Also known as:executory limitations · executory interest
Written by attorneys · grounded in primary & secondary sources — see below
A restriction in a conveyance of land by which an estate in fee simple is created in a conveyee or left in the conveyor and is automatically divested in favor of a third party upon the occurrence of a stated event. The executory limitation operates without any action by the holder of the succeeding interest and is created only through a shifting use or executory devise.
Sources & Authorities
How it applies
Common Examples
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Conveyance to Charity with Use Restriction
Esther Eisenberg conveyed a residential complex to her son Liam by deed stating that he took the property in fee simple but that title would shift to HomeBridge Housing if Liam and all his issue ever died. When Liam later sought a declaratory judgment that he held fee simple absolute, the court treated the gift over as an invalid executory limitation on an indefinite failure of issue. Liam therefore retained an unburdened fee simple absolute and HomeBridge acquired no interest.
Deed Creating Shifting Interest in Heirs
Elijah Edwards conveyed land to his daughter by deed that granted her a fee simple but directed that the property pass to her heirs if she died without surviving issue. The language created an executory limitation that attempted to divest the daughter upon an indefinite failure of issue. Because the limitation was void, the daughter held fee simple absolute free of any future interest in the heirs.
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Restatements
Casebooks
Hornbooks
Study Supplements
Dictionaries
Doctor v. Hughes225 N.Y. 305, 122 N.E. 221, 222
Park Conveyance with Automatic Shift
Elliot Edmonds conveyed park land to a city subject to the condition that the property remain open to the public. The deed provided that if the city ever closed the park, title would automatically pass to a named charitable foundation. The foundation held an executory interest that would divest the city's estate upon breach of the use restriction.
Evans v. Abney396 U.S. 435 (1970)
Joint Tenancy Severance Attempt
Eugene Ellsworth conveyed land to his daughter by deed that granted her a fee simple but directed that the property pass to a named charitable foundation if she died without surviving issue. The language created an executory limitation that attempted to divest the daughter upon an indefinite failure of issue. Because the limitation was void, the daughter held fee simple absolute free of any future interest in the foundation.
Riddle v. Harmon162 Cal. Rptr. 530
Common questions
Frequently Asked
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What distinguishes an executory limitation from a possibility of reverter?+
An executory limitation divests an estate in favor of a third party other than the conveyor or the conveyor's successors. A possibility of reverter remains in the conveyor and is not created by an executory limitation.
Supporting sources
Does an executory limitation require any action by the succeeding interest holder to take effect?+
No. On the occurrence of the stated event the prior estate automatically ceases and the succeeding interest becomes possessory without any further act.
Supporting sources
Can a gift over on an indefinite failure of issue create a valid executory limitation?+
No. Language granting a fee simple followed by a gift over upon an indefinite failure of issue is treated as void. The first taker receives fee simple absolute and the attempted executory limitation has no effect.
Supporting sources
How is an estate in fee simple subject to an executory limitation created?+
The conveyance must first create or leave a fee simple and then provide that the estate will be divested upon a stated event in favor of a person other than the conveyor or the conveyor's successors.
Supporting sources
225 N.Y. 305, 122 N.E. 221, 222Property
…of the person creating them” (Watkins, supra ). We may assume that this is the principle that would control the courts to-day. Executory limitations are no longer distinguished from remainders, but are grouped with them as future estates (Real Prop. Law, secs. 36, 37; Tilden v. Green , 130 N.Y. 29, 47), and deeds, like wills, must be…