a thesis - Institute of Advanced Legal Studies

CONSTRUCTION OF EXPRESS TRUSTS. 67
remainders, remainder to the use of the heirs male of the body of
B. and their heirs. This is a trust [executed], and B. takes an
estate tail [male]. WrigM v. Pearson (1758), 1 Eden, 119.
3. A. devises land to trustees in trust to pay certain annuities,
and subject thereto in trust for B. and his assigns for life, without
impeachment of waste, remainder to the trustees to preserve contingent
remainders, remainder to the use of the heirs of the body
of B., remainder to testator's own right heirs. He then gives the
residue of his personal estate to be laid out in land, which shall
thereafter remain, continue, and be to the like uses, B. takes an
estate tail in the land to be purchased. Austen v. Taylor (1759),
1 Eden, 361.
It should be mentioned here that although technical words of
limitation have the same construction in executed trusts as in legal
limitations, where no technical words of limitation are used at all,
trusts, executed as well as executory, are sometimes construed
more liberally. The authorities are somewhat confusing, and
there appears to be some conflict between the older text-book
writers and the more modern. The subject is dealt with in
Cruise's Digest, vol. i. 343 (which seems to give the rule too
favourably to trusts) ; Hayes, Conveyancing, 5th ed. vol. i. 91;
Preston, Estates, vol. ii. 64; Williams, Real Property, 19th ed.
181; Lewin, Trusts, 10th ed. 117, 118; and Elphinstone, Interpretation
of Deeds, rule 104—which seems to give the rule too
narrowly.
Perhaps the rule may be stated to be that a limitation of a
trust of real estate without words of inheritance will give the
beneficiary a life estate only unless an intention on the part of the
settlor or grantor to pass a fee simple or fee tail appears in the
instrument containing the limitation.
The cases of HolUday v. Overtoil (1852, 15 Beav. 480); Lucas
v. Brandreth (1860, 28 Beav. 274); Tatham v. Vernon (1861, 29
Beav. 604) ; Meyler v. Meyler (1883, 11 L. R. Ir. 532) ; In re
Whiston's Settlement (1894, 1 Oh. 651) ; Dearlerg v. Letchford
(1895, 72 L. T. 892); and In re Irwin (1904, 2 Ch. 753), are
instances of the absence of any indication of such intention.
The cases of Pugh v. Drew (1869, 17 W. R 988) ; In re
Trinyham's Trusts (1904, 2 Ch. 487); and In re Oliver's Settlement
(1904, 74 L. J. Ch. 62), are instances in which sufficient indication
of an intention to pass the fee simple was found.
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