remainder after a fee which, although not good as a remainder, is valid as an executory devise.80

§ 1018. Vested and Contingent Executory Devises.

An executory devise may be either vested or contingent. It is vested where the person who is to take is in being and definitely ascertained and the contingency is one which is certain to occur. If the person who is to take is uncertain or the contingency upon which the interest is limited is uncertain, the executory devise is contingent.81

§ 1019. Indestructibility of Executory Devises.

83

It has been said that an executory devise is indestructible.82 It is essential to its validity that it can not be defeated by any act of the first taker. It is independent of him and beyond his power or control. 88 It can not be prevented or destroyed by any alteration or sale of the estate out of or after which it is limited,84 nor by a conveyance by the first taker.85 Neither can it be defeated by adverse possession, no matter how long continued

80 4 Kent Com. *264; St. Amour v. Rivard, 2 Mich. 294; Wood v. Griffin, 46 N. H. 230.

81 Shaw v. English, 40 Misc. 37, 81 N. Y. Supp. 169. See, also, Calvin v. Springer, 28 Ind. App. 443, 63 N. E. 40.

82 McRee's Admrs. v. Means, 34 Ala. 349.

"This rule only means that the first taker, as a general rule, can not create a greater estate than he has; having a defeasible estate he can not create an indefeasible one; he can do no act to prevent II Com. on Wills-39

the vesting of the devise on the happening of the contingency; but he may prevent that occurrence."- Kent v. Armstrong, 6 N. J. Eq. 637.

83 Allen v. White, 16 Ala. 181; Jones v. Miller, 13 Ind. 337; Moffat's Exrs. v. Strong, 10 Johns. (N. Y.) 12.

84 Pells v. Brown, Cro. Jac. 590; Holmes V. Williams, 1 Root (Conn.) 335, 1 Am. Dec. 49; Southerland v. Cox, 14 N. C. 394.

85 Couch v. Gorham, 1 Conn. 36; Jones v. Miller, 13 Ind. 337.

before the happening of the contingency upon which it takes effect. 86

Generally speaking, an executory devise can not be barred by fine or common recovery.87 An exception to this rule would exist where an executory devise is limited to take effect in derogation of an estate tail, and the tenant in tail has allowed the estate to be enlarged into a fee by fine or common recovery.88 Such actions, however, are not recognized in the United States. 89

§ 1020. Right of Disposition in First Taker Repugnant to an Executory Devise.

A valid executory devise can not subsist where the first taker has the absolute power of disposition. Such executory interest is a species of entailed estate and the first taker has only the use of the property pending the contingency. An unlimited power of disposition in the first taker defeats the limitation over." Yet this power must be other than that which attaches as a legal incident of the estate.92 It must be the power to destroy the execu

86 Nunnally v. White's Exrs., 3 Metc. (60 Ky.) 584.

87 Doe v. Howell, 10 B. & C. 191; Paterson v. Ellis' Exrs., 11 Wend. (N. Y.) 259.

88 Kent v. Armstrong, 6 N. J. Eq. 637; Taylor v. Taylor, 63 Pa. St. 481, 3 Am. Rep. 565.

See § 940.

89 See 941.

90 Kent Com., vol. 4, p. 270; McRee's Admrs. v. Means, 34 Ala. 349; Wolfer v. Hemmer, 144 Ill. 554, 33 N. E. 751; Ashby v. McKinlock, 271 Ill. 254, 111 N. E. 101; Turner v. Ivie, 5 Heisk. (52 Tenn.) 222.

91 McRee's Admrs. v. Means, 34 Ala. 349; Galligan v. McDonald, 200 Mass. 299, 86 N. E. 304.

As to a devise coupled with the power of disposition, see §§ 927929.

As to a gift of a life estate coupled with the power of disposition, see §§ 972-975.

92 Lambe v. Drayton, 182 III. 110, 55 N. E. 189; Carson v. Carson, 115 Tenn. 37, 88 S. W. 175.

Ordinary words conveying the absolute title alone without superadded words giving unlimited power of disposition do not de

tory devise by alienation, not merely a power to alienate the estate vested in the first taker.93

An executory devise which is to become effective and which is to defeat a preceding estate upon the contingency of the holder of the particular estate exercising a right or power legally incident to such estate is void. Thus, an executory devise limited after a fee is void if it is to take effect upon the non-alienation of the estate by the holder of the fee, for such limitation is repugnant to the estate granted and the implied power of disposition.94

§ 1021. Contingent Remainders Preferred in Law to Executory Devises.

Courts will not construe a limitation over as an executory devise when it can take effect as a remainder.95 Executory devises are not favored in law and where the gift to the first devisee is less than a fee, the courts have gone to great lengths to construe limitations over as contingent remainders.96 Where the contingent estate may

feat an executory devise.-Read v. Watkins, 11 Lea (Tenn.) 158.

93 McRee's Admrs. v. Means, 34 Ala. 349.

94 Shaw v. Ford, 7 Ch. Div. 669; Ashby v. McKinlock, 271 Ill. 254, 111 N. E. 101.

As to gift over of what remains undisposed of by the first taker, see § 930.

95 Carwardine v. Carwardine, 1 Eden 27, 34; Doe v. Morgan, 3 Term Rep. 763, 765; Doe v. Considine, 6 Wall. (U. S.) 468, 18 L. Ed. 869; Bruce v. Bissell, 119 Ind. 525, 530, 12 Am. St. Rep. 436, 22 N. E. 4; Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914; Night

ingale v. Burrell, 15 Pick. (32 Mass.) 104; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Wilkes v. Lion, 2 Cow. (N. Y.) 333, 389; Wolfe v. Van Nostrand, 2 N. Y. 436; Manderson v. Lukens, 23 Pa. St. 31, 62 Am. Dec. 312.

96 Bullock v. Seymour, 33 Conn. 289.

"Most of the cases on the subject of executory devises have come from the courts of chancery; but the courts of law have, always, from the earliest notice of execu tory devises, and whether they related to real or personal estates, given them the same construction and effect that were given to them

take effect during the continuance or at the determination of the particular estate, such a preceding estate having been devised, the fact that it is possible or probable that the final limitation over will not so take effect does not take it out of the general rule that such a gift will not be construed as an executory devise if it may take effect as a contingent remainder.97

§1022. Remainders and Executory Devises Compared.

Contingent remainders and executory devises are both governed by the same rule so far as concerns their alienation or transmission.98 Both come under the denomination of expectant estates.99 The word "remainder" may be said to include executory devises, although technically distinguishable therefrom.1

§ 1023. Remainders and Executory Devises Distinguished.

An executory devise differs from a remainder in three main particulars: (1) it requires a particular estate to support it; (2) it may be limited after a fee, and (3) a chattel interest may be limited over after a life estate by way of an executory devise.2 A devise to A when he Creary v. Coggeshall, 74 S. C. 42, 7 Ann. Cas. 693, 7 L. R. A. (N. S.) 433, 53 S. E. 978.

in chancery. The remedy may be different, but the rules of property are and ought to be uniform in both tribunals. The interests in remainder, on a valid executory devise of lands or chattels, are legal interests to be carried into execution when they arise."-Moffat's Exrs. v. Strong, 10 Johns. (N. Y.) 12.

97 Doe v. Considine, 6 Wall. (U. S.) 458, 18 L. Ed. 869; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Alsman v. Walters, (Ind. App.) 101 N. E. 117; Mc

98 Bartram v. Powell, 88 Conn. 86, 89 Atl. 885.

99 Moore v. Gary, 149 Ind. 51, 48 N. E. 630.

1 McRee's Admrs. v. Means, 34 Ala. 349; Gannon v. Albright, 183 Mo. 238, 105 Am. St. Rep. 471, 67 L. R. A. 97, 81 S. W. 1162; Miller v. Macomb, 26 Wend. (N. Y.) 229.

2 2 Bl. Com. *172; 4 Kent Com. *269; Miller v. Miller, 91 Kan. 1, Ann. Cas. 1917A, 918, L. R. A.