147. Express trusts are those which are created by act of the parties. They are either
(a) Executed, or
148. An executed trust is one in -which the terms and limitations are definitely and completely declared by the instrument creating it.
149. An executory trust is one in which the limitations are not completely declared, but only an outline given, by which the trustee is to declare the final limitations of the trust estates.
Under an executed trust, the intention of the settlor must be taken from the instrument creating the trust,34 while in the case of an executory trust the terms and limitations of the trust, as they are finally declared, are to be determined, not only by the words used, but by the circumstances surrounding the parties.35 A trust is executed when the instrument creating it contains all the terms of the trust, and is in its final form,-nothing remaining to be done but to carry out the terms as therein declared. But in an executory trust it is intended that there shall be a further and more definite declaration of the terms and limitations of the trust, and the instrument creating an executory trust is more in the nature of a memorandum containing directions according to which the trust is to be completely declared.36
34 Wright v. Pearson, 1 Eden, 125; Austen v. Taylor, Id. 361; Jerroise v. Duke of Northumberland, 1 Jac. & W. 559.
35 Austen v. Taylor, 1 :Eden, 361; Neves v. Scott, 9 How. 196; Cushing v. Blake, 30 N. J. Eq. 6S9; Tallman v. Wood, 26 Wend. (N. Y.) 9.
36 Wright v. Pearson, 1 Eden, 125; Jerroise v. Duke of Northumberland, 1 Jac & W. 559. Executory trusts are closely applied to powers. See post, p. 306.
Executory trusts are special or active trusts directing the trustee to settle or dispose of the land for the estates and interests required by the trust. They are so called because they have to be executed by a deed conveying the land for the estates and limitations intended, as distinguished from trusts directing the trustee to hold the property upon trusts then executed, in the sense of being then perfectly limited and defined. Executory trusts are fulfilled and discharged by the execution of a deed in conformity with the directions of the trust. Executory trusts are here distinguished, as regards the limitation of estates, by admitting of an exceptional construction of the limitations expressed. They are often expressed in compendious terms by way of instructions for the limitations directed to be made, without setting out the limitations at length, as by directing or agreeing that property shall be settled "in strict settlement," "entailed," settled "with usual and proper powers," or the like; in which cases the construction consists in developing the limitations involved in such expressions in the form best suited to carry out the general intention of the trust. And, even where an executory trust is expressed in technical terms of limitation, the terms are not necessarily construed with the same strictness as is applied to ordinary legal limitations; but, having regard to the directory character of the trust, the technical meaning is held subordinate to the general object required to be carried out.37
The two principal classes of executory trusts are those arising under contracts for marriage settlements, and under trusts declared in wills. In the former the courts presume that the intention in creating the trust was to provide for the offspring of the marriage, and construe the terms accordingly; but in trusts arising under wills no such intention can be presumed.38 Most of the cases of executory trusts arise under limitations calling for a consideration of the rule in Shelley's Case, which will be considered in another place.39
37 Tallman v. Wood, 26 Wend. (N. Y.) 9. Mcelroy y. Mcelroy, 113 Mass. 509; Cashing v. Blake, 30 N. J. Eq. 689; Wight v. Leigh, 15 Yes. 564.
38 Neves v. Scott, 9 How. 196; Gause v. Hale, 2 Ired. Eq. (N. C.) 241; Smith v. Maxwell, 1 Hill (S. C.) 101; Green v. Rumph, 2 Hill (S. C,) 1; Carroll v. Renich, 7 Smedes & M. (Miss.) 798.
39 See post, p. 295.
150. An express trust may be created by any language which shows an intention to create a trust, and which sufficiently designates the property, the beneficiary, and the terms of the trust. Under the statute of frauds, an express trust cannot be created by parol
151. The parties to the creation of a trust are,(a) The feoffor, or creator.
(b) The feoffee, or trustee, who holds the legal title.
(c) The cestui que trust, or beneficiary.
The creation of an express trust is a mere matter of conveyancing. And being a conveyance, rather than a contract, no consideration is necessary to support an express trust.40 A mere contract to create a trust will not be enforced, in the absence of a consideration. Some cases, however, hold that such an agreement will be enforced in favor of a wife or child, though not for other relatives.41
The presence or absence of consideration, however, plays an important part, as will be seen when resulting trusts are considered. For, if the legal title is conveyed to one who pays no consideration, a presumption may arise that such grantee was not intended to take the beneficial interest42
Any real property may be held in trust.43 The requirements as to description of the property conveyed, the designation of the feoffee and of the cestui que trust, etc., are matters of conveyancing, and will be discussed in a subsequent chapter.
40 Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329; Ownes v. Ownes, 23 N. J. Eq. 60; Massey v. Huntington, 118 Ie. 80, 7 N. E. 269; Branson v. Henry, 140 Ind. 455, 39 N. E. 256; Anon Brooke, 89. But see Beeman v. Beeman, 88 Hun, 14, 34 N. Y. Supp. 484; Hamilton v. Downer, 152 I1l 651, 38 N. E. 733. The instrument of creation must be executed and delivered. Govin v. De Miranda, 9 Misc. Rep. 684, 30 N. Y. Supp. 550.
41 Tiayes v. Kershow, 1 Sandf. Ch. (N. Y.) 258; Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329; Buford v. Mckee, 1 Dana (Ky.) 107.
42 See post, p. 267.
43 1 Perry, Trusts (4th Ed.) §§ 67-69; 2 Washb. Real Prop. (5th Ed.) p. 416. But a trust cannot be created in a mortgage, where it is only a lien, though there may be a trust In the mortgage debt. Merrill v. Brown, 12 Pick. (Mass.) 216.