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springing or shifting use or executory devise or other executory limitation.

SUG. GILB. USES, 176. The result of the authorities seems to be that to create a good springing use it must be limited at once independently of any preceding estate, and not by way of remainder, for, if it be, it shall be construed a contingent, and not a springing use, and shall be subject to the laws which govern contingent remainders. By a train of decisions springing uses are thus confined within very narrow limits, and future or contingent uses are placed on exactly the same footing with contingent remainders.— Sugden's note.

GRAY, PERPETUITIES, § 58. Is a Contingent Use good although preceded by an Estate for Years? In two cases, Adams v. Savage1 (1703), and Rawley v. Holland2 (1712), it was held that a use limited after an estate for years to a person not in esse, was bad as a contingent remainder unsupported by a freehold.

$ 59. The soundness of these two decisions is very questionable. It is well settled that if a future limitation can be construed as a remainder it must be so construed, and not as a springing use; but it is a very different thing to say that a good springing use must be construed into a bad remainder, because it is preceded by an estate which is insufficient to support a remainder. To construe a limitation as a remainder, if it can be a remainder, is one thing; but to insist upon construing it as a remainder, when it cannot be a remainder, seems the very wantonness of destruction. In fact, an estate after an estate for years, though commonly called a remainder, is not strictly so; a remainder is an estate after a freehold; a remainder-man, so called, after an estate for years, has the present seisin, and the reason why at common law an estate cannot be given to a person not 12 Ld. Raym. 854; 2 Salk. 679.

1 22 Vin, Ab. 189; 2 Eq. Cas. Ab. 753.

in esse after an estate for years is, that there is no one to take the present seisin, and that a freehold cannot be granted in futuro. But, by way of use, a freehold can be granted in futuro.

§ 60. The cases of Adams v. Savage and Rawley v. Holland have, accordingly, been much criticised. But, further, they must be considered as overruled by cases in which it has been repeatedly held that a future contingent devise after an estate for years is a good executory devise, and not a bad remainder. There is no intelligible distinction in this respect between springing uses and springing executory devises, and if Adams v. Savage and Rawley v. Holland have not been formally overruled, it is in all probability because the question has not arisen under a deed, as it has under wills. The statement may therefore be ventured that a contingent use is good although preceded by an estate for years. 1 Gore v. Gore, 2 P. Wms. 28 (1722).

CHAPTER II.

EXECUTORY DEVISES.

2 BL. COM., 172-175. An executory devise of lands is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points: 1. That it needs not any particular estate to support it. 2. That by it a fee-simple, or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.

1. The first case happens when a man devises a future estate to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heirs at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage: here is in effect a contingent remainder, without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devise. For, since by a devise a freehold may pass without corporal tradition or livery of seisin (as it must do, if it passes at all), therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in praesenti. And, since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by its unity with the particular estate, a present interest. And hence also it follows that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.

2. By executory devise, a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devises land to A. and his heirs; but if he dies before the age of twenty-one, then to B. and his heirs; this remainder, though void in deed, is good by way of executory devise. But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a moderate term of years, for courts of justice will not indulge even wills, so as to create a perpetuity, which the law abhors: because by perpetuities (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation), estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise.

3. By executory devise, a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed; for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life-estate being esteemed of a higher and larger nature than any term of years. And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place: for

the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards it was held that the devisee for life hath no power of aliening the term, so as to bar the remainderman: yet, in order to prevent the danger of perpetuities, it was settled that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be in esse during the life of the first devisee; for then all the candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainderman who happens to survive the rest and it was also settled, that such remainder may not be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first devisee.

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ID., 175. A future estate will always be construed to be a remainder when it can be, in preference to a springing use or executory devise. The reason is an obvious one: in the latter case the future estate cannot be barred, and the land is completely withdrawn from commerce. So between remainders the law favors their vesting, because that combines the interests of a free commerce in land with the rights of the proprietors. It is an inflexible rule that no limitation shall be deemed an executory devise if it may by any practicable construction be sustained as a contingent remainder for the all-sufficient reason that these executory devises, being inconsistent with the policy of the common law, which, on account of its abhorrence of estates commencing in future, requires all the precedent parts of the fee to pass out of the grantor at the same instant, are barely tolerated, and only in favour of the explicit declaration of one who may have been compelled to dispose of his estates when unassisted by counsel. They are, therefore, to be sustained only in cases of clear necessity.-Sharswood's note.

FEARNE, REM., 382-386. An executory devise is defined to be a devise of a future interest in lands, not to take effect at the testator's death, but limited to arise and vest upon

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