EXECUTORY DEVISE. Such a limita tion of a future estate in lands or chattels as the law admits in case of a will, though contrary to the rules of limitation in con veyances 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, hut only on the fu ture contingency. is only an indulgence to the last will and testament which is supposed to be made by one inops consilii. When the limitation by devise is such that the future interest falls within the rules of contingent remainders, it is a contin gent remainder, and not an executory devise. 4 Kent 257; 3 Term 763.
If a particular estate of freehold he first devised, capable in its own nature of supporting a remain der, followed by a limitation which is not immedi ately connected with, or does not immediately com mence 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) re mainder, because his estate is immediately .connect ed 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, hut 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 liv ing at his decease; then to C and his heirs, the limitation to B, etc., prevents an immediate con nection of the estate limited to C with the life es tate of A, and prevents its commencement on the death of A. It must operate, if at all, as an execu tory 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, hut may as an execu tory 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 remain der 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 fu turo. A makes a devise of a future estate on a cer tain 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. 226; 1 Lutw. 798.
The second case is a fee upon a fee. A devisee to A and his heirs forever, which is a fee-simple, hnd then, in case A dies, before he is twenty-one years of age, to B and his heirs. Cro. Jac. 690; 10 Mod.
The third case: a limitation in a term of years after a life estate. A grants a tent 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 executory 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. Haig's Ex're, 4 Des. (S. C.) 330.
It is not a mere possibility, but a sub stantial interest, and in respect to its trans missibility stands on the same footing with a Contingent remainder ; Medley v. Medley, 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 inatris, and the minority of any person or persons born or in ventre nuitris 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 after wards, or within, or at the expiration of an absolute term of twenty-one years without reference to any life. For example, lands are devised to such unborn son of a covert as shall first reach the age of twenty one years. The utmost length of time that can happen before the estate can vest is the life of the mother and the subsequent in fancy of her son. Such an executory devise is therefore good. If, however, such limit ation had been to the first unborn son whi) shall attain the age of twenty-five years, the rule against perpetuities would be in fringed and the limitations bad ; Smith, Ex. Int. 391; 2 Bla. Com. 174.
An executory devise limited after an in definite failure of issue is bad 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 limita tions as contemplating a definite failure of issue ; 4 Kent 281; 1 P. Wms. 663 ; Gray, Perpet. 212.
An executory devise is generally inde structible by any alteration in the estate 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 recovery; Butler's note to Fearne, Cont. Rem. 562; Wms. It P. 319.