Executory Interests Flashcards
However, remainders have three important restrictions:
- Remainders can only follow particular estates.
- A remainder can never directly follow a fee simple. - Remainders must wait until the prior particular estate expires.
- A remainder can never divest (“cut short”) another estate. - Remainders have to follow particular estates immediately, without any “gaps” in which possession reverts to grantor.
- A remainder can never directly follow possession by the grantor.
These are the three “nevers.”
“to A and his heirs, but if A predeceases B, then to B and his heirs.”
A has a Fee Simple on Executory Limitation, and B has a Shifting Executory Interest.
Define
An executory interest is..
a future interest
in someone other than the grantor
having one or more of the following features:
-it directly follows a fee simple, and/or
-it divests (“cuts short”) the prior estate, and/or
-it directly follows possession by the grantor
A future interest that causes possession of the freehold to (“do this”) out of the grantor, that is, if the possession “directly follows possession by the grantor,”
A SPRINGING INTEREST
“to L for life, then one day after L’s death to E and her heirs”
A SPRINGING INTEREST
“to E and his heirs beginning 2 years from the date hereof”
A SPRINGING INTEREST
“to B and his heirs, but if B dies without surviving children, then to C and his heirs.”
(C’s interest is known as an EXECUTORY INTEREST.)
- Notice the words “and his heirs,” indicating that the conveyance purports to give a fee simple to both B and C.
- Notice the stated event that can divest B’s fee simple (B’s death without surviving children).
- Notice that no “re-entry” is called for – C gets the right to immediate possession automatically if the stated event occurs.
- Notice finally that possession goes to C (instead of “reverting” back to the grantor) if the stated event occurs.
C’s interest is known as an EXECUTORY INTEREST.
DEFEASIBLE fee simple estates come to their “early” ends in different ways==>
As we’ve seen,
- The fee simple determinable “expires”
- The fee simple on condition subsequent is “divested”
How does the fee simple on executory limitation end?
- by expiration?
- by divestment?
The answer is BOTH.
Determine whether the fee simple appears to end by expiration or divestment.
Conveyance 1 - “to Bob and his heirs but if Bob gets married, then to Kate and her heirs.”
The answer is divestment. Conveyance gives Bob a fee simple on executory limitation that is divested (“cut short”) when the stated event occurs.
Reasoning: The words of conveyance indicate, first, that Bob receives a fee simple, but then there are *words of condition (“but if”), and these indicate that Bob’s estate is to be divested if he gets married. Accordingly, Kate’s executory interest takes over by divesting Bob’s estate.
Determine whether the fee simple appears to end by expiration or divestment.
“to Burt and his heirs until Burt gets married, then to Kate and her heirs.”
The answer is expiration. Conveyance gives Burt a fee simple on executory limitation that ends by expiration when the stated event occurs.
Reasoning: By the terms of the conveyance, the duration of Burt’s estate is measured (in part) by the time that Burt remains unmarried–which could, of course, be perpetuity.
If Burt’s estate ends due to his marriage, Kate’s right of possession will follow Burt’s estate, but her right of possession doesn’t divest it.
Burt’s estate can be called a “fee simple followed by an executory limitation.”
Thus, there are actually 2 types of fees simple on executory limitation:
fee simple subject to an executory limitation
fee simple followed by an executory limitation
One is limited by words of condition, and the other by words of duration ==>
Notice that each type corresponds to one of the other 2 defeasible fee simple estates:
fee simple subject to an executory limitation: “to Bob and his heirs but if Bob gets married, then to Kate and her heirs,” corresponds to the fee simple on condition subsequent
fee simple followed by an executory limitation: “to Burt and his heirs until Burt gets married, then to Kate and her heirs,” corresponds to the fee simple determinable
Notice that each type corresponds to one of the other 2 defeasible fee simple estates:
“to Bob and his heirs but if Bob gets married, then to Kate and her heirs,”
fee simple subject to an executory limitation:
corresponds to the fee simple on condition subsequent
Notice that each type corresponds to one of the other 2 defeasible fee simple estates:
“to Burt and his heirs until Burt gets married, then to Kate and her heirs,”
fee simple followed by an executory limitation:
corresponds to the fee simple determinable
