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 .
Since a will takes effect at the time of the testator's death, the question whether a devise of an estate to arise in the future is to be regarded as creating a contingent remainder or an executory devise is to be determined by
46. So in the case of a gift for life to A and one day after A's death to B and his heirs, B has an executory interest.
47. As in the case of a gift for life or in fee simple to A, but if B marries then to B. But a gift to A for life and after his death to B provided he marries, creates a contingent remainder in favor of B, no intention appearing that upon the vesting of B's interest A's estate shall be divested.
A change of circumstances, even after the testator's death, may change an executory devise into a remainder, with all the incidents of remainders. So, in the case of a devise to A for life, with remainder in fee to B, and a devise over, in case of B's death before A, to any children whom A might leave, it was held that, upon the death of B before A, what had previously been an executory devise to A's children, owing to the gift of a fee to B, became, upon the removal of B's estate by his death, a contingent remainder.51 And where an executory devise for a limited estate is followed by another executory devise, which is to take effect in possession upon the termination of the previous one, the latter devise becomes a remainder when the previous devise takes effect in possession.52 But a change of
48. Fearne, Cont. Rem. 525, 526, and Butler's note; 1 Jarman, Wills, 832; 2 Preston, Abstracts, 155.
49. Hopkins v. Hopkins, cas. temp. Talb. 44.
50. Doe d. Harris v. Howell, 10 Barn. & C 191; 2 Preston, Abstracts, 154; 1 Jarman, Wills, 834; See Comm. v. Wellford, 114 Va. 372, 76 S. E. 917.
51. Doe d. Harris v. Howell, 10 Barn. & C. 195. See Stepbens v. Stephens, cas. temp. Talb. 228. 52. Fearne, Cont. Rem. 503, 506, and Butler's notes; Brownsword v. Edwards, 2 Ves. Sr. 243. Wilkes v. Lion, 2 Cow. (N. Y.) 390. So in the case of a devise to A in fee, but if he dies unmarried, then to B for life, and, on B's death, to C in fee, B and C have both executory devises, and, on A's death unmarried, B's estate becomes an estate in possession, and C's estate
[Sec. 165 circumstances after the testator's death, while it may thus change an executory devise into a remainder, can never, as we have seen, enable a limitation which once took effect as creating a contingent remainder thereafter to take effect as an executory devise.53