a thesis - Institute of Advanced Legal Studies

74 EXPRESS TRUSTS.
17. A. bequeaths the contents of her house to trustees upon
trust to select the best paintings, statuary, and china for the Earl
of E., to be held and settled as heirlooms, and to go with the title.
This is an executory trust (p. 548), and a settlement will be
directed, giving a life interest to the earl, with remainder to the
next heir of the earldom for his life. Cockerett v. Earl of Essex
(1884), 26 Ch. D. 538.
Executory Trusts in Deeds.—It is sometimes stated that executory
trusts are to be found only in marriage articles and wills.
(See SnelPs Equity, 12th ed. 56.) But this is not correct, as
appears from such cases as Mayn v. Mayn (1867, L. E. 5
Eq. 150).
Executory trusts in settlements not upon marriage, whether
voluntary or for value, must be construed in the same manner as
executory trusts in wills—i.e., the intention must appear on the
face of the instrument. (Rochfordv. Fitzmaurice (1842), 1 Conn.
& Laws, at p. 172 ; 2 Dr. & War. at p. 20; Sackville- West v.
Viscount Holmesdale (1870), L. E. 4 H. L. at p. 554.)
Illustrations.
1. By a post-nuptial settlement for value, A. covenants to settle
lands as counsel shall advise or direct to the use of B. for life, and
after his decease to the use of the heirs male of the body of B.,
remainders over. This is an executory trust (p. 173), and the
intention being to provide for B.'s issue and others, B. takes an
estate for life merely. Rochford v. Fitzmaurice (1842), 1 Conn. &
Laws. 158 ; 2 Dr. & War. 1.
2. A., B., C. and D. execute a voluntary deed by which it is
declared that D. shall raise out of certain hereditaments 800/., and
invest the same upon trusts to be declared for the benefit of X. for
life with remainder to her children, and as to X. for her separate
use, and uith all powers for charging the security and for maintenance,
and other powers and trusts which are usually inserted in a money
settlement of the like nature. This is an executory trust (p. 153),
and the settlement must limit the money to the children as tenants
in common and not as joint tenants. Mayn v. Mayn (1867),
L. E. 5 Eq. 150.