Also known as: subject to executory interest · executory interest
Written by attorneys — see sources 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.
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.
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 caseAn 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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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…