Real Property: Ownership
A widow owned Blackacre in fee simple absolute. The widow’s will devised Blackacre, “to my brother so long as he uses the land for farming, then to my son.” Upon the widow’s death, her son has what interest in Blackacre?
A: Right of entry.
B: Fee simple determinable.
C: Executory interest.
D: Fee simple subject to a condition subsequent.
Answer and Explanation
C is correct. The widow’s will devises Blackacre to her brother in fee simple subject to an executory interest. The brother has a present possessory interest that is potentially infinite so long as the stated contingency does not occur: use of the land for anything other than farming. The son has a future interest that would take hold if the stated event does occur. A future interest created by defeasible fees in a third party is an executory interest.
A is incorrect. The right of entry is a future interest created in the grantor with a fee simple subject to a condition subsequent, generally signaled by language such as, “provided that,” or “but if.”
B and D are incorrect. Both choices can be eliminated because they are both present possessory estates, and the son holds a future interest.
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