a thesis - Institute of Advanced Legal Studies

CONSTRUCTION OF EXPRESS TRUSTS. 69
remainder to the heirs of the body, the court decrees a strict
settlement in conformity with the presumable intention."
The case of Newcastle v. Lincoln (infra) shows that the same
method of construction must be applied to an executory trust in
an ante-nuptial settlement.
Illustrations.
1. A. by marriage articles covenants to settle land upon trustees
to the use of him, A., for life without waste, remainder to the use
of B., his intended wife, for her life, remainder to the use of the
heirs male of him on her body begotten, remainders over. The
settlement must limit the property to A. for life, remainder to his
first son in tail. Trevor v. Trevor (1720), 1 P. Wms. 622.
2. A. in an ante-nuptial marriage settlement covenants to settle
leasehold estates in trust for such persons and such or the like
estates as far as the law will allow, as declared concerning real
estates limited to the first and other sons of the marriage in tail
male with several remainders. The settlement in pursuance of
this covenant must be so framed that no person shall be entitled to
the absolute property in the leaseholds until he attains twenty-one.
Newcastle v. Lincoln (1797), 3 Yesey, 387; 12 Yesey, 217.
Executory Trusts in Wills.—" In a will there is no presumption
that the testator means one quantity of interest rather than another,
an estate for life rather than an estate in fee." .... Even in a
will, however, "if it is clearly to be ascertained from anything in
the will that the testator did not mean to use the expressions which
he has employed in their strict proper technical sense, the court in
decreeing such settlement as he has directed will depart from his
words in order to execute his intention." (Blackburn v. Stables,
supra; and see the judgment of Lord Eldon in Jcrvoise v. Duke of
Northumberland (1820), 1 J. & W. at p. 574; and Sackville-West
v. Viscount Holmesdale, infra, at p. 555.)
" The only difference," said Lord Hatherley, " in the case of a
will, or deed of gift, not being marriage articles, is this, that the
intent must appear in some manner on the face of the instrument
in order to justify the court in directing a settlement which does
not follow the exact words employed in the instrument containing
the executory trust, but by varying them effects the presumed