a thesis - Institute of Advanced Legal Studies

CONSTRUCTION OF EXPRESS TRUSTS. 65
as having been finally established by the leading case of Glenorchy
v. Sosmlle (1733, Gas. t. Talbot, 3 ; Wh. & Tud. L. 0. Eq. 7th ed.
vol. ii. 763 ; see Lord Hardwicke's remark at 2 Atk. 582).
Although, however, it is now completely settled that the distinction
exists for the purposes of interpretation (see Sackville- West
v. Viscount Holmesdale (1870), L. E. 4 H. L. 543), the precise
method of determining to which class a trust belongs is not so
clearly stated in the cases. (See Wh. & Tud. L. C. Eq. 7th ed.
vol. ii. 771.) " The words ' executory trust,'" said Lord Northington
in Austen v. Taylor (1759, 1 Eden, 366), "seem to me to have no
fixed signification." Lord King, in the case of Papitton v. Voice,
describes an executory trust to be where the party must come to
this court to have the benefit of the will. But that is the case of
every trust. Later on in the same case he says: " The true
criterion is this : wherever the assistance of trustees, which is ultimately
the assistance of this court, is necessary to complete a
limitation, that is sufficient evidence of the testator's intention that
the court should model the limitations. But where the trusts and
limitations are already expressly declared, the court has no authority
to interfere, and make them different from what they would be at
law."
" All trusts are in a sense executory," said Lord St. Leonards in
Egerton v. EarlBroicnloic (1853, 4 H. L. Ca. at p. 211), "because
a trust cannot be executed except by a conveyance, and therefore
there is always something to be done. But this is not the sense
which a court of equity puts upon the term ' executory trust.' A
court of equity considers an executory trust as distinguished from
a trust executing itself, and distinguishes the two in this manner:
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 the limitations
he has given to you and to convert them into legal estates ? "
" It is of the essence of an executory trust that it should not
be fully expressed or declared in the instrument creating it, but
that it should require some further deed or instrument for its
complete legal expression," said Lord Westbury in Sackville-West
v. Viscount Holmesdale (1870, L. E. 4 H. L. at p. 566).
"An executory trust," according to Lord Cairns in the same
case (p. 571), is "a trust which is to be executed by the preparation
of a complete and formal settlement, carrying into effect, through
H. F