Johnson, pp. 153-159: Executory Interests
Executory Interests in Contemporary Law
So an executory interest is a future interest in someone other than the grantor that’s not a reversion. One way you can have an executory interest is when you have a fee simple subject to an executory limitation. Another way is when you have a vested remainder subject to divestment.
There are two kinds of executory interests: shifting and springing.
Shifting executory interests go from one grantee to another upon the occurrence of some condition.
Springing executory interests go from the grantor to a grantee upon the occurrence of some condition. Another way to put it is that there is a springing executory interest whenever there is an unavoidable gap in ownership of a present possessory estate in the land. If the gap is avoidable, then you don’t call it a springing executory interest.
Executory Interests in the Sixteenth Century
Before the Statute of Uses in 1536, shifting executory interests were not enforceable at law but only in equity. In order to make shifting executory interests enforceable, you had to use certain “magic words” to “raise a use”. You also had to appoint a “feoffee to uses” who was almost like a trustee.
After the Statute, the legal fee simple of the “feoffee to uses” disappeared as soon as he got it.
1. “Otis to Aleisha for life, then to Boland and his heirs, but if Boland has not married by the time of Aleisha’s death, to Carla and her heirs.”
a. Aleisha has a life estate. Boland has a vested remainder subject to total divestment (or subject to an executory limitation or subject to a condition subsequent). Carla has a shifting executory interest in fee simple absolute.
b. Aleisha still has a life estate. Boland has a vested remainder in fee simple absolute. Carla has nothing.
2. “Otis to Asa and her heirs upon her graduation from law school. Assume that Asa is a member of your law school class”: Asa has a springing executory interest in fee simple absolute. Otis retains a fee simple subject to an executory limitation.
3. “Otis to Amelia and her heirs provided the land is farmed, but if it is not farmed, to Ballard and his heirs”: Amelia is granted a fee simple subject to an executory limitation and Ballard gets a shifting executory interest in fee simple absolute. [Otis gets nothing.]
4. “Otis to Ava for life, and then to Barbara and her heirs if Barbara survives Ava, but if Barbara does not survive Ava, to Clarice and her heirs”: Ava gets a life estate. Barbara and Clarice get alternative contingent remainders in fee simple absolute and Otis gets a reversion. [Why does Otis have a reversion? We always act as though the life estate could end before the death of the life tenant.]
Note on Trusts
We’ve talked about what trusts are in class. You have a trustee who has a fiduciary relationship with