Also known as: subject to executory interest · executory interest
Written by attorneys · grounded in primary & secondary sources — see below
A present estate in land that terminates automatically or by divestment upon the occurrence of a stated event, with possession shifting to a third-party transferee who holds an executory interest.
Spencer Silver conveyed land to his daughter Stella Shapiro in fee simple conditional. The deed provided that if Stella died without surviving issue the land would pass to her cousin Sydney Santos. Stella later sold a portion of the parcel to Skyline Construction before having children. Under the governing rule the sale created an interest in Skyline Construction that remained subordinate to Sydney's executory interest.
Steven Silva held land in fee simple conditional. The deed directed that if he died without issue the land would pass to his sister Sofia Stern under an executory interest. Steven died without descendants and without any surviving issue. The land therefore passed directly to Sofia under the alternative executory interest rather than reverting to the grantor.
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Samantha Stone received land in fee tail. The deed provided that if she died without issue the land would pass to her nephew under an executory interest. Samantha died without surviving descendants. The land therefore shifted to the nephew rather than returning to the original grantor.
Southland Foods held an estate in fee tail. The deed named a designated remainderman if the line failed. Southland Foods later dissolved without issue surviving. The land passed to the designated remainderman under the executory interest rather than to any reversioner.
Sentinel Security held land in fee simple conditional. The owner died leaving a surviving spouse but no issue. The spouse's dower interest attached to the land yet remained subordinate to the executory interest that had been validly limited after the conditional estate.
Spectrum Financial received land subject to a condition that it be used for a public park. The deed provided that if the land ceased to be so used it would pass to a named charitable organization. Spectrum later converted the parcel to commercial use. Title shifted automatically to the charitable organization under the executory interest.
An estate subject to an executory interest divests in favor of a third-party transferee upon the stated event. A fee simple determinable instead returns automatically to the grantor or the grantor's heirs under a possibility of reverter.
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The holder may convey any interest that a fee simple absolute owner could create. Every interest so created remains subordinate to the executory interest and is subject to divestment if the condition later occurs.
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Language creating a gift over on an indefinite failure of issue is treated as void. The first taker receives a fee simple absolute and the attempted executory interest never arises.
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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…