a thesis - Institute of Advanced Legal Studies

68 EXPRESS TRUSTS.
EXECUTORY TRUSTS.
" In matters executory or in cases of articles or a will directing
a conveyance, where the words of the articles or will are improper
or informal the court will not direct a conveyance according to
such improper or informal expressions, but will order the conveyance
or settlement to be made in a proper or legal manner, so as
may best answer the intent of the parties." (Stamford v. Hobart
(1870), 3 Bro. P. 0. 31; and see Glenorchy v. Bosville (1733),
Cas. t. Talbot, 3; Austen v. Taylor (1759), 1 Eden, 361; White v.
Carter (1766), 2 Eden, 367; Jervoise v. Duke of Northumberland
(1820), 1J. & W. 570.)
" In construing an executory trust a court of equity exercises
a large authority in subordinating the language to the intent,"
said Lord Westbury in SackviUe- West v. Viscount Holmesdale
(1870, L. E. 4 H. L. at p. 565. See also other cases cited
below).
The origin of the rule, according to Lord Hatherley (L. R.
4 H. L. at p. 553), may be traced to the desire to obviate the
consequence of the extremely technical doctrine in Shelley's Case.
Lord Eldon seems at one time to have felt some hesitation in
accepting the doctrine (see his judgment in Newcastle v. Lincoln
(1806), 12 Vesey, 236), but he afterwards fully assented to it.
(Jervoise v. Duke of Northumberland (1820), 1 J. & W. at p. 571;
and see L. E. 6 Eq. at p. 548.)
Executory trusts are most frequently to be found in, although
they are not confined to, marriage articles and wills, and these
require separate consideration.
Executory Trusts in Marriage Articles.—In the case of marriage
articles there is a presumption arising from the nature of the document
that the intention of the settlor was to make a provision for
the children of the marriage, and the construction of the instrument
is controlled by this presumption. (Rochford v. Fitzmaurice
(1842), 2 Dr. & War. at p. 18.)
" "When the object," said Sir "W. Grant, M. E., in Blackburn v.
Stables (1814, 2 V. & B. 369), "is to make a provision by the
settlement of an estate 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 to appropriate the estate to himself.
If, therefore, the agreement is to limit an estate for life with