Definition of shifting executory interest
shifting executory interest (plural shifting executory interests)
- (law) A third party interest in an estate in land created by the conditions of a grant wherein the grantor gives the land to a second party, but with the occurrence of a condition divesting the second party of the land in favor of the third party.
Example: Joe gives land "to Mike, but if Harry graduates from law school, to Harry". Harry has an shifting executory interest because his graduation from law school divests Mike of ownership.
A shifting executory interest cuts short someone other than the grantor. For example, if O conveys property "To A, but if B returns from Florida within the next year, to B"; here, B has a shifting executory interest, and A has a fee simple subject to this shifting executory interest. A shifting executory interest may be premised on any event, irrespective of whether that event is under the control of one party or the other, or if it is an external event under the control of neither party. For example, a conveyance "To A, but if the property is ever used as a commercial dairy, to B" would leave A in control of the condition; so long as A does not use the property in the proscribed manner it will remain hers. Conversely, a conveyance "To A, but if the B receives a law degree, to B" places B entirely in control of the dispensation of the property; if B is able to fulfill the condition, B will get the property irrespective of what A does. Finally, the interest may shift based on a wholly external event, for example, "To A, but if the Chicago Cubs win the World Series, to B".
If the conveyance to A is for a limited time, or for the life of A, then the condition triggering the executory interest must occur within that time, or the property will return to the grantor.
- Example: "O grants Blackacre to A for life, but if A ever drinks alcohol, then Blackacre immediately goes to B."
- A has a life estate.
- B has an executory interest, because his interest does not vest unless A's life estate terminates due to the 'unnatural' condition subsequent. The interest is shifting, because if A drinks, then the property "shifts" from one grantee to another. If A never drinks on the property, then A will retain ownership, and on A's death the property will go to O, or the heirs of O.
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