/SHIF-ting and SPRING-ing ek-SEK-yoo-tor-ee IN-tuh-ress/·phrase
Also known as:shifting executory interest · springing executory interest · shifting executory interests · springing executory interests · executory interests
Written by attorneys · grounded in primary & secondary sources — see below
Future interests created in a transferee that take effect by divesting a prior estate rather than by following its natural expiration. A shifting executory interest cuts short an estate held by a third party upon the occurrence of a stated event. A springing executory interest arises from the grantor or cuts short a retained estate in the grantor upon the occurrence of a stated event.
Sources & Authorities
How it applies
Common Examples
2
Conveyance Before Birth of Issue
Spencer Silver held a fee simple conditional under his uncle's deed that would shift the land to his cousin if Spencer died without surviving issue. Before any children were born, Spencer conveyed the parcel in fee simple absolute language to Sterling Dynamics for full value. Sterling Dynamics recorded the deed and began development. When Spencer's cousin later claimed the executory interest, the court held that Sterling Dynamics took a fee subject to the cousin's shifting executory interest because the conveyance occurred before the birth of issue.
Alternative Contingencies in Trust
Sarah Sullivan created a trust that would convey land to her descendants if they met certain conditions within twenty years or, alternatively, if production occurred on the land. One contingency violated the rule against perpetuities while the other did not. The court upheld the valid executory interest because the alternative that satisfied the rule took effect and the invalid provision had no impact on the overall disposition.
Put it into practice
Test Yourself
10
Practice Questions5
· 9 sources
Select any source to read its text and confirm it supports the definition.
Restatements
Casebooks
Williams v. Watt668 P.2d 620, 627 (Wyo. 1983)
Common questions
Frequently Asked
4
How does a shifting executory interest differ from a remainder?+
A shifting executory interest divests a prior estate held by a third party upon a stated event. A remainder takes effect only upon the natural expiration of the preceding estate. The distinction turns on whether the future interest cuts short an existing estate or simply follows its termination.
Supporting sources
What distinguishes a springing executory interest from other future interests?+
A springing executory interest arises from the grantor or cuts short a retained estate in the grantor. It is created when a future interest follows a non-freehold estate or is subject to a condition precedent that prevents it from being classified as a remainder.
Supporting sources
Can an executory interest be created after a fee simple conditional estate?+
Yes. A holder of a fee simple conditional may convey interests before the birth of issue, but any such interests remain subordinate to a validly limited executory interest that follows the conditional fee.
Supporting sources
Does the rule against perpetuities apply to all executory interests?+
The rule applies to executory interests that may vest too remotely. Interests retained by the grantor, such as possibilities of reverter, are exempt, but executory interests in transferees are subject to the rule if they might vest beyond lives in being plus twenty-one years.
Supporting sources
Real PropertyOwnership of real property · Special problemsUBEIntermediate