a thesis - Institute of Advanced Legal Studies

CONSTRUCTION OF EXPRESS TRUSTS. 73
and the heirs of his body lawfully issuing, but in such manner
and form nevertheless and subject to such limitations and restrictions
as that, if B. shall die without leaving issue, it may descend
unencumbered and belong to 0., her heirs, executors, administrators
and assigns, according to the respective nature and tenure thereof.
This is an executory trust (p. 209), and B. takes a life interest
only. Thompson v. Fisher (1870), L. E. 10 Eq. 207.
15. A. by will gives property to trustees upon trust " to convey,
settle and assure " it " in a course of entail to correspond, as nearly
as may be, with the limitations of a barony, in such manner and
form " as the trustees " shall consider proper, or as their counsel
shall advise." The limitations of the barony are to A. for life, and
after the death of A. to B. (the second son of A.) and the heirs
male of his body; and in default of issue, in the same manner to
the third, fourth, and fifth sons of B. successively, and the heirs
male of their bodies; with a shifting clause, by which in certain
events the barony is to go over. A.'s intention being to attach the
property to the barony as far as possible, the settlement must be to
B. and the other sons of A. for their respective lives, with remainder
to their sons successively in tail. Sackville-West v. Viscount
Holmesdale (1870), L. E. 4 H. L. 543.
16. A. devises freeholds in Worcestershire to his third son and
his issue male, with remainder to his fourth son and his issue male,
in strict settlement; and devises freeholds in Cardiganshire to his
fourth son and his issue male, with remainder to his fifth son and
his issue male in strict settlement. By a shifting clause, it is
provided that if his fourth son, or any issue male of his fourth son,
become actually entitled to the Worcestershire estates, and if his
fifth son, or any of his issue male, are then living, the limitations
of the Cardiganshire estates in favour of his fourth son or his issue
male are to absolutely cease. A. also bequeaths leaseholds in
Cardiganshire to trustees upon such trusts as, regard being had to the
difference in tenure of the premises respectively, ivill best or most nearly
correspond with the uses declared of the Cardiganshire freeholds. This
is an executory trust (p. 699), and on the third son dying a
bachelor in the lifetime of the fourth, the Cardiganshire leaseholds
go over to the fifth son, the shifting clause, assuming it to be bad
for remoteness if applied verbatim to leaseholds, being modified so
as to make it good. Miles v. Harford (1879), 12 Ch. D. 691.