'Opinion op the Court by
Affirming.
This аppeal brings before ns the will of David Irvine for construction. It was probated in thе Madison County Court on the 15th day of August, 1872, and divided a large landed and personal estate between his four children, two sons and two daughters. The special question which wе are asked to determine upon the appeal is whether his son, David W. Irvine, takes under it a fee simple title to a tract of 222.89 acres of land, which he has contracted to sell to the appellant B. M. Igo, or whether he takes it charged
“I will and bequeath to my son, David W. Irvine, my tract of land lying and being in Madison county on the Richmond and Lexington turnpike road, known as the Dudley placе deeded to me by Waller and William Chenault, containing about 180 acres. I also will and bequeath to my son, David W. Irvine, forty-five acres of the Newland land, reserved out оf that tract and not willed in the third clause to I. Shelby Irvine. Said forty-five acres to be laid off on the Richmond and Lexington turnpike road along the north line of the Dudley traсt above mentioned to the Shackelford road, in such manner as to suit the land herein willed to my son, Isaac Shelby Irvine.”
It is contended that the title conveyed by this clause of testator’s will is limited by a subsequent clause, which reads as follows:
“I make it as a request of my children that if any of them should die without issue that in so far as they may have rеceived any estate from me, that at their death they ‘will’ the same to my surviving children оr the issue of those that may be dead. I think this is but a reasonable request, and I have confidence that it will be complied with by my children. ’ ’
This doctrine of implied or precatory trusts was. carried to great lengths by the early English and American cases. Thus, if a tеstator made an absolute gift to the person in his will and accompanied thе gift with words expressing a desire, will, request, wish, hope, or recommendation, have bеen held sufficient to raise a trust where the subject and object
“It is a settled doctrine of courts of chancery that a devise or bequest to one person, accompanied by words expressing’ a wish, entreaty, or recommendation, that he will apply it to the benefit of others, may be held to create a trust if the subject and objects are sufficiently certain. Some of the earlier English cases had a tendency to give this doctrinе the weight of an arbitrary rule of construction. But the later cases in this, and all othеr questions of the interpretation of wills, the intention of the testator as gatherеd from the whole will controls the court; in order to create a trust it must appear that the woiMs were intended by the testator to be imperative and when property is given absolutely and without restriction a trust is not to be lightly imposed upon by merе words of recommendation and confidence.”
And the question was very fully considеred by this court in Major v. Herndon,
Testator placed no restriction on apрellee’s right to sell and convey the tract of land in controversy in the fourth clause of the will, and the words quoted above, which appear in a subsequent clause of his will were not in our opinion intended by the testator to
For reasons indicated the judgment is affirmed.