Contingent Remainders and Executory Interests

Steve's last post mentioned a recent discussion of contingent remainders and executory interests on the Property Prof listserv.  In case you don't have access to the listserv, and are curious about the discussion, here is a quick summary.  The question involved this conveyance:  "to A for life, then to A's children who reach the age of 21."  A is alive, and has two children, B, age 24, and C, age 17.  A has a life estate, and B has a vested remainder subject to open.  But what does C have?  A contingent remainder or an executory interest?  C's interest looks a bit like a contingent remainder, in that it will become possessory only at the natural end of the preceding estate, but it also looks like an executory interest, in that it will divest part of B's vested remainder when and if C turns 21.  The majority view on the listserv was that under modern law, C should be seen as having an executory interest, though there were still a few folks who thought it was best seen as a contingent remainder.  There also was consensus that the distinction between the two doesn't matter in modern law, so this was a true academic debate in every sense of the word "academic."

Ben Barros

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