EXECUTORY DEVISE. A testamentary gift of a future interest in real or personal prop erty of such a nature that it. cannot be brought within the technical description of a remainder. In its earlier period the common law recognized no future estates in personal property. nor any in real property but reversions and remainders. Both of these were the remnants of a freehold out of which a smaller estate had been 'carved,' as the expression was, and given to another. If this remnant was retained by the former freehold tenant, it was a reversion; if it was, at the time of the creation of the lesser estate, given to a third person, it was a remainder. Thus, if a tenant in fee simple made a conveyance of a life estate, he still had a fee simple which was con ceived of as reverting to him at the expiration of the life estate, or which he might vest in an other as a remainder. In either ease the future estate, io be valid, must fit exactly npon the precedent estate. An interval of even a day bet ween the two rendered the attempted future estate void. Neither could there be a remainder to take effect in the future without a preceding estate 'to support it,' nor could a remainder be created after or in derogation of a fee simple.
The practice of eonveying lands to the use, or in trust for others, which prevailed in England during the fifteenth and sixteenth centuries, opened the way for the recognition of certain future interests in land which were not. by the ri(dd and artificial common-la• system, and the famous Statute of Uses, passed in the twenty-seventh year of Henry VIII. (1525), stereotyped these interests into new legal estates, known as springing and shifting uses. The stat ute of Wills (32 lien. VIII.), which for the first time permitted the free alienation of lands by will, enabled testators to create the same inter ests more simply and directly by testament, under the description of executory devises. These were
of two classes, corresponding to the shifting and springing uses, the former including future es tates to take effect in substitution for a preced ing fee simple—as a gift of land to A and his heirs, the same to go to a charity if A or his heirs ever ceased to occupy the premises so given; the second comprehending future interests to arise on an uncertain event—as a devise to B when he should attain the age of twenty-one' years. In the form here described, executory devises have continued to be a recognized form of testamentary disposition of real estate, and the expression has also been extended by analogy to include certain future interests in personal property which have acquired legal recognition.
This form of limitation is restrained by the law against perpetuities (q.v.), which requires that the estate must take effect within a life or lives in being and twenty-one years after. The law will not interpret a limitation as an executory devise if it can be otherwise sustained. When ever, therefore, a future interest in land is so devised as to fall within the rules laid down for the limitation of contingent remainders, such de vise will be construed as a contingent remainder, and not as an executory devise. An executory devise, unlike a remainder, cannot be defeated by any act of the first taker or devisee: when, therefore, an absolute power of disposition is in the first taker, the limitation over is not an ex ecutory devise. See DEVISE; FUTURE ESTATE; REMAINDER; USE AND OCCUPATION.