Executory future estates may now be created in one of the following ways: (1) By an instrument operating to create a legal estate by virtue of the Statute of Uses. Such future estates are either shifting or springing uses. (2) By a devise under the Statute of Wills, - an executory devise. (3) Under statutes which declare that corporeals as well as incorporeals shall lie in grant instead of in livery (see §§ 16 and 17, Gray's Perpetuities), or perhaps under statutes which merely abolish feoffment and livery of seisin. See Wyman v. Brown, infra, p. 909. (4) Under special statutory systems regulating the creation of future estates, as in New York, and the states which have copied from it, Wisconsin, Minnesota, Michigan and others. See for New York, §§ 206, 25-54,

a. Shifting executory future estates, "conditional limitations."1

Hatfield V. Sneden

54 New York, 280. - 1873. [Reported herein at p. 641.]2

b. Springing executory limitations.,3

Kenyon V. See

94 New York, 563. - 1884.

Accounting of the executors of the will of John Mildeberger. The will gives one-third of testator's real and personal property to S. M. Spencer, in trust to pay the interest thereof to testator's "grandson, Seymour Hobart Spencer, upon the express condition that the said Seymour Hobart Spencer shall renounce the Roman Catholic priesthood, said payment of interest to commence at the time of such renunciation, and upon the further condition that the said Seymour Hobart Spencer shall marry" the principal of said trust fund is given to said S. H. Spencer. In case of the death of S. H. Spencer before marriage, his share is given to S. M. Spencer. S. H. Spencer executed an instrument under seal professing to assign all his rights under the will to S. M. Spencer and the executor paid to S. M. $28,000, on account of his share and that of S. H. S. M. died and his executors now claim the balance of the two shares. The accounting executor claims that S. H.'s share was not assignable and must remain in the hands of the trustees to await performance of the condition.

Andrews, J. - Seymour H. Spencer took no vested estate or interest in the principal or income of the fund given in trust to Sel-

N. Y. R. P. L. In New York these future estates may be called "remainders" if there is any sort of a precedent estate; otherwise they are simply "future estates." - Ed.

1 These include shifting uses, shifting executory devises, and shifting estates of any kind authorized by special statute. As to the term "conditional limitation" see note, p. 551, supra. Alternate remainders and the like are to be carefully distinguished from these limitations. See p. 904, supra. - Ed.

2 See also Turner v. Wright, supra, p. 391; Adams v. Ross, supra, p. 483; Evans v. Evans, p. 669; Ed-wards v. Bibb, p. 671. - Ed.

3 Here no present estate at all is created, but the fee is left in the grantor or his heirs, or the heirs of the testator, until the happening of the future event on which the future estate is limited to commence. - Ed.

den M. Spencer by the eighth clause of the will of the testator, John Milderberger. The right to either was conditional. He was entitled to the income only upon and from his renunciation of the Roman Catholic priesthood, and to the principal only upon his marriage. The conditions were precedent, and, until performance, he took no interest, legal or equitable, in the fund. The tenth clause makes an alternative gift of the trust estate to Selden M. upon his marriage, in case of the death of Seymour H., without having married. This gift was conditional also, there being a double condition, first, the death of Seymour H. before his marriage, and second, the marriage of Selden M. If the contingent interest of Selden M. did not lapse upon his death before Seymour H., or in other words, if it survived and was transmissible like a vested interest, then the appellant must fail, as he has no interest which can be affected by the decree of the surrogate. We think this contingent right passed on the death of Selden M. to his representatives, and that, on the death of Seymour H. before marriage, they will be entitled to the fund. The survivorship of Selden M. is no part of the contingency upon which the gift to him is limited. The testator, as the will indicates, intended to make a complete disposition of his property. The alternative disposition was made to meet the contingency that Seymour H. might not accept the conditions upon which the gift to him depended. There is no reason to suppose that the testator intended to confine the benefit of this provision to Selden M. personally, and to exclude his family or descendants when he made marriage one of the conditions of his taking at all. If the continued existence of the legatee, in case of a contingent legacy, is part of the contingency upon which the gift is limited, then there can be no doubt. But in this case the personal enjoyment of the legacy by Selden M. was not made essential to its taking effect. The general rule is that contingent interests are assignable, devisable and descendible. "In general,"says Fearne," it seems that contingent interests pass to the real and personal representatives, according to the nature of such interests, as well as vested interests, so as to entitle such personal representatives to them when the contingencies happen."Fearne on Cont. Rem. 364. The rule stated by the learned author is supported by numerous authorities. Pinbury v. Elkin, 1 P. Wms. 563; King v. Withers, Cas. Temp. Talb. 117; Chancy v. Graydon, 2 Atk. 616; Barnes v. Allen, 1 Bro. Ch. Rep. 181; Winslow v. Goodwin, 7 Mete. 363.

Here one of the conditions upon which Selder M. was to take, viz., marriage, was performed before his death. The other condition, viz., the death of Seymour H. before marriage, has not happened. It may never happen, as Seymour H. may marry, however improbable this may be. If he does marry, then he will be entitled to the third part of the estate of the testator, under the will, unless his attempted transfer to Selden M. operates as an estoppel. In either event, whether Seymour H. takes, or the representatives of Selden M., the appellant has no interest. One of the two things will happen, and which is a matter with which he has no concern. No question is made as to the validity of the trust in the will of John Milderberger.