together with a condition that the first taker must die intestate. In the first case the gift over on intestacy in fact includes a gift over upon the happening of two events-the death of the first taker, and intestacy. The only difference between the two cases set out, is that, in the first, the event other than intestacy, upon which the gift over is to take effect, is sure to happen, while in the second case it is doubtful whether it will or not. In the first case we have in substance a forfeiture of the first taker's interest upon alienation by descent. The forfeiture hangs entirely upon the happening of that one event. In the second case the forfeiture upon alienation by descent is of doubtful occurrence, depending upon the happening of a doubtful event—the death of the first taker without issue him surviving.16 Here the forfeiture on alienation, attenuated enough in the first case, is still further circumscribed and made doubtful by the requirement of the happening of an uncertain event. Is it not fair, then, to say that the gift over cannot possibly offend any rule of public policy against forfeiture upon alienation? § 177. IV. Summary: The results of the Illinois cases upon executory devises may, then, be summed up as follows: 1. Apart from the rule against perpetuities, all springing and shifting executory limitations by way of executory devise are valid.17 2. An exception must be made of gifts over by way of forfeiture for alienation in a particular manner, viz., by deed alone,18 or by will alone 19 or by descent, 20-these last being known as gifts over on intestacy. 3. Gifts over upon intestacy and a definite failure of issue are valid.21 16 In Orr v. Yates 209 III. 222, ante, § 175, it will be remembered the gift over was upon intestacy and two other contingencies, viz., the first taker's dying before the testator's wife and leaving no issue surviving the wife. 17 Ante, §§ 164-167. 18 Ante, § 168a. PART 2. WHEN AN EXECUTORY DEVISE BECOMES A VESTED INTEREST. § 178. General principles: An executory devise never becomes a vested interest until it takes effect in possession or is turned into a vested remainder.22 It does not follow, however, that an executory devise is always contingent until it vests. It may be an interest which is neither vested nor contingent,2 23 but merely what is known as a "certain executory interest."' 24 Such is a gift to take effect at a certain time in the future, which is sure to arrive as a gift to come into possession after ten years, 25 or after a certain life.26 In Blanchard v. Maynard,27 it was pretty clearly recognized that the certain executory interest could not be vested. There the testator devised real estate and personal property to trustees to hold and manage for ten years. At the end of the said ten years all the estate and income was to be distributed and vest in the testator's three sons, with a gift over to the survivors in case any son died leaving no issue before the ten years had elapsed. One of the sons did die before the ten years had elapsed and his wife claimed dower and a share by descent. Her bill was, however, dismissed and this was affirmed. Assuming the rule of Buckworth v. Thirkell,28 to be the law of this state, it is clear that the 22 Gray's Rule against Perpetuities, § 114; Glover v. Condell, 163 Ill. 566, 593: "By an executory devise no estate vests upon the death of the testator, but only on some future contingency." Thompson v. Becker, 194 Ill. 119, 122; Friedman v. Steiner, 107 Ill. 125, 132, 133. Any expression to the contrary in Hempstead v. Dickson, 20 Ill. 193, 196 must be regarded as a slip. 23 Gray's Rule against Perpetuities, § 114; 1 Fearne, Contingent Remainders, p. 1; Butler's note. 24 Smith on Executory Devises, § 85, 90, 117, 301. 103 Ill. 60; Rhoads v. Rhoads, 43 Ill. 239, post, § 288; see also post, § 223. 26 In Young v. Harkleroad, 166 Ill. 318 there was a not uncommon gift to take effect after the death of the testator's wife, without apparently disposing of any interest to the wife in the meantime. No question, however, arose on the nature of the gift in question. 27 103 Ill. 60. 281 Coll. Juris., 322; 3 Bos. & Pul. 652, note; Butler's Co. Lit. 241 A note; 6 Gray's Cases on Property 690; 1 Scribner on Dower 2nd ed. page 302; 10 Am. & Eng. Enc. 161, 2nd ed. This case held 25 Gray's Rule against Perpetuities, § 114; Blanchard v. Maynard, ground that the son had no vested interest in the lands involved till the ten years had expired was sufficient.29 In Burton v. Gagnon,30 however we have an instance where the opinion published as that of the court takes the position that a shifting executory devise is a vested interest. The will involved in that case, after making a gift to children, which the court recognized as an absolute one, provided for a gift over in case "all of my children die intestate and without lawful issue and not survive my wife." A decree for the complainants that the gift over was ineffective as against the first takers was affirmed. One of the grounds for this holding was that the executory devisees were precluded by a former decree in partition to which they were parties. To this the executory devisees answered that their interest was contingent and so it could not have been the subject of adjudication in the partition suit. The court replied that the interest of the executory devisees was vested-apparently upon some such view of what interests are vested as afterwards obtained in Boatman v. Boatman 31 and Chapin v. Nott.32 The court said:33 "Here the persons to take were in being and ascertained, and by the language of the limitation it was to take effect when the contingency indicated might happen. That was sufficient. The fact that the event was uncertain upon which the limitation over might become effectual was immaterial. This view is remarkable enough,34 but it is more extraordinary that it should be announced in the opinion of the court since, on examination, it appears to be only the opinion of a minority. Three judges dissented entirely, and Mr. Justice that the executory devisee does not take free from dower of the first taker's wife in the absolute interest which the first taker may have had. 29 It seems, however, that it is also law that where the owner of a reversion dies before the term1nation of the life estate, his widow is not entitled to dower: Kellett v. Shepard, 139 III. 433, 449. 80 180 Ill. 345. 31 198 Ill. 414; ante, § 100. 34 It is not perceived, however, 1 Wilkin, while agreeing in the result, did "not consent to the construction placed upon the will," that is, he dissented from the view that the future interest was vested.35 PART 3. ALIENATION OF EXECUTORY DEVISES. § 179. By descent, devise, release, and sale on execution: As an executory devise before coming into possession is never vested the problem of how far such an interest is alienable may be referred to the more general question of how far future interests not vested are alienable. It would seem safe to argue that there was as much freedom in the alienation of executory devises as in the alienation of contingent remainders. 36 If so the executory devise may pass by descent 37 or devise, provided always of course, the death of the executory devisee be not itself such an event as prevents the executory devise from ever coming into possession. So, the executory devisee's interest may be released to the holder of the preceding interest 38 just as a contingent remainder-man may release to the holder of the particular estate. It seems, however, that an executory devisee's legal interest is not subject to sale on execution.39 § 180. By a conveyance to a stranger inter vivos-Validity at law: The difficult question is this: Can the executory devisee convey inter vivos by an instrument sufficient to pass his future interest if it had been vested? If the deed contain covenants of title doubtless the doctrine of estoppel may be invoked to pass any interest subsequently becoming vested.40 But suppose no grounds for estoppel exist. In such a case a contingent remainder will not pass to the grantee in the absence of statute providing specifically for 35 Ante, § 175. 36 Ante, §§ 71-80. 37 Ackless v. Seekright, 1 Breese, 76. 38 Williams v. Esten, 179 Ill. 267. 39 Ridgeway v. Underwood, 67 Ill. 419, 430. See ante, § 80 for criticism of same holding in regard to contingent remainders. 40 Ante, § 74. As to how far an executory devise may pass by estoppel upon a lease and release, see Ridgeway v. Underwood, 67 Ill. 419, 428. such a result. Whatever statutes are sufficient in this state to give a deed the effect of transferring a contingent remainder,41 should be sufficient to effect the transfer of an executory devise. It is believed that at least since the act of 1872 describing the effect of the statutory quit claim deed,42 it might well have been held that legal executory devises were transferable by such deeds even though the future interest was not expressly described or mentioned in the conveyance.43 In the absence of any statute or ground of estoppel it seems to be the rule of the English cases that an executory devise, like a contingent remainder, is not transferable by deed of grant to a stranger.44 Why is this? A contingent remainder was not transferable in this manner because, first, feudally it was nothing until it was vested, and, second, a feudal public policy forbade such conveyances, as being champertous.45 Until Pells v. Brown,46 in 1620-that is for nearly a century after executory devises came to be recognized as valid under the Statute of Wills of Henry VIII— there were indications that they were to be put on the same footing as contingent remainders.47 Perhaps it was during that time that the rules applicable to the transfer of contingent remainders came to control the conveyance of an executory devise. Then, by the time the conveyance of such interests ceased to be champertous, and executory devises, by becoming indestructible under Pells v. Brown, became something,48 even before vesting, it was too late to change the rules concerning their transferability. § 181. In equity: In equity at least the future interest by way of executory devise is assignable. Such is the rule of the English courts,49 and it may fairly be assumed that the 41 Ante, §§ 76-79. 42 Ante, § 77. 43 A fortiori, if it be expressly indicated in the quit claim deed that the executory devise shall pass, it may do so at law. Whether or not, in a given case, an express intent to transfer the future interest exists, is dependent upon the suggestions of § 181. 44 Smith's Executory Devises, § 751; 2 Preston on Abstracts, 284. 45 Ante, §§ 78, 79. 46 Cro. Jac. 590; (5 Gray's Cases on Property, 163). 47 Ante, § 88. 48 "These limitations [executory devises] are not held to be mere possibilities, but are regarded as substantial interests or estates," per Walker, J., in Waldo v. Cummings, 45 Ill. 421, 428. 49 Smith on Executory Devises, § 749. |