Also known as: executory interests
Written by attorneys · grounded in primary & secondary sources — see below
A future interest held by a transferee that either divests a prior possessory estate upon a specified event or begins after the natural termination of a preceding estate.
Edward Everett conveyed land to his son Elijah in fee simple conditional. The deed provided that if Elijah died without surviving issue the land would pass to Everest Holdings under an alternative limitation. When Elijah died childless the executory interest in Everest Holdings became possessory and cut off any claim by Elijah's heirs.
Eileen Epstein held a fee simple conditional that would end if she died without issue. The conveyance named Elise Everly as the holder of an executory interest that would take only if no issue survived and no other taker existed. Upon Eileen dying without descendants the executory interest in Elise Everly vested in possession.
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Ezra Eastman received land in a fee tail substitute under state statute. The deed created an executory interest in Eastern Electric that would divest the estate if Ezra died without surviving issue. When Ezra died childless the executory interest shifted possession to Eastern Electric.
Eugene Ellsworth held a fee tail substitute. The instrument named a remainderman and then created an executory interest in Echo Systems that would take if the remainderman failed. When no issue survived and the remainderman also failed the executory interest in Echo Systems became possessory.
Elijah Edwards held a fee simple conditional subject to an executory interest in Emerald Enterprises if he died without issue. After his marriage his widow claimed dower but the executory interest remained superior. The court held that the widow's dower was subordinate to the executory interest that had not been destroyed by any prior transfer.
Elise Everly and her spouse held land as joint tenants. To terminate the right of survivorship Elise conveyed her interest to herself in a manner that created a tenancy in common with an executory interest in her heirs. The transaction produced an executory interest that would shift possession upon the death of the surviving joint tenant.
An executory interest divests or cuts short a prior estate while a remainder waits for the natural termination of the preceding estate. The distinction turns on whether the future interest operates by divestment or by succession after natural expiration.
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Yes. Executory interests are contingent future interests and therefore subject to the rule. If the interest might vest beyond the perpetuities period it is void and the preceding estate may become absolute.
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A shifting executory interest divests an estate held by a transferee. A springing executory interest divests an estate retained by the transferor or springs out of the transferor after a gap in possession.
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No. A future interest in a third party that follows a fee simple determinable must be labeled an executory interest because a remainder cannot follow a fee simple. The label follows from the rule that remainders cannot follow vested fees simple.
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…by creating a joint life estate with a contingent remainder in fee to the survivor; a tenancy in common in simple fee with an executory interest in the survivor; or a fee simple to take effect in possession in the future.” (Swenson & Degnon, supra, at p. 469, fn. omitted.) We discard the archaic rule that one cannot enfeoff…