(f) reggie “ to veronica for life , then to betty and her heirs if betty attains the age of 21...

(F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.”

Veronica: Life Estate

Betty: Contingent Remainder in Fee Simple

Reggie: Reversion

What happens if Veronica dies when Betty is 17?

(F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.”

What happens if Veronica dies when Betty is 17? (Common Law):

If contingency not met when prior estate ends, contingent remainder is destroyeddestroyed.

Betty has nothing.

Reggie has fee simple absolute.

DOCTRINE OF DESTRUCTABILITY OF CONTINGENT REMAINDERS

If contingency not met when prior estate ends, contingent

remainder is destroyeddestroyed

DOCTRINE OF DESTRUCTABILITY OF CONTINGENT REMAINDERS

Overruled by statute or caselaw in every American jurisdiction except Florida

(F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.”

What happens if Veronica dies when Betty is 17? (Modern View): If contingency not met when prior estate ends, we wait to see if it is met later.

Betty’s remainder becomes an executory interest.

Reggie has fee simple on executory limitation

(F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.”

Veronica dies; Betty is 17 (Modern View)

DOCTRINE OF DESTRUCTABILITY OF CONTINGENT REMAINDERS(Second Common Application)

Where there is a life estate, a contingent remainder, and a reversion, and the life estate

and reversion merge into a fee simple, the contingent remainder is destroyed

(F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.”

Veronica buys R’s reversion (Destructability)

(F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.”

Veronica buys R’s reversion (Modern View)

“At Common Law”

v.

“Today”

Default Estate“At Common Law” v. “Today”

Life Estate Fee SimpleSee White v. Brown

& Williamson v.

Williamson(P578)

“to X and the Heirs of his Body”

“At Common Law” v. “Today”

Created a Traditional

Fee Tail

Traditional Fee Taileliminated;

state statutes provide different results when

this language used [See P576]

Doctrine of Destructability of Contingent Remainders

“At Common Law” v. “Today”

Appliedeverywhere

Eliminated in allstates except Florida

PROBLEM JFeaturing Live Oaks

(J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper

funeral."

Rhoda?

(J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper

funeral."

Rhoda: Life Estate

Ted?

(J):Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper

funeral."

Rhoda: Life Estate

Ted?: Contingent Remainder (in f.s.)

Other?

(J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral."

Rhoda: Life Estate

Ted?: Contingent Remainder (in f.s.)

Mary: Reversion

(J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper

funeral."

Rhoda: Life Estate

What difference does change make?

(J): Mary "to Rhoda for life, then to Ted if Ted

gives Rhoda a proper funeral."

Ted can’t possibly give Rhoda a “proper” funeral by the time Rhoda dies. Thus, Ted’s interest cannot be a remainder; there will be a gap between the end of R’s life estate and Ted’s interest. So Ted has …?

(J): Mary "to Rhoda for life, then to Ted if Ted

gives Rhoda a proper funeral."

Rhoda: Life Estate

Mary: Reversion

Ted: Springing Executory Interest (in f.s.)

EXAM TIP: USE COMMON SENSE!!

• Can’t give a “proper” funeral to a person until after death

EXAM TIP: USE COMMON SENSE!!

• If an interest is conveyed in a will, the grantor is dead.

Vested Remainder Subject to Divestment

=Vested Remainder Subject to Complete Defeasance (P596)

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT

(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and

his heirs.

(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT

(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs.

(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.

A alive; B dies at 17: (1+2) B gets 0; C gets fee simple at A’s death

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT

(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs.

(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.

A alive; B turns 21: (1+2) B has vested remainder; C’s interest fails

CONTINGENT REMAINDER v. VESTED REMAINDER SUBJECT TO DIVESTMENT

(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs.

(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.

A dies; B is 17: (1) Grantor has fee simple on executory limitation; B & C have springing executory interests.

(1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs.

(2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs.

A dies; B is 17: (1) Grantor has fee simple on executory limitation; B & C have springing executory interests. (2) B has fee simple on executory limitation; C has shifting executory interest.

VESTED REMAINDER SUBJECT TO DIVESTMENT v. VESTED REMAINDER IN FEE

SIMPLE ON EXECUTORY LIMITATION

To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs.

Condition can occur before B obtains possession.

VESTED REMAINDER SUBJECT TO DIVESTMENT v. VESTED REMAINDER IN FEE

SIMPLE ON EXECUTORY LIMITATION

To A for life, then to B & her heirs, but if B ever uses the land for commercial purposes, to C & his

heirs. (Condition cannot occur before B obtains possession)

COMMON MISTAKESCOMMON MISTAKES

•Contingent Remainder Subject to Open

•Contingent Remainder Subject to Divestment

•Executory Interest Subject to Divestment

COMMON MISTAKESCOMMON MISTAKES

Contingent Remainder Subject to Open

Contingent Rem. Subject to Divestment

Executory Interest Subject to Divestment

PROBLEMS K-LFeaturing Live Oaks

(K): “To George for life, then to Kramer and his heirs; but if

Kramer does not attain the age of 21, then to Elaine and her heirs."

Kramer is 15 years old.

George?

(K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old.

George: Life Estate

Kramer?

(K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years

old.

George: Life Estate

Kramer: Vested Remainder (in f.s.) subject to divestment

Elaine?

(K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years

old. George: Life Estate

Kramer: Vested Remainder (in f.s.) subject to divestment

Elaine: Shifting executory interest (in f.s.)

(L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy

and her heirs."

Tweety has 2 children, Heckle and Jeckle. Tweety?

(L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy

and her heirs."

Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate

Tweety’s Children?

(L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy

and her heirs."

Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate

Tweety’s Children: Contingent remainders (in f.s.) (must survive Tweety)

Peggy?

ALTERNATIVE CONTINGENT REMAINDERS

Two contingent remainders for which the event that causes one to vest will destroy the

other.

ALTERNATIVE CONTINGENT REMAINDERS

Two contingent remainders for which the event that causes each one to vest will destroy the other.

Here, only two possibilities: either (1) Tweety will be survived by children (who would then take) or (2) he won’t (Peggy takes)

(L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy

and her heirs."

Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate

Tweety’s Children: Contingent remainders (in f.s.) (must survive Tweety)

Peggy: Alternative contingent rem. (in f.s.)

Other?

(L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children

survives him, then to Peggy and her heirs."

Tweety: Life Estate

Tweety’s Children: Contingent remainders (in f.s.) Peggy: Alternative contingent rem. (in f.s.)

Daffy: Reversion (even when alternate contingent remainders)

(L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy

and her heirs."

Tweety: Life Estate

Heckle/Jeckle: Contingent remainders (in f.s.)

Peggy: Alternative contingent rem. (in f.s.)

Daffy: Reversion

PROBLEMS M & N

Featuring The M&Ngos

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." Billy has no children.

Billy?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." Billy has no children.

Billy: Life Estate

Billy’s children?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." Billy has no children.

Billy: Life EstateBilly’s children? Contingent remainder (in f.s.)

(unborn)Jo?

ALTERNATIVE CONTINGENT REMAINDERS

Two contingent remainders for which the event that causes each one to vest will

destroy the other.

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." Billy has no children.

When does contingent remainder in children vest?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children.

Contingent remainder in children vests when a child is born.

When does contingent remainder in Jo vest?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." Billy has no children.

Contingent remainder in children vests when a child is born.

Contingent remainder in Jo vests when Billy dies survived by no children.

Is the interest in Jo destroyed when the interest in the children vests?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." Billy has no children.

Billy: Life Estate

Billy’s children: Contingent remainder (in f.s.)

Jo: Contingent rem. (in f.s.) (Not alternate)

Anything else?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." Billy has no children.

Billy: Life Estate

Billy’s children: Contingent remainder (in f.s.)

Jo: Contingent rem. (in f.s.) (Not alternate)

Amanda: Reversion

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any

children, then to Jo and her heirs."

B has child, Sydney. Effect?

Billy: Life Estate

Sydney?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." B has child, Sydney.

Billy: Life Estate

Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment. (Contingent remainder vests)

Jo?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." B has child, Sydney.

Billy: Life Estate

Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment.

Jo: Shifting Executory Interest (in f.s.)

Amanda?

(M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he

is not survived by any children, then to Jo and her heirs." B has child, Sydney.

Billy: Life Estate

Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment.

Jo: Shifting Executory Interest (in f.s.)

Amanda: Nothing (reversion divested)

(N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their

heirs. Jimmy has children, Perry & Della.

Jimmy?

(N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their

heirs. Jimmy has children, Perry & Della.

Jimmy : Life Estate

Lois?

(N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their

heirs. Jimmy has children, Perry & Della.

Jimmy : Life Estate

Lois: Vested remainder (in f.s.) subj. to divestment

Perry/Della?

(N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their

heirs. Jimmy has children, Perry & Della.

Jimmy : Life EstateLois: Vested remainder (in f.s.) subj. to divestmentPerry/Della: Shifting executory interest (in f.s.)Clark?

(N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their

heirs. Jimmy has children, Perry & Della.

Jimmy : Life EstateLois: Vested remainder (in f.s.) subj. to divestmentPerry/Della: Shifting executory interest (in f.s.)Clark? Nothing

(L) (M) (N) TRYING TO DO SAME THINGS:

(1) To A for life(2) If A has any surviving children, they

should take(3) If no surviving children, to B

BUT 3 DIFFERENT SETS OF INTERESTS CREATED

UNACCEPTABLE CONDITIONS

Conditions So Abhorrent …

You Can’t Even Impose Them

on Your Own Children

UNACCEPTABLE CONDITIONS

• Doing Criminal Acts

UNACCEPTABLE CONDITIONS

• Total Restraint on Alienation– Partial Restraint OK if Reasonable

• Casebook says only if Promissory (P625)• Other sources say sometimes Forfeiture

UNACCEPTABLE CONDITIONS• Total Restraint on Alienation

– Partial Restraint OK if Reasonable– Most Restrictions Restrain Alienation to

Some Extent• If too burdensome/weird could treat as too

much restraint• See Casebook at P632-33

UNACCEPTABLE CONDITIONS• Total Restraint on Alienation

– Partial Restraint OK if Reasonable– Most Restrictions Restrain Alienation to Some

Extent– Use Restrictions (Only by X?)

• OK if Charitable• Some jurisd: Non-Charitable = Unreas. Restraint

on Alienation

UNACCEPTABLE CONDITIONS

• Total Restraint on Marriage– Some Jurisd: Maybe OK if Life Estate

– Some Jurisd allow partial restraints• Until turn 25• Shapira

UNACCEPTABLE CONDITIONS

• Obtaining Divorce

UNACCEPTABLE CONDITIONS

• Race-Based Limitations (Unenforceable)– Sex-Based Upheld w/in Family

– Religion: (Discuss w Shapira)

PROBLEM OFeaturing The mang-Os

(O) Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria.

Edith moves in with male friend, Sherman. Edith subsequently dies, devising her property to Sherman.

(O): 3 QUESTIONS1. “To my wife Edith, for her use & benefit, so

long as she remains unmarried.” Life estate determinable or fee simple determinable?

(O): 3 QUESTIONS1. Life estate determinable or fee simple

determinable?

2. Is condition restraining second marriage void as against public policy?

(O): 3 QUESTIONS1. Life estate determinable or fee simple

determinable?

2. Is condition restraining 2d marriage void?

3. Is cohabitation a violation of a restraint on marriage?

(O): 1st QUESTION: ARGUMENTS?

“To my wife Edith, for her use & benefit, so long as she remains unmarried.”

Life estate determinable or fee simple determinable?

(O): 1st QUESTION: ARGUMENTS?“To my wife Edith, for her use & benefit, so long as she

remains unmarried.” Life estate determinable or fee simple determinable?

• Presumption of Fee Simple• Use and Benefit Sounds Like Life Estate• Condition is Consistent with Intent to Support• Reasonable to Think Archie would try to Protect

Gloria (not Edith’s daughter)

(O): 1st QUESTION• “To my wife Edith, for her use & benefit, so long

as she remains unmarried.”

• Majority: E = Fee Simple Determinable A G =– Remaining Future Interest in Archie passed to

Gloria through residuary clause in will

(O): 1st QUESTION• “To my wife Edith, for her use & benefit, so long

as she remains unmarried.”

• Majority: E = Fee Simple Determinable A G = Possibility of Reverter

(O): 1st QUESTION

• “To my wife Edith, for her use & benefit, so long as she remains unmarried.”

• Some: E = Life Estate Determinable A G =

(O): 1st QUESTION

• “To my wife Edith, for her use & benefit, so long as she remains unmarried.”

• Some: E = Life Estate Determinable A G = Possibility of Reverter +Reversion = Reversion (Merger) (See Problem H)

(O): 2d QUESTION: ARGUMENTS?

• Is condition restraining second marriage void as against public policy?