Also known as: springing executory interest · shifting executory interest · springing executory interests · shifting executory interests · executory interest
Written by attorneys — see sources below.
A future interest in a transferee that divests a prior estate upon the occurrence of a stated event. The interest either springs from the grantor or shifts title from one grantee to another.
Sydney Santos conveyed land to her son Sean Steele and his heirs, but provided that if Sean and all his issue should ever be dead then the land would pass to Sylvia Santos or her heirs. When Sean later died without surviving descendants, Sylvia asserted her claim. The limitation operated as a shifting executory interest that divested Sean's fee simple estate in favor of Sylvia.
Sofia Stern granted property to her daughter Sabrina Shah and her heirs, with a further limitation that if Sabrina and all her issue should ever be dead then title would pass to the person entitled under the possibility of reverter. Upon Sabrina's death without issue, the alternative limitation directed the property back to Sofia's successors. The shifting executory interest supplied the mechanism for the transfer.
Stephen Shaw conveyed land to his son and the heirs of his body, but if the son and all his issue should ever be dead then the land would pass to Silverline Industries. After the son's death without surviving issue, Silverline claimed the property. The alternative executory interest shifted title away from the prior estate.
Sierra Solutions received a conveyance of land to it and its heirs, subject to a limitation that if Sierra and all its successors should ever be dead then title would pass to Spectrum Financial as the designated remainderman. When Sierra ceased to exist without successors, Spectrum asserted its interest. The shifting executory interest effected the transfer to the remainderman.
Sydney Santos held a fee simple conditional subject to an executory interest in favor of her children. Upon her death her surviving spouse Sean Steele claimed dower. The executory interest remained superior because the spouse's interest was expressly subordinate to any undestroyed executory limitation that restricted the deceased spouse's estate.
Sylvia Santos conveyed land to a city park board for public use but provided that if the land ever ceased to be used as a park then title would shift to a private foundation. Years later the board abandoned the park use. The foundation's shifting executory interest became possessory and divested the board's estate.
In 1911, United States Senator Augustus O. Bacon executed a will that devised a tract of land to the Mayor and Council of the City of Macon for use as a park and pleasure ground exclusively for white people, with control vested in a Board of Managers composed entirely of white persons, and the will expressed the Senator's view that the two races should be forever separate while providing that the property under no circumstances was to be devoted to any other purpose. The city accepted the trust and initially operated the park on a segregated basis, but after it began allowing Negroes to use the park, members of the Board of Managers sued in state court to remove the city as trustee and appoint new trustees, prompting Negro citizens to intervene in the proceedings. Following the city's resignation as trustee, the Georgia courts appointed private trustees, but in Evans v. Newton the United States Supreme Court held that the park must be operated without racial discrimination, leading the Georgia Supreme Court to determine that the purpose of the trust had become impossible to fulfill and to remand the case for further proceedings. The trial court declined to apply the cy pres doctrine, ruled that the trust had failed, and determined that the property had reverted to Senator Bacon's heirs, a decision affirmed by the Supreme Court of Georgia; petitioners, the Negro citizens of Macon who had sought integration of the park, challenged the termination of the trust, and the United States Supreme Court granted certiorari to review the case.
View caseA gift over on failure of issue creates a valid executory interest only when the condition is tied to a definite time, such as death without then-living issue. An indefinite failure of issue renders the limitation void and leaves the first taker with a fee simple absolute.
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An executory interest can divest a prior fee simple estate and may spring from the grantor, whereas a remainder follows the natural termination of a prior estate and cannot cut short a fee simple.
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The rule applies to executory interests created in transferees but does not apply to possibilities of reverter or rights of entry retained by the grantor. An executory interest must vest or fail within lives in being plus twenty-one years or it is void.
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Footnotes : Civil Code section 683, as amended in 1955, provides in relevant part that: “A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer…