- (a)

General considerations. As appears from what has been previously said, an executory interest is the possibility or prospect of an estate, which exists by reason of the limitation of a freehold estate subject to a condition precedent, and which cannot be regarded as a contingent remainder. The condition precedent may be either a certain or an uncertain event. If it is a certain event, such as the death of a particular person, or the arrival of a date named, the person in favor of whom the limitation is created has an assured prospect of an estate, while if it is uncertain he has merely a possibility of an estate. But the legal character of his interest is the same in both cases, and to distinguish in

30. In re Wrightson (1904) 2 Ch. 95. And see to this effect Simonds v. Simonds, 199 Mass. 552.

31. White v. Summers, L. R.

(1908) 2 Ch. 256.

32. See the discussion of these cases in 8 Columbia Law Rev. at p. 646. Gray, Perpetuities (3rd ed.) Appendix J.

Real Property.

[Sec. 163 that regard, as is frequently done,33 by referring to an executory interest arising from the creation of an estate on an uncertain condition precedent as a "contingent" interest, is calculated only to result in confusion. The use of the expression "contingent" as opposed to "vested," in connection with remainders, was based on the consideration that there was a possibility that the remainder might fail by reason of the non-satisfaction of the condition precedent, and would seem to have had no reference to the uncertainty of the ultimate satisfaction of the condition.34 But an executory interest, if originally valid, cannot fail by reason of delay in the satisfaction of the condition precedent, and consequently the expression "contingent," using it in the sense in which it is used in connection with remainders, is entirely inapplicable to executory interests. And, as before stated, that the event on which the interest is to develop into an estate is contingent, in the sense of uncertain, has no legal significance.

- (b) As divesting estate. The view is not infrequently indicated or expressed that a conveyance or devise to A and his heirs necessarily creates a determinable fee and not an estate in fee simple,35 if there is an executory limitation over in favor of another, that, for instance, in the case of a devise to A and his heirs, but if B marries then to B and his heirs, B has a

33. See Fearne, Cont. Rem. 1, Butler's note; Gray Perpetuities Sec.Sec. 114, 797.

34. Ante Sec. 136 (a), note 65.

35. Farr v. Perkins, 173 Ala. 500, 55 So. 923; Carter v. Couch, 157 Ala. 470, 20 L. R. A. (N.S.) 858, 47 So. 1006, ("determinable fee") ("terminable fee"); Lom, bard v. Witbeck, 173 111. 396, 51 N. E. 61; Mayer v. McCracken, 245 111. 551, 92 N. E. 355; Garvin v. Carroll, 276 111. 478, 114 N. E.

927; Shealy v. Wammock, 115 Ga. 913, 42 S. E. 239; Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 139 (semble); Tebow v. Dougherty 205 Mo. 315, 103 S. W. 985; Yoesel v. Rieger, 75 Neb. 180, 106 N. W. 428; Stoner v. Wunder-lich, 198 Pa. 158, 47 Atl. 945; In re Tyler, 30 R. I. 590 76 Atl. 661; Bradford v. Leake, 124 Tenn. 312, Ann. Cas. 1912 D, 1140, 137 S. W. 96.

Sec. 163] the state of facts at that time.48 So upon a devise to A for life, with a devise over, after his death, to the sons of B, who has no sons, while the devise over to such sons creates, upon the face of the will, a contingent remainder, it can, if A dies before testator, and B is without sons at testator's death, take effect only as an executory devise, and is so to be regarded.49 On the other hand, a limitation which, at the time of the making of the will, could only have operated by way of executory devise, may, by change of circumstances in the testator's lifetime, operate at his death so as to give an estate in possession, or a vested remainder, or a contingent remainder.50

Rights of Future Possession.

37. Farr v. Perkins, 173 Ala. 500, 55 So. 923; Davis v. Hollings-worth, 113 Ga. 210, 84 Am. St. Rep. 233, 38 S. E. 287; Tebow v. Dougherty, 205 Mo. 315, 103 S. W. 985; Perrett v. Bird, 152 N. C. 220, 67 S. E. 507; In re Tyler, 30 R. I. 590, 76 Atl. 661.

38. Newsom v. Holesapple, 101 Ala. 682, 15 So. 644; Cummings v. Lohr, 246 111. 577, 92 N. E. 970; Corey v. Springer, 138 Ind. 506, 37 N. E. 322; Taylor v. Stephens, 165 Ind. 200, 74 N. E. 12; Buck v. Paine, 75 Me. 582; Atl. 658; In re New York, L. & W. Ry. Co., 105 N. Y. 89, 59 Am. Rep. 478, 11 N. E. 492; Love v. Walker, 59 Ore. 95, 115 Pac. 296; Smith

Brooks v. Kip, 54 N. J. Eq. 462, 35 v. Piper, 231 Pa. 378, 80 Atl. 877. 39. See 2 Blackst. Comm. 173; Sugden's Gilbert, Uses, 153; 1 Sanders, Uses & Trusts (5th Ed.) 149; Williams, Real Prop. 378; Fearne, Cont. Rem. 381, 399, and Butler's notes; Smith, Executory Interests, Sec.Sec. 148-158; 1 Jarmar. Wills, 824; Sir Thomas Plumer, Vice Chancellor, in Lyon v. Mitchell, 1 Madd. 480; Gray, Perpetuities, Sec. 32. Leake, Prop, in Land, 351, 2 Preston, Abstracts, 124 et seq.; Lewis, Perpetuity, 50, 106; 24 Halsbury's Laws of England, Sec. 429 article by J. W. Lightwood, Esq.

40. That the first taker has a fee simple in such a case is quite occasionally recognized judicially. See Gay v. Dibble, 72 Conn. 590, 45 Atl. 359; Johnson v. Black, 220 111. 226, 77 N. E. 163; Simpson v. Adams, 127 Ky. 790, 106 S. W. 819; Whitfield v. Garriss, 131 N. C. 148, 42 S. E. 568; Kornegay v. Cunningham, 174 N. C. 209, 93 S. E. 754; Anderson v. United Realty Co., 79 Ohio St. 23, 86 N. E. 644; Sessoms v. Sessoms, 144 N. C. 121, 56 S. E. 687; Rountree, v. Rountree, 85 S. C. 383, 67 S. E.

Real Property.

[Sec. 163 tirely distinct, from the limitation in favor of A and can consequently not operate to change the character of A's estate from what it would otherwise be. That this is so would seem to be apparent from the decisions41 that, in case the executory limitation is invalid, the first taker has an estate which continues in spite of the occurrence of the event which was to constitute the condition precedent for the executory limitation. If for instance, in the case of a devise to A and his heirs with a devise over to B and his heirs on an event named, A had merely a fee determinable upon the occurrence of that event, his estate would necessarily then terminate, irrespective of whether the limitation over was valid or invalid. In the ordinary case of a springing use or springing executory devise, that is, of an executory limitation not preceded by the limitation of an actual estate, it would hardly be suggested that the grantor, or the testator's heir, has, by reason of the executory limitation, not an estate in fee simple, but merely a fee determinable, and there is no more reason that a fee simple in a third person should be transformed into a determinable fee by the presence of an executory limitation.42 It would presumably be possible to limit a determinable fee in express terms, and by the same instrument to create an executory interest, to ripen into an estate upon the occurrence of the event which forms the special limitation upon the estate previously created, but such a case of a determinable