many cases with similar, and others with stronger circumstances in favour of the heirs as individuals, have been the subjects of litigation in the Court of Chancery(d); and in no case whatever, of a trust executed, have the words heirs of the body, following a limitation to the ancestor for his life, been held to be words or PURCHASE, or received any other or a different determination, than the same case, considered as involving questions on limitations of legal estates, would have received.

And it is extremely difficult to show what those circumstances are, which evince such an intention, as makes it necessary to construe the word heirs to be a word of purchase; otherwise than by referring to the cases already introduced, as arising on questions respecting legal estates, and determined to have been exceptions to the general rule, under which the word heirs. is to be construed a word of limitation.

Even in the report of Bagshaw and Spencer there are several expressions, from which it appears that Lord Hardwicke himself took the distinction between trusts executed and executory; and Lord Kenyon (e) mentioned a case of Lloyd v. Jones, before Lord Northington, in which Lord Northington said, he conceived Lord Hardwicke to have admitted, at last, the difference between trusts executed and executory.

(d) Wright and Pearson, Ambl. 358; Jones and Morgan, 1 Bro. C. C. 206; Brydges v. Brydges, 3 Ves. 120.

(e) a Cox, P. W. 478.

In one case there was,

1st. An executory trust; and,

2dly. A devise by the same words.

In the former case, the gift was held to be to the first taker for life; in the latter, for an estate-tail.

Let it be remembered, that the cited case of Algood and Withers (f), arose on a deed. of conveyance to trustees, of some lands in fee, and of other lands for the residue of a term, upon trust for WV for life, remainder to the heirs of the body of the said W, and of G and M, and their heirs, executors and assigns; and it would seem that the consideration of the circumstances, that the limitation to the heirs of IV was made to them, and the heirs of G and M jointly, so that all the heirs of the several persons were to take an interest of the SAME SORT, and that the heirs of the body of G and M were to take an estate in fee, as appeared by the words of superadded limitation, and that the limitation to the heirs of the body of W, construed as words of limitation, would have given an ESTATE-TAIL, ruled the determination of this case.

Trusts executory (g) are peculiar to marriage articles, and those instruments, whether deeds or wills, in which, by the express provisions of the instrument, the trustees are to convey, settle, or assure the lands, on which the instrument is

(ƒ) P. 359.

(g) 1 Fonbl. 408; Cox's Notes to 2 P. W. 477; 2 Ves. & Beames, 369.

to operate, or to purchase land with money entrusted to be laid out in a real estate; thereby showing that the parties have a further conveyance in their prospect and contemplation (h).

The mere circumstance that the party covenants to do an act, or directs a conveyance to be made, will not, of itself, make the trust executory.

The conclusion that a trust is executed or executory, must depend on the quo animo; on the inquiry, whether another instrument be in the contemplation of the party, as the act which is to give full and complete effect to the principal object he has in view; Children as purchasers are always understood to be the main objects of marriage articles, and also of deeds, and even, except as is afterwards noticed, wills, directing (i) that lands to be purchased, or lands of which the testator is the owner, shall be settled or conveyed; unless the settlement or conveyance is to be made, with reference to particular uses, or upon trusts (k), and the legal operation and effect of the uses and trusts are already fixed. When the uses and trusts are already ascertained, the trust is not considered as executory. That point was decided in Roe v. Aistrop (1), and in Austen v. Taylor ; and particularly in the latter of these cases, and the recent case of Brouncker v. Bagot (m).

(h) Difference between a limitation to heirs of the body of a man by his wife, and generally, Read v. Ward, 7 Vin. Abr. 123. (i) Bastard v. Proby, 2 Cox's Rep. 6.

(k) Brouncker v. Bagot, 1 Mer. 271.

(1) 2 Black. Rep. 1228; Tracey v. Lethulier, 3 Atk. 794. (m) 1 Merriv. 271.

That a trust will not be executory merely because the party covenants, to do an act, is a distinction clearly deducible from all the cases on this learning, and is particularly illustrated by an instance in fact, and a decision on the question, in White and Thornborough (n). Indeed, the cited cases of Roe and Aistrop, and Austen v. Taylor (o) are also authorities for the like conclusion.

In Roe v. Aistrop a settlement was made by the husband previous to marriage, of his freehold estates, to the use of himself and his intended wife, for their lives and the life of the survivor, and, after their decease, to the heirs of the body of the settler, on the body of his intended wife to be begotten, with remainder to his own right heirs; and in that settlement, he covenanted to surrender his copyhold lands, which were of inheritance, descendible by the custom of the manor to the youngest son, to the use of himself and his intended wife and their heirs of their two bodies to be begotten, in like manner, and to the same uses, as the freehold lands thereinbefore mentioned were settled and conveyed; and, after the marriage, he surrendered the copyhold lands to the use of himself and wife for their lives and the life of the survivor of them, and after their several deceases, to the use of the heirs of their two bodies, and for want of such issue, to the use of

(n) Ambl. 376; 2 Vern. 702.

(0) See also Tracey v. Lethulier, 3 Atk. 794.

himself in fee. De Grey, Ch. J. said it was a mighty clear case; and all the Court agreed, that as the covenant for the surrender of the copyhold referred to the uses declared of the freehold, the word heirs in the article, could not be considered as a word of purchase, but must have its legal operation, according to the effect of that word in the limitation of the freehold lands.

In Austen v. Taylor (p), a testator, after giving certain lands to trustees and their heirs, among other trusts, upon trust for P for life, remainder to trustees to preserve, &c. remainder to the heirs of the body of P, remainder to his own right heirs ; gave the residue of his personal estate to trustees, in trust to buy lands in fee-simple; which he directed should remain, continue, and be, to, for, and upon such and the like estate and estates, trusts, intents, and purposes, and under and subject to the like charges, restrictions and limitations, as were by him before devised, limited, and declared, of and concerning his land and premises therein before last devised, or as near thereto as might be, and the deaths of persons would admit: and the Lord Keeper was of opinion, that in the case of imperfect trusts only, that Court could make a different construction from a legal limitation. In that case, he said, there was no reference to the trustees. Without that ingredient, he did not

(p) Ambl. 376; and Brouncker v. Bagot, 1 Merr. 271; but see Papillon v. Bois, 1 Eq. Ab. 185.