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; Lewin, Tr. 144.

The distinction between executed and executory 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 to make out from general expressions what his intention is? or has he so defined that intention that you have nothing to do but to take the limitations he has given to you, and to convert them into legal estates? per Lord St. Leonards, Ld. Ch., in 4 H. L. Cas. 210; see Tillinghast v. Coggeshall, 7 R. I. 3S3; Bisph. Eq. 86. In the case of articles made in contemplation of marriage, and which are, therefore, preparatory to a settlement, so in the case of a will directory of a future conveyance 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 an ulterior act to raise and perfect them: i. e. the actual settlement is to be made or the conveyance to be executed. They are instructions, 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 intention, 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. Phoenix, 4 Paige, Ch. (N. Y.) 305; Dawson v. Dawson, 16 N. C. 93, 18 Am. Dec. 573.

But 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. 17(3; 0 Yes. 056; 18 id. 140; 1 K^en 551; 3 Beav. 238.