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.
Practice Problems
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