This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law, by reason of the prohibition of the abeyance of the seisin, and also of the requirement of livery of seisin in order to convey a freehold, a limitation of an estate of freehold to arise in the future was invalid.84 Or, otherwise expressing the rule, one could not create an estate of freehold subject to a condition precedent, or in favor of a person or persons to he ascertained in the future. An exception to this rule, however, existed by reason of the recognition of the validity of contingent remainders.85
After the passage of the Statute of Uses and of the Statute of Wills, it became possible freely to limit estates of freehold to commence in the future. What is actually created in such a case is, however, not an estate, hut a possibility or prospect of an estate, which may, and sometimes must, subsequently become an estate. Such a possibility or prospect of an estate, not a contingent remainder, acquired the name of "executory interest," while the language by which it was created came to be known as an "executory limitation."
The effect of the Statute of Uses in this regard has already been referred to, but its operation may be more fully explained as follows: In cases where it was sought to cause an estate to arise in the future by means of a common law conveyance operating by transmutation of possession, such as a feoffment, it could be accomplished by a declaration by the feoffor of his intention that the feoffee should hold the land to the use of a person named from and after the occurrence of
J. Eq. 13; Tallman v. Wood, 26 Wend. (N. Y.) 9; Leathers v. Gray, 101 N. C. 162. 9 Am. St. Rep. 30. 7 S. E. 657; Brockenschmidt v. Archer, 64 Ohio St. 502, 60 N. E. 623; Hurst v. Wilson, 89 Tenn. 270, 14
S. W. 778
84. Co. Lilt. 217a; 2 Blackst Comm. 16".; Barwicks Case, 5 Coke 94b; Buckler v. Hardy, Cro. Eliz. 585.
85. Ante Sec. 136a.
R. P.-35 a certain event, and the use which thus sprung up in such person upon the occurrence of the event drew to it the legal title by virtue of the statute. And the same effect may be given to a declaration of a use to arise in the future in a modern conveyance operating to transfer the legal title without reference to the Statute of Uses. If a conveyance operating under the Statute of Uses, a bargain and sale, for instance, is employed, a use is, by the payment of the consideration, raised in the grantee, in accordance with the declaration by the grantor, as when a conveyance is made for a valuable consideration to A and his heirs, from and after a certain time, or the happening of a certain event, and the use thus springing up in favor of the grantee draws to itself the legal title.
Uses thus limited to spring up in the future without any preceding limitation in the same instrument are termed "springing uses."86 So soon as the conveyance is made, a use results to the grantor, which is executed by the statute. This resulting use, which, by force of the Statute, draws to itself the legal title, is the whole use, so that the grantor, if he had previously an estate in fee simple, still has such an estate. He must have the fee simple, since there is no other person in whom it can be, the grantee having as yet merely the possibility of an estate.87 Upon the commencement of the grantee's estate, however, by reason of the springing up of a use in him in accordance with the grantor's declaration, the grantor's estate is modified or extinguished. If the grantee's estate then commencing is an estate in fee simple, the grantor's estate is entirely extinguished, while if the grantee's estate is one for life only, the grantor's estate in fee simple is not extinguished but use,"92 in contradistinction to a springing use,92a which fakes effect, not in defeasance of an estate created by the same instrument, but of the estate of the grantor.92b
86. Sugden's Gilbert, Uses, 153; Challis, Real Prop. 174.
87. Sugden's Gilbert, Uses, 161; 1 Hayes, Conveyancing (5th Ed.) 464; Leake, Prop, in Land, 113, 352;
Sir Edward Clere's Case 6 Coke 18a; Davies v. Speed, 2 Salk. 675. See Town of Shapleigh v. Pills-bury 1 Me. 271.
By means of the Statute of Uses one may create an estate to arise in the future not only in favor of ascertained persons, but also in favor of unascertained persons. For instance, one may convey land to A to the use of the heirs of B, a living person, or to the use of such children of B as may survive him, and a use arises in favor of the cestuis named so scon as ascertained by the death of B, which is then immediately executed by the statute.89
In a few states, although the Statute of Uses is not in force therein, it has been decided that since livery of seisin is obsolete, the common-law rules based upon the necessity of such livery, and the prohibition of the abeyance of the seisin, no longer control, and that consequently, apart from any express statutory authorization, a limitation of an estate of freehold to commence in the future may be created by conveyance inter vivos, without the creation of any particular estate to support it.89a