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 common law, since an executory interest created by deed or will is, like a contingent remainder, merely a possibility, it cannot be conveyed inter vivos,50 but it mond, 26 N. J. Eq. 234; Groves v. Cox, 40 N. J. L. 40; Leonard v. Burr, 18 N. Y. 96; Shadden v. Hembree, 17 Or. 14, 18 Pac. 572; Medley v. Medley, 81 Va. 265; Sax-ton v. Webber, 83 Wis. 617, 20 L. R. A. 509, 53 N. W. 905; note. That this is the rule when the limitation over is void for remoteness, see post Sec. 186.
48. Doe d. Blomfield v. Eyre, 5 C. B. 713; Robinson v. Wood, 27 Law J. Ch. 726; Hurst v. Hurst, 21, Ch. Div. 278. This view is questioned in the reporter's notes to Doe d. Blomfield v. Eyre, supra, and doubted on principle in the two cases last above cited, they being decided on the authority of Doe d. Blomfield v. Eyre. It is defended in Sugden, Powers (8th Ed.) 513. See the adverse discussion of these decisions in an article by Howard Wurts Page, Esq., in 20 Am. & Eng. Enc. Law (1st Ed.) 945, note, and Gray, Perpetuities, Sec.Sec. 783-788. The English doctrine seems to be opposed to the view, quite commonly held in England, that a determinable fee cannot exist at the present day (see ante Sec. 93), since thereby the contingency is, if the limitation over is void, given the effect of a special limitation. See Leake, Prop. in Land, 363, note (c); Gray, Perpetuities, Sec.Sec. 250, 783.
49. Gatenby v. Morgan, 1 Q. B. Div. 685; Jackson v. Noble, 2 Keen, 590; Thomae v. Thomae, (N. J. Ch.) 18 Atl. 355. Contra, Doe d. Harrington v. Dill, 1 Houst. (Del.) 398.
50. Smith, Executory Interests, Sec. 754; Challis Real Prop. 76; docease,58 and it may be devised by him.59 If, however, the person entitled thereto is not ascertained, the interest can, in some states, neither descend nor be devised.60-64 may be released to the owner of the land.51 The transfer of such an interest inter vivos, if for a good or valuable consideration, will be recognized and enforced in equity,52 and the doctrine so generally asserted in this country, that an after acquired title will pass by estoppel,53 would no doubt be applied to make a conveyance of such a possibility effective.53a In England it is now provided that executory interests may be disposed of by deed,54 and in a number of states in this country there are substantially similar provisions.55
Sec. 176 ]
Even apart from statute, in some states, an executory interest, particularly if in favor of an ascertained person, would be regarded as alienable,56 to the same extent as is a contingent remainder.57
An executory interest for an estate of inheritance, or for a term of years, will pass to the heirs or executors of a person who is entitled thereto, on his
Lampet's Case, 10 Coke, 46b; Hall v. Chaffee, 14 N. H. 215; Jackson v. Waldron, 13 Wend. (N. Y.)178.
51. 2 Preston, Abstracts, 283; Lampet's Case, 10 Coke, 46b; Miller v. Emans, 19 N. Y. 384; Jeffers v. Lampson, 10 Ohio St. 107.
52. Smith, Executory Interests, Sec. 749; Fearne, Cont. Rem. 549; Wright v. Wright, 1 Ves. Sr. 409; Crofts v. Middleton, 8 De Gex, M. & G. 192; Higden v. Williamson, 3. P. Wms. 132; Bayler v. Com., 40 Pa. St. 37; Watson v. Smith, 110 N. C. 6, 28 Am. St. Rep. 665, 14 S. E. 640; Wright v. Brown, 116 N. C. 26, 22 S. E. 313.
63. Post Sec. 545. 53a. See Gavvin v. Carroll, 276 111. 478, 114 N. E. 927. 54. 8 & 9 Vict. c. 106 Sec. 6.
55. Chaplin, Suspens. Alien. Sec. 10. See statutes cited 20 Am. & Eng. Enc. Law (1st Ed.) 970. And see Nutter v. Russell, 3 Mete. (Ky.) 163; Griffin v. Shepard, 124 N. Y. 70; Smith v. Smith, 112 Va. 617, 72 S. E. 119, and ante Sec. 147 (b), note 11.
56. Blackstone v. Althouse, 278 111. 481, L. R. A. 1918B 230, 116 N. E. 154; Wainwright v. Sawyer, 150 Mass. 168; Alexander v. Richardson, 106 Miss. 517, 64 So. 217; Clark v. Cox, 115 N. C. 93, 20 S. E. 176; Bruce v. Goodbar, 104 Tenn. 638, 58 S. W. 282; Lee v. Oates, 171 N. C. 717, 88 S. E. 889; Snyder v. Grandstaff, 96 Va. 473, 70 Am. St. Rep. 863, 31 S. E. 647.
57. Ante Sec. 147 (b), note 12.