Samuel Nelson

“ The former, as observed by Lord Eldon, in one sense of the word, is a trust executory; that is, he observes, if A. B. is a trustee for C. D., or for C. D. and others, that, in this sense, is executory, that C. D., or C. D. and the other persons, may call upon A. B. to make a conveyance, and execute the trust: but these are cases where the testator has clearly decided what the trust is to be; and as equity follows the law where the testator has left nothing to be done, but has himself expressed it, there the effect must be the same whether the estate is equitable or legal. ”

“ Because the marriage contract, besides the consideration of marriage, was founded on an additional valuable consideration, namely, the grant of the husband's property to the wife, in common with the husband, during their joint lives,-the whole to her as survivor during her life, and the joint property on her death to the heirs of both; which benefit the wife received in full, constituting a purchase by the husband of the interest in exchange of the wife's property for himself and his heirs. ”

“ That, for any thing short of this, they will be regarded as volunteers, in whose favor a court of equity will not interpose against the settler, or any one claiming under him.
But while the rule seems generally to have been adhered to in the form in which it is stated, it has been practically disregarded; as the slightest degree of valuable consideration imaginable is seized hold of to give effect to the limitation. ”

“ For example, where by the articles the fee is vested in the husband, his collateral heir might bring his bill to enforce this claim of the husband, which he, the collateral heir, had inherited.
But the claim of plaintiffs is urged by them upon a very different view. They are not setting up these articles to enforce any claim of John Neves, the husband; but, on the contrary, they expressly declare that his claim was limited to a life interest, and could not endure beyond that. ”

“ It transfers no property, passes no estate, declares no trustees, and contains no word of direct and immediate conveyance, and nothing to indicate that it was a complete and actual settlement. It relates, not merely to property in possession, but to that which might be acquired in future, and the greater part of that which is the subject of the plaintiff's bill was subsequently acquired either by purchase or descent, and could not be the subject of an executed contract. The title of the plaintiff, therefore, rests entirely in covenant.'
2. ”

“ The settlement has been made by the parties themselves: and the only question is, whether the defendants shall be compelled to carry it into execution.
The distinction between trusts executed and executory is this:-a trust executed is where the party has given complete directions for settling his estate, with perfect limitations; an executory trust, where the directions are incomplete, and are rather minutes, or instructions for the settlement. ”

“ Such is the language which complainants use, and if they have stated their own case correctly they are mere volunteers, not within the consideration of the marriage settlement, who are seeking for themselves, and in their own right, to enforce marriage articles,-an aid which, we respectfully say, has never been awarded. ”

“ Because, even if voluntary and executory, they are under seal, and not a nudum pactum; they would operate as a bond, or covenant, on which damages could be recovered at law; and therefore are founded on a consideration which entitles them to be enforced in equity.
2d. If not available as a sealed instrument, to entitle complainants to a decree for the land, they do authorize us to ask for a decree for the personal property, including the salves.
3d. Because near relatives, such as brothers and nephews, being the heirs of one of the parties, are not volunteers. ”

“ Scott, securing them, by decree against the legatee, an estate in the property which they could only have taken under the articles, it establishes the articles, and, in the language of Atherly, 'If a bill for a specific performance is brought by the issue, the court will direct the articles to be executed in toto, and consequently the settlement will contain limitations in favor of the volunteers,' &c. The rule is the same as to the wife, the very party to the contract. ”

“ Atherly says, (p. 141,) there seems reason to suppose that they might be materially influenced by a circumstance, which Lord King does not appear to have adverted to, or even to have been acquainted with ”