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Executory Trusts

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EXECUTORY TRUSTS. A trust is called executory when some further act is requisite to be done by the author of the trust to give it its full effect. See Bisph. Eq. 31; óLewin, Tr. 144.

The distinction between executed and ex ecutory trusts is well settled; Dennison v. Goehring, 7 Pa. 177, 47 Am. Dec. 505 ; though once doubted in England ; 1 Ves. 142; but see 2 Ves. 323. The test is said to be : Has the testator been what is called, and very properly called, his own conveyancer? Has he left it to the court make out from gen eral expressions what his intention is? or has he so defined that intention that you have nothing to do but to take the limita tions he has given to you, and to convert them into legal estates? per Lord St. Leon ards, Ld. Ch., in 4 H. L. Cas. 210; see Till inghast v. Coggeshall, 7 R. I. 383; Bisph. Eq. 86.

In the case of articles made in contem plation of marriage, and which are, there fore, preparatory to a settlement, so in the case of a will directory of a future convey ance to be made or executed by the trustees named therein, it is evident that something remains to be 'done. The trusts are said to be executory, because they require ul terior act to raise and perfect them : i. e.

the actual settlement is to be made or the conveyance to be executed. They are in structions, rather than complete instruments, in themselves.

The court of chancery will, in promotion of the supposed views of the parties or the testator and to support their manifest in tention, give to the words a more enlarged and liberal construction than in the case of legal limitations or trusts executed ; 1 Fonbl. Eq. b. 1; White, Lead. Cas. 18. Where a voluntary trust is executory and not executed, if it could not be enforced at law because it is a defective conveyance, it is not helped in favor of a volunteer in a court of equity; Minturn v.' Seymour, Johns. Ch. (N. Y.) 498, 500 ; Acker v. Phce nix, 4 Paige, Ch. (N. Y.) 305; Dawson v. Dawson, 16 N. C. 93, 18 Am. Dec. 573. But where the trust, though voluntary, has been executed in part, it will be sustained or en forced in equity ; Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329 ; Dennison v. Goehring, 7 Pa. 175, 178, 47 Am. Dec. 505. White, Lead. Cas. 176; 6 Ves. 656; 18 id. 140; 1 Keen 551; 3 Beay. 238.