Contingent remainders are future estates, which, as we have seen (a), were, until recently, continually liable, in law, until they actually existed as estates, to be destroyed altogether, - executory interests, on the other hand, are future estates, which in their nature are indestructible (b). They arise, when their time comes, as of their own inherent strength; they depend not for protection on any prior estates, but on the contrary, they themselves often put an end to any prior estates which may be subsisting. Let us consider, first, the means by which these future estates may be created; and secondly, the time fixed by the law, within which they must arise, and beyond which they cannot be made to commence.
Executory interests arise of their own strength.
Of the Means by which Executory Interests may be created.
1. Executory interests may now be created in two ways - under the Statute of Uses (c), and by will.
(a) Ante, p. 268 et seq.
(b) Fearne, Cont. Kern. 418. Before fines were abolished, it was a matter of doubt whether a fine would not bar an executory interest, in case of non-claim for five years after a right of entry had arisen under the executory interest. Romilly v.James 6 Taunt.
263, see ante, p. 47. Executory interests subsequent to, or in defeazance of an estate tail, may also be barred in the same manner, and by the same means, us remainders expectant on the determination of the estate tail. Fearne, Cont. Rem.
423. (c) Stat. 27 Hen. VIII. c. 10.
Executory interests created under the Statute of Uses are called springing or shifting uses. We have seen (d) thai, previously to the passing of this statute, the use of land was under the sole jurisdiction of the Court of Chancery as trusts are now. In the exercise of this jurisdiction, it would seem that the Court of Chancery, rather than disappoint the intentions of parties, gave validity to such interests of a future or executory nature, as were occasionally created in the disposition of the use (e). For instance, if a feoffment had been made to A. and his heirs, to the use of B. and his heirs from to-morrow, the court would, it seems, have enforced the use in favour of B., notwithstanding that, by the rules of law, the estate of B. would have been void (f). Here we have an instance of an executory interest in the shape of a springing use, giving to B. a future estate arising on the morrow of its own strength, depending on no prior estate, and therefore not liable to be destroyed by its prop falling. When the Statute of Uses (g) was passed, the jurisdiction of the Court of Chancery over uses was at once annihilated. But uses in becoming, by virtue of the statute, estates at law, brought with them into the courts of law many of the attributes, which they had before possessed while subjects of the Court of Chancery. Amongst others which remained untouched, was this capability of being disposed of in such a way as to create executory interests. The legal seisin or possession of lands became then, for the first time, disposable without the observance of the formalities previously required (h); and, amongst the dispositions allowed, were these executory interests, in which the legal seisin is shifted about from one person to another, at the mercy of the springing uses, to which the seisin has been indissolubly united by the act of parliament; accordingly it now happens that, by means of uses, the legal seisin or possession of lands may be shifted from one person to another in an endless variety of ways. We have seen (i), that a conveyance to B. and his heirs to hold from to-morrow, is absolutely void. But by means of shifting uses, the desired result may be accomplished; for, an estate may be conveyed to A. and his heirs to the use of the conveying party and his heirs until to-morrow, and then to the use of B. and his hens. A very common instance of such a shifting: use occurs in an ordinary marriage settlement of lands. Supposing A. to be the settlor, the lands are then conveyed by him, by the settlement executed a day or two before the marriage, to the trustees (say B. and C. and their heirs) "to the use of A. and his heirs until the intended marriage shall be solemnized, and from and immediately after the solemnization thereof," to the uses agreed on; for example, to the use of D., the intended husband, and his assigns for his life, and so on. Here B. and C. take no permanent estate at all, as we have already seen (k). A. continues, as he was, a tenant in fee simple until the marriage; and, if the marriage should never happen, his estate in fee simple will continue with him untouched. But, the moment the marriage takes place, - without any further thought or care of the parties, the seisin or possession of the lands shifts away from A. to vest in D., the intended husband, for his life, according to the disposition made by the settlement. After the execution of the settlement, and until the marriage takes place, the interest of all the parties, except the settlor, is future, and contingent also on the event of the marriage. But the life estate of D., the intended husband, is not an interest of the kind called a contingent remainder. For, the estate which precedes it, namely, that of A., is an estate in fee simple, after - which no remainder can be limited. The use to D. for his life springs up on the marriage taking place, and puts an end at once and for ever to the estate in fee simple which belonged to A. Here, then, is the destruction of one estate, and the substitution of another. The possession of A. is wrested from him by the use to D., instead of D.'s estate waiting till A.'s possession is over, as it must have done had it been merely a remainder. Another instance of the application of a shifting use occurs in those cases in which it is wished that any person who shall become entitled under the settlement should take the name and arms of the settlor. In such a case, the intention of the settlor is enforced by means of a shifting clause, under which, if the party for the time being entitled should refuse or neglect, within a definite time, to assume the name and bear the arms, the lands will shift away from him, and vest in the person next entitled in remainder.