come into possession, and when it does, the other never can (i.e.: A conveys: to B for life,
then to C and his heirs if C survives B; if C doesn’t survive B, then to D and his heirs”—
B has a life estate, C and D have alternate contingent remainders since each is subject to a
condition precedent)
C. Executory Interests
*If it is not a remainder b/c the preceding estate is not a life estate, then it must be an executory interest
-Any future interest in a transferee that dies not have the characteristics of a remainder, that is not capable
of taking on the natural termination of the preceding life estate; it divests the interest of another
-At common law, were not transferable inter vivos, but now most states hold they’re transferable; interests
are devisable and descendible
1.
Shifting Executory Interests
—Divests a
Transferee
- Divests the interest of another transferee; it cuts short a prior estate created by the same
conveyance (i.e.: “To A and her heirs, but if B returns from his trip, then to B and his heirs”—A
has a fee simple subject to an executory interest; B has an executory interest that will shift the
land from A to B)
2.
Springing Executory Interest
—Follows a gap or Divests a
Transferor
- Interest that follows a gap in possession or divests the estate of a transferor (i.e.: O conveys “to
A when and if A marries B”—O has a fee simple subject to executory interest, and A has a
springing executory interest in fee simple b/c if A marries B, it will divest O’s fee simple)
*A remainder cannot follow a fee simple interest; any interest that follows a fee and is
held by a third person is an executory interest
*To have an executory interest, the prior interest must be vested and not contingent
D. Tips on distinguishing
-If the first interest is a contingent remainder, the second interest is also a contingent remainder
-If the first future interest is a vested remainder subject to divestment, the following future interests will be
executory interests
-If the condition is incorporated into the clause which gives the gift to a remainderman, then the remainder is
contingent. If one clause creates the remainder, and a subsequent clause takes it away, the remainder is vested
subject to divestment
-Always look for “but if” where the condition occurs in the subsequent phrase b/c it usually denotes the
remainder is being taken away, and is a condition subsequent (indicating a vested remainder subject to
divestment) and not a condition precedent.
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VI. THE RULE AGAINST PERPETUTIES
An interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after
some life in being at the creation of the interest.
A. When the perpetuities begins to Run
1. Wills: at the testator’s death
2. Deeds: the date the deed is delivered with the intent to pass title
B. Must Vest if at all
- The interest can vest or it can fail; we’re not interested in the probability or the likelihood that it will;
we’re interested in the possibility that it may or may not happen
Becomes vested when:
1. Becomes a possessory estate, OR
2. Becomes a indefeasibly vested remainder or a remainder subject to total divestment
