The Law Library (Volume 22)

This historic book may have numerous typos, missing text or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1838. Not illustrated. Excerpt: ... f *442 1 shaw v. Spenser, (m) which was decided by Lord *HardL J wicke, on the difference of construction applicable to legal and equitable interests; a distinction which has been overruled in a long series of ca*es, (7j) including a subsequent decision of Lord Hardwicke.(o) These observations only apply to executed trusts; for between trusts executed and executory there is a very material distinction. A trust is said to be executory or directory where the objects take not immediately under it, but by means of some further act to be done by the persons in whom the legal estate is vested. As where a testator(//) devises to trustees in trust to convey land to certain uses, or directs money to be laid out in land, to be settled to certain uses. In these cases the direction is considered merely in the character of instructions, or heads of a settlement, which are to be executed, not by a literal adherence to the testator's terms, which would render the direction to settle absurd and senseless, but by formal limitations, adapted to give effect to the object which the testator appeared to have in view. Thus where a testator devises lands to be conveyed, or directs lands to be purchased, to be settled to the use of A. for life; remainder to trustees to preserve contingent remainders; remainder to the heirs of the body of A., (limitations under which, if literally followed, A. would be tenant in tail by the rule in Shelley's case, ) courts of equity, presuming that the testator could not have so absurd an intention as that a conveyT *443 1 ance snou DEGREES ue macle> vesting in the first taker an estate, J which would enable him immediately to acquire the fee by a common recovery, execute the trust by directing a strict settlement, i. e. a limitation of the lands to A. for