180. Executory devises may be either springing or shifting.
The statute of uses prohibited the alienation of real property by will, which had been possible before the statute by means of uses.121 The inconvenience produced, however, was so great that it led to the enactment of the statute of wills122 before those decisions which, as was seen, virtually repealed the statute of uses.123 By the very liberal provisions of the statute of wills, it was possible to create any future interest in realty which could be created by means of uses before the statute of uses; and the construction placed on such limitation by the courts is more
119 Fogarty v. Stack, 86 Tenn. 610, 8 S. W. 846; Battey v. Hopkins, 6 R. I. 443; Buckworth v. Thirkell, 3 Bos. & P. 652, note; Mutton's Case, 3 Dyer, 274; Carwardine v. Carwardine, 1 Eden, 28, 34; Egerton v. Brown-low, 4 H. L. Cas. 1.
120 Battey v. Hopkins, 6 R. I. 443. And see cases in last note.
121 See Dig. Hist. Real Prop. (4th E<l) 375.
122 32 Hen. VIII. c. L
123 Ante, p. 254.
§§ 179-180) Executory Devises. 301 liberal than the construction of future uses, owing to the attempts of the courts to carry out the intentions of the testators.124 These executory limitations arising under wills are called executory devises. An executory devise may be by direct gift to the devisee, or it may be through the medium of a declaration of uses.125 So, too, remainders may be limited by devise.126 One or more remainders may be followed by an executory devise, but there cannot be a remainder after an executory devise, all such limitations being construed as executory devises also. These are in fact successive executory devises, like successive remainders. When, however, the first devise vests, all the others will vest as remainders that can.127 Executory devises are presumed to be devises in praesenti, rather than limitations of future estates, whenever it is possible to so construe them, so that if they do not take effect at the death of the testator they will lapse.128 But slight circumstances are in the later cases held sufficient to rebut this presumption.129 Like other executory limitations, executory devises may be either vested or contingent, and a destruction of the first devise does not defeat subsequent ones.130 It is not necessary to state the distinctions between executory devises and remainders, as they have already been considered,131 but it should be borne in mind that there may be alternate remainders in fee which in form are much like executory devises.132 An estate limited to take effect after a fee tail is always construed as a remainder, if possible, rather than as an executory devise.133
124 Annable v. Patch, 3 Pick. (Mass.) 360; Scott v. West, 63 Wis. 529, 24 N. W. 161, and 25 N. W. 18; Smith v. Kimbell, 153 111. 368, 38 N. E. 1029; Rupp v. Eberly, 79 Pa. St. 141; Wood v. Wood, 5 Paige (N. Y.) 596; Smith v. Bell, 6 Pet. 68.
125 Crerar v. Williams, 145 111. 625, 34 N. E. 467.
126 Watson v. Smith, 110 N. C. 6, 14 S. E. 640; Nightingale v. Burrell, 15 Pick. (Mass.) 104; Hall v. Priest, 6 Gray (Mass.) 18; Manderson v. Lukens, 23 Pa. St. 31.
127 Brownsword v. Edwards, 2 Ves. Sr. 243; Doe v. Howell, 10 Barn. & C. 191; Pay's Case, Cro. Eliz. 878.
128 Scott v. West, 63 Wis. 529, 24 N. W. 161, and 25 N. W. 18; Kouvalinka v. Geibel, 40 N. J. Eq. 443, 3 Atl. 260; Jones v. Webb, 5 Del. Ch. 132.
129 Annable v. Patch, 3 Pick. (Mass.) 360; Rupp v. Eberly, 79 Pa, St 141; Darcus v. Crump, 6 B. Mon. (Ky.) 363; Napier v. Howard, 3 Ga. 192.
130 Moffat's Ex'rs v. Strong, 10 Johns. (N. Y.) 12; Ford v. Ford, 70 Wis. 19, 33 N. W. 188; Smith v. Hunter, 23 Ind. 580; Randall v. Josselyn, 59 Vt. 557, 10 Atl. 577; Den v. Hance, 11 N. J. Law, 244; Mathis v. Hammond. 6 Rich. Eq. (S. C.) 121.
131 Ante, p. 285. Cf. Plunket v. Holmes, 1 Lev. 11; Doe v. Scudamore, 2 Bos. & P. 289.
It has already been stated that executory devises may be either springing or shifting, but the distinction is seldom used in the books. A shifting devise may divest the preceding estate in part only, and in cases where the first taker is given a fee, with a shifting devise to another of a life estate, the question often arises whether the devise will defeat the prior estate altogether, or only to the extent of the life estate. The decision in all of these cases must depend upon the intention of the testator.134
Executory devises cannot be defeated by the tenant of the prior estate.135 Where an estate is divested by a devise over on a contingency, if the contingency happens the first estate is divested,. though the devise over be void.136