Knight v Knight (1840) 49 ER 58

Context and significance

The case is the classic authority on:

• precatory words in wills; and
• the three requirements for turning such words into a trust.

Lord Langdale MR states the now-famous rule that where you try to derive a trust from precatory language, there must be:

1. words which, “upon the whole, … ought to be construed as imperative”;
2. a certain subject matter; and
3. certain objects who are to benefit.

Modern textbooks repackage this as: certainty of intention, certainty of subject matter, and certainty of objects.

On the facts, the court held that no trust was created. The brother, Thomas Andrew Knight, took the property absolutely, unfettered by any trust in favour of the wider male line.

Background: the family settlement and the founder’s will

The “founder” of the family was Richard Knight (“the founder”), owner of the manors of Leintwardine and Downton. In 1729 he settled those estates:

• motivated, among other things, by a desire
  “for settling and assuring the hereditaments therein-after mentioned, to continue in the name and blood of the said Richard Knight the elder, so long as it should please Almighty God”.

The 1729 settlement put the estates:

• to Richard Knight for life,
• then through a series of life interests and entails in tail male on his sons Richard, Thomas, Edward and Ralph and their male issue,
• with remainder to the right heirs of Richard Knight himself.

By his will in 1744, Richard Knight also:

• devised his real estates to trustees
  “to the uses, trusts, intents, and with and upon and under the same powers, provisoes, limitations, and agreements as he had theretofore settled, conveyed, and assured the manor of Leintwardine”; and
• directed that the residue of his personal estate be laid out in land “to be settled to the same uses.”

Under this structure, his grandson Richard Payne Knight (the later testator) eventually became tenant in tail of the settled estates. He then:

• suffered common recoveries, thereby barring the entail, and
• “having thereby barred the entail, became the owner thereof in fee.”

So by the time he made his own will, Richard Payne Knight held the estates in fee simple, free from the original strict settlement.

The testator’s will: the key clauses

The dispositive gifts

By will dated 3 June 1814, Richard Payne Knight gave all his real and personal estate (subject to specific reservations) to his brother and then along the male line descended from his grandfather:

“I give and bequeath all my estates, real and personal (except such parts as are hereinafter excepted), to my brother Thomas Andrew Knight, should he be living at the time of my decease; and if not, to his son Thomas Andrew Knight the younger; and in case that he should die before me, to his eldest son or next descendant in the direct male line; and in case that he should leave no such descendant in the direct male line, to the next male issue of my said brother, and his next descendant in the direct male line; but in case that no such issue or descendant of my said brother or nephew shall be living at the time of my decease, to the next descendant in the direct male line of my late grandfather, Richard Knight of Downton, according to the purport of his will, under which I have inherited those estates which his industry and abilities had acquired, and of which he had therefore the best right to dispose.”

So the immediate donee (in fact) was his brother Thomas Andrew Knight, who survived him.

Appointment of the brother as executor and “trustee”

The testator then appointed the person taking under the will (i.e. his successor to the estates) as executor and used the word “trustee”, but note what that is tied to:

“And I do hereby constitute and appoint the person who shall inherit my said estates under this my will my sole executor and TRUSTEE, to carry the same and every thing contained therein duly into execution, confiding in the approved honour and integrity of my family to take no advantage of any technical inaccuracies, but to admit all the comparatively small reservations which I make out of so large a property, according to the plain and obvious meaning of my words;…”

This is important later: the reference to “trustee” is expressly linked to carrying out the will as written, and to not exploiting “technical inaccuracies” so as to defeat specific gifts and reservations.

The famous “trust to the liberality and justice of my successors” clause

After various legacies (to the poor, to named individuals, and a large bequest of coins and antiquities to the British Museum), the testator concluded with the crucial precatory paragraph:

“I trust to the liberality of my successors to reward any others of my old servants and tenants according to their deserts, and to their justice in continuing the estates in the male succession, according to the will of the founder of the family, my above-named grandfather, Richard Knight.”

This is the passage the plaintiffs relied on as creating a trust to keep the estates in the male line.

Procedural posture and the competing claims

After Richard Payne Knight died in 1824:

• His brother Thomas Andrew Knight took possession of the estates under the will.
• Thomas Andrew then executed various settlements and disentailing assurances, including:
  • a settlement in 1825 settling the real and personal estate principally on his son, and
  • a deed under the Fines and Recoveries Act (3 & 4 W 4 c 74) in 1835, conveying lands to uses which “discharged [them] of all estates in tail and interests of the nature of estates tail”, to himself in fee.

Later, in 1838, Thomas Andrew made a will leaving the property substantially to Sir William Edward Rouse Boughton, his wife and their son, explaining that he did so in line with his (now dead) son’s wishes and his own sense of justice towards his daughters and their issue.

Meanwhile, John Knight of Wolverley (a male-line descendant of the original founder Richard Knight) and his sons brought a bill in 1836, seeking a declaration:

“that according to the true construction of the will of Richard Payne Knight deceased, all the real and all the residue of the personal estates of Richard Payne Knight ought to be conveyed and assigned in such manner as best to secure the enjoyment thereof to the male descendants of Richard Knight the grandfather, as long as the rules of law and equity would permit;”

They argued Thomas Andrew was bound to settle the property in strict male succession.

The rival positions were:

1. Plaintiffs (John Knight and sons):
   – the words about “continuing the estates in the male succession” created an imperative trust;
   – Thomas Andrew was bound to make a strict settlement in the male line.
2. Defendant Thomas Knight of Pap Castle (another male-line cousin):
   – accepted that the precatory words were binding, but argued Thomas Andrew had a power of selection among the male descendants and had validly exercised it by his own will, favouring Thomas and his family.
3. Other defendants (including the Boughton family and the testator’s widow and daughters):
   – argued Thomas Andrew took absolutely, with no trust, and in any event had later acquired full fee simple through recoveries and conveyances.

The central legal issue for Lord Langdale MR was therefore:

Did the testator’s words – “I trust to the liberality of my successors … and to their justice in continuing the estates in the male succession” – create a trust enforceable by the court, or only a moral expectation?

Lord Langdale MR: the general rule on precatory words

Lord Langdale began by acknowledging the testator’s desire:

“That the testator wished that his estates, or at least, that some estates should be preserved in the male line of his grandfather, and had a reliance, or in the popular sense, a trust, that the person to whom he gave his property, and those who should succeed to it, would act upon and realise that wish, admits of no doubt.”

But, he emphasised, not every wish can be treated as a trust:

“But it is not every wish or expectation which a testator may express, nor every act which he may wish his successors to do, that can or ought to be executed or enforced as a trust in this Court;…”

He then stated the general rule for converting precatory words into a trust (this is the key “three certainties” passage):

“As a general rule, it has been laid down, that when property is given absolutely to any person, and the same person is, by the giver who has power to command, recommended, or entreated, or wished, to dispose of that property in favour of another, the recommendation, entreaty, or wish shall be held to create a trust.
First, if the words are so used, that upon the whole, they ought to be construed as imperative;
Secondly, if the subject of the recommendation or wish be certain; and,
Thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also certain.”

He illustrated that in simple cases, there is no difficulty:

“If a testator gives £1000 to A. B., desiring, wishing, recommending, or hoping that A. B. will, at his death, give the same sum or any certain part of it to C. D., it is considered that C. D. is an object of the testator’s bounty, and A. B. is a trustee for him.”

He also noted that a residue given to A B with a recommendation that he should, at his death, give it to his own relations, or such relations as he thinks most deserving or chooses, has been treated as sufficiently certain in subject and object for a trust.

On the other hand, he stressed that:

“if the giver accompanies his expression of wish, or request by other words, from which it is to be collected, that he did not intend the wish to be imperative: or if it appears from the context that the first taker was intended to have a discretionary power to withdraw any part of the subject from the object of the wish or request: or if the objects are not such as may be ascertained with sufficient certainty, it has been held that no trust is created.”

He added, quoting prior authority, that:

“the question ‘never turns upon the grammatical import of words—they may be imperative, but not necessarily so; the subject-matter, the situation of the parties, and the probable intent must be considered.’”

And further:

“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 Court 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.”

The difficulty of carrying out a supposed trust is itself a pointer against finding that one was intended:

“Where a trust is to be raised characterised by certainty, the very difficulty of doing it is an argument which goes, to a certain extent, towards inducing the Court to say, it is not sufficiently clear what the testator intended.”

Application to this will

Did the words show an imperative intention?

Lord Langdale accepted that the testator had a strong wish and moral expectation that the estates would remain in the male line of his grandfather:

“He was pleased to speak of the honour and integrity of his family, and he expressed his trust or reliance on the justice of his successors;…”

But, he concluded, the testator meant to rely on their honour and sense of justice, not to subject them to a binding legal obligation:

“It does not appear to me that he intended to subject them, as trustees, to the power of this Court, so that they were to be compelled to do the same thing which he states he trusted their own sense of justice would induce them to do.”

He drew particular attention to the sentence where “trust” is used twice, once in relation to old servants and tenants and once in relation to continuing the estates in the male line:

“He says, that he trusts to their liberality for one purpose, and to their justice for another. So far as he trusts to their liberality to reward any of his old servants or tenants, according to their deserts, he cannot be understood to have intended to create an imperative trust. Notwithstanding the use made of the word ‘trust,’ an indefinite discretion was, in that respect, left with the successors; and it is difficult to suppose, that having in this sentence used the word ‘trust’ in a sense consistent with an indefinite discretion in the person trusted, he should, in the same sentence, use the word ‘trust’ in a sense wholly inconsistent with such discretion…”

He therefore found:

“I have found an insuperable difficulty in coming to a satisfactory conclusion that he did not intend to rely on the honour, integrity, or justice of his family or successors for the performance of his wishes, but did intend to impose upon his successors an obligation to be enforced by legal sanction.”

So the first requirement – that the words be used so as to be construed as imperative – was not satisfied.

Was the subject matter certain?

Lord Langdale also doubted whether it was clear what property was meant to be subject to this supposed trust.

He noted that the testator had given “all my estates, real and personal (except such parts as are hereinafter excepted)” to his brother, with certain reservations and legacies. In the last clause, however, he merely spoke of “continuing the estates in the male succession”, without clearly specifying which “estates” he meant.

He observed:

“The question in the cause depends on the effect to be given to the last sentence in the will. Having given all his estates, real and personal, to his successor, that is, the next male descendant, and having given a few legacies, he says, ‘I trust to the liberality of my successors … and to their justice in continuing the estates in the male succession, according to the will of the founder of the family, my above-named grandfather Richard Knight.’”

But:

• It was not clear whether “the estates” was intended to include
  – all real and personal property, or
  – only the original founder’s estates, or
  – something in between.
• Some parts of the personal estate were expressly subjected to the liberality of successors (e.g. rewarding servants and tenants), suggesting they were not being fixed with a legal trust.

Thus, Lord Langdale said:

“I think that there is reason to doubt whether the subject is sufficiently certain for a trust of this nature.”

So the second requirement – certainty of subject matter – was also not clearly met.

Were the objects and their interests certain?

The class of objects (male descendants in the direct male line from the grandfather) was actually much clearer than in many precatory cases. Lord Langdale acknowledged:

“The objects do appear to me to be indicated with sufficient certainty, and it seems to me clear in what order he wished them to take.”

However, the problem lay in what interests they were to take if the court treated this as a trust. Should there be:

• a series of life estates in strict settlement,
• estates tail,
• or some other arrangement?

He said:

“But, unless they were to take successively as absolute owners, I cannot discover what estates they were intended to take. I have not been able to persuade myself that the testator meant to tie down his successor to make such a settlement as is proposed by the Plaintiffs, and nothing less would give the Plaintiffs any right to ask for a decree of this Court in their favour;…”

Quoting Lord Rosslyn’s language in another case, he added:

“If I were imperatively to declare that the successors designated by the will should take only for life and their issue in strict settlement, I should do a thing most foreign to the testator’s intention. His successor might have done what is suggested. The testator intimated a wish to him, and gave sufficient power; but I cannot say that he has left it to the Court of Chancery to accomplish his wishes.”

So although the objects (male descendants) were conceptually identifiable, the court could not see how to define their interests with the requisite certainty, short of re-writing the will in a way inconsistent with the testator’s actual intention.

Conclusion and order

Lord Langdale summed up the position as follows:

“On the whole, I am under the necessity of saying, that for the creation of a trust, which ought to be characterised by certainty, there is not sufficient clearness to make it certain that the words of trust were intended to be imperative, or to make it certain what was precisely the subject intended to be affected, or to make it certain what were the interests to be enjoyed by the objects.”

Therefore:

• No trust arose in favour of the male line.
• Thomas Andrew Knight took absolutely under the will of Richard Payne Knight.
• The plaintiffs had no title in equity to compel a settlement.

The bill was therefore:

“Bill dismissed with costs.”

Doctrinal takeaway: the “three certainties” and precatory words

From this judgment, the orthodox formulation (now heavily relied on in trusts exams) is that precatory wording in a will only creates a trust where:

1. The words, viewed “upon the whole”, are imperative – i.e. they show an intention to impose a binding obligation, not merely a moral or honour-based expectation;
2. The subject matter of the supposed trust is certain; and
3. The objects (and, in practice, their interests) are sufficiently certain.

Knight v Knight is used as the classic authority that precatory expressions like “I trust to the liberality of my successors” and “I trust to their justice” will not ordinarily be treated as creating legally enforceable trusts, especially where:

• the donee is otherwise given property absolutely;
• the same “trust” language is clearly being used in a moral rather than legal sense (e.g. trusting to “liberality” to reward old servants); and
• the court would face serious practical difficulties in defining the property and interests with the necessary certainty.

Following the judgement, there was an appeal to the House of Lords (Knight v Boughton), but the Lords affirmed it. The above quotes are from the first-instance judgment, but its result and reasoning stand as the final word in the case. Modern texts describe the decision as Knight v Knight (1840) 3 Beav 148; 49 ER 58, aff’d sub nom Knight v Boughton (1844) 11 Cl & Fin 513; 8 ER 1195.