Future Interests

Part IV of this Volume examined the present possessory estates — the fee simple absolute, the defeasible fees, and the life estate. Each of those estates, other than the fee simple absolute, must one day terminate; and at the moment of termination the possession of the land must pass to someone. That someone holds, from the moment of the original conveyance, a future interest: a present, legally protected, presently transferable interest whose distinguishing feature is not that it is uncertain or that it lies in expectancy, but that its holder is not yet entitled to possession. Part V of this Volume develops the doctrine of future interests. The present chapter introduces the framework: it defines the future interest, distinguishes it from the mere expectancy, traces its historical development from medieval feudal tenure through the Statute of Uses and the modern American reform statutes, sets out the classical taxonomy of grantor-retained and transferee-created interests, explains the operation of vesting and its constituent conditions, and identifies the modern statutory environment in which the classical doctrine now operates. The chapters that follow develop the individual interests in detail — Chapter 13 the reversion and its cognates in the grantor, Chapter 14 the remainder and the executory interest in transferees, and Chapter 15 the Rule Against Perpetuities and the modern reforms of class-gift doctrine.

1. A future interest is a present interest in property whose right to possession is deferred. It is not a mere expectancy or a hope of inheritance; it is a presently existing legal interest, presently transferable inter vivos (subject to the destructibility and alienability rules examined below), and presently enforceable against interference. Restatement (First) of Property §§ 153–162; Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 25.1–25.2.
2. Every present estate less than a fee simple absolute is followed by a future interest. A life estate is followed by a reversion or a remainder; a fee simple determinable by a possibility of reverter; a fee simple subject to condition subsequent by a right of entry (also called a power of termination); a fee simple subject to executory limitation by an executory interest. The ownership of Blackacre is not exhausted until the sum of the present estate and every outstanding future interest equals a fee simple absolute.
3. Anglo-American law classifies future interests by the identity of the holder. Interests retained by the grantor are the reversion, the possibility of reverter, and the right of entry. Interests created in a transferee are the remainder (vested or contingent) and the executory interest (springing or shifting). The taxonomy is doctrinal, not merely descriptive: each interest has distinctive rules of creation, vesting, transferability, and enforceability.
4. A remainder is a future interest in a transferee that is capable of taking possession the instant the preceding estate ends, without cutting that estate short. An executory interest is a future interest in a transferee that either divests a preceding vested estate (a shifting executory interest) or springs into possession after a gap during which the grantor holds (a springing executory interest). The distinction, though technical, controls both classification and (historically) validity under the Rule Against Perpetuities.
5. A remainder is vested if the taker is ascertained and no condition precedent (other than the natural termination of the preceding estate) stands between the taker and possession. A contingent remainder is one in which the taker is unascertained, or one whose taking is subject to a condition precedent other than the natural termination of the preceding estate, or both. The distinction between vested and contingent remainders is the axis on which much of the classical doctrine turns.
6. A vested remainder may be indefeasibly vested, vested subject to open, or vested subject to complete divestment. An indefeasibly vested remainder is certain to take possession and to retain it in the estate granted. A remainder vested subject to open (a class gift with at least one ascertained member) may be diluted as further class members are born. A remainder vested subject to complete divestment is certain to take possession unless a stated condition subsequent occurs; if the condition occurs, the remainder is divested by a shifting executory interest in a third person.
7. The classical doctrine of destructibility of contingent remainders has been abolished in almost every American jurisdiction. At common law a contingent remainder that failed to vest by the natural termination of the preceding freehold estate was destroyed. Modern statutes — beginning with the New York property revisions of 1830 and now general — preserve the contingent remainder as an executory interest, so that failure to vest at the termination of the prior estate no longer destroys the interest.
8. The Rule in Shelley's Case and the Doctrine of Worthier Title have been abrogated by statute in most American jurisdictions. Both were feudal rules of construction that converted certain remainders into fee simple estates in the ancestor or into reversions in the grantor. The Restatement (Third) of Property (Wills and Other Donative Transfers) § 16.2 rejects each rule, and the modern statutes generally treat the grantor's expressed intention as controlling.
9. Future interests must satisfy the Rule Against Perpetuities. The classical Rule invalidates any interest that is not certain to vest, if it vests at all, within twenty-one years after the death of a life in being at the creation of the interest. Modern statutory reforms — the Uniform Statutory Rule Against Perpetuities (USRAP), the wait-and-see approach, and the cy pres or judicial reformation power — have substantially altered the operation of the classical Rule, and several jurisdictions have abolished it altogether as applied to interests in trust. Chapter 15 develops the Rule and its modern reforms in full.
10. The doctrine of future interests serves the fundamental policy of certainty of title. By classifying every outstanding interest, identifying its holder, and specifying the conditions under which it will vest or fail, the classical system permits the title to land to be examined, insured, and transferred without exhaustive inquiry into the metaphysics of contingent future taking. That policy — not the intrinsic elegance of the taxonomy — is the principal justification for its continued vitality.

• Define the future interest, distinguish it from the mere expectancy, and identify the operational consequences of the distinction.
• State the classical taxonomy of future interests and identify the interests retained by the grantor and those created in transferees.
• Distinguish the reversion, the possibility of reverter, and the right of entry, and identify the present estate that gives rise to each.
• Distinguish the remainder from the executory interest, and the vested remainder (in each of its three sub-classes) from the contingent remainder.
• Apply the doctrine of vesting, and identify the operational consequences of a condition precedent, a condition subsequent, and a limitational term.
• Trace the historical development of future interests from medieval feudal tenure through the Statute of Uses (1536), the Statute of Wills (1540), and the modern American statutory reforms.
• Identify the classical rules of construction (destructibility of contingent remainders, Rule in Shelley's Case, Doctrine of Worthier Title) and the modern statutory treatment of each.
• Situate the Rule Against Perpetuities within the general framework of future-interest doctrine and identify the modern statutory reforms that Chapter 15 will develop in full.
• Diagnose and correct the recurring misconceptions concerning future interests, particularly the confusion of the future interest with the mere expectancy and the conflation of vesting with possession.

• John Chipman Gray, The Rule Against Perpetuities §§ 1–113, 201–330 (4th ed. 1942).
• Lewis M. Simes & Allan F. Smith, The Law of Future Interests §§ 1–115, 1601–1655 (2d ed. 1956).
• Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 55–174 (2d ed. 1984).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 3.1–3.24 (3d ed. 2000).
• 2 William Blackstone, Commentaries on the Laws of England *163–*175 (1766).
• 4 James Kent, Commentaries on American Law *196–*287 (1830).
• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) §§ 215–378 (1628).
• Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I, vol. 2, at 21–29, 226–239 (2d ed. 1898).
• S. F. C. Milsom, Historical Foundations of the Common Law 170–239 (2d ed. 1981).
• A. W. B. Simpson, A History of the Land Law 87–102, 173–207 (2d ed. 1986).
• Sir John Baker, An Introduction to English Legal History 267–334 (5th ed. 2019).
• Jesse Dukeminier, Robert H. Sitkoff & James Lindgren, Wills, Trusts, and Estates 787–860 (11th ed. 2022).
• W. Barton Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 (1938).

A future interest is a present legal interest in property whose right to possession is postponed to some later time. The interest is present in the sense that it exists, and is protected, from the moment of its creation; it is future only in the sense that the entitlement to possession lies ahead. This distinction, insisted on by John Chipman Gray at the opening of The Rule Against Perpetuities and reaffirmed in the modern Restatement, is the analytical foundation of the entire subject. The holder of a future interest is not a mere claimant or expectant taker; the holder is the present owner of a defined slice of the ownership of Blackacre, and enjoys, from the moment of creation, the ordinary incidents of proprietorship — the right to transfer the interest, the right to protect it against interference, and (in most modern jurisdictions) the right to enforce it against the possessor of the present estate for waste or other impairment.

The future interest is to be sharply distinguished from the mere expectancy. The heir apparent of a living ancestor holds no interest in the ancestor's property; the ancestor may sell, devise, or squander the property as the ancestor pleases, and the heir's hope is worth nothing at law. The prospective beneficiary of a will that has not yet been executed likewise holds no interest. A future interest, by contrast, exists the instant the conveyance or devise takes effect: it has a determinate holder, a determinate scope, and a determinate rule for its conversion into possession. It may be defeated by the failure of a condition, but it cannot be extinguished by the unilateral action of the grantor. The line between the future interest and the expectancy is not merely nominal; it is the boundary between property and hope.

The classical Anglo-American estate system permits ownership to be divided not only among concurrent owners of the whole (tenants in common, joint tenants, tenants by the entirety, examined in Part VI) but also successively, across time. A grantor who conveys “to A for life, remainder to B in fee simple” has not created two estates in the sense of two owners of the same thing; the grantor has divided the ownership of Blackacre into two temporal segments, and has committed the earlier segment to A and the later segment to B. Each is the present owner of the segment committed to that person; each is the future owner of nothing more than what remains to be enjoyed.

This temporal division is not a fiction and not a metaphor; it is the operative structure of the estate system. It makes possible the classical intergenerational settlement (“to my wife for life, remainder to our children”), the modern trust (in which legal title and equitable enjoyment are separated), the conservation servitude (in which a present possessory estate coexists with a perpetual future restraint on use), and the ordinary security interest in real property (in which the mortgagor's equity of redemption coexists with the mortgagee's contingent power of foreclosure). Every one of these familiar arrangements presupposes that ownership may be divided across time, and every one relies on the doctrinal apparatus developed in this Part.

The doctrine of future interests is sometimes dismissed as a museum piece — a body of intricate classifications preserved for their historical interest but with little bearing on modern practice. That dismissal is mistaken. Every will that creates a trust, every deed that reserves a life estate, every conservation easement, every long-term ground lease, and every installment land contract calls into play some part of the doctrine developed in Part V. The classification of the interest determines its alienability, its enforceability, its treatment for federal transfer-tax purposes, its exposure to the Rule Against Perpetuities, and — in the recording context — the way in which the interest must be indexed and searched. A drafter who does not command the doctrine cannot write a competent settlement; a title examiner who does not command it cannot render a competent opinion; and a court that misclassifies an interest is likely to defeat the very intention that the classical doctrine was designed to protect.

Anglo-American future-interest doctrine is not a modern rationalization of the estate system; it is a historical deposit, laid down layer by layer from the Norman Conquest through the great reforming statutes of the sixteenth and seventeenth centuries and into the American reception. Its intricacies are not the product of scholastic taste but the residue of the practical devices by which medieval and early modern conveyancers sought to preserve family land through the generations. To understand the classical taxonomy — reversion, possibility of reverter, right of entry, remainder, executory interest — one must understand the sequence of feudal arrangements, statutory interventions, and equitable innovations from which each of those categories emerged.

The earliest common-law estate system knew only two present estates capable of enduring beyond a term of years: the fee simple, which descended to heirs generally, and the life estate. The device of the remainder — a future interest in a third person taking effect at the natural termination of a prior particular estate — was recognized very early because it fit within the fundamental medieval requirement that seisin be continuously held. So long as the remainder was ready to take at the moment the life estate ended, the seisin passed from tenant to remainderman without a gap; the freehold was never in abeyance, and the lord's incidents of tenure (relief, wardship, marriage, escheat) could be preserved. Pollock and Maitland trace the emergence of the remainder to twelfth- and thirteenth-century practice, and Simpson documents its consolidation in the plea rolls of the Common Bench.

The Statute De Donis Conditionalibus (1285) permitted the creation of the fee tail — an estate of inheritance limited to the lineal descendants of the donee — and thereby produced, as its correlative, the reversion or remainder that took possession on the failure of issue. The Statute Quia Emptores (1290), by prohibiting subinfeudation and requiring substitution, standardized the arrangements by which land could be conveyed in fee simple and secured the position of the grantor as the source (and, on failure of the estate granted, the destination) of the seisin. The combined effect of the two statutes was to fix the classical medieval framework of present estates and future interests within which later doctrine developed.

The medieval framework was profoundly disturbed by the invention of the use — the equitable arrangement by which one person held legal title to land for the benefit of another. Uses permitted the beneficial owner to escape feudal incidents, to devise land at a time when the common law did not recognize wills of freeholds, and to accomplish arrangements (springing and shifting future interests, for example) that the common law forbade. The Statute of Uses (27 Hen. 8, c. 10) (1536) attempted to abolish the use by converting the beneficial interest into a legal estate — “executing” the use — and thereby restoring the Crown's feudal revenues.

The Statute did not accomplish its stated purpose (the use was largely reconstructed as the modern trust), but it had a decisive collateral effect on future-interest doctrine. By executing the use, the Statute converted equitable springing and shifting interests into legal interests — the executory interests that stand alongside the classical remainder as one of the two great families of transferee-created future interest. The executory interest could do what the common-law remainder could not: it could divest a preceding vested estate (shifting), and it could take effect after a gap in seisin (springing). Modern American future-interest doctrine inherits from this development the doctrinal distinction between the remainder and the executory interest, and inherits with it the intricate rules of classification examined in Part V of this chapter.

The Statute of Wills (32 Hen. 8, c. 1) (1540) authorized the devise of freeholds and, in so doing, opened testamentary future interests to the same doctrinal treatment as inter vivos future interests. The Statute of Frauds (29 Car. 2, c. 3) (1677) imposed the writing requirement on wills and conveyances of land and thereby fixed the evidentiary framework within which future-interest doctrine would operate in the modern era. Each of the American colonies received the common law of estates and future interests as it stood at the date of reception, and the great nineteenth-century revisions — beginning with the New York Revised Statutes of 1830 — began the process of reform that culminated in the modern statutory environment described in Part IX of this chapter and developed at length in Chapter 15.

A future interest is created whenever a competent grantor, by deed, will, or declaration of trust, creates a present possessory estate of less than a fee simple absolute (or a fee simple qualified by a condition), and either retains the balance of the ownership or commits it to a transferee. No particular language is required, but the intention to create a present estate followed by (or divested by) a future interest must be reasonably manifest from the instrument, taken as a whole and construed in accordance with the settled canons developed in Part VII.

The taxonomy of future interests is organized in the first instance by the identity of the holder. Interests retained by the grantor form one family; interests created in a transferee form the other. Within each family, further distinctions are drawn according to the present estate that gives rise to the interest and the conditions on which the interest will vest or fail. The taxonomy is set out in the two sections that follow and is developed in detail, interest by interest, in Chapters 13 and 14.

Three future interests may be retained by the grantor. The reversion is the interest retained when the grantor conveys a present estate smaller than the estate the grantor held. A grantor who conveys “to A for life” retains a reversion in fee simple; a grantor who owns in fee simple absolute and conveys “to A for life, remainder to B for life” retains a reversion in fee simple following the two life estates. The reversion is always vested from the moment of creation, always transferable inter vivos, and always descendible and devisable. It is not subject to the Rule Against Perpetuities.

The possibility of reverter is the interest retained by the grantor when the grantor conveys a fee simple determinable — an estate that, on the occurrence of a stated event, will automatically terminate and revert to the grantor. A grantor who conveys “to A so long as the premises are used for library purposes” retains a possibility of reverter. The interest is future in the sense that its holder is not yet entitled to possession; on the occurrence of the stated event, however, the estate automatically reverts by operation of law, without any need for entry by the grantor or the grantor's successors.

The right of entry (also called the power of termination) is the interest retained by the grantor when the grantor conveys a fee simple subject to condition subsequent — an estate that, on the occurrence of a stated event, does not automatically terminate but becomes subject to termination at the election of the grantor. A grantor who conveys “to A, but if the premises shall cease to be used for library purposes, the grantor may re-enter and terminate the estate hereby granted” retains a right of entry. The distinction between the possibility of reverter (automatic reverter) and the right of entry (elective termination) is technical but consequential; it is developed in Chapter 10 (Defeasible Estates) and revisited in Chapter 13.

Two future interests may be created in a transferee: the remainder and the executory interest. The remainder is a future interest in a transferee that is capable of taking possession the instant the preceding estate ends, without cutting that estate short. A conveyance “to A for life, then to B in fee simple” creates a remainder in B. Because the remainder takes at the natural end of the preceding estate, and does not divest it, the remainder was recognized at common law long before the executory interest and remains the paradigmatic transferee-created future interest.

The executory interest is a future interest in a transferee that either divests a preceding vested estate (shifting executory interest) or takes effect after a gap in seisin (springing executory interest). A conveyance “to A, but if A ever ceases to use the premises for library purposes, then to B” creates a shifting executory interest in B, which will divest A on the occurrence of the stated event. A conveyance “to A one year from today” creates a springing executory interest in A, which will spring into possession one year after the conveyance. The executory interest owes its existence to the Statute of Uses; before 1536 it could exist only as an equitable use, not as a legal interest.

The doctrine of vesting is the analytical center of the classical law of future interests. To say that a remainder is vested is to say that its taker is ascertained, and that no condition precedent (other than the natural termination of the preceding estate) stands between the taker and possession. To say that a remainder is contingent is to say that the taker is unascertained, or that a condition precedent (other than the natural termination of the preceding estate) intervenes, or both. The distinction determines the transferability of the interest (contingent remainders were, at common law, less freely transferable than vested remainders), its exposure to the Rule Against Perpetuities (which historically applied to contingent interests only), and — before the modern abolition — its liability to destruction on the natural termination of the preceding estate.

A vested remainder may be indefeasibly vested, vested subject to open, or vested subject to complete divestment. An indefeasibly vested remainder is certain to become possessory and certain to retain what it takes: a conveyance “to A for life, then to B in fee simple” creates an indefeasibly vested remainder in B if B is alive and ascertained at the time of the conveyance. A remainder vested subject to open is a remainder in a class of persons at least one of whom is ascertained, but which may be diluted as further class members come into existence: a conveyance “to A for life, then to A's children in fee simple” creates, if A has one child B living, a remainder in fee simple vested in B subject to open as further children of A are born. A remainder vested subject to complete divestment is a remainder that is certain to take possession unless a stated condition subsequent occurs; if the condition occurs, the vested remainder is completely divested by a shifting executory interest in a third person.

A contingent remainder is a remainder in an unascertained taker, a remainder subject to a condition precedent other than the natural termination of the preceding estate, or both. A conveyance “to A for life, then to A's heirs in fee simple” creates a contingent remainder in A's heirs, because those heirs cannot be ascertained until A's death (nemo est haeres viventis — no one is the heir of a living person). A conveyance “to A for life, then to B in fee simple if B shall have graduated from law school by A's death” creates a contingent remainder in B, because the condition precedent (B's graduation) is other than the natural termination of the preceding life estate.

The line between a condition precedent (making a remainder contingent) and a condition subsequent (leaving the remainder vested but subject to divestment) is drawn by the classical rule of construction: the condition is precedent if it appears within the granting clause creating the remainder, and subsequent if it appears in a separate clause after an unconditional gift. A conveyance “to A for life, then, if B survives A, to B in fee simple” creates a contingent remainder in B (condition precedent). A conveyance “to A for life, then to B in fee simple, but if B does not survive A, then to C” creates a vested remainder subject to complete divestment in B and a shifting executory interest in C (condition subsequent). The distinction is technical, but the operational consequences — for transferability, for the Rule Against Perpetuities, and for the historical destructibility doctrine — are substantial.

Executory interests are classified as either shifting or springing. A shifting executory interest cuts short a preceding vested estate in a transferee; a springing executory interest cuts short a preceding vested estate in the grantor (typically after a gap during which the grantor holds a fee simple in reversion). A conveyance “to A in fee simple, but if A ever sells liquor on the premises, to B” creates a shifting executory interest in B, cutting short A's fee. A conveyance “to A twenty-one years from today” creates a springing executory interest in A, cutting short the grantor's reversion. All executory interests are treated as contingent for purposes of the Rule Against Perpetuities.

The operational significance of the vested/contingent distinction has diminished over the past century, but it has not disappeared. The classical rule was that a vested remainder was freely transferable inter vivos, freely devisable, and freely descendible; a contingent remainder was said to be a mere possibility and, at common law, was not transferable inter vivos, though it was assignable in equity. Modern statutes have almost universally made contingent remainders transferable inter vivos, and the Restatement (Third) treats all future interests, vested or contingent, as freely transferable subject to any express restrictions in the instrument.

Every present holder of a future interest — reversioner, remainderman, holder of an executory interest — may protect the interest against interference. The classical remedies are the action on the case for waste against the life tenant, the bill in equity for an injunction against threatened waste, and the action for damages or restitution where the holder of the present estate has committed acts inconsistent with the future interest. Modern statutes generalize these remedies and, in most jurisdictions, extend them to holders of contingent as well as vested interests. The remedies for waste were developed in detail in Chapter 11.

The transferability of the future interest — vested or contingent — has substantial modern importance. Contingent remainders and executory interests are routinely bought and sold, particularly in the context of family settlements, buy-out agreements among class beneficiaries, and the reorganization of long-lived trusts. The classical rule against alienation of contingent remainders is a historical relic; the modern rule, expressed in Restatement (Third) of Property (Wills and Other Donative Transfers) § 25.2, treats all future interests as freely transferable except to the extent that the creating instrument or a valid statute imposes a restraint.

A remainder may be accelerated into possession where the preceding estate terminates prematurely — for example, by the renunciation of the life tenant, by the merger of the life estate with the remainder, or by the disclaimer of the life beneficiary in a testamentary trust. Acceleration is the doctrine by which the remainder takes possession earlier than the parties' expected timetable; it is the correlative of destructibility (now abolished) and operates to give effect to the underlying dispositive scheme rather than to defeat it.

A remainder or executory interest in an individual may lapse if the taker dies before the interest vests in possession. The classical anti-lapse statutes, examined in the trusts and estates literature and codified in most jurisdictions along the lines of Uniform Probate Code § 2-707, substitute the deceased taker's descendants (or the taker's estate) for the deceased taker in specified circumstances. The interaction of anti-lapse and future-interest doctrine is complex and is developed in Chapter 14 in connection with class gifts.

Every future interest presupposes a present estate; the classical taxonomy is largely a taxonomy of the correlative pairings of present estate and future interest. The exposition in Chapters 9 through 11 developed the present estates in detail; the exposition in Part V of this chapter now specifies the future interests that follow each of them.

A life estate is invariably followed by a reversion (in the grantor) or a remainder (in a transferee). A conveyance “to A for life” creates a life estate in A and a reversion in fee simple in the grantor. A conveyance “to A for life, remainder to B in fee simple” creates a life estate in A and a vested remainder in fee simple in B. A conveyance “to A for life, remainder to A's heirs” creates a life estate in A and (subject to the modern abrogation of the Rule in Shelley's Case, examined in Part VII) a contingent remainder in A's heirs. The correspondence between the life estate and its correlative future interest is fundamental and irreducible; there can be no life estate without one, and no life estate followed by more than one full ownership.

A fee simple determinable is invariably followed by a possibility of reverter in the grantor. A fee simple subject to condition subsequent is invariably followed by a right of entry (power of termination) in the grantor. A fee simple subject to executory limitation is invariably followed by an executory interest in a transferee. The three defeasible fees, developed in Chapter 10, are thus paired one-for-one with a corresponding future interest; the classification of the future interest follows directly from the classification of the present estate.

The classical law of future interests developed a body of construction rules — some of them substantive rules of law rather than mere presumptions of intent — that governed the interpretation of ambiguous conveyances. The most important were the destructibility of contingent remainders, the Rule in Shelley's Case, and the Doctrine of Worthier Title. Each has been substantially modified or abolished by modern statute and by the Restatement (Third) of Property (Wills and Other Donative Transfers). The exposition here identifies each rule, states its classical operation, and describes its modern status.

At common law, a contingent remainder was destroyed if it failed to vest at or before the natural termination of the preceding freehold estate. If a conveyance was “to A for life, then to B in fee simple if B shall have reached the age of twenty-one at A's death,” and A died before B reached twenty-one, B's contingent remainder was destroyed and the property reverted to the grantor. The doctrine reflected the medieval requirement that seisin never be in abeyance; it produced results almost universally contrary to the grantor's evident intention.

The doctrine has been abolished, by statute or by judicial decision, in every American jurisdiction except (arguably) a small number in which the question has never been squarely presented. Modern statutes preserve the contingent remainder as an executory interest that continues in existence until the condition either occurs or becomes impossible; the seisin passes, on the natural termination of the prior estate, to the grantor or the grantor's successors, subject to the outstanding executory interest. The classical destructibility doctrine remains of historical importance because it shaped the classical understanding of vesting, but it is no longer a live rule in modern American practice.

The Rule in Shelley's Case (Shelley's Case, 1 Co. Rep. 93b (1581)) converted a conveyance “to A for life, remainder to A's heirs” into a fee simple in A: the remainder to A's heirs was construed as words of limitation (defining A's estate) rather than words of purchase (naming the takers). The doctrinal purpose was to preserve the lord's feudal incidents, which would otherwise have been evaded if A's heirs took by purchase rather than by descent. The Doctrine of Worthier Title, in its inter vivos branch, converted a conveyance “to A for life, remainder to the grantor's heirs” into a life estate in A and a reversion in the grantor: the remainder to the grantor's heirs was similarly construed as a reversion in the grantor rather than as an interest in the heirs by purchase.

Both rules have been abrogated by statute in almost every American jurisdiction, and the Restatement (Third) of Property (Wills and Other Donative Transfers) § 16.2 rejects each. The modern rule treats the grantor's expressed intention as controlling: a remainder to a life tenant's heirs is a remainder in the heirs (not a fee in the life tenant), and a remainder to the grantor's heirs is a remainder in the heirs (not a reversion in the grantor). The classical rules survive today primarily as objects of historical study and as reminders that the doctrine of future interests, even in its most technical corners, must be tested against the ordinary intentions of the parties.

The classical law expressed a general preference for the early vesting of interests. Ambiguous language was construed, where possible, to create a vested rather than a contingent remainder; a condition was construed, where possible, to be subsequent rather than precedent; and a class was construed, where possible, to close early rather than late. The preference reflected the policies of favoring marketability, avoiding perpetuities problems, and giving effect to the grantor's presumed intention that the takers should enjoy their gifts. The preference for vesting is preserved in the modern Restatement (Third) of Property (Wills and Other Donative Transfers) § 25.3 and remains the operative canon of construction in modern American practice.

The Rule Against Perpetuities is not a rule of construction; it is a rule of substantive law that invalidates any contingent future interest not certain to vest, if it vests at all, within twenty-one years after the death of a life in being at the creation of the interest. The classical statement is that of John Chipman Gray: “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” The Rule reflects the policy of preventing the indefinite postponement of vesting and the accumulation of undue restraints on the alienation of property in the hands of long-dead settlors.

The Rule applies, in its classical form, to contingent remainders, executory interests, and vested remainders subject to open in favor of a class that may not close within the perpetuities period. It does not apply to grantor-retained interests (reversions, possibilities of reverter, and rights of entry), which are treated as vested for perpetuities purposes. The Rule is developed in full in Chapter 15, which examines the classical Rule, the modern statutory reforms (the Uniform Statutory Rule Against Perpetuities, the wait-and-see approach, and cy pres reformation), and the recent movement in a number of jurisdictions to abolish the Rule entirely as applied to interests in trust.

The Rule expresses a policy of temporal limitation on the dead hand of the settlor. Property may be committed to future takers over successive generations, but not indefinitely; at some determinate point the interest must vest, so that the property may become freely marketable in the hands of an ascertained owner. The classical formulation — twenty-one years after a life in being — reflects the medieval and early modern understanding that the settlor's dispositive scheme should be permitted to reach the settlor's grandchildren but not to reach indefinitely beyond them. The modern reforms, examined in Chapter 15, retain the underlying policy while relaxing the sometimes-arbitrary operation of the classical Rule.

The classical common law of future interests operates today against a substantial statutory overlay. Every American jurisdiction has, by statute, abolished the destructibility of contingent remainders; almost every jurisdiction has abolished the Rule in Shelley's Case; and almost every jurisdiction has abolished the inter vivos branch of the Doctrine of Worthier Title. Most jurisdictions have adopted the Uniform Statutory Rule Against Perpetuities (USRAP) or a functional equivalent, and a growing minority have abolished the Rule as applied to interests in trust. The modern statutes have made contingent remainders and executory interests freely transferable inter vivos, and have generalized the remedies of the future-interest holder for waste and other impairment.

The Uniform Statutory Rule Against Perpetuities, promulgated in 1986 and adopted (in some form) in more than half the American jurisdictions, superimposes on the classical Rule a ninety-year wait-and-see period: an interest that would be invalid under the classical Rule is preserved if it actually vests within ninety years after its creation. The Uniform Act also authorizes the courts to reform noncomplying interests, where reformation is consistent with the settlor's intention, to conform to the perpetuities period. The Uniform Act does not abolish the classical Rule; it supplements it. Chapter 15 develops the Uniform Rule, its interaction with the classical Rule, and its treatment of commercial and donative interests, in detail.

The Restatement (Third) of Property (Wills and Other Donative Transfers), published in installments between 1999 and 2011, restates the modern American law of future interests. It preserves the classical taxonomy (reversion, possibility of reverter, right of entry, remainder, executory interest), but rejects most of the classical rules of construction (destructibility, Shelley's Case, Worthier Title) and treats the grantor's expressed intention as the controlling consideration. It generalizes the transferability of future interests and states the modern rules of vesting, class-gift construction, and perpetuities. The Restatement is not itself law, but it has been highly influential in the modern reception of future-interest doctrine, and it is cited throughout Chapters 12 through 15.

Several misconceptions concerning future interests recur in practice and in the classroom, and each merits explicit correction. First, the future interest is not a mere expectancy. It is a presently existing legal interest, transferable and enforceable from the moment of its creation; the holder is not a hopeful claimant but a present owner of a defined slice of the ownership. Second, vesting is not the same as taking possession. A remainder may be vested from the moment of the conveyance and yet not become possessory for decades; the vesting concerns the identification of the taker and the removal of conditions precedent, not the timing of enjoyment.

Third, the classification of a future interest is not merely academic. It determines transferability, exposure to the Rule Against Perpetuities, treatment for federal transfer-tax purposes, and — in some jurisdictions — the applicable statute of limitations for enforcement. A drafter who cannot classify the interest cannot predict its operation, and a court that misclassifies the interest is likely to defeat the very intention that the classical taxonomy was designed to protect.

Fourth, the abolition of the classical destructibility doctrine, the Rule in Shelley's Case, and the Doctrine of Worthier Title does not mean that the classical categories have lost their significance. The categories remain the operative vocabulary of American future-interest doctrine; the abolition of the rules concerns the substantive treatment of interests within the categories, not the categories themselves. A drafter who is unfamiliar with the classical taxonomy cannot read the modern instruments or interpret the modern statutes.

Fifth, the Rule Against Perpetuities is not a rule about the duration of trusts or estates as such; it is a rule about the vesting of contingent interests. A trust may endure for centuries — as under the recent perpetual-trust statutes of Alaska, Delaware, South Dakota, and a growing number of other jurisdictions — without violating any rule against perpetuities, provided that every interest in the trust vests within the applicable perpetuities period. The doctrine is developed in full in Chapter 15.

The chapters that follow develop the individual interests introduced here. Chapter 13 examines the reversion, the possibility of reverter, and the right of entry: their creation, their operation, their transferability, and the modern statutes (including marketable-title acts and dormancy statutes) that have altered their practical significance. Chapter 14 examines the remainder and the executory interest, the classical distinctions among vested and contingent remainders, class-gift doctrine, and the modern law of anti-lapse and class closing. Chapter 15 examines the Rule Against Perpetuities in its classical form, the Uniform Statutory Rule and other modern reforms, and the recent movement to abolish the Rule as applied to trusts. Together, Chapters 12 through 15 constitute Part V of this Volume and prepare the reader for the concurrent and marital interests examined in Part VI.

A future interest is a present legal interest in property whose right to possession is deferred to a later time. It is not a mere expectancy; it exists from the moment of the conveyance, is transferable and enforceable from that moment, and carries the ordinary incidents of proprietorship. Every present estate less than a fee simple absolute is followed by a future interest, and the sum of the present estate and every outstanding future interest always equals the whole ownership of the land.

Anglo-American law classifies future interests, in the first instance, by the identity of the holder. Interests retained by the grantor are the reversion (following a smaller present estate), the possibility of reverter (following a fee simple determinable), and the right of entry (following a fee simple subject to condition subsequent). Interests created in a transferee are the remainder (which takes at the natural end of the preceding estate) and the executory interest (which either divests a preceding vested estate or springs into possession after a gap in seisin). Remainders are further classified as vested (indefeasibly, subject to open, or subject to complete divestment) or contingent.

The classical doctrine developed against the backdrop of medieval feudal tenure and was transformed by the Statute of Uses (1536), the Statute of Wills (1540), and the modern American reforms. The destructibility of contingent remainders, the Rule in Shelley's Case, and the Doctrine of Worthier Title — the three great classical rules of construction — have been substantially abolished, and the Restatement (Third) of Property treats the grantor's expressed intention as controlling. The Rule Against Perpetuities, however, retains substantial vitality: contingent future interests must vest, if they vest at all, within twenty-one years after a life in being; the classical Rule has been supplemented in most jurisdictions by the Uniform Statutory Rule Against Perpetuities and its ninety-year wait-and-see period.

Chapter 13 turns to the reversion and its cognates in the grantor. Chapter 14 turns to the remainder and the executory interest. Chapter 15 turns to the Rule Against Perpetuities. Together the chapters of Part V equip the reader to classify, construe, and enforce every future interest that arises in modern American property practice.

• John Chipman Gray, The Rule Against Perpetuities §§ 1–113, 201–330 (4th ed. 1942).
• Lewis M. Simes & Allan F. Smith, The Law of Future Interests §§ 1–115 (2d ed. 1956).
• Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 55–174 (2d ed. 1984).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 3.1–3.24 (3d ed. 2000).
• 2 William Blackstone, Commentaries on the Laws of England *163–*175 (1766).
• 4 James Kent, Commentaries on American Law *196–*287 (1830).
• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) §§ 215–378 (1628).
• Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I, vol. 2, at 21–29, 226–239 (2d ed. 1898).
• S. F. C. Milsom, Historical Foundations of the Common Law 170–239 (2d ed. 1981).
• A. W. B. Simpson, A History of the Land Law 87–102, 173–207 (2d ed. 1986).
• Sir John Baker, An Introduction to English Legal History 267–334 (5th ed. 2019).
• Jesse Dukeminier, Robert H. Sitkoff & James Lindgren, Wills, Trusts, and Estates 787–860 (11th ed. 2022).
• W. Barton Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 (1938).
• Restatement (First) of Property §§ 153–162, 265–320 (1936).
• Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 25.1–25.5, 16.2, 27.1–27.3 (2011).
• Uniform Statutory Rule Against Perpetuities (1986; amended 1990).
• Statute De Donis Conditionalibus, 13 Edw. 1, c. 1 (1285); Statute Quia Emptores, 18 Edw. 1, c. 1 (1290); Statute of Uses, 27 Hen. 8, c. 10 (1536); Statute of Wills, 32 Hen. 8, c. 1 (1540); Statute of Frauds, 29 Car. 2, c. 3 (1677).