CHAPTER I
Two kinds of Declared Trusts
Executed and Executory
An Express Trust is either an Executed Trust or is an Executory Trust.
I. E XECUTED AND E XECUTORY T RUSTS
The expressions Executed and Executory as used in relation to contract have not the same meaning which they have when used in relation to trust.
When used in relation to a contract they refer to the carrying out of the contract. When used in relation to a trust they refer to the creation of a trust as distinguished from its carrying out.
In the sense in which the term is used in contract every trust is executory until it is over. But that is not the meaning in which the word is used in relation to trust.
When the words Executed and Executory are used in connection with a trust they have different meaning.
(1) A trust is an Executed Trust when the author of the trust has not only designated the persons who are to benefit by the trust but has also indicated the interests which they are to take in the trust property.
(2) A trust is said to be an Executory Trust when the author of the trust has only designated the persons who are to benefit by the trust but has not indicated the interests which they are to take in the trust property but has left it to be defined by another person by another instrument.
Illus. —On the marriage of A and B it is agreed between them that certain property shall be settled on trust for them and for their children.
N OTE . —Here the parties who are to benefit by the trust are defined—They are A and B and their children—
(1) But what benefits A and B their children are to take is not defined.
(2) Therefore, it is an Executory Trust.
(3) The line of cleavage between an Executed Trust and an Executory Trust is different from the line of cleavage between a completely constituted trust and an incompletely constituted trust.