execution of his request entirely to her discretion. In construing provisions of this kind in a will, we agree with what was said by the Lord Chancellor in Wynne vs. Hawkins before cited, “ That it being doubtful what is the confidence which the testator has reposed, the scale leans to the presumption that he meant to give the whole to the first taker.” We quote what, has been said by Judge Story as quite applicable here. “ It will be agreed on all sides, that where the intention of the testator is to leave the whole subject, as a *585pure matter of discretion, to the good will and pleasure of the party enjoying his confidence and favor, and where his expressions of desire are intended as mere moral suggestions, to excite and aid that discretion, but not absolutely to control it, there the language cannot and ought not to he held to create a trust. Now words of recommendation, and other words precatory in their nature, imply that very discretion, as contradistinguished from peremptory orders, and therefore ought to he so construed, unless a different sense is irresistibly forced upon them by the context. Meredith vs. Heneage, 1 Sim., 542. Accordingly in 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 wills their natural and ordinary sense, unless it is clear that they were designed to he used in a peremptory sense.” 2 Story’s Eq. J., sec. 1069.
(Decided 24th July, 1878 )Being of opinion that Mrs. Anderson was entitled to the absolute estate in all the property devised to her by her husband, (except the negro slaves,) and that she had the power to devise the same at her death according to her own judgment and discretion, the decree of the Circuit Court will be reversed, and the bill dismissed.
Decree reversed, and bill dismissed.
Bowie, J., dissented.