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Facts

(1) Except as stated in Subsection (2), the term “executory limitation” denotes that part of the language of a conveyance, by virtue of which (a) the interest subject thereto, upon the occurrence of a stated event is to be divested, before the normal expiration thereof, in favor of another interest in a person other than the conveyor or his successor in interest; or (b) an estate in fee simple determinable, or an analogous interest in a thing other than land, or an estate in fee simple conditional, concurrently with its expiration, is to be succeeded forthwith by another interest in a person other than the conveyor or his successor in interest. (2) The term “executory limitation” does not denote that part of the language of a conveyance which creates a remainder on condition precedent, the fulfillment of which can divest a reversionary interest left in the conveyor or his successor in interest. Illustration to Clause (a): 1. A, owning Blackacre in fee simple absolute, transfers Blackacre to B and his heirs, “but if B dies without issue him surviving at the time of his death, then over to C and his heirs.” The quoted words are an “executory limitation” within the rule stated in Clause (a). Illustrations to Clause (b): 2. A, owning Blackacre in fee simple absolute, transfers Blackacre to B and his heirs until B marries C and “upon such marriage to C and her heirs.” The quoted words are an “executory limitation” within the rule stated in Clause (b). 3. State X, wherein Blackacre is located, permits the creation of an estate in fee simple conditional. A, owning Blackacre in fee simple absolute, transfers Blackacre to B and the heirs of his body, “but if B's line of descendants becomes extinct before the death of C and D then over to E and his heirs.” The quoted words are an “executory limitation” within the rule stated in Clause (b). Comment: a. Narrows usage of word “limitation.” In the term “executory limitation” the word “limitation” is used in the narrow sense defined in § 23, Comment a. b. Applicability to both present and future interests. An executory limitation may be used to qualify either a present or a future interest. c. Differentiations. The occurrence of the event stipulated in an executory limitation automatically terminates the interest subject to such limitation. In this particular an executory limitation resembles a special limitation (see § 23, Comment b) and is unlike a condition subsequent, (see § 24, Comment b). An executory limitation of the type described in Clause (a) “divests” the interest subject thereto. In this particular an executory limitation resembles a condition subsequent and is unlike a special limitation. One fact, however, differentiates an executory limitation from both a special limitation and a condition subsequent. An executory limitation cannot operate in favor of the conveyor and can create interests in heirs or successors in interest of the conveyor only when such persons take directly by purchase rather than by descent. This is expressed in this Section by the phrase which appears in both Clauses of this Section, namely, “a person other than the conveyor or his successor in interest.” Contrastingly, special limitations and conditions subsequent can, and most commonly do, operate in favor of the conveyor. d. Varieties of executory limitations. An executory limitation creates either an executory interest (see Comment e) or a power of appointment. Neither the interest created in the donee of a power of appointment nor in a person who can be the appointee thereunder is an executory interest. The characteristics of the interest had by such a donee or appointee differ from those of an executory interest in many particulars, as for example, in the degree of protection which can be obtained against conduct of the owner of the present estate. Thus executory limitations do not, of necessity, create executory interests, but an executory interest can be created only by an executory limitation. e. Varieties of executory interests. Executory interests sometimes operate in defeasance of an interest left in the transferor and sometimes operate in defeasance of an interest created in a third person simultaneously therewith. When it is desired to differentiate executory interests upon this basis, those of the first type are designated “springing executory interests” while those of the second type are designated “shifting executory interests.” The executory limitation is sometimes contained in a deed and sometimes in a will. When it is desired to differentiate the resultant executory interests upon this basis, those of the first type are designated “uses,” because of their evolution through the Statute of Uses, while those of the second type are designated “devises.” An executory interest can take effect concurrently with the expiration of an interest created simultaneously therewith, rather than by divesting such interest [see Subsection (1)(b)]. No special name exists for this type of executory interest. f. Varieties of estates divested or succeeded by executory interests. The estate divested or succeeded by the executory limitation can vary in its designation according to which one of types of executory interest described in Comment e has been created. Thus such estate may be an “estate subject to a springing use” (Illustration 4), or an “estate subject to a springing executory devise” (Illustration 4), or an “estate subject to a shifting use” (Illustrations 5 and 6), or an “estate subject to a shifting executory devise ” (Illustrations 5 and 6). When the executory interest succeeds [see Subsection (1)(b)] rather than divests the prior estate, such prior estate is described in this Restatement as an “estate with an executory limitation,” rather than an “estate subject to an executory limitation” in order to indicate that such estate is not altered in duration by the effectiveness of the executory limitation (Illustration 7). Illustrations: 4. A, owning Blackacre in fee simple absolute, transfers Blackacre to B “to hold to B and his heirs from and after the marriage of B to A's daughter C.” A has an estate in fee simple subject to an executory limitation by way of a springing use if the creating conveyance was a deed. A's heirs or devisees have an estate in fee simple subject to an executory limitation by way of a springing executory devise if the creating conveyance was a will. B has an executory interest in fee simple absolute. 5. A transfers Blackacre to B “to hold to B for life but if B marries D thereupon to C and his heirs.” B has an estate for life subject to an executory limitation by way of a shifting use if the creating conveyance was a deed, or by way of a shifting executory devise if the creating conveyance was a will. C has an executory interest in fee simple absolute. 6. A transfers Blackacre to B “to hold to B for ninety-nine years, but if B dies leaving no male issue him surviving, then to C for the balance of the term.” B has an estate for years subject to an executory limitation by way of a shifting use if the creating conveyance was a deed, or by way of a shifting executory devise if the creating conveyance was a will. C has an executory interest for years. 7. A, owning Blackacre in fee simple absolute, transfers Blackacre “to B and his heirs until the marriage of B's daughter with C and then to C and his heirs.” B has an estate in fee simple determinable with an executory limitation in favor of C, operative on the same event that ends B's estate by special limitation. Comment on Subsection (2): g. “Can divest.” When a limitation creates two or more successive interests, including a future interest subject to a condition precedent, this condition precedent is certain to be some one of three kinds. It must be either (1) capable and certain of fulfillment, if ever, at a time not later than the end of prior interests created simultaneously therewith; or (2) capable, but not certain of fulfillment, if ever, at a time not later than the above stated time; or (3) incapable of fulfillment until after the above stated time. The first and second of these three possible situations result in the creation of a “remainder on condition precedent, the fulfillment of which can divest a reversionary interest left in the conveyor”; since in both of these situations it is possible for the condition precedent to be fulfilled before the end of the described prior interests, and hence it is possible for that fulfillment to divest the interest left in the conveyor while that interest remains reversionary, that is, nonpossessory. The fact that, in the second described situation, it is possible for the condition precedent to be fulfilled after the end of the described prior interests, and at a time when the erstwhile reversionary interest has become possessory, is immaterial. The created interest is a remainder without regard to whether the condition precedent, in fact, is fulfilled before or after the end of the described prior interests. In the third of the three enumerated situations, the future interest created is an executory interest and the situation is not excepted by the rule stated in Subsection (2). . Cross-references. Stating that an estate in fee simple subject to an executory limitation is one variety of estate in fee simple defeasible see § 16. As to the forms of limitation effective to create an estate in fee simple divested or succeeded by an executory interest see §§ 46 and 47. As to the characteristics thereof see §§ 49-58. As to the differences between an executory limitation and a special limitation and between an executory limitation and a condition subsequent see Chapter 4, Introductory Note.