If tenant in tail levy a fine with proclamations according to the statute, this is a bar to the estate tail, but not to him in reversion or remainder, if he maketh his claim, or pursue his action, within five years after the estate tail spent.

Howlett v. Carpenter, Ventr. 311. 1 Prest. Conv. 235.) are barred of whatever right they may have, by force of the statute of Non-claim. 4 H. 7. c. 24. But, in order that a fine may operate by non-claim, it is necessary that an estate of freehold shall be in one of the parties to the fine, at the time of levying the same; otherwise it will be void, or voidable, by the plea, that partes finis nihil habuerunt tempore finis levati. 3 Wils. 249. Dyer, 215. Fermor's case, 3 Co. 77. A tenant for years, (unless he has previously acquired the freehold by means of a feoffment, Hardr. 402. 2 Lev. 52. 2 Bl. Com. 357, without covin, for if he continues the possession, and pays rent, the fine will be void, notwithstanding he has previously made a feoffment. Some's case, 3 Co. 79), or the owner of any chattel interest, or any person who has mere possession, or the receipt of rent of another's tenant, has not such an estate as will be a sufficient foundation for a fine. Ante, 323, 324. p. 398-400. Plowd. 358. On the latter point, the law is, that the possession of the tenant is the possession of him in remainder or reversion. Ante, 323, 324. p. 398-400. Plowd. 358. 1 Prest. Conv. 226. Doe, d. Burrell v. Perkins, 3 Maul. & S. 271. And it is a general

he enter within five years after his
4 H. 7. c. 24, &32 H. 8. c. 36.

372 a.

Fine by tebar to the is

nant in tail, a

sue: secus as to the remainderman or reversioner, if right accrued. (10 Rep. 43.)

rule, that a fine will not operate as a bar by non-claim, unless the estate to be barred is previously devested, or is devested by the operation of the fine. Prodger's case, 9 Co. 104. Saffyn's case, 5 Co. 123. Hence the necessity of adverse possession, that a fine may operate in this mode. 1 Prest. Conv. 224. 227. But it is immaterial whether the freehold is in possession, remainder, or reversion, Jenk. Cent. 254; and whether it is in the conusor or conusee (1 Prest. Conv. 258), or whether it has been gained by right or wrong, or is under a defeasible title (Carter v. Barnardison, 1 P. Wms. 105), is of no consequence. It has, however, been determined, that if a fine be levied by a person in remainder, an actual entry is not necessary to avoid it. Roe v. Power, 2 N. R. 1. Doe, d. Truscott v. Elliott, 1 Sel. & B. 85. As between parties and privies, a fine will be good, although the freehold is not in either of the parties. Jenk. Cent. 274. Grant's case, 10 Co. 50. Johnson v. Bellamy, 2 Leon. 36. The doctrine as to entry to avoid fines, will be more fully considered, in the chapter which treats of the remedy by entry. Post, ch. 47. vol. 3. p. 18. n. (L). As to the different sorts of fines, see infra, n. (B).—[Ed.]

cognizance supposes a preceding gift, the cognizor cannot reserve to himself any thing out of lands, whereof he has already conveyed away the absolute property, Bro. Abr. tit. Fine, pl. 30; but if an estate for life only be conveyed by the fine, the cognizor may then reserve a rent with a clause of distress. Rol. Abr. tit. Fine (O), pl. 10. 5 Cru. Dig. 50.

A fine sur cognizance de droit tantum, or upon acknowledgment of the right only, without the circumstance of a preceding gift by the cognizor, is generally used to pass a reversionary interest, which is in the cognizor: for of such reversions there can be no feoffment, or donation with livery supposed, as the freehold and possession during the particular estate is vested in a third person. Moor. 629. This species of fine is executory, and passes a feesimple without the word "heirs." Ante, 9 b. vol. 1. p. 499. It is also used to surrender the life estate of a tenant for life. Co. Read. 3; and is proper where a person, who has an estate for life, with a remote estate of inheritance, wishes to convey both estates, so as to avoid the forfeiture of the estate for life. But it is now very rarely levied, as all these objects may be attained by a fine sur concessit. 1 Prest. Conv. 212. Et vid. Ludlow and Ux., conusors, Drummond, conusee, 2 Taunt. 84.

A fine sur concessit, is where the cognizor, in order to make an end of disputes, though he acknowledges no precedent right or gift, grants to the cognizee an estate de novo, by way of supposed composition, either for years, for life, in tail, or in fee, 2 Bl. Com. 353; and this may be done reserving a rent, or the like; for it operates as a new grant. West. p. 2. s. 66. This fine is in frequent use, for the purpose of passing the estates of married women who are tenants for life, or for creating terms for years, which are to bind contingent, or executory estates, by way of estoppel. 1 Prest. Conv. 213.

A fine sur done grant et render, is a double fine, comprehending the fine sur cognizance de droit come ceo, &c. and the fine sur concessit; and may be used to create particular limita

delegated,must come within the express words authorizing the delegation. See Cole v. Wade, 16 Ves. 27. That a power is not forfeited by attainder for treason, unless where the execution of it is not annexed to the mind or hand of the donee, see Sugd. Pow. 175. Where it is forfeited, it must be executed in the life of the donee. Ibid. 176. That where a man has both a power and an interest, and he creates an estate which will not have an effectual continuance in point of time, if it be fed out of his interest, it shall take effect by force of the power, see Roger's case, 1 Vent. 228. Earl of Leicester's case, 1 Vent. 287. Ante, p. 441. n. (c ). It is intention that in these cases governs: therefore, where it can be inferred that the power was not meant to be exercised, it will not be deemed to be executed. Hookham v. Hales, 2 Ves. & B. 45. Thus if a man, having several powers over different esates, and also interests in them, should recite the power over one estate, and execute it in a formal manner, and then recite, not that he has a power to appoint the other estate, but that he is seised in fee of it, and accordingly convey his interest in it by lease and release, the latter estate would be held to pass out of his interest, and not by force of his power, simply on the apparent intention not to execute the power. Maundrell v. Maundrell, 7 Ves. 567. 1 Ves. 246. Et vid. 6 East. 105, 106. Adney v. Field, Ambl. 654. Sugd. Pow. 292. Where not only the use is appointed under the power, but also the estate is conveyed by force of the interest, the rule appears to be, that the instrument shall be construed either an appointment, or a release, as will best effect the intention of the parties. Ibid. 296. Cox v. Chamberlain, 4 Ves. 631.

3dly. With respect to the effect of the execution of a power.-We have seen, that in whatever mode the power is exercised, whether by an act inter vives, as grant, bargain and sale, lease and release, covenant to stand seised, feoffment and fine, or by a will, the instrument in every case operates strictly as an appointment or declaration of the use; and as there cannot be a use on a use, the bargainee, &c. takes the legal estate, the appointment being made to him; and if any ulterior use is declared, it operates merely as a trust in equity. Supra, p. 587, 588. Sugd. Pow. 320. 2 Prest. Conv. 483. And an appointment in pursuance of a power operates under the statute of Uses, not as a conveyance of the land, but as a substitution of a new use, in the place of a former one; and, in general, a deed executing a power cannot be considered as a new alienation, or independent conveyance, Lady Gresham's case, Mo. 261: but there are cases in which a deed executing a power is for many purposes considered as a substantive, independent instrument. Thus an appointment under a power is considered as a conveyance within the register acts; and, if not registered, will be postponed to a subsequent mortgage duly registered. Scrafton v. Quincey, 2 Ves. 413. And a deed executing a power has been deemed a conveyance within the statute 27 Eliz. c. 24. 2 Ves. 65. Et vid. Bartlett v. Ramsden, 1 Keb. 570. So, although the estate did not originally belong to the donee of the power, and the estate created by the appointment is considered as limited by the deed creating the power, yet a person deriving title under an appointment, is considered as claiming under the donee, within the meaning of a covenant by him for quiet enjoyment against any person claiming under him. Hurd v. Fletcher, Dougl. 43. Sugd. Pow. 324, 325. It is also observable, that estates created by the execution of a power take effect precisely in the same manner as if created by the original deed. As if a general power of appointment be given to a man by deed, and he by virtue of his power limit the estate to A. for life, with remainder to his children in strict settlement, these limitations will take effect as estates limited by the original and in exactly the same way as they would have done had they been limited in that deed by the grantor of the power. Middleton v. Crofts, 2 Atk. 661. The appointee takes under the power as if inserted therein: but not so as to take by relation from the creation of the power, as in case of an assignment in a commission of bankruptcy, that is, by force of the statute, and to avoid mesne wrongful acts. Per Lord Hardwicke, Duke of Marl borough v. Lord Godolphin, 2 Ves. 61. Where a person settles his estate to the use of himself for life, remainder over, reserving to himself a power of revocation, and executes his power; he becomes immediately seised of his former estate, without any entry or claim; because, as he is already in possession, he cannot enter on himself, and a claim is unnecessary. Ante, 237 a. p. 124. Where an estate is limited to such uses as a man shall appoint, and in default of appointment to him in fee, as he is seised in fee until appointment, his wife becomes entitled to dower; but if he executes his power of appointment, a new use arises, and vests in the appointee, and the fee-simple originally limited to the appointor ceases, by which means it is supposed that his wife's right to dower will also cease. See Cave v. Holford, 3 Ves. 657. Cox v. Chamberlain, 4 Ves. 631. Maundrell v. Maundrell, 10 Ves. 246. However, in order to prevent this question from arising, as the point has not been expressly decided, it is usual, in the limitations to bar dower, to give an interposed estate in default of appointment to a trustee. Sugd. Pow. 332. But it is clear, that a power to create leases, or any other estate to take effect in possession, will

deed;

control and over-reach all the estates in the settlement. Bosworth v. Farrand, Cart. 111. Talbot v. Tipper, Skin. 427. Beale v. Beale, 1 P. Wms. 244. Mosley and Mosley, 5 Ves. 248. Stackhouse v. Barnston, 10 Ves. 453. But the execution of a power will not defeat an estate previously created by the person who executes it. Goodright v. Cator, Dougl. 477. Where several powers have been given by the same deed, and two or more of them are executed, and no provision has been made in regard to their priorities, the priority of the estates created under them must be construed according to the intention of the settlement, and the object of the powers. Yellend and Frielis, Mo. 788. It is mostly usual, however, to provide by the settlement for the priority of the several powers contained in it. Ante, p. 578. n. (a).

4thly. With respect to equitable relief, in case of a defective execution of a power.There are three cases in which equity will relieve against a defective execution, 1st. Where there is a consideration, as in favour of a purchaser (Fothergill v. Fothergill, 2 Freem. 257. 3 Ch. Cas. 68. Cowp. 267.), which term includes a mortgagee and a lessee (Barker v. Hill, 2 Ch. Rep. 113. Bradley v. Bradley, 2 Vern. 163. Taylor v. Wheeler, 2 Vern. 564. Jennings v. Moore, Ib. 609. Reid v. Shergold, 10 Ves. 370. Marnel v. Blake, 4 Dow. 264.), or in favour of a creditor (Fothergill v. Fothergill, supra. Pollard v. Greenvil, 1 Ch. Cas. 10. 1 Ch. Rep. 98. Wilkes v. Holmes, 9 Mod. 485. Ithell v. Beane, 1 Ves. 215. Bixby v. Eley, 2 Bro. C. C. 325. 2 Dick. 698.), wife (Cowp. 267. Fothergill v. Fothergill, supra. Lady Clifford v. Earl of Burlington, 2 Vern. 397. Coventry v. Coventry, 2 P. Wms. 222. Ibid. 705. Wykham v. Wykham, 18 Ves. 423.), or a great grandchild. (Sarth v. Lady Blanfray, Gilb. Eq. Rep. 166. Sneed v. Sneed, Ambl. 64. Cowp. 264, 265. 267.), or in favour of a marriage consideration, and although the power was executed after the marriage. Fothergill v. Fothergill, supra. Hervey v. Hervey, 1 Atk. 561. Churchman v. Hervey, Ambl. 335. But the same equity is not extended to a natural child, Fursakur v. Robinson, Prec. Ch. 475. Tudor v. Anson, 2 Ves. 582; nor to a grandchild, Perry v. Whitehead, 6 Ves. 544, and see the cases there cited; nor to a brother or sister, Goodwyn v. Goodwyn, 1 Ves. 228. Goring v. Nash, 3 Atk. 189; nor to a nephew (Strode v. Russell, 2 Vern. 621. Marston v. Gowan, 3 Bro. C. C. 170. Piggot v. Penrice, Com. 250.), or cousin, Tudor v. Anson, 2 Ves. 582.; nor to a husband (Moodie v. Reid, 1 Mad. Rep. 516, unless he is a purchaser by marriage, Sergison v. Sealey, 2 Atk. 412.), or a mere volunteer. Smith v. Ashton, 2 Freem. 309. 3 Ch. Cas. 113. 126. Sargeson v. Sealey, 2 Atk. 415. Godwin v. Kilsha, Amb. 684. And it seems that a defective execution in favour of a stranger cannot be supplied so as to give the fund to creditors. See Sugd. Pow. 343. The person applying for relief must have a preferable equity to the person against whom he seeks relief. Jevers v. Jevers, Dom. Proc. 1734. Sudg. Pow. 344. Mortlock v. Buller, 10 Ves. 292. But it seems that a defect may be supplied, although all the objects are children. Sugd. Pow. 350. Where there are several defective executions, equity will supply the defect in the last, in order to effectuate the intent of the parties. Hervey v. Hervey, supra. And generally, if the intention to execute the power clearly appears in writing, it is sufficient, whether it be by covenant (Fothergill v. Fothergill, supra. Sergison v. Sealey, supra. Et vid. 15 Ves. 173.), request by will (Vernon v. Vernon, Ambl. 1.), or by a written contract, not under seal. Shannon v. Bradstreet, 1 Rep. Temp. Redesdale, 52. Mortlock v. Buller, 10 Ves. 292. So equity will supply the defect where a man promises by letters to grant an estate which he can only do by exercise of his power. Campbell v. Leach, Ambl. 740. So if the intention appear from a recital in the deed of appointment (Wilson v. Piggot, 2 Ves. jun. 351.), or from an answer to a bill in chancery (Carter v. Carter, Mose. 365. Fortesque v. Gregor, 5 Ves. 553.), or from a covenant in the original deed (Sarth v. Lady Blanfray, supra.), it will amount to an equitable execution of the power. But there must be a reference to the fund to show the party's intention to execute the power, or the party must be in possession of no other fund upon which the covenant can operate. Jackson v. Jackson, 4 Bro. C. C. 462. Hele v. Hele, 2 Ch. Cas. 28, 29. 87. 1 Vern. 406. Jones v. Tucker, 2 Meriv. 533. 2d. Equity supplies a defective execution, where there is any fraud (Ward v. Booth, 3 Ch. Cas. 69. Piggot v. Penrice, Com. 250. Prec. Ch. 471. Stiles v. Cowper, 3 Atk. 692. Shannon v. Bradstreet, supra. Anon. Bunb. 53. Stratford v. Lord Aldborough, 1 Ridgw. P. C. 281.) or surprise accompanied with fraud and circumvention. 3 Ch. Cas. 114, 115. 3d. So equity will relieve where the party was prevented from executing his power by accident or disability. See Earl of Bath's case, 3 Ch. Cas. 68. Et vid. Cowp. 267. Piggot v. Penrice, supra. Lastly, equity will relieve against a defective execution, although it be by deed instead of will (Tollet v. Tollet, 2 P. Wms. 489. S. C. Mose. 46. Sneed v. Sneed, Ambl. 64. Cowp. 264, 265.), or although there are two witnesses instead of three (Parker v. Parker, Gilb. Eq. Rep. 168. Cotter v. Layer, 2 P. Wms. 623. Mose. 227. Sergison v. Sealey, 2 Atk. 412.

(590)* 271 b.

Diversity, as

of the estate,

intent to per

*And it is to be observed (as hath been said), that there is a diversity between a feoffment of lands at this day upon confidence, or to to the passing the intent to perform his last will, and a feoffment to the use of such between a fe- person and persons, and of such *estate and estates, as he shall appoint offment to the by his last will: for, in the first case, the land passeth by the will, form feoffor's and not by the *feoffment; for after the feoffment the feoffor was where it is to seised in fee-simple as he was before; but, in the latter case, the will pursuing his power is but a direction of the uses of the feoffment; and estates as and the estates pass by execution of the uses, which were raised upon point by will. the feoffment; but in both cases the feoffees are seised to the use of the feoffor and his heirs in the mean time; and all this and much more concerning this matter hath been adjudged (c).

last will, and

the use of

such persons

he shall ap

(Post, 111 b. 112 a.)

(591)*

(592)* (593)*

Godwin v. Fisher, 1 Bro. C. C. 367. Wade v. Paget, 1 Bro. C. C. 365.), or though a seal be wanting, Smith v. Ashton, Finch. 273. 3 Keb. 551. 1 Ch. Cas. 263, 264. 1 Freem. 308. 3 Ch. Cas. 69. 106; and although the subject of the power be real estate, yet this relief is afforded as well where the defective instrument is a will, as where it is an act inter vivos. Wilkes v. Holmes, 9 Mod. 485. 1 Rep. Temp. Redesdale, 60 n. 1 Dick. 105. 2 P. Wms. 228. Sugd. Pow. 360. But the non-execution of a power is in general never aided, Arundel v. Philpot, 2 Vern. 69. Tomkyn v. Sandys, 2 P. Wms. 228. n. Wilm. 33. Bull v. Vardy, 1 Ves. jun. 272. Piggot v. Penrice, Com. 250. Gilb. Eq. Rep. 138: unless the power is in nature of a trust. Garfoot v. Garfoot, 1 Ch. Cas. 35. Gwilliams v. Rowell, Hardr. 204. Anly v. Doyl, 1 Ch. Cas. 180. 1 Ch. Rep. 89. nom. Amly v. Gower; Witchcot v. Souch, 1 Ch. Rep. 97. Hyer v. Wordale, 2 Freem. 135. Locton v. Locton, Freem. 136. Carvill v. Carvill, 2 Ch. Rep. 156. As to equitable relief in the case of defective execution of leasing powers, see ante, p. 440. n. (c 1). With respect to the extinguishment and destruction of powers, see ante, p. 458. n. (L), and p. 578. n. (a).-[Ed.]

(c) Before closing this chapter, it may be proper to consider, 1st. What uses are not executed by the statute; and, 2dly. The nature and general doctrine of trusts.

1st. As to what uses are not executed by the statute.-We have seen, that for the execution of an use there must be, 1st. A person seised to the use; 2dly. A cestui que use in esse; 3dly. A use in esse, scil. in possession, reversion, or remainder; 4thly. An estate or seisin, out of which the use is to arise; for the words of the statute are, that the estate of such person seised to the use shall be adjudged in cestui que use, &c. 1 Co. 126 a; and if these requisites do not concur, there can be no execution of the use. Therefore contingent uses, during the suspense of the contingency cannot be executed by the statute. Bac. Uses, 45. 1 Sand. 194. Uses limited of copyhold estates, also, are not within the statute of Uses. Co. Copyh. 54. Cro. Car. 44. 2 Ves. 257. And as the statute was made previously to the statute of Wills, 32 & 34 H. 8, it seems to follow, that the former does not extend to devises to uses. But as the testator's intention is generally the guide in cases of devises, it has been repeatedly determined, that if A. devise to B. and his heirs, to the use of, or in trust for C., and his heirs, or in trust to permit C. and his heirs to take the profits, it shows, that the testator intended, that C. should have the legal estate in fee; and the law will therefore give the devise such an operation. 1 Vern. 79. 415. 2 Salk. 679. 2 Atk. 573. 2 P. Wms. 134. Doe, d. Leicester v. Biggs, 2 Taunt. 109. Brydges v. Wotton, 1 Ves. & B. 137. But it is clearly settled that in the case of a devise to the use of A. for life, remainder over, this cannot take effect by way of use executed by the statute, because there is no seisin to serve the use; but still the cestui que use will have the legal estate. 1 Sand. 206. So although a feoffment in fee to the use of the feoffor for life, and after his decease that J. S. shall take the profits, be an use executed in J. S.; yet it is clear that if there be a conveyance in trust to pay over the profits, (Symson v. Turner, 1 Eq. Ab. 383. Silvester v. Wilson, 2 T. R. 444. 15 Ves. 371. Shapland v. Smith, 1 Bro. C. Č. 75. Doe d. Leicester v. Biggs, supra,) or to convey, (Roberts v. Dixwell, 1 Atk. 607. Bac. Uses, 8), or to sell, (Bagshaw v. Spencer, 2 Atk. 578), the legal estate will vest in the trustees in order to enable them to pay over the profits. So it is in case of a trust to permit a feme covert to receive the profits, or to pay the same to her separate use. Pybus.v. Smith, 3 Bro. C. C. 340. Henry v. Purcel, Fearn. 75. Nevill v. Saunders, 1 Vern. 415. Bush v. Allen, 5 Mod. 63. As to the extent of the legal estate vested in trustees under

trusts of the above description, see Doe, d. White v. Simpson, 5 East. 162. Jones v. Say and Sele, 8 Vin. 262, pl. 19. 3 Bro. P. C. 113. 1 Ves. 144. Bagshaw v. Spencer, 2 Atk. 570-577. 1 Ves. 142-144. Gibson v. Rogers, Ambl. 93. Wright v. Pearson, ib. 360. Harton v. Harton, 7 T. R. 652. It has been determined, that terms of years or other chattel interests cannot be limited to uses, as the statute speaks of persons seised to the use of another, and the word "seised" is only applicable to the possession of a freehold estate. Bac. Uses, 42. And that upon a use can be executed by the pd his heirs, to the use of

statute; and therefore if there be a conveyance

༞.;

B. and his heirs, this use cannot be executed in B. ver, 155 a. Samback v. Dalton, Toth. 1 Atk. 591. So if land be limited to A and his heus w the intent, or in trust that B. and his heirs may receive a rent thereout to the use of C. and his his, the legal estate in the rent will vest in B. by the fifth clause of the statute, because the se sin, out of which the rent arises, is conveyed to A. and upon the limitation of such rent to the statute is satisfied. Chaplin v. Chaplin, 3 P. Wms. 229.

2dly. As to the nature and general doctrine of trusts.-The strict construction which the judges put on the statute of Uses, in determining that there were uses to which the statute did not transfer the possession, defeated, in a great measure, its intent: as by this means uses were not entirely abolished, but still continued separate and distinct from the legal estate; and were taken notice of and supported by the court of chancery, under the naine of trusts. A trust is therefore a use not executed by the statute 27 H. 8; for originally the words use and trust were perfectly synonymous, and are both mentioned in the statute. But as the provisions of the statute were not deemed coextensive with the various modes of creating uses, such uses as were not provided for by the statute, were left to their former jurisdiction. 1 Bl. Rep. 136. 1 Cru. Dig. 458. And this jurisdiction extends not only to trusts declared upon a legal estate in fee, but to those declared upon the estates of tenants in tail, for life, and years, and to special trusts. A trust, generally speaking, may be defined to be, a right on the part of the cestui que trust to receive the profits, and to dispose of the lands in equity. 1 Mod. 17. But in the case of special trusts for the accumulation of profits, the sale of estates, or the conversion of one trust fund into another, the cestui que trust cannot interfere until such special trust be satisfied. 1 Sand. 214. There is a distinction between a trust executed, and a trust executory. A trust executed, is where an estate is conveyed to the use of A. and his heirs, with a simple declaration of the trust for B. and his heirs, or the heirs of his body; in which case the trust is perfect, and it is said to be executed, because no further act is necessary to be done by the trustee to raise and give effect to it; and because there is no ground for the interference of a court of equity to affix a meaning to the words declaratory of the trust, which they do not legally import. So, in the case of a will, a trust is said to be executed, where the testator has given complete directions for settling his estate, with perfect limitations. A trust executory, is where articles of agreement are made in contemplation of marriage, and consequently preparatory to a settlement, or where in a will the testator's directions are incomplete, and are rather minutes or instructions. In the cases of trusts executed, legal expressions will have a strict legal effect, as in immediate devises at law, though, perhaps, contrary to the testator's intention, Shaw v. Weigh, 1 Eq. Abr. 184. Jones v. Morgan, 1 Bro. C. Č. 206. Poole v. Poole, 3 Bos. & P. 620; but in the cases of executory trusts, the court will consider the intention, and direct the conveyance according to it, White v. Carter, Ambl. 91. Garth v. Baldwin, 2 Ves. 655; and words of limitation, "as heirs of the body," will be construed as words of purchase, if the testator has, by expressions in his will, shown an intention that they should not be construed in the former sense. Glenarchy v. Boswell, Ca. Temp. Talb. 319. Papillon v. Voice, 2 P. Wms. 471. Bagshaw v. Spencer, 2 Atk. 570. 581. White v. Carter, Ambl. 670. Bastard v. Proby, 2 P. Wms. 478. n. Read v. Snell, 2 Atk. 642. Leonard v. Earl of Sussex, 2 Vern. 526. Roberts v. Dixwell, 1 Atk. 607. Et vid. Stanley v. Stanley, 16 Ves. 491. 1 Mad. Ch. 446. 1 Sand. 248, 249. The execution of executory trusts created by deed, is the same as of executory trusts created by will. 12 Ves. 227. Ante, vol. 1. p. 775. n. (1). And in the execution of an executory trust the court will direct a limitation to be inserted in the settlement to preserve contingent remainders, Baskerville v. Baskerville, 2 Atk. 279. Stamford v. Hobart, 3 Bro. P. C. 31; and both in wills (Green v. Stephens, 12 Ves. 419. 17 Ves. 64. Marryatt v. Townley, 1 Ves. 102. 104.) and marriage articles, cross-remainders may be raised by implication. Twisden v. Lock, Ambl. 663. West v. Erissey, 2 P. Wms. 349. Duke of Richmond v. Lord Cadogan, cited 17 Ves. 67. Ante, vol. 1. p. 774, 775. n. (1). As to the difference between a trust and an equity of redemption, see ante, p. 38. n. (z). Tucker v. Thurston, 17 Ves. 133. Besides the direct modes of creating a trust estate by limiting a use upon a use, by limitations to trustees, to pay over the rents, or for the separate use of a married woman, or to sell, or raise money,