471; Randolph v. Wright, 81 Va. 608; Behrens v. Baumann, 66 W. Va. 56, 66 S. E. 5.

41. Post Sec. 175, note 47.

42. Suppose, for instance, A owning land in fee simple merely creates by bargain and sale an estate to commence in favor of B upon B's marriage. A's estate does not cease to be a fee simple because it will be defeated so soon as an estate arises in B by reason of B's marriage, and so if A conveys his estate to another by the same instrument by which he creates the executory interest in B, that other acquires the same estate which A would otherwise have retained, that is, a fee simple subject to defeasance, and not a fee determinable or qualified fee.

Pee expressly created, in connection with an executory limitation, can but seldom occur.43

Quite frequently it is said that the first taker has in a case of this character a "defeasible fee ,"44 an expression which, it. is submitted, conveys the correct view of the matter, though the expression "defeasible fee simple," would be more absolutely accurate. It is to be observed that the use of the word "defeasible" in this connection is incompatible with the view, above criticised, that the first taker has a determinable fee and not a fee simple, since an estate which comes to an end, by the terms of its creation, upon the occurrence of an event named, can not well be regarded as being "defeated" upon the occurrence of such event.

An executory limitation which may operate to divest an estate previously created by the same instrument, that is, a shifting use or a shifting executory devise, is not infrequently referred to as a "conditional limitation." But by some writers this latter phrase is used in an entirely different sense, as signifying what we have discussed under the name of "special limitation." In view of this double use of the expression "conditional limitation," and the resulting ambiguity as to its meaning, it would seem desirable to avoid, so far as possible, the use of that expression.45

- (c) Contingent remainder distinguished. I n the case of a contingent remainder, there is always devise to B takes effect as creating a remainder.68 In states where estates tail no longer exist, the limitation over to B on an indefinite failure of issue in A cannot take effect as creating a remainder, and consequently is to be regarded as an executory devise, which, as we shall presently see, is void under the Rule against Perpetuities.69 In the case of a devise to A, with a devise over to B on the failure of issue of A, if a failure of issue at the time of A's death, or other definite time, and not an indefinite failure, is intended, then there is a valid executory devise, taking effect in derogation of A's estate on his death without issue.70 ment an estate to commence at the time at which the fee is to determine, as Ld the case of a gift to A and his heirs so long as a certain tree stands, and when such tree falls, then to B and his heirs. (6) When an estate having been created by the same instrument in favor of a particular person, there is a provision for its reduction to a less estate,56 or its enlargement to a greater estate,57 upon an event named. In such a case there are in effect two distinct gifts to one person, one of such gifts to take effect in a certain event in derogation of the other.

43. See Challis, Real Prop. (3rd Ed.) 175.

There may be a limitation over by way of executory devise, though not by way of remainder, after a common law conditional fee. Gray, Perpetuities, Sec. 14, note 7; Selman v. Robertson, 46 S. C. 262, 24 S. E. 187.

44. Elkins v. Thompson, 155 Ky. 91, 159 S. W. 617; Dunlap v. Fant, 74 Miss. 197, 20 So. 874;

Brown v. Tuschoff, 235 Mo. 449, 138 S. W. 497; Bizzell v. Mutual Building & Loan Ass'n, 172 N. C. 158, 90 S. E. 142; Fidelity Trust Co. v. Bobloski, 228 Pa. 52. 76 Atl. 720; Darnel v. Lipscomb, 110 Va. 563, 66 S. E. 850.

45. Writers who have used the expression in one or the other sense are enumerated in Gray, Restraints on Alienation, Sec. 22, note.

R. P.-36 created by the same instrument a particular estate, that is, an estate less than a fee simple, which estate is not intended to be, and is not, affected by the subsequent ripening of the possibility of an estate into an actual estate by the satisfaction of the condition precedent. If the condition is satisfied before the expiration of the particular estate, the contingent remainder becomes a vested remainder, while if the condition is satisfied at the time of such expiration, the contingent remainder de-velopes into an estate in possession. On the other hand, in the case of an executory interest, there is frequently no actual estate whatsoever created by the same instrument, and if there is such an estate it is ordinarily one in fee simple, in either of which cases that the possibility of an estate is not a contingent remainder is clearly apparent. It may happen, however, that an actual estate less than a fee simple is created by the same instrument, in which case that which serves to show that the possibility of an estate is not a contingent remainder but an executory interest is the fact that the vesting cannot occur until the lapse of an interval after the expiration of the particular estate,46 or the fact that an intention appears that, if the vesting occurs before the expiration of the particular estate, such estate shall thereupon be divested 47