vest a fee or fee-tail in the first taker, unless the word "heir " is used as a term of succession, and not as a mere designatio persona. Thus if an estate be devised to A. and his heirs in trust for B. for life, and after his decease in trust for the person who shall then be his heir, B. takes an estate for life only, and the person thus designated takes the estate by purchase.1 So if the legal estate is given to A. in trust for B. for life, and the legal remainder to the heirs of B., at his decease the rule cannot apply; for the legal and equitable estate cannot so coalesce that B. can take a fee either legal or equitable.2

§ 359. But in order that technical words may receive their legal signification, and in order that the rule in Shelley's case may be applied to limitations of equitable estates, the trusts must be executed and not executory. All trusts are executory

1 Greaves v. Simpson, 10 Jur. (N. s.) 609.

2 Collier v. McBean, 34 Beav. 426.

Egerton v. Brownlow, 4 H. L. Ca. 210; Rochford v. Fitzmaurice, 2 Dr. & W. 20; 4 Ired. Eq. 384; Tatham v. Vernon, 29 Beav. 604; Bacon's App. 57 Pa. St. 504. This distinction was very early established. Bale v. Coleman, 8 Vin. 267; Stamford v. Hobart, 3 Bro. P. C. 33; Papillon v. Voice, 2 P. Wms. 471; Glenorchy v. Bosville, t. Talb. 3; Gower v. Grosvenor, Barn. 62; Roberts v. Dixwell, 1 Atk. 607; Baskerville v. Baskerville, 2 Atk. 279; Woodhouse v. Haskins, 3 Atk. 24; Read v. Snell, 2 Atk. 648; Marryat v. Townley, 1 Ves. 102. Several of these cases were decided by Lord Hardwicke; but in Bagshaw v. Spencer, 1 Ves. 152, he nearly confounded and denied the distinction. In Exel v. Wallace, 2 Ves. 233, however, Lord Hardwicke explained his meaning, and desired to have it remembered that he did not mean to say that his predecessors were wrong. The distinction, as stated in the text, is now firmly established both in England and the United States. Barnard v. Proby, 2 Cox, 8; Wright v. Pearson, 1 Ed. 125; Austen v. Taylor, ib. 366; Stanley v. Lennard, ib. 95; Lincoln v. Newcastle, 12 Ves. 227; Jervoise v. Northumberland, 1 J. & W. 570; Deerhurst v. St. Albans, 5 Madd. 233; 2 Cl. & Fin. 611; Blackburn v. Stables, 2 V. & B. 369; Douglass v. Congreve, 1 Beav. 59; 4 Bing. N. C. 1; 5 Bing. N. C. 318; Boswell v. Dillon, 1 Dru. 297; Neves v. Scott, 9 How. 211; 13 How. 268; 4 Kent, Com. 218 et seq.; Garner v. Garner, 1 Des. 444; Porter v. Doby, 2 Rich. Eq. 49; Dennison v. Goehring, 7 Barr, 177; Findlay v. Riddle, 3 Binn. 152; Edmondson v. Dyson, 2 Kelly, 307; Wiley v. Smith, 3 Kelly, 559; Wood v. Burnham,

in one sense of the word; that is, the trustee must have some duty, either active or passive, to perform, so that the statute of uses shall not execute the estate in the cestui que trust, and leave nothing in the trustee. But such is not the meaning of judges when they speak of executed trusts, and executory trusts. These words refer rather to the manner and perfection of their creation, than to the action of the trustee in administering the property. Thus a trust created by a deed or will, so clear and certain in all its terms and limitations that a trustee has nothing to do but to carry out all the provisions of the instrument according to its letter, is called an executed trust. In these trusts, technical words receive their legal meaning, and the rules applicable to legal estates govern the equitable estates thus created.2 On the other hand, an executory trust is where an estate is conveyed to a trustee upon trust, to be by him conveyed or settled upon other trusts in certain contingencies, or upon certain events, and

6 Paige, 518; 26 Wend. 19; Imlay v. Huntington, 20 Conn. 162; Berry v. Williamson, 11 B. Mon. 251; Horne v. Lyethe, 4 H. & J. 434; Loring v. Hunter, 8 Yerg. 31; Bold v. Hutchinson, 5 De G., M. & G. 558. Lord Northington said that the words "executory trusts" seemed to him to have no fixed signification. Lord King said a trust was executory where the party must come into court to have the benefit of the will. Mr. Lewin says the true criterion is where the assistance of the court is necessary to complete the limitations, p. 89. Lord Eldon said the trust was executory where the testator had not completed the devise, but had left something to be done, so that the court must look to the intention. Jervoise v. Northumberland, 1 J. & W. 570. Lord St. Leonards distinguishes the two as follows: "Has the testator been what is called, and very properly called, his own conveyancer? Has he left it to the court to make out, from general expressions, what his intention is, or has he so defined that intention that you have nothing to do but to take that which is given you, and to convert them into legal estates?" Egerton v. Brownlow, 4 H. L. Ca. 210.

1 Bagshaw v. Spencer, 1 Ves. 142; Egerton v. Brownlow, 4 H. L. Ca. 210; Coape v. Arnold, 4 De G., M. & G. 585.

2 Wright v. Pearson, 1 Ed. 125; Austen v. Taylor, ib. 367; 4 Kent, Com. 220; Jones v. Morgan, 1 Bro. Ch. 206; Jervoise v. Northumberland, 1 J. & W. 559; Boswell v. Dillon,

Dru. 291.

these other trusts are imperfectly stated, or mere outlines of them are stated, to be afterwards drawn out in a formal manner, and are to be carried into effect according to the final form which the details and limitations shall take under the directions thus given. They are called executory, not because the trust is to be performed in the future, but because the trust instrument itself is to be moulded into form and perfected according to the outlines or instructions made or left by the settlor or testator.2 Thus land conveyed to A. upon trust, to settle the same upon B. and C. and their issue, in the event of their marriage, is an executory trust. There is a conveyance or settlement to be executed by A., and the form or terms of this conveyance or settlement is to be determined by the intention of the original grantor. When this conveyance or settlement is finally determined and made, the trust becomes executed in the sense of the word as applicable to this distinction, and it is afterwards governed by all the rules of an executed trust. The difference between the two kinds of trusts is this. In executed trusts the rules of property govern, and not the intention of the settlor, if it is contrary to the law or rule of property.5 Thus if, in an executed trust, an estate is given to A. in trust for B. for life, with remainder to his heirs, B. takes an equitable fee, and may convey the equitable inheritance and exclude his heirs, although it is perfectly certain that the settlor intended that B. should take an estate for his life only. But an executory trust is settled and carried into effect according to the intention of the

1 Austen v. Taylor, 1 Ed. 366; Wright v. Pearson, ib. 125; Jervoise v. Northumberland, 1 J. & W. 570; Coape v. Arnold, 4 De G., M. & G. 585; Neves v. Scott, 9 How. 211; Wiley v. Smith, 3 Kelly, 559; Edmondson v. Dyson, 2 Kelly, 307; Wood v. Burnham, 6 Paige, 518; 26 Wend. 19; Thompson v. Fisher, L. R. 10 Eq. 207; Cushing v. Blake, 30 N. J. Eq. 689.

2 Ibid.

8 Ibid.

4 Ibid.

5 Choice v. Marshall, 1 Kelly, 97; Schoonmaker v. Sheely, 3 Hill. 165; Kingsland v. Rapelye, 3 Edw. 2; Brant v. Gelston, 2 John. Ca. 384.

• Ibid.

settlor. Thus if an estate is conveyed to A. in trust, with instructions to convey it to B. for life, with remainder to his heirs, or to convey it in trust for B. for life, with remainder to his heirs, B. takes an estate for life only, and his heirs take by purchase at his decease, if such appeared to be the intention of the original gift or grant.2

§ 360. In the history of executory trusts, still another distinction has been drawn, or a distinction between executory trusts created by marriage articles, and executory trusts created by wills. This is not so much a difference between two classes of executory trusts, as it is a difference between the rules that will be applied to the interpretation of marriage articles and of wills, in order to determine the intention of the settlor or the testator. Lord Eldon once said, that there was no difference in the execution of an executory trust created by will, and a covenant in marriage articles; such a distinction would shake to their foundation the rules of equity." But the great chancellor afterwards modified his expression.

66

And certainly there is no difference in the

1 Wood v. Burnham, 6 Paige, 513; 26 Wend. 9: 4 Kent, Com. 219; 1 West. Ch. t. Hardwicke, 542. A mere direction to convey will not render the trust executory, if the directions are so clear, and the limitations are so certainly defined, that there is nothing to do but to convey in accordance with them. In order that the trust may be executory, there must be some room for construction, in order to determine the intention of the settlor; that is, to determine what limitation shall be, and what shall not be, introduced into the conveyance to be made. Egerton v. Brownlow, 4 H. L. Ca. 210; Austen v. Taylor, 1 Ed. 361; Wight v. Leigh, 15 Ves. 564; Graham v. Stewart, 2 Macq. H. L. Ca. 205; Herbert v. Blunden, 1 Dr. & Walsh, 78; East v. Twyford, 9 Hare, 713; Doncaster v. Doncaster, 3 K. & J. 26; Stanley v. Stanley, 16 Ves. 491; Glenorchy v. Bosville, 1 Lead. Ca. Eq. 20, and notes; McElroy v. McElroy, 113 Mass. 509; Cushing v. Blake, 30 N. J. Eq. 689.

2 Ibid.; Savage v. Tyers, L. R. 8 Ch. 356.

Lincoln v. Newcastle, 12 Ves. 230; and see Turner v. Sargent, 17 Beav. 519; Reed v. Palmer, 53 Pa. St. 379.

✦ Jervoise v. Northumberland, 1 J. & W. 574; Townsend v. Mayer, 3

execution of the two trusts when it is settled what they are; but there is a difference in the construction of marriage articles and of wills in order to reach the intention of the creator of the trusts. Thus, in marriage articles, the intention of the parties to the articles is presumed to be a provision for the issue of the marriage, and such construction is given to the articles as to carry into effect this presumed intention if possible; while in construing wills, in order to settle the limitations of a trust, there is no such presumed leading intention; or as Sir W. Grant put it, "I know of no difference between an executory trust in marriage articles and in a will, except that the object and purpose of the former furnish an indication of intention, which must be wanting in the latter. Where the object is to make a provision by the settlement for the issue of a marriage, it is not to be presumed that the parties meant to put it in the power of the father to defeat that purpose, and appropriate the estate to himself. If, therefore, the agreement be to limit an estate for life with remainder to the heirs of the body, the court decrees a strict settlement in conformity to the presumable intention. But if a will directs a limitation for life with remainder to the heirs of the body, the court has no such ground for decreeing a strict settlement."1

§ 361. Thus if, in marriage articles, the real estate of the husband or of the wife is limited to the heirs of the body or to the issue of the contracting parties, or either of them, or to the issue of the body, or to the issue and their heirs,3 Beav. 443; Lassence v. Tierney, 1 Mac. & G. 551; Gardner v. Stevens, 30 L. J. Ch. 199; Crofton v. Davies, L. R. 4 C. P. 159.

1 Blackburn v. Stables, 2 Ves. & B. 369; Bale v. Coleman, 8 Vin. 267; Strafford v. Powell, 1 B. & B. 25; Synge v. Hales, 2 B. & B. 508; Maguire v. Scully, 2 Hog. 113; Rochford v. Fitzmaurice, 1 Conn. & Laws. 173; 2 Dr. & War. 18; 4 Ir. Eq. 375; Jervoise v. Northumberland, 1 J. & W. 574; Deerhurst v. St. Albans, 5 Madd. 260.

2 Dod v. Dod, Amb. 274.

3 Phillips v. James, 2 Dr. & Sm. 404.