This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Express trusts are sometimes classified as "executed" and "executory" trusts. Executed trusts arc those which have been explicitly and fully declared, the trustee thereunder having merely to carry out the duties imposed on him by the instrument declaring the trust; while an executory trust is one the general outline only of which is stated, the actual limitations of the
69. Chaplin, Express Trusts, c. 7; 1 Stimson's Am. St. Law, Sec.Sec.
1701-1703; 1 Reeves, Real Prop. 493 et seq.
70. Chaplin, Express Trusts, Sec. 518; 2 Pomeroy, Eq. Jur. Sec. 1004.
[Sec. 110 equitable interest to be created being left to the trustee, or to the court, to be determined according to the apparent intention of the creator of the trust.71 Executory trusts are much less usual in this country than in England, but they are not unknown here. They are of most frequent occurrence in the case of articles of agreement made upon the occasion of a marriage, and in the case of trusts declared by will. In such cases, the property may be given to trustees with directions of the most general character as to the disposition of the property, as that they shall settle it "in strict settlement," or that it shall be "entailed," or that they shall make such a settlement of the property as will best insure its continuance to a certain person and his children, or they are directed to settle the property upon two persons named, and their issue, in the event of their marriage.72
In the case of an executory trust created by marriage articles, it has frequently been decided that the purpose and object of such articles are to be con71. 1 Perry, Trusts, Sec. 359; 2 Pomeroy, Eq. Jur. Sec. 1000; Glen-orchy v. Bosville, cas. temp. Talbot, 3, 1 White & T. Lead. Cas. Eq. 1, and notes; Egerton v. Brown-low, 4 H. L. Cas. 210; Neves v. Scott, 9 How. (U. S.) 196; Nicoll v. Ogden, 29 111. 323. 81 Am. Dec. 311; Cushing v. Blake, 30 N. J. Eq. 689; Dennison v. Goehring, 7 Pa. St. 175, 47 Am. Dec. 505.
The term "executed," used in connection with a trust, must be carefully distinguished from the f'ame word used in connection with a use, to describe the effect of the Statute of Uses. A use not executed by the statute may be, and generally is, an executed trust.
In some cases, the expressions "executed" and "executory" are used to distinguish trusts the declaration of which is complete, and which are therefore valid without any consideration, from those which are not completely declared, and which are therefore invalid if not supported by a consideration. See Pad field v. Padfield, 72 111. 322; Gaylord v. City of Lafayette, 115 Ind. 429, 17 N. E. 899. Such use of the terms seems unnecessary, and is almost sure to produce confusion.
72. Executory trusts "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,' setsidered as raising a presumption that a provision for the issue of the marriage is intended, which neither of the parents shall be in a position to defeat, and the language of the articles will be construed accordingly in framing the limitations of the estates to be created thereunder, while in the ease of an executory trust created by a will no such presumption of intent arises.73 The chief practical distinction between executory and executed trusts lies in the fact that in the case of the former the intention of the creator of the trust will be sought for and carried out, and technical words which may be used in the declaration of trust will not be taken in their technical legal sense unless this will accord with such intention; while, on the other hand, in the case of an executed trust, such words will be given the same effect as if they occurred in connection with the creation of a legal estate, irrespective of the question of intention.74 The chief occasion for the application of this distinction has been in connection with the Rule in Shelley's Case, hereafter discussed,75 which has been held to be strictly applicable to executed, but not to executory, trusts.76