a thesis - Institute of Advanced Legal Studies

66 EXPRESS TRUSTS.
the operation of an apt and detailed legal phraseology, the general
intention compendiously indicated."
Sir George Jessel (in Miles v. Ilarford (1879), 12 Ch. D. at
p. 699) thought a true executory trust was perhaps a little more
narrow, " as where a conveyance has been directed to be executed
by a testator, but it is called an executory trust, and perhaps not
incorrectly, where instead of expressing exactly what he means,
that is, filling up the terms of the trust, he tells the trustees to do
their best to carry out his intention."
From these dicta it seems that a trust is executory if (1) the
limitations of the trust property are not completely expressed in
the instrument creating it, but are only indicated in general terms,
and (2) a further instrument is required in order to completely
declare them. Any other trust is executed.
EXECUTED TRUSTS.
In the case of Sale v. Column (1711; see 2 P. Wms. 473),
Lord Harcourt laid it down that the same words of limitation
ought to receive the same construction in a court of equity as they
have at law. And Lord Talbot, in the leading case of Gknorchy v.
Bosville (1733, Gas. t. Talbot, 3), said: " I think in cases of trusts
executed or immediate devises, the construction of courts of law
and equity ought to be the same; for there the testator does not
suppose any other conveyance will be made."
Lord Hardwicke appears to have thrown some doubt on this in
Bagshaw v. Spencer (1748, 2 Atk. at p. 582), but he subsequently
altered his opinion. (Exel v. Wallace (1751), 2 Ves. at p. 323;
and see note at 2 Cox, 8, and 3 Ves. 396.)
Illustrations.
1. A. devises land to B., C., D. and E. for payment of debts,
and afterwards to the use of them and their heirs, save that B. is
to have his share for life with power to make leases, remainder to
the heirs male of his body, remainders over. This is a trust
[executed], and B. takes an estate tail male. Sale v. Colman
(1711), 1 P. Wms. 141; 2 P. Wms. 474.
2. A. devises lands on certain trusts, and subject thereto to the
use of B. for life, remainder to trustees to support contingent