EXECUTORY DEVISE

4 definitions found across Law Mind sources

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EXECUTORY DEVISEAuthored
The Law Mind • 1466 words
Definition
An executory devise is a testamentary disposition of land or chattels that does not vest at the testator's death but instead is limited to arise and take effect upon a future contingency. It is a will-based mechanism for creating a future interest that could not be created by an ordinary conveyance at common law — a limitation that the law permits in wills precisely because it does not require an immediate vesting. In simpler terms: the testator leaves property by will, but instead of the gift taking effect at death in the ordinary way, the gift is structured so that it springs into existence only if and when some future event occurs. Until that contingency happens — or fails to happen — no estate vests in the intended beneficiary. Two broad forms appear in the authorities: 1. In a general sense: any devise of a future interest in land not taking effect at the testator's death, but limited to arise on a future contingency. 2. In a stricter sense: a limitation by will that cuts over an existing estate — either springing out of the grantor's heirs or shifting from one devisee to another — upon a future event, in circumstances where such a limitation would be void if attempted by deed. The key operational feature is that the executory devise bypasses the common law rules that otherwise prevented the creation of contingent future interests in conveyances. Because the testator acts through a will rather than a deed, equity and the courts of common law permitted these limitations to stand. ---
Common Confusion
EXECUTORY DEVISE vs. REMAINDER These terms are frequently conflated because both describe future interests that become possessory upon a subsequent event. The distinction is structural and consequential for research. A remainder is a future interest carved out of a present estate and capable of taking effect immediately upon the natural termination of the prior possessory estate — it follows the prior estate without any gap or divestiture. An executory devise, by contrast, either springs up from nothing (a springing executory interest) or cuts short a prior estate before its natural end (a shifting executory interest). A remainder cannot cut short the prior estate; an executory devise can. Because of this, the Rule in Shelley's Case and the Doctrine of Worthier Title applied differently, and the Rule Against Perpetuities operated on executory devises in a distinctive manner. Historical sources sometimes blur this line, particularly in older cases where the court's characterization determines which doctrines apply. EXECUTORY DEVISE vs. EXECUTORY INTEREST An executory interest is the broader modern category; an executory devise is its testamentary subspecies. An executory interest may be created by deed (through a use raised under the Statute of Uses) or by will. An executory devise is created only by will, and historically the term carried additional significance because will-based limitations escaped some of the constraints that deed-based limitations faced. Modern property law typically uses "executory interest" as the umbrella term, and many contemporary sources have retired "executory devise" as a standalone label. Researchers using older materials must track which term the source employs and why. ---
Core Elements
An executory devise is recognized when: 1. TESTAMENTARY ORIGIN: The limitation arises by will, not by deed or conveyance. 2. NON-VESTING AT DEATH: No estate passes to the beneficiary at the moment of the testator's death; the interest remains in abeyance until the contingency occurs. 3. FUTURE CONTINGENCY: The limitation is conditioned on an event that may or may not happen — a classic contingency, not merely a condition subsequent attached to an already-vested gift. 4. BEYOND COMMON LAW DEED RULES: The limitation is of a kind that common law would not permit in a deed — either because it cuts short an existing fee, creates a gap in seisin, or violates the rules governing future interests in conveyances. 5. COMPLIANCE WITH THE RULE AGAINST PERPETUITIES: The executory devise must vest, if at all, within a life in being plus twenty-one years at the time of the testator's death. This was historically the primary constraint on executory devises, and many failed on this ground. ---
Recognized Forms
/SUBTYPES SPRINGING EXECUTORY DEVISE: A limitation that springs up in a devisee after an interval, out of the grantor's estate or from no prior estate in another person. Example: a devise "to A, but if A dies without issue, then to B." SHIFTING EXECUTORY DEVISE: A limitation that cuts over from one devisee to another upon a contingency. The prior estate is divested before its natural expiration. ---
Why It Matters in Research
Executory devise is a term with real research traps. Its meaning has contracted over time. In sources predating the widespread adoption of modern property restatements, you will encounter the term used loosely to describe what today would simply be called an executory interest — and the analysis attached to that term carries doctrines (the Rule Against Perpetuities, destructibility of contingent remainders, the Statute of Uses) that are themselves often misapplied or inconsistently treated across jurisdictions and centuries. Several navigational points for corpus researchers: RULE AGAINST PERPETUITIES: The executory devise was historically the primary vehicle through which the Rule Against Perpetuities operated. Many of the foundational perpetuities cases involve executory devises. When reading pre-twentieth-century materials on perpetuities, expect "executory devise" to appear where modern materials would say "executory interest." DESTRUCTIBILITY: Unlike contingent remainders, executory devises were not subject to the common law doctrine of destructibility. This made them more flexible — and more dangerous from a perpetuities standpoint. Some authorities treated this immunity as a defining characteristic of the executory devise. Do not assume that a future interest labeled a "remainder" in an old case was actually analyzed as one; courts sometimes mislabeled executory devises as remainders and vice versa. CHATTELS: Bouvier's specifically notes that executory devises extend to chattels as well as lands, a point Black's and Burrill's handle less explicitly. When researching personal property dispositions in older wills, the same doctrine applies but is less frequently indexed under this term. POST-1965 SOURCES: After the widespread adoption of the Restatement (Second) of Property and, later, the Uniform Probate Code and Restatement (Third), the term "executory devise" largely disappears from practice-oriented sources. Researchers using materials from different eras must translate between terminological frameworks. ---
Historical Dictionary Support
The three shelf sources converge on the core definition — a future interest in land created by will, not vesting at death, conditioned on a future contingency — but differ usefully in emphasis. Burrill's is the most analytically precise, offering both a general and a stricter sense, and explicitly grounding the doctrine in Fearne on Remainders and Blackstone's Commentaries. The Fearne citation (1 Fearne on Remainders, 382) is significant: Fearne's treatise was the leading authority on future interests in the common law tradition, and corpus researchers encountering executory devise questions in eighteenth- and nineteenth-century materials should expect Fearne to be the implicit theoretical backdrop even when not cited. Bouvier's is notable for its emphasis on the contrast with common law deed limitations — "such a limitation 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 conveyances at common law." This framing correctly identifies the doctrinal function of the executory devise: it is an escape valve from common law conveyancing restrictions, available only in the testamentary context. Black's, as preserved in the available excerpt, is less complete but consistent. The general definition tracks Burrill's and Fearne. What the historical sources collectively underemphasize: the interaction between executory devises and the Rule Against Perpetuities. A researcher relying on these dictionary definitions alone would not appreciate that perpetuities analysis was the dominant practical concern in executory devise litigation. ---
Jurisdictional Note
American states that abolished the destructibility of contingent remainders by statute (most had done so by the mid-nineteenth century) effectively reduced one practical distinction between remainders and executory devises, though the terminological and doctrinal differences persisted in the case law. Today, jurisdictions that have adopted the Uniform Statutory Rule Against Perpetuities or the wait-and-see approach further alter the analysis of any executory interest, whether labeled a devise or not. Researchers should confirm which perpetuities regime applies before importing pre-twentieth-century executory devise analysis into a contemporary context. ---
Related Terms
Executory Interest Contingent Remainder Vested Remainder Future Interest Rule Against Perpetuities Springing Use Shifting Use Statute of Uses Devise Testamentary Disposition Destructibility of Contingent Remainders Fee Simple Subject to an Executory Limitation Fearne on Remainders
EXECUTORY DEVISEmain
Black's Law Dictionary • 1891
is therein charged with duties in relation to the estate which can only be performed by the executor. In the civil law. A ministerial officer who executed or carried into effect the judg ment or sentence in a cause. Calvin.
EXECUTORY DEVISEmain
Black's Law Dictionary • 1891
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 In the phraseology of ecclesiastical law, contingency. 1 Fearne, Rem. 352. A dis- they are of the following kinds: Executor à lege constitutus, an executor appointed by law; the ordinary of the dio- cese. Executor ab episcopo constitutus, or ex- ecutor daticus, an executor appointed by the bishop; an administrator to an intestate. Executor à testatore constitutus, an ex- ecutor appointed by a testator. Otherwise termed "executor testamentarius;" a testa- mentary executor. An executor to the tenor is one who, though not directly constituted executor by the will, position of lands by will, by which no estate vests at the death of the devisor, but only on some future contingency. 2 Bl. Comm. 172. In a stricter sense, a limitation by will of a future contingent interest in lands, con- trary to the rules of the common law. 4 Kent, Comm. 263; 1 Steph. Comm. 564. Α limitation by will of a future estate or inter- est in land, which cannot, consistently with the rules of law, take effect as a remainder. 2 Pow. Dev. (by Jarman,) 237. By the executory devise no estate vests at the death of the devisor or testator, but only on the
EXECUTORY DEVISEmain
Bouvier's Law Dictionary • 1928
Such a lim- itation of a future estate in lands or chat- tels 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. 38 Pa. 294. By the executory devise no estate vests at the death of the devisor or testator, but only on the fu- ture contingency. It 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 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 free- hold, 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 Cand his heirs, the limitation to B, etc., pre- vents an immediate connection of the estate limited to C with the life estate of A, and prevents its com- mencement 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 be- queathed for life, with remainder over, this latter disposition cannot take effect as a remainder, but may as an executory devise, or more properly be- quest; 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 particu- lar 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 devises to A and his heirs forever, which is a fee-simple, and then, in case A dies, before he is twenty-one years of age, to Band his heirs. Cro. Jac. 500; 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 executory be- quest; 2 S. & R. 59; 1 Desaus. 271; 4 id. 880. 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; 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 ventre 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 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 feme 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 who 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 li

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