Lord Hardwicke indeed said that, in limitations of a trust either of real or personal estate to be determined in that Court, the construction ought to be the same as in limitations of the legal estate, with this distinction, unless the intention of the testator or author of the trust plainly appeared to the contrary (b).

But this position has since been repeatedly and expressly overruled. "I am of opinion," said Lord Henley, "that a limitation in a trust, perfected and declared by a testator, must have the same construction as the devise of a legal estate executed; and to hold the contrary would make property very precarious and uncertain; the testator would mean one thing in this court, and the direct contrary on the other side of the hall (c).” And on another occasion he observed, "I am very clear that this Court cannot make a different construction in the limitation of a trust, than Courts of law could make on a limitation in a will, for in both cases the intention shall take place (d).

As the rule in Shelley's case is not one of construction, that is, of intention, but of law, and was established to remedy certain mischiefs, which, if heirs were allowed. to take as purchasers, would be introduced into feudal. tenures; it may be thought, that, as trusts are wholly independent of tenure, they ought not to be affected by the operation of the rule; and the cases of Withers v.

Allgood (e), and Bagshaw v. Spencer (f), seem to lend some countenance to the doctrine.

In Withers v. Allgood a person had conveyed freeholds and leaseholds to trustees, to hold such as were freehold to the use of the trustees and their heirs, and the leaseholds to the trustees, their executors, and administrators, in trust to apply the rents to H. W. for life, and afterward to the heirs of her body, and of J. M. and their heirs; and Lord Talbot held, that the heirs of H. W. took as purchasers, they being joined with the heirs of others who could only take in that capacity. His Lordship observed, that the rule of law was not so strict as to control the intent where it was plain.

In Bagshaw v. Spencer the trust was for A. during his life, without impeachment of waste, remainder to trustees to preserve contingent remainders, remainder to the heirs of the body of A., with remainders over; and Lord Hardwicke decreed the heirs to take as purchasers, though, unquestionably, in the case of a legal estate, the rule in Shelley's case must have prevailed. But his Lordship did not thus decide upon the ground, that, as the rule originated in tenure, it was inapplicable to trusts; but, holding the rule to be in all cases one of construction, he thought the words might in a trust be more largely and liberally interpreted. "It is said," he observed," that the law will not suffer its rules to be contradicted, but will supersede the intent, and reduce the gift to its own operation, such as it will allow. I admit the general principle, but it is misapplied here.

(e) Cited in Bagshaw v. Spencer, 1 Ves. 150; 1 Coll. Jur. 403.

(f) 1 Ves. 142; 1 Coll. Jur. 378.

The law will not suffer a perpetuity, or the freehold to be in abeyance, &c., because it would change the law, and, by acts of private persons, vary the rules of property. That arises from want of power in the testator; but in the present case there is no want of power, there being no doubt but the testator might devise for life with contingent remainders. The only objection is, that he has used improper words, which the law will not allow to have that effect (g)."

But whatever respect may be due to these decisions, they cannot prevail against the weight of modern authority. To omit the case of Garth v. Baldwin (h), in which Lord Hardwicke himself appears to have felt a doubt upon his own previous opinion, in Wright v. Pearson (i) before Lord Northington, where an estate was limited to A. for life, remainder to trustees to preserve contingent remainders, remainder to the heirs male of the body of A. lawfully to be begotten, and their heirs, provided that in case A. should die without having any issue male of his body living at his death, then, subject to certain annuities, remainder over, Lord Northington, though the case was the exact counterpart of Bagshaw v. Spencer, determined that heirs of the body must be taken as words of limitation. But it is observable, that Lord Northington also did not advert to the question, whether the rule in Shelley's case, as founded on tenure, was or not applicable to trusts, which were wholly independent of tenure; but, assuming the rule to be in all cases one of construction, that is, to be governed by the intent (k), he thought himself bound, in respect of a

(g) 1 Ves. 146. (h) 2 Ves. 646. (i) 1 Ed. 119.

(k) Wright v. Pearson, 1 Ed. 128; and see Austen v. Taylor, 1 Ed. 367.

trust, to abide by the precedents determined upon legal estates (1).

The authority of Wright v. Pearson has since been approved by Lord Thurlow, in the case of Jones v. Morgan (m). The limitations of the trust were to A. for life without impeachment of waste, remainder to the heirs male of the body of A. lawfully begotten, severally, respectively, and in remainder one after the other, as they and every of them should be in seniority of age and priority of birth, with remainders over; and Lord Thurlow expressed his opinion (the decision was partly on this, and partly on another ground,) that the rule in Shelley's case must prevail in equity as at law, notwithstanding the clear intention to the contrary. Perhaps, therefore, we may conclude at the present day, that, although the rule may not be equally applicable to trusts, the Court has determined it shall be equally applied.

We have said, that, if technical words be employed, they must be taken in their legal and technical sense; but a distinction must be drawn between trusts executed, and trusts that are only executory: for to trusts executed the position is strictly applicable, but in the case of trusts that are executory it must be received with considerable allowance.

A trust executed is where the limitations of the equitable interest are complete and final; in the trust executory, the limitations of the equitable interest are not intended to be complete and final, but merely to serve as minutes or instructions for perfecting the settlement at some future period.

The distinction we are considering was very early

(1) Wright v. Pearson, 1 Ed. 125. (m) 1 B. C. C. 206.

established, and was recognised successively by Lord Cowper (n), Lord King (0), Lord Talbot (p), and by no one more frequently than by Lord Hardwicke himself (q); yet in Bagshaw v. Spencer (r) Lord Hardwicke almost denied that any such distinction existed. "As to the difference," he said, "between trusts executed and trusts executory, no one is more unwilling than I am quieta movere; but this distinction never has been established by any direct resolution, though said arguendo, and was it to be examined to the bottom, it might sound strange how it should be established. All trusts in notion of law are executory (s), and to be carried into execution here by subpoena. The first essential part of a trust is, that the trustee is to convey the estate some time or other, whether the testator has directed it or not, which every testator is presumed to know; therefore a doubt may be reasonably made how there can be a difference, whether the testator has directed a conveyance or not."

In a subsequent case (t) his Lordship felt himself called upon to offer some explanation. "He did not mean," he said, "in Bagshaw v. Spencer, that no weight

(n) Bale v. Coleman, 8 Vin. 267; Earl of Stamford v. Sir John Hobart, 3 B. P. C. 33.

(0) Papillon v. Voice, 2 P. W.

471.

Hoskins, 3 Atk. 24.

(r) 1 Ves. 152; and see Hopkins v. Hopkins, 1 Atk. 594.

(s) See Lord Eldon's observations, Jervoise v. Duke of Nor

(p) Lord Glenorchy v. Bosville, thumberland, 1 J. & W. 570; and Cas. t. Talb. 3.

(q) Gower v. Grosvenor, Barnard. 62; Roberts v. Dixwell, 1 Atk. 607; Baskerville v. Baskerville, 2 Atk. 279; Marryat v. Townly, 1 Ves. 102; Read v. Snell, 2 Atk. 648; Woodhouse v.

E

Lord Henley's, Austen v. Taylor, 1 Ed. 366.

(t) Exel v. Wallace, 2 Ves. 323. And Lord Henley once said, he believed Lord Hardwicke had at last renounced his opinion, Barnard v. Proby, 2 Cox, 8.