EXECUTORY REMAINDER - The Law Mind Legal Dictionary

EXECUTORY REMAINDERAuthored

The Law Mind • 988 words

Definition

An executory remainder is an older term for what modern property law calls a contingent remainder — a future interest in real property held by a third party (a remainderman) that is dependent upon the occurrence of some condition precedent, or is limited to an unascertained person, before it can vest. Unlike a vested remainder, which is fixed in an identified person with no condition standing between them and possession (other than the natural termination of the prior estate), an executory remainder carries uncertainty: either the holder is not yet determined, or a condition must be satisfied before the interest becomes possessory.

The core idea is that no present, fixed interest passes to the remainderman at the time of the conveyance. The remainder is "executory" in the sense that it remains to be carried out — it awaits fulfillment of a condition or identification of a holder before it fully activates.

Common Confusion

EXECUTORY REMAINDER vs. EXECUTORY INTEREST: These two terms are the principal source of confusion, and conflating them can produce serious research errors. An executory interest is a distinct future interest that cuts short or springs up outside the natural termination of a prior estate — it operates in derogation of a prior freehold or arises before a preceding estate naturally ends. A contingent (executory) remainder, by contrast, takes effect only upon the natural expiration of the preceding freehold estate. The historical use of "executory remainder" as a synonym for contingent remainder means that when you encounter the phrase "executory remainder" in older sources, it almost certainly does not refer to an executory interest in the modern sense.

EXECUTORY REMAINDER vs. CONTINGENT REMAINDER: These terms are functional synonyms in historical usage, but "contingent remainder" has become the dominant modern term. Researchers encountering "executory remainder" in historical deeds, treatises, or opinions should understand they are reading about what is now universally called a contingent remainder.

Why It Matters in Research

The term "executory remainder" is essentially extinct in modern legal drafting and judicial opinions. Researchers are far more likely to encounter it in pre-twentieth-century sources — English common law treatises, colonial and early American conveyancing documents, equity opinions, and nineteenth-century American case law — than in any contemporary material.

The primary research trap is terminological drift. Historical writers used "executory remainder," "contingent remainder," and occasionally "conditional remainder" with overlapping and sometimes inconsistent meanings. Blackstone's treatment at 2 Bl. Com. 169 — referenced by Rapalje & Lawrence — was influential in shaping the American understanding, but even within the common law tradition the vocabulary was not always disciplined. A researcher who assumes that every use of "executory" in a future-interest context refers to what modern law calls an executory interest (a springing or shifting interest under the Statute of Uses) will misread historical material.

A secondary trap: Rapalje & Lawrence's entry links executory remainders to executory trusts. The connection is terminological, not doctrinal — executory trusts involve a different concept (a trust that requires a further instrument to complete its terms). Do not assume any substantive overlap between executory remainders and executory trusts simply because both bear the "executory" label.

For corpus researchers working with Law Mind materials: if your source predates roughly 1900, assume "executory remainder" means contingent remainder. If your source is modern, the term will almost certainly not appear at all — search instead under contingent remainder or executory interest depending on context. The classification of future interests in the Law Mind encyclopedia corpus (see below) uses the modern taxonomy and will guide cross-referencing.

Historical Dictionary Support

The three historical dictionaries in the Law Mind corpus are in complete agreement on the core definition: Bouvier's, Burrill's, and Rapalje & Lawrence all treat "executory remainder" as a synonym for contingent remainder, with Bouvier's and Burrill's directing readers to that entry without elaboration. This unanimity is itself informative — the term was not contested in meaning, it was simply a period usage for what would later be standardized as "contingent remainder."

Rapalje & Lawrence adds marginal value by citing Blackstone and by appending a note on executory trusts. The Blackstone citation (2 Bl. Com. 169) points researchers to a primary authority for the historical development of the concept, though Blackstone's framework predates the Statute of Uses analysis that would eventually sharpen the distinction between contingent remainders and executory interests under American law.

What the historical dictionaries do not do is distinguish executory remainders from executory interests — a distinction that would have been recognized by sophisticated equity practitioners of the period but was not always made explicit in dictionary entries. Researchers relying solely on these definitions for that distinction will find them insufficient.

Jurisdictional Note

The contingent remainder doctrine — including what historical sources called the executory remainder — developed under English common law and was received across American jurisdictions. Many states have since modified or abolished the common law rules governing future interests through property reform statutes or adoption of the Uniform Trust Code framework. The Restatement (Third) of Property (Wills and Other Donative Transfers) uses the modern taxonomy. Researchers should verify whether the jurisdiction of interest has codified or altered the common law rules.

Encyclopedia Cross-Reference

The Law Mind Trusts, Estates & Probate Encyclopedia: Classification of Future Interests — Remainders, Reversions, Executory Interests, and Powers of Termination (estates_110)
The Law Mind Property Law Encyclopedia: Future Interests — Remainder (Vested, Contingent, Subject to Open) (property_6)
The Law Mind Property Law Encyclopedia: Future Interests — Executory Interests (Springing and Shifting) (property_7)

EXECUTORY REMAINDERmain

Rapalje & Lawrence • 1888

-A contingent remainder, because no present interest passes. EXECUTORY REMAINDERS, (defined). 2 Bl. Com. 169. EXECUTORY TRUSTS.-In the case of articles of agreement, made in contemplation of marriage, and which are consequently preparatory to a settlement, and in the case of those wills which are merely directory of a subsequent conveyance, the trusts declared by them are said to be executory or imperfect, because they require an ulterior act to raise and perfect them. They are rather considered as instructions for settlements, than as instruments in themselves complete; and therefore equity, in order to promote the presumed views of the parties in the one case, and to support the manifest intention of the testator in the other, will attach to the words, expressive of the trusts, a more liberal and enlarged construction than they would admit if applied either to the limitation of a legal estate or a trust executed. 1 Sand. Us. 237. EXECUTORY TRUSTS, (distinguished from trusts executing themselves). 4 H. L. Cas. 1, 210. EXECUTORY USES.-Springing uses, which confer a legal title answering to an executory devise; as when a limita24. In personalty.-Executory interests in personalty are created either by contion to the use of A. in fee, is defeasible by veyance inter vivos, or by will. In the latter case, they are sometimes called "executory bequests" (Wms. Pers. Prop. 260), formerly, "executory devises." (Fearne Rem. 418.) In the wide sense of the word, "executory interest" includes interests in personal property analogous to remainders and reversions in land; but such interests are sometimes called "remainders" and "reversions," as if they were estates in land. Thus, if stock is transferred or bequeathed to trustees in trust for A. for life, and after his death to B., the interest of B. might be called either a "remainder" or an "executory interest." a limitation to the use of B., to arise at a future period, or on a given event. EXECUTORY USES, (what are). 1 Steph. Com. 502.