executory devise

An executory devise is such a disposition of real property by will that no estate vests thereby at the death of the devisor, but only on a future contingency. It differs from a remainder in three material points: 1. It needs no particular estate to support it. 2. A fee simple or other less estate may be limited by it after a fee simple. 3. A remainder may be limited, of a chattel interest, after a particular estate for life in the same property.

A limitation by will of a future estate in lands or chattels. 38 Pa. St. 294. A devise of an estate to take effect upon some contingency subsequent to the testator's death. As to chattels, it is more properly called an "executory bequest." It differs from a remainder, in that it needs no particular estate to support it. See 6 Wall. (U. S.) 475.

Such a limitation of a future estate in lands or chat tils as the law admits in case of a will, though contrary to the rules of limitation in conveyances at common law. It is a limitation by will of a future estate or interest in ' lands or chattels. In re Brown's Estate, 38 Pa. 294. By the executory devise no estate vests at the death of the devisor or testator, but only on the future contingency. It is only an indulgence to the last will and testament which is supposed to be made by one inojis conailii. When the limitation by devise is such that the future interest falls within the rules of contingent remainders, it is a contingent remainder, and not an executory devise. 4 Kent 257; 3 Term 763. If a particular estate of freehold be first devised, capable in its own nature of supporting a remainder, followed by a limitation which is not immediately connected with, or does not immediately commence from, the expiration of the particular estate of freehold, the latter limitation cannot take effect as a remainder, but may operate as an executory devise: e. g., if land be devised to A for life, and after his decease to B in fee, B takes a (vested) remainder, because his estate is immediately connected with, and commences on, the limitation of A's estate. If land be limited to A for life, and one year after his decease to B in fee, the limitation to B is not such a one as will be a remainder, but may operate as an executory devise. Fearne, Cont. Rem. 399. If land be limited to A for life, and after his decease to B and his heirs, with a proviso that if B survive A and die, without issue of his body living at his decease; then to C and his heirs, the limitation to B, etc., prevents an immediate connection of the estate limited to C with the life estate of A, and prevents its commencement on the death of A. It must operate, if at all, as an executory devise; Butler's note (c) to Fearne, Cont. Rem. 397. If a chattel interest be bequeathed for life, with remainder over, this latter disposition cannot take effect as a remainder, but may as an executory devise, or more properly bequest; id. 407. An executory devise differs from a remainder In three very material respects: First. It needs no particular estate to support It. Second. By it a fee-simple or other less estate may be limited on a fee-simple. Third. By it a remainder may be limited of a chattel interest after a particular estate for life created In the same. The first Is a case of freehold commencing in futuro. A makes a devise of a future estate on a certain contingency, and till the contingency happens does not dispose of the fee-simple, but leaves It to descend to his heirs at law. 1 T. Raym. 82; 1 Salk. then, in case A dies, before he Is twenty-one years of age, to B and his heirs. Cro. Jac. 590; 10 Mod. 420. The third case: a limitation in a term of years after a life estate. A grants a term of one thousand years to B for life, remainder to C. The common law regards the term for years as swallowed up in the grant for life, which, being a freehold, is a greater estate, and the grantee of such a term for life could alien the whole. A similar limitation In a will may take effect, however, as an ex> bequest; Scott v. Price, 2 S. & R. (Pa.) 59, 7 Am. Dec. 629; Logan v. Ladson's Ex'r, 1 Des. (S. C.) 271; Clifton v. Halg's Ex'rs, 4 Des. (S. C.) 330. It is not a mere possibility, but a stantial Interest, and in respect to its ti missibility stands on the same footing with a contingent remainder; Medley v. Mi 81 Va. 268. In order to prevent perpetuities, the rule has been adopted that executory interests must be so limited that from the time of their limitation they will necessarily vest in right (not necessarily in possession) at a period not exceeding that occupied by the life or lives of a person or persons then living, or in ventre matris, and the minority of any person or persons born or in I • ntre matris prior to the decease of, such first named person or persons, or at a period not exceeding that occupied by the life or lives of such first named person or persons, and an absolute term of twenty-one years afterwards, or within, or at the expiration of an absolute term of twenty-one years without reference to any life. For example, lauds are devised to such unborn son of a feme covert as shall first reach the age of twentyone years. The utmost length of time that can happen before the estate can vest is the life of the mother and the subsequent infancy of her son. Such an executory devise is therefore good. If, however, such limitation had been to the first unborn son who shall attain the age of twenty-five years, the rule against perpetuities would be infringed and the limitations bad; Smith, Ex. Int. 391; 2 Bla. Com. 174. An executory devise limited after an indefinite failure of issue is had as leading to a perpetuity; 4 Kent 273; and so of an executory bequest, but the courts are in the latter case much less apt to construe limitations as contemplating a definite failure of issue; 4 Kent 281; 1 P. Wins. 663; Gray, Perpet. 212. An executory devise is generally indestructible by any alteration in the i out of or after which it is limited. But if it is limited on an estate tail the tenant in tail can bar it, as well as the entail, by common recovery or by deed enrolled, etc., where such deed is by statute given the force, and effect of a common reco Butler's note to Fearne, Cont Rem. 662; Wins. R_ P. 319.

In a general sense. A devise of a future interest in lands, not to take effect at the testator's death, but limited to arise and vest upon some future contingency. 1 Feame on Remainders, 382. A disposition of lands by will, by which no estate vests at the death of the devisor, but only on some future contingency.* 2 Bl. Com. 172.

In a stricter sense, a limitation by will of a future contingent interest in lands, contrary to the rules of the common law.* 4 Kenfs Com. 263. 1 Steph. Com. 564.— A limitation by will of a future estate or interest in land, which cannot, consistently with the rules of law, take effect as a remainder. 2 Powell on Dev. (by Jarman,) 237. Lewis on Perpetuity, 71, 72.