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 .
By the Statute of Wills,14 the owner of land was given the power to dispose thereof by "last will and testament." Such dispositions by will were, from their very nature, not subject to the requirement of livery of seisin, and any possibility of abeyance of the seisin could be avoided by regarding the seisin, during any unappropriated interval, as being in the heir at law, to whom the land would have passed in the absence of devise. In view of these considerations, and in analogy to the doctrines which prevailed in regard to the limitation of uses, it was decided that devises of freehold estates might be made to take effect in the future, that is, at a time subsequent to the testator's death, either with or without a preceding limitation to another.15 Such a limitation by way of devise of an estate to arise in futuro, which could not be regarded as creating a contingent remainder, became known as an "executory
S. W. 420; Webster v. Webster, 33 N. H. 18; McDougal v. Musgrave, 46 W. Va. 509, 33 S. E. 281.
It has been held that a provision in a conveyance that it should not go into effect until after the death of the grantor was equivalent to a reservation of a life estate. Merch v. Merch, 83 S. C. 329, 65 S. E. 347.
12. As to reservations, see post Sec. 436.
13. Planters' Bank of Tennessee v. Davis, 31 Ala. 626; Bissell v. Grant, 35 Conn. 288; Shealy v.
Wammock, 115 Ga. 913, 42 S. E. 239; Shackelton v. Sebree, 86 111. 616; Chappell v. Chappell, - Ky. L. Rep. -, 119 S. W. 218; Achoon v. Jackson, 86 Me. 215, 29 Atl. 989; Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Bom-barger v. Morrow, 61 Tex. 417; McGlamery v. Jackson, 67 W. Va. 417, 21 Ann. Cas. 239, 68 S. E. 105.
14. 32 Hen. 8, c. 1.
15. Digby, Hist. Real Prop. 380, 2 Blackst. Comm. 173; Challis Real Prop. 76.
Devise," a term which is also frequently applied to the prospect or possibility of an estate created by such a devise.16
As examples of an executory devise may be men tinned a devise to A of an estate to commence six months after the testator's death,17 or when he becomes a citizen of the United States, provided he does so within a limited time.18 In such a ease, the limitation of an estate to commence in the future not being preceded by a limitation in favor of another, the testator's fee simple vests in his heir or heirs with a right to the accruing rents and profits, until the estate vests under the executory devise by reason of the satisfaction of the condition precedent,19 unless there is a residuary devise, in which case the fee simple will pass thereunder subject to the possibility of subsequent displacement.20 In case the executory devise limits an estate less than a fee simple estate, while the testator had a fee simple estate, the vesting of the estate under such devise does not divest the fee simple in the heirs or residuary devisees, but merely changes it from an estate in possession to one in reversion.
Executory devises of the character just referred to, that is, which are not preceded in the instrument by a limitation to another, are similar in their operation to springing uses. Similar to shifting uses are those executory devises which are preceded by a limitation of an estate in fee simple to another. Thus, in the case of a devise to A and his heirs, but, if he die before twenty-one, then to B, the fee shifts from A to B on that event. In
16. See Challis, Real Prop. 76.
17. Clarke v. Smith, 1 Lutw. 798; 6 Cruise, Dig. tit. 38, c. 18, Sec. 3; 1 Jarman, Wills, 823.
18. Beard v. Rowan, 9 Pet. (U. S.) 301, 9 L. Ed. 367;
19. Fearne, Cont. Rem. 536; Smith, Executory Interests, Sec. 739; Hopkins v. Hopkins, cas. temp.
Talb. 44, Morton v. Funk, 6 Pa. St. 483; Miller v. Chittenden, 4 Iowa, 252.
20. Fearne, Cont. Rem. 544; Smith, Executory Interests, Sec. 741; Stephens v. Stephens, cas. temp. Talb. 228, Ackers v. Phipps, 3 Clark & F. 667; In re Mowlem, L. R. 18 Eq. 9.
A devise in favor of a person or persons not in being or not ascertained, not creating a contingent remainder, is necessarily an executory devise, since it creates, not an estate, but merely a possibility of an estate. Such is a devise to the heirs of a person living at testator's death, to the children of one who has no children at testator's death, or to all the grandchildren of testator who arrive at the age of twenty-one, none having yet arrived at that age. There can be no question as to the validity of such a devise to persons not in being or not ascertained.23