De G. & J. 690; Re Shirley's Trusts, 32 B. 394; Ord v. limitations Ord, L. R. 2 Eq. 393. When there is a gift to a class of persons living at a particular time and a subsequent gift to the same class without the restriction of being alive at the particular time, "in the same manner" as the prior gift, this will not cut down the class to take the second gift. Yardley v. Yardley, 26 B. 38; Piggott v. Wildes, 26 B. 90; Re Wilder's Trusts, 27 B. 418. But there may be words which will have this effect. Swift v. Swift, 11 W. R. 334; 32 L. J. Ch. 479. of a prior gift. tion of charges. When property is given upon the same trusts as other Reduplicaproperty which is subject to a power to raise a definite sum, the property so given by reference is not subject to an additional charge of the same amount. Hindle v. Taylor, 5 D. M. & G. 577, 599; Boyd v. Boyd, 9 L. T. N. S. 166; 2 N. R. 486; Baskett v. Lodge, 23 B. 138; see Sambourne v. Barry, I. R. 11 Eq. 140. But if the power is to raise a charge not exceeding a certain proportion of the value of the property, the power to charge is increased in proportion by the value of the added property. Cooper v. Macdonald, 16 Eq. 258. before It may be noticed that a bequest to persons "before Gift to named " may refer to persons before mentioned, and will persons not without more be confined to persons expressly men- named." tioned by name. In re Holmes, 1 Dr. 321; Bromley v. Wright, 7 Ha. 334. Executory trusts defined. CHAPTER XLIII. EXECUTORY TRUSTS. EVERY trust which requires a future conveyance or settlement is so far executory; but the mere fact that the testator contemplates a future settlement will not justify the Court in putting upon the words of a testator any other than their legal meaning. When the testator, though contemplating the execution of a future instrument, declares the trusts upon which the property is to be held by reference to another instrument, those trusts are looked upon as incorporated into the will and must have their ordinary legal meaning. Christie v. Gosling, L. R. 1 H. L. 279; see Viscount Holmesdale v. West, L. R. 3 Eq. 474. If the testator himself declares the trusts to be inserted in the contemplated settlement, the question then is, "whether he has been his own conveyancer," in which case the trusts declared by him must be literally followed, or whether the trusts declared by him are merely the headings of a future settlement, in which case they will be so carried out as to effectuate his intention. See Egerton v. Earl of Brownlow, 4 H. L. 1, 210; Austen v. Taylor, 1 Ed. 361; Amb. 376; Boswell v. Dillon, Dru. temp. Sug. 291; In re Nelley's Trusts, 26 W. R. 88. Thus a direction to purchase lands to be held on the trusts declared with respect to other lands must be obeyed by literally adopting those trusts. Austen v. Taylor, 1 Ed. 361; Amb. 376. In marriage articles the purpose of the instrument is Distinction itself sufficient to indicate the settlor's intention that the between marriage property is to go in strict settlement, but in a will an articles intention that words are not to have their strict meaning and wills. must appear from the instrument itself. Therefore, though the trust is executory, a direction to settle property on A. and the heirs of his body: Seale v. Seale, 1 P. W. 291; Samuel v. Samuel, 14 L. J. Ch. 222; 9 Jur. 222; or a devise in trust for A., with a direction to make a proper entail to the male heir by him, will not cut down A. to less than an estate tail. Blackburne v. Stables, 2 V. & B. 367; Sweetapple v. Bindon, 2 Vern. 536; Harrison v. Naylor, 2 Cox, 247; Randall v. Daniell, 24 B. 193; Marshall v. Bousfield, 2 Mad. 166; and see Jervoise v. Duke of Northumberland, 1 J. & W. 559. the rule in If, however, an intention is manifested not to use words How far in their strict legal sense, the trust will be executed so as Shelley's to effect the general intention. case applies to trusts. Such an intention is sufficiently indicated if the limita- executory tion is to A. for life, remainder to his heirs: Meure v. Meure, 2 Atk. 265; Papillon v. Voice, 2 P. Wms. 471; Stonor v. Curwen, 5 Sim. 264; Hadwen v. Hadwen, 23 B. 551; Bastard v. Proby, 2 Cox, 6; Rochfort v. Fitzmaurice, 2 D. & War. 1; Trevor v. Trevor, 1 H. L. 239; by a direction that the first taker should be unimpeachable for waste: Papillon v. Voice, 2 P. Wms. 471; Fearne, C. R. 115; by a direction that he shall not have power to bar the entail: Leonard v. Earl of Sussex, 2 Vern. 526; Fearne, C. R. 115; or that the property shall go over if the first taker dies without issue: Shelton v. Watson, 16 Sim. 543; Thompson v. Fisher, 10 Eq. 207; by the insertion of a general limitation to preserve contingent remainders not limited to a life: Venables v. Morris, 7 T. R. 342, 438; Doe v. Hicks, 7 T. R. 433; by a direction that a settlement shall be made as counsel shall advise and Direction to make a strict en tail. Direction to settle go with a title. that issue are to take in succession, and according to priority. White v. Carter, 2 Ed. 366. And the same result, it seems, will follow if the genera scope of the limitations shows that they were not to be literally adhered to. Parker v. Bolton, 5 L. J. Ch. 98; Duncan v. Bluett, I. R. 4 Eq. 469. As to the effect of a direction to make a strict entail, see Graves v. Hicks, 11 Sim. 536; Sealey v. Stawell, I. R. 2 Eq. 326. An executory trust to settle property upon such trusts property to as would correspond with the limitations of a barony granted by letters patent to several persons in succession and the heirs male of their bodies respectively, will be limited so as to give them only estates for life, the title being inalienable. Sackville-West v. Viscount Holmesdale, L. R. 3 Eq. 474, ib. 4 H. L. 543; Lord Dorchester v. Earl of Effingham, Sir G. Coop. 319; 10 Sim. 587, n.; 3 B. 180, n.; Woolmore v. Burrows, 1 Sim. 512; Banks v. Baroness Le Despencer, 10 Sim. 576. The words "as far as the rules of law per It seems clear that where chattels are directed to go as heirlooms, with real estate "as far as the rules of law and equity permit," these words will not make the trust executory, or enable the Court to mould the limitations of executory. the personalty. Christie v. Gosling, L. R. 1 H. L. 279. mit" will not make a trust Effect of such words trust is executory. But if such a trust is clearly executory the Court will where the mould it so as to prevent the absolute vesting of chattels in a tenant in tail dying before coming into possession. See Lady Lincoln v. Duke of Newcastle, 12 Ves. 226, and see per Lord Chelmsford in Christie v. Gosling, L. R. 1 H. L. 290; Sackville-West v. Viscount Holmesdale, L. R. 4 H. L. 543. If there are shifting clauses as to the realty which would be void for remoteness as to the personalty, they will be moulded so as to carry out the intention. Miles v. Hurford, 12 Ch. D. 691. The Court will carry out in strict settlement an executory trust of family jewels directed to go as heirlooms to a succession of eldest sons "as far as the rules of law and equity will permit," though unconnected with limitations of real estate, and will insert provisoes against vesting in any person who does not become entitled to possession and attain twenty-one. Shelley v. Shelley, 6 Eq. 540. to settle. A gift to a female legatee, followed by a direction to Direction settle it on her upon marriage, probably imports no more than a separate use, so that the legatee, whether married or not, is entitled to payment on her separate receipt. Laing v. Laing, 10 Sim. 315; Magrath v. Morehead, 11 Eq. 491. See Kennerley v. Kennerley, 10 Ha. 160; Munt v. Glynes, 41 L. J. Ch. 639. If the direction is to make a strict settlement, but no Direction to settle intention is shown to benefit children, the property will be strictly. settled upon the legatee in such a way as to exclude her husband and children. Loch v. Bagley, 4 Eq. 122. to benefit If an intention is shown that the children of the legatee Intention are to be benefited, the settlement will contain a power of children. appointment in the legatee with limitations in default of appointment in favour of children who, being males, attain twenty-one, or, being females, attain twenty-one or marry as tenants in common. Young v. Macintosh, 13 Sim. 445; Stanley v. Jackman, 23 B. 450; Taggart v. Taggart, 1 Sch. & L. 84; Cogan v. Duffield, 2 Ch. D. 44; see Oliver v. Oliver, 10 Ch. D. 765; Eustace v. Robinson, 7 L. R. Ir. 83; Gowan v. Gowan, 50 L. J. Ch. 248. If the trustees have a discretion as to the form of settlement a power may be inserted enabling the legatce to appoint a life interest to a husband. Charlton v. Rendall, 11 Ha. 296. Under a direction to settle for the benefit of the legatee Ultimate and her issue to the exclusion of a husband, the ultimate trusts. |