296 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
Prior. ‘A’s’ wife died and the children were placed under the care of Mary Prior by Mr. Cottee the surviving executor and testamentary guardian. The case proceeded on the assumption that the word recommend meant that a binding trust was created on the testamentary guardians so that Mr. Cottee was bound to appoint Mary Prior as the person to take care of the children.
Inherent Powers
The issue was this .... Did the recommendation take away all the powers of control belonging to Mr. Cottee as the testamentary guardian ? In deciding this issue the Lord Chancellor (Lord Denman) said....” I have had frequent opportunities of considering the effect of words of recommendation. One was in a recent case in this Court, where the question was whether a recommendation by the testator, that a certain person should be employed as receiver and manager of his property, gave that person any legal interest.
Another case was of Shaw vs. Lawless where the House of Lords laid it down as a rule which I have since acted upon, that, though recommendation may in some cases amount to a direction and create a trust, yet that, being a flexible term, if such a construction of it be inconsistent with any positive provision in the Will. It is to be considered as a recommendation, and nothing more.
In that case, the interest supposed to be given to the party recommended was inconsistent with other powers which the trustees were to exercise; and those powers being given in unambiguous terms, it was held that, as the two-provisions could not stand together, the ....... flexible term was to give way to the inflexible term.” Accordingly it was held that notwithstanding the fact that the recommendation was binding it did not take away the powers of control of Mr. Cottee as a testamentary guardian, over the children.
Not Binding Direction
The case is no doubt one relating to trust. But a trust is only another name for legal obligation and whether one speaks of recommendation creating a trust or creating a legal obligation it is