EXECUTORY DEVISE
(bouvier) | EXECUTORY DEVISE, estates. An executory devise is a limitation by will of a
future contingent interest in lands, contrary to the rules of limitation of
contingent estate is in conveyances at law. When the limitation by will does
not depart from those rules prescribed for the government of contingent
remainders, it is, in that case, a contingent remainder, and not an
executory devise. 4 Kent, Com. 257; 1 Eden's R. 27; 8 T. R. 763.
2. An executory devise differs from a contingent remainder, in three
material points. 1. It needs no particular estate to precede and support it;
for example, a devise to A B, upon his marriage. 2. A fee may be limited
after a fee, as in the case of a devise of land to C D, in fee, and if he
dies without issue, or before the age of twenty-one, then to E F, in fee. 3.
A term for years may be limited over after a life estate created in the
same. 2 Bl. Com. 172, 173.
3. To prevent perpetuities, a rule has been adopted that the
contingency must happen during the time of a life or lives in being and
twenty-one years after, and the months allowed for gestation in order to
reach beyond the minority of a person not in esse at the time of making the
executory devise. 3 P. Wms. 258; 7 T. R. 100; 2 Bl. Com. 174; 7 Cranch, 456;
1 Gilm. 194; 2 Hayw. 375.
4. There are several kinds of executory devises; two relative to real
estate, and one in relation to personal estate.
5.-1. When the devisor parts with his whole estate, but upon some
contingency, qualifies the disposition of it, and limits an estate on that
contingency. For example, when the testator devises to Peter for life,
remainder to Paul, in fee, provided that if James should within three months
after the death of Peter pay one hundred dollars to Paul, then to James in
fee; this is an executory devise to James, and if he dies during the life of
Peter, his heir may perform the condition. 10 Mod. 419; Prec. in Ch. 486; 2
Binn. 532; 5 Binn. 252; 7 Cranch, 456; 6 Munf. 187; 1 Desaus. 137, 183; 4
Id. 340, 459; 5 Day, 517.
6.-2. When the testator gives a future interest to arise upon a
contingency, but does not part with the fee in the meantime; as in the case
of a devise of the estate to the heirs of John after the death of John; or a
devise to John in fee, to take effect six months after the testator's death;
or a devise to the daughter of John, who shall marry Robert within fifteen,
years. T. Raym. 82; 1 Salk. 226; 1 Lutw. 798.
7.-3. The executory bequest of a chattel interest is good, even
though the ulterior legatee be not at the time in esse, and chattels so
limited are protected from the demands of creditors beyond the life of the
first taker, who cannot pledge them, nor dispose of them beyond his own life
interest in them. 2 Kent, Com. 285; 2 Serg. & Rawle, 59; l Desaus 271; 4
Desaus.340; 1 Bay, 78. But such a bequest, after an indefinite failure of
issue, is bad. See 2 Serg. & R. 62; Watk. Prin. Con. 112, 116; Harg. note, 1
Tho. Co. Litt. 595-6, 515-16. Vide, Com. Dig. Estates by Devise., N 16;
Fearne on Rem. 381; Cruise's Dig. Index, h.t.; 4 Kent, Com. 357 to 381; 2
Hill. Ab. c. 43, p. 533.
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