145. Cross limitations.

We have previously discussed the subject of cross remainders. Similar in their general aspect to cross remainders are cross executory limitations, by which, after the limitation of es tates in fee simple to two or more persons, it is provided that, in certain events, the share of each shall pass to the other o others. 257 There is one important distinction to be noticed as between such limitations and cross remainders, and that lies in the fact that, even in a will, they are not implied, since their creation involves the divesting of an estate previously vested, and is never necessary to avoid intestacy, as in the case of cross remainders. Thus, when there are limitations to a number of persons in fee, with a limitation over to another person in case they all die under a given age, or under other prescribed circumstances, there is no implication of cross limitations, but the share of each goes, in the absence of an express provision to the contrary, to his heirs, until the death of the last survivor.258

146. Chattel interests.

One may create a term for years, to begin in the future, since the question of seisin is not involved,259 and, likewise, one who has such a term may create a future interest therein by a devise or grant of the term to another person, to take effect on a future event or at a future time.260

If the gift of a future interest in a term is preceded by the gift of a life interest to another, the law in England, apparently, is that, since a life interest is in theory greater than

257 2 Jarman, Wills, 43. See Anderson v. Brown, 84 Md. 261.

258 2 Jarman, Wills, 1358; Skey v. Barnes, 3 Mer. 335, 5 Gray's Cas. 220; Fenby v. Johnson, 21 Md. 111.

259 Gray, Perpetuities, § 74; 2 Preston, Abstracts, 7; Barwick's Case, 5 Coke, 93b; Wright v. Cartwright, 1 Burrow, 282. See ante, § 40.

200 Gray, Perpetuities, § 74; Rayman v. Gold, Moore, 635; Welcden v. Elkington, 2 Plowd. 519, 524; Culbreth v. Smith, 69 Md. 450.

261

a term for years, the first gift, if made inter vivos, consumes the entire term, and consequently the future gift is void.2 This theory, however, the court did not apply in the case of a devise, as distinguished from a gift inter vivos, of a life interest in the term, followed by a devise of the residue after the death of the first taker to another, and both of such devises were held to be valid;262 and it was regarded as immaterial, in this respect, that the person to take such residue was uncertain or not in being.268 In this country, it seems that the English view that a grant of a future interest after a gift for life is invalid would not be adopted, but that the rule which is here almost universally applied to chattels personal, that a gift either inter vivos or by will of such a future interest after a gift for life to another is valid, would also be applied to chattels real.264

147. Failure of preceding limitation.

When there is an executory limitation, to take effect in derogation of a preceding estate upon the happening of a contingency, if the preceding estate never takes effect owing to the death of the first devisee in testator's lifetime, his nonexistence, or for other reasons, the executory interest is, as a general rule, accelerated. 205 So, where one devised land to the child of

261 Challis, Real Prop. (2d Ed.) 159; Gray, Perpetuities, 76; 14 Harv. Law Rev. 402; Welcden v. Elkington, 2 Plowd. 519, 520; Woodcock v. Woodcock, Cro. Eliz. 795. Compare Wright v. Cartwright, 1 Burrow, 282. Such a future interest after one for life is therefore always created there by the interposition of a trustee. Williams, Settlements, 223.

262 Manning's Case, 8 Coke, 94b, 5 Gray's Cas. 130; Lampet's Case, 10 Coke, 46b.

268 Cotton v. Heath, 1 Rolle, Abr. 612, pl. 3, 5 Gray's Cas. 135.

284 Culbreth v. Smith, 69 Md. 450. See Gray, Perpetuities, § 74 et seq., and the lucid and exhaustive article by the same writer on Future Interests in Personal Property, in 14 Harv. Law Rev 397, on which the statements here made are based.

265 2 Jarman, Wills, 1642 et seq.; Fearne, Cont. Rem. 237, 509; Ave

266

which his wife was then enceinte, and, in case such child died under twenty-one, then over, the devise over took effect immediately, the wife, as a matter of fact, not being enceinte.2 And the limitation over will take effect immediately if the prior limitation is void.267 But the fact that the prior limitation fails will not make the limitation over effective if the result would be to give the property to the second devisee or grantee under circumstances which would have excluded the limitation over if the prior limitation had taken effect.268

148. Failure of executory limitation.

If an executory limitation fail to take effect for any cause, as where the objects thereof never come into existence, or where the contingency on which it is limited becomes impossible, the preceding estate will, according to the decisions in this country, continue in the first taker, according to its original limitation, unless a contrary intention on the part of the testator appear.

269

lyn v. Ward, 1 Ves. Sr. 420, 5 Gray's Cas. 202; Mathis v. Hammond, & Rich, Eq. (S. C.) 121; In re Miller's Will, 161 N. Y. 71; Robison v. Female Orphan Asylum of Portland, 123 U. S. 702; Perkins v. Fisher, 59 Fed. 801, 8 C. C. A. 270.

268 Jones v. Westcomb, 1 Eq. Cas. Abr. 245, pl. 10, 5 Gray's Cas. 199; Frogmorton v. Holyday, 3 Burrows, 1618.

267 Hall v. Warren, 9 H. L. Cas. 420; Burbank v. Whitney, 24 Pick. (Mass.) 146; Perkins v. Fisher, 59 Fed. 801, 8 C. C. A. 270.

268 Tarbuck v. Tarbuck, 4 Law J. Ch. 129, 5 Gray's Cas. 207; Doo v. Brabant, 4 Term R. 706, 5 Gray's Cas. 204; Mathis v. Hammond, 6 Rich. Eq. (S. C.) 127; Lomas v. Wright, 2 Mylne & K. 769, 5 Gray's Cas. 205;. McGreevy v. McGrath, 152 Mass. 24. Thus, where there is a devise to A. with a devise over to B. in case of A.'s death under twenty-one, B. does not take merely because A. dies before the testator, if such death does not occur till A. has reached twenty-one, since to hold otherwise would give B. the property, although A. reached twenty-one, in violation of the terms of the will. Doo v. Brabant, 4 Term R. 706, 5 Gray's Cas. 204; Williams v. Chitty, 3 Ves. 549.

269 Drummond's Ex'rs v. Drummond, 26 N. J. Eq. 234; Groves v. Cox, 40 N. J. Law, 40; Shadden v. Hembree, 17 Or. 14; Medley v. Medley, 81 Va. 265; Merriam v. Simonds, 121 Mass. 198; North Adams First Universalist Soc. v. Boland, 155 Mass. 171; Gray, Perpetuities, § 250.

In England, however, it has been decided that the happening of the contingency named will terminate the prior estate, though the limitation over cannot take effect, unless the objection thereto is on the ground of remoteness.270

An estate subject to an executory devise to arise on a future event is, it seems, on the happening of that event, defeated only to the extent of the executory interest. Thus, on a devise to A. in fee, with a limitation over to B. for life on a certain contingency, A. is entitled to the property, rather than the heirs of the testator, after the expiration of the life estate in B.271

§ 149. Transfer of executory interests.

By the common law, an executory interest created by deed or will is, like a contingent remainder, regarded merely as a possibility, and cannot be conveyed inter vivos,272 but it may

That this is the rule in case the see post, § 157.

But see Leonard v. Burr, 18 N. Y. 96. limitation over is void for remoteness, 370 Doe d. Blomfield v. Eyre, 5 C. B. 713, 5 Gray's Cas. 188; Robinson v. Wood, 27 Law J. Ch. 726, 5 Gray's Cas. 192; Hurst v. Hurst, 21 Ch. Div. 278. This rule is questioned in the reporter's notes to Doe d. Blomfield v. Eyre, supra, and doubted on principle in the two cases last above cited, they being decided on the authority of Doe d. Blomfield v. Eyre. It is defended in Sugden, Powers (8th Ed.) 513. See the judicious discussion of these decisions in an article by Howard Wurts Page, Esq., in 20 Am. & Eng. Enc. Law (1st Ed.) 947, note.

The English doctrine seems to be opposed to the view, quite com. monly held in England, that a determinable fee cannot exist at the present day (see ante, § 81), since thereby the contingency is, if the limitation over is void, given the effect of a special limitation. See 1 Leake, 363, note (c); Gray, Perpetuities, § 250.

271 Gatenby v. Morgan, 1 Q. B. Div. 685, 5 Gray's Cas. 178; Jackson v. Noble, 2 Keen. 590; Thomae v. Thomae (N. J. Ch.) 18 Atl. 355. Contra, Doe d. Harrington v. Dill, 1 Houst. (Del.) 398. See 2 Wash burn, Real Prop. 346.

272 Smith, Executory Interests, § 754; Challis, Real Prop. 58, 142; Lampet's Case, 10 Coke, 46b; Hall v. Chaffee, 14 N. H. 215, Finch's Cas. 925; Jackson v. Waldron, 13 Wend. (N. Y.) 178. In Massachusetts, in view of the decisions as to contingent remainders (ante, § 129)

be released to the owner of the land,278 and may pass by estoppel.274 The transfer of such an interest inter vivos, if for a good or valuable consideration, will be recognized in equity.276 In England it is now provided that executory interests may be disposed of by deed,276 and in a number of states in this country there are substantially similar provisions.277

An executory interest in an estate of inheritance, or in a term of years, will pass to the heirs or executors of a person who is entitled thereto, on his decease,278 and it may be devised by him.279 If, however, the person entitled thereto is not ascertained, the interest can neither descend nor be devised, apart from statute.280

executory interests are no doubt freely alienable. See Wainwright v. Sawyer, 150 Mass. 168.

278 2 Preston, Abstracts, 283; Lampet's Case, 10 Coke, 46b; Miller v. Emans, 19 N. Y. 384; Jeffers v. Lampson, 10 Ohio St. 107.

274 Smith, Executory Interests, § 754.

275 Smith, Executory Interests, § 749; Fearne, Cont. Rem. 549; Wright v. Wright, 1 Ves. Sr. 409; Crofts v. Middleton, 8 De Gex, M. & G. 192; Higden v. Williamson, 3 P. Wms. 132; Bayler v. Com., 40 Pa. St. 37; Watson v. Smith, 110 N. C. 6; Wright v. Brown, 116 N. C. 26. 276 8 & 9 Vict. c. 106, § 6.

277 Chaplin, Suspens. Alien. § 10. See statutes cited 20 Am. & Eng Enc. Law (1st Ed.) 970. And see Nutter v. Russell, 3 Metc. (Ky.) 163; Griffin v. Shepard, 124 N. Y. 70.

278 Challis, Real Prop. 58; Goodright v. Searle, 2 Wils. 29; Chess' Appeal, 87 Pa. St. 362; Kenyon v. See, 94 N. Y. 563, Finch's Cas. 907; Barnitz's Lessee v. Casey, 7 Cranch (U. S.) 456; Hennessy v. Patter son, 85 N. Y. 91, Finch's Cas. 868; Collins v. Smith, 105 Ga. 525; Kean's Lessee v. Hoffecker, 2 Har. (Del.) 103; Clark v. Cox, 115 N. C. 93; Medley v. Medley, 81 Va. 265; Edwards v. Bibb, 43 Ala. 666; Brooks v. Kip, 54 N. J. Eq. 462.

279 Challis, Real Prop. 142; Roe d. Perry v. Jones, 1 H. Bl. 30; Jones v. Roe d. Perry's Lessee, 8 Term R. 88; Collins v. Smith, 105 Ga. 525; Winslow v. Goodwin, 7 Metc. (Mass.) 363.

280 Roe d. Noden v. Griffiths, 1 W. Bl. 605; Smith, Executory Inter ests, § 744; 4 Kent, Comm. 261; Kean's Lessee v. Hoffecker, 2 Har (Del.) 103: Collins v. Smith, 105 Ga. 525.