Ah... an excellent question that seemed so irrelevant when we studied this stuff in Property class a few years ago.  We just don't see this kind of odd-ball stuff very often.

I think that this might be a shifting executory interest, rather than a sprining executory interest.  But, I guess that would depend on how the conveyance is worded (it doesn't seem very clear to me).  A springing executory interest cuts short the grantor's interest, if a third party interest gets cut short, it is a shifting executory interest.  In this case, I get the impression that the title was conveyed to "M, but when J reaches the age of 25, then to J."  In that case, I believe that M has a fee simple interest subject to a condition subsequent - J attaining the age of 25 - and J. has a shifting executory interest, since if the condition is met it cuts short the interst of a third party, M. 

I believe that if J dies before reaching the age of 25, the executory interest terminates and M would have good title with no condition subsequent.  I think from an underwriting perspective, I would prefer to see an affidavit with an attached death certificate for J.  I don't think there would be a problem if there was something in the chain of title that clearly showed J's death before reaching the age of 25.

But, like Kevin said... this is pretty complicated and the best you can do is report your findings and let your client decide how to handle it.  It will depend on exactly how the conveyance was termed in the will.

What do you think, Kevin?  Am I understanding this well enough to pass the bar exam in July?

And, thank you so much Helene for posting such a wonderful question!  These are the kinds of topics I think we should be dicussing much more often on the forums.  We can all learn a lot from these types of exchanges.

Best,
Robert A. Franco
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