Estates and Future Interests Hypos

1. Grutz conveys "To John Walton for his life. What is created/retained?

2. Walton dies. What happens?

1. Walton has a life estate measured by his own life.

Grutz retains a Reversion in Fee Simple Absolute.

2. The property reverts to Grutz.

1. Grutz conveys Blackacre "To John Walton for the life of Lady Gaga." What is created?

2. What happens to Blackacre if Walton dies and Lady Gaga is still alive?

1. Walton has a life estate pur autre vie, one which will terminate with the death of Gaga.

Grutz retains a Reversion in Fee Simple Absolute.

2. Even though life estates were not inheritable at common law, today an unexpired life estate may pass to the owner's successors either by will or intestate distribution.

Grutz conveys "to John Walton for his life." What happens when Walton conveys his life estate to Katy Perry? What does Katy Perry have?

Katy Perry has a life estate pur autre vie, one which will terminate with the death of Walton.

Grutz retains a reversion in Fee Simple Absolute.

(See statute beginning on p. 260 for these hypos.)

Suppose John Butcher dies intestate (his wife having predeceased him) and at his death he is survived by the following blood relatives:

1. His son Dr. John Butcher, Jr.,M.D.

2. His granddaughter, Susan Butcher, the daughter of Junior

3. His daughter June Butcher-Cleaver (married to Ward Cleaver)

4. His grandsons, Wally and Theodore "Beaver" Cleaver, children of June Butcher-Cleaver.

A. How should this estate be distributed under the law of intestate succession?

B. Now assume that June has died.

C. Now assume that Dr. Butcher dies and June dies.

A. Dr. Butcher gets 50% and June gets 50% because they are both living and need no one to represent them.

B. John still gets 50%. Since June inherits per stirpes, Wally and Theodore represent her; they each get 25%.

C. Entire estate goes to grandchildren. Susan gets 50% bc she represents her dad. Wally and Theodore each get 25% because they represent their mom. (However, most courts will view this statute to say that the grandchildren are next of kin, not representatives, so they should divide it up equally. Some courts will read it as the answers above.)

(See statute beginning on p. 260 for these hypos.)

A dies intestate. How will his property be handled in each of the following situations?

1. Survived by wife and one son.

2. By wife; one daughter; and two grandsons, children of a deceased son.

3. By daughter; a son; and 4 grandchildren, children of the son.

4. Wife only

5. By a mother and a sister

8. No wife; no lineal heirs; no collateral heirs.

1. Wife gets 50% and son gets 50%

2. 50% to wife. 25% to daughter. 1/8 to each grandson per stirpes.

3. 50% to daughter, 50% to son

4. 100% goes to surviving spouse

5. Mother gets 2/3. Sister gets 1/3.

8. Real estates escheats to the county/state.

Suppose Grutz makes the following conveyance: "To Duncan for life, then to Tucker Carlson and his heirs."

A. What is the state of the title?

B. What if Tucker dies before me, and in his will leaves all of his real and personal property to Greg Gutfeld?

A. Duncan has a life estate measured by Duncan's life, then it goes to Tucker after Duncan dies (not Grutz), Vested Remainder in Fee Simple Absolute.

B. Greg Gutfeld has Vested Remainder in Fee Simple Absolute.

What is created/retained?

1. Grutz "to Duncan for his life".

2. Grutz "to Duncan for the life of Denicola"

1. Life estate for the life of Duncan in Duncan. Remainder in Fee Simple Absolute in Grutz.

2. Life estate for the life of Denicola in Duncan. Remainder in Fee Simple Absolute in Grutz.

To Hattie for life, then to Hattie, Letitia and James and their heirs.

Life Estate in Hattie.

Remainder in Fee Simple Absolute in Hattie, Letitia and James.

To Hattie and her heirs.

Fee Simple Absolute in Hattie.

To Hattie for her life so long as she remains unmarried, then to H, L & J and their heirs.

Hattie - Life Estate Determinable

Grantor - Reversion (ask to be sure?? Does the grantor retain a reversion or a possibility of reverter after conveying a life estate determinable?)

H, L, J - Contingent Remainder in FSA

To Hattie and her heirs so long as she remains unmarried, then to H, L & J and their heirs.

Hattie - Fee Simple Determinable with an Executory Limitation

H, L & J - Shifting Executory Interest

To Hattie so long as she remains single and unmarried, and if she marries, to H, L & J in equal shares.

Not clear. Thus, the statutory default rule presumes that Hattie took a fee simple defeasible. If you want a life estate, you have to say it. (Lewis v. Searles)

What is created/retained?

1. to General Motors Corporation and its successors and assigns in Fee Simple Absolute

2. to GM forever

3. to GM and its assigns forever

4. to GM

All are Fee Simple Absolute.

Since corporations have no heirs, the common law did not require the magic words to create a fee simple in a corporation. General Motors has a Fee Simple Absolute under the common law rule. As Moynihan put it, under the common law "because a corporation can have no heirs, a conveyance to a corporation gave it a fee simple absent some expression of contrary intent."

Suppose: Grutz's will devises Blackacre "to Duncan for life, remainder to Schutz and his heirs in FSA."

1. What is the state of the title following Grutz's death?

2. The property is one acre of land with a modest 2-bedroom house situated thereon. Although the neighborhood where this land is situated was once well-suited to residential use, circumstances have changed and all the neighboring land is being used for industrial purposes. The house is in a good state of repair, but it has practically no rental value due to the nature of the surrounding neighborhood. I tear down the house, change the grade of the land, put up a large storage building, and lease the property for a very nice rental to one of the neighboring industrial land users. Assume that the fair market value of the land before these changes was $90,000 and after was $500,000. Is this waste?

1. Life estate in Duncan. Remainder in FSA in Schutz.

2. Depends on the rule:

A. Any action which alters the property from its original form constitutes waste, because the owner of the future interest is entitled to receive the property substantially in its original condition (reasonable wear and tear excepted).

B. Whether waste has been committed depends on the value of the property. Any action which results in a decrease in the value of the property is waste; any action which results in an increase in the value of property is not waste.

C. Whether or not certain acts constitute waste is to be determined in accordance with the intention of the party who created the present and future interests. If the intention is not expressed in the deed or will, the law should assume that the parties intended that the life tenant is entitled to use the land in a reasonable manner in light of all the relevant facts and circumstances.

Suppose Duncan owns a spectacular, state-of-the art building near campus. Duncan decides to donate the building to the University of Nebraska to be used as the new home of the Law College. So Duncan conveys the property "to the University of Nebraska and its heirs so long as the building is used as a college of law and is named the 'Justice Antonin Scalia Law Building.'" Suppose in 15 years the then Dean decides to rename the building "the President Joe Biden Law Building." What is the state of the title following these events?

"So long as" are words of limitation indicating that Duncan conveyed a Fee Simple Determinable. It automatically reverts to Duncan when the name is changed to President Joe Biden Law Building.

1940 John Walton conveys Walton's Mountain "to Little Schutzie and his heirs so long as the land conveyed is not used for commercial purposes"

Schutzie immediately moves into the farmhouse on the land and farms it continuously.

1948 John Walton dies intestate.

2023 Schutzie wants to sell Walton's Mountain to Rush Limbaugh [rumors of his death are fake news--Rush lives!], who would like to develop the property as a "Rush World" Theme Park, a dittohead's nirvana that would have rides, bookstores, Cuban cigars stores, souvenir shops, etc.

Rush consults with us about this land transaction.

What does Rush need to do to protect his investment and accomplish his goals for Rush World?

Check if there is a statute. If there is a statute like NE (which limits the length of time that Posibilities of Reverter and Powers of Termination to 30 years), Schutz has a fee simple absolute and can convey it to Rush with no limitations. If there is no statute, we need to talk to whoever owns the possibility of reverter, probably the heir(s) of John Walton, and try to buy it from them. We have to find all of them and get them all to agree. If even one of them doesn't agree, the deal cannot go through.

"Grutz-to Alexander Hamilton and his heirs." What's created/retained?

Hamilton: Fee simple absolute (under common law & modern statute)

Grutz-to Alexander Hamilton for life

Hamilton: Life estate (under common law)

Grutz: Reversion in Fee Simple Absolute (under common law)

Hamilton: Fee Simple Absolute (under modern statute)

Grutz: nothing (under modern statute)

Grutz--to Alexander Hamilton

Hamilton: Life estate (under common law)

Grutz: Reversion in Fee Simple Absolute (under common law)

Hamilton: Fee Simple Absolute (under modern statute)

Grutz: nothing (under modern statute)

Grutz-to Alexander Hamilton forever

Hamilton: Life estate (under common law)

Grutz: Reversion in Fee Simple Absolute (under common law)

Hamilton: Fee Simple Absolute (under modern statute)

Grutz: nothing (under modern statute)

Grutz-to Alexander Hamilton and his assigns forever in fee simple absolute ("and I really mean it, judge")

Hamilton: Life estate (under common law)

Grutz: Reversion in Fee Simple Absolute (under common law)

Hamilton: Fee Simple Absolute (under modern statute)

Grutz: nothing (under modern statute)

Grutz-to Alexander Hamilton and his heirs so long as the property is used for residential purposes.

Hamilton: Fee Simple Determinable

Grutz: Possibility of Reverter

Grutz-to Alexander Hamilton and his heirs until the property ceases to be used for residential purposes.

Hamilton: Fee simple determinable

Grutz: Possibility of Reverter

Grutz-to Alexander Hamilton and his heirs while the property is used for residential purposes.

Hamilton: Fee simple determinable

Grutz: Possibility of Reverter

Grutz-"to Thomas Jefferson and his heirs on the condition that the property not be used for commercial purposes, but if the premises are ever used for such purposes, the grantor or his heirs shall have the right to re-enter and take possession."

Jefferson: Fee Simple Subject to a Condition Subsequent

Grutz: Power of Termination (aka Right of Re-Entry)

Suppose John Dutton decides to convey The Yellowstone Ranch to his son, Kayce Dutton. John wants the Yellowstone to always remain as a cattle ranch, not as a resort for celebrities and billionaires to play rhinestone cowboy on vacation. How should he draft his deed to Kayce?

Create a Fee Simple Determinable: "to my son Kayce and his heirs so long as the property is used only as a cattle ranch and for no other purpose."

Suppose Old McDonald, the owner of McDonald's Farm in fee simple absolute, conveys it "to Richie Moberly and his heirs until the property ceases to be used as a farm" What is created/retained?

Moberly: Fee Simple Determinable

McDonald: Retains Possibility of Reverter.

Suppose Old McDonald, the owner of McDonald's Farm in fee simple absolute, conveys it "to Richie Moberly and his heirs until the property ceases to be used as a farm and then to Tucker Carlson and his heirs." What is created/retained?

Moberly: Fee simple determinable with an executory limitation. Tucker: Retains an Executory interest

Suppose that prior to the year 1285, ye olde Harvey Grutz, the owner of Blackacre in Fee Simple Absolute, conveyed Blackacre "to Arnold Schwarzenegger and the heirs of his body."

Arnold: Fee Simple Conditional

Grutz: Possibility of Reverter because he conveyed away less than all of his Fee Simple Absolute

Suppose that prior to the year 1285, ye olde Harvey Grutz, the owner of Blackacre in Fee Simple Absolute, conveyed Blackacre "to Arnold Schwarzenegger and the heirs of his body." One year after the conveyance, Arnold's wife gives birth to their son, little Conan? The next day, Arnold conveys "to Lou Ferrigno and his heirs." Now what is the state of the title?

Answer: Ferrigno has a Fee Simple Absolute (Arnold had the power to convey a FSA and he exercised that power).

Suppose that prior to the year 1285, ye olde Harvey Grutz, the owner of Blackacre in Fee Simple Absolute, conveyed Blackacre "to Arnold Schwarzenegger and the heirs of his body." One year after the conveyance, Arnold's wife gives birth to their son, little Conan? The next day, Arnold dies survived by his son Conan. What is the state of the title?

Answer (from a popular Hornbook): "If the owner [i.e. Arnold] dies survived by issue before making an inter vivos transfer, the issue will take the fee simple conditional by descent. This means that the condition as to birth of issue must again be satisfied before the estate can be converted into a fee simple absolute by inter vivos transfer."

Suppose that prior to the year 1285, ye olde Harvey Grutz, the owner of Blackacre in Fee Simple Absolute, conveyed Blackacre "to Arnold Schwarzenegger and the heirs of his body." Arnold dies without issue. What is the state of the title?

Answer: Now the land will revert to the grantor, Grutz, as a result of the failure of issue under Arnold's Fee Simple Conditional.

Suppose in 1720, O conveys to B and the heirs of his body. B dies in 1750 survived by child C, who dies in 1795 survived by Grandchild GC, who dies in 1845 survived by Greatgrandchild GGC, who dies in 1906 without any surviving descendants. What is the state of the title?

Under these facts, B's line of descendants is finally extinguished (i.e. becomes extinct) in 1906 and B's Fee Tail estate would only then come to an end even though B actually died in 1750. The title reverts back to O (really his heirs now that it's 1906).

Grutz conveys "to Arnold and the heirs of his body." (after 1285)

Arnold: Fee Tail

Grutz: Reversion

Grutz conveys "to Arnold and the male heirs of his body." (after 1285)

Arnold: Fee Tail Male (only male descendants may inherit) Grutz: Reversion

Grutz conveys "to Arnold and the female heirs of his body." (after 1285)

Arnold: Fee Tail Female (only female descendants may inherit) Grutz: Reversion

Grutz conveys "to Arnold and the heirs of his body by his wife Maria" (after 1285)

Arnold: Fee Tail Special (only descendants of Arnold & Maria may inherit)

Grutz: Reversion

Grutz conveys "to Arnold and the female heirs of his body by his wife Maria" (after 1285)

Arnold: Fee Tail Female Special (only female descendants of Arnold & Maria may inherit)

Grutz: Reversion

Grantor conveys "to Grandfather Bennett and the male heirs of his body"

Grandfather Bennett has 2 children: Son Mr. Bennett and daughter (Mr. Bennett's sister)

Mr. Bennett has a wife and five daughters.

Mr. B's sister has one son: the slimy Mr. Collins

When Mr. Bennett dies what happens to his great estate of Blackacre?

It will go to Mr. Collins under the fee tail.

Grutz, the owner of Blackacre in Fee Simple Absolute, conveys it "to Doctor Butcher for Life, and if Cornelius Husker graduates from law school, then to Cornelius Husker and his heirs."

(a) What is the state of the title?

(b) What happens if Cornelius Husker is admitted to law school, and in April of his 3L year, Doctor Butcher dies?

(c) Suppose Corny graduates from law school and Butcher is still alive. What's the state of the title?

(a)

- Doctor Butcher has a life estate

- Husker has a contingent remainder because he needs to graduate law school first

- Grutz has a reversion in fee simple absolute

(b)

- The life estate terminated and the contingent remainder did not vest

- The state of the title is Grutz fee simple absolute. Husker has nothing though he was very close to graduating law school because the contingent remainder was not vested.

(c)

- Butcher keeps his life estate until he dies

- the contingent remainder vests in Corny and it becomes an indefeasably vested remainder

- Grutz retains nothing

Grutz conveys Blackacre "to Sean Hannity for life, then to the heirs of Tucker Carlson."

(a) What is the state of the title?

(b) Suppose Hannity dies and Tucker is still alive. What is the state of the title then?

(a)

- Hannity has a life estate

- Carlson's heirs have a contingent remainder

- Grutz has a reversion in fee simple absolute

(b)

- The life estate is terminated. The contingent remainder has not yet vested because he has not died yet and we don't know his heirs.

- Thus, the state of the title is that Grutz has a fee simple absolute because of the reversion

Grutz conveys "to Doctor Butcher for his life."

(a) What is the state of the title?

(b) Now suppose subsequently Grutz conveys his reversion to Butcher. What is the state of the title now?

(a)

- Dr. Butcher has a life estate. Grutz has a reversion.

(b)

- Now Butcher has the life estate and the reversion. The two merge into a fee simple absolute.

- Butcher has a fee simple absolute.

Suppose Grutz conveys Blackacre "to B for life, then to C and his heirs." Then C conveys his vested remainder to B. What is the state of the title?

- Grutz has nothing

- Fee simple absolute in B because the doctrine of merger

Now suppose Grutz conveys "to Dr. Butcher for life, and if Cornelius Husker graduates from law school, then to Husker and his heirs."

(a) How many vested estates are there here?

(b) Then suppose Grutz conveys his Reversion to Dr. Butcher. What result?

(c) However, suppose in the example that B transfers both his life estate and his vested remainder to Duncan.

(a) 3 vested interests

- Butcher has a life estate

- Husker has a contingent remainder

- Grutz has reversion in fee simple absolute

(b)

- The life estate is a present vested life estate.

- The reversion in fee simple absolute is vested

- B owns both. The life estate merges with reversion into fee simple absolute for B.

(c) Now, Duncan's life estate will merge with his vested remainder in fee and C's contingent remainder will be destroyed.

Grutz conveys "to Dr. Butcher for life, and if Cornelius Husker obtains a Juris Doctor degree, then to Corny and his heirs."

(a) Assume the doctrine of destructibility exists. What happens if Dr. B dies before Husker acquires his J.D.?

(b) Now assume that the relevant jurisdiction has abolished the Doctrine of Destructibility of Contingent Remainders. What happens now when Dr. B dies?

(a) Dr. B has a life estate. Corny has a contingent remainder in FSA (condition precedent---Juris Doctor) but it is destroyed because Dr. B died before it was vested in Corny. Corny had not gotten his JD yet. Grutz FSA.

(b) Grutz has a fee simple subject to an executory interest. Corny would then have a springing executory interest.

Abo Petroleum Corp. Case (P.319)

Date 1 - James and Amanda---->"to Beulah for life, then to her surviving children, but if no children survive her, then to her estate"

Date 2 - James and Amanda---->same property "to Beulah in FSA"

Date 3 - Beulah---->"to X and his heirs in FSA"

Date 4 - X---->"to Abo Pet. in FSA"

Does Abo have a FSA? Or do Beulah's 3 children still have an interest? What did Beulah have when she purported to convey a FSA to X?

- If the doctrine of destructibility and merger apply, the estate has been conveyed to Beulah in fee simple absolute. Beulah wants the reversion in FSA and the remainder to merge into a FSA.

- If the doctrines do not apply, then ABO does not have a fee simple absolute because the contingent remainders do not apply. ABO has a life estate in Beulah. Children still have a contingent remainder in outliving Beulah. The Estate has contingent remainder on Children. ??

Grutz conveys: "To Dr. Butcher for life, remainder to Dr. Butcher's heirs." What doe Dr. Butcher and Grutz have now?

By virtue of the Rule in Shelley's Case, Dr. Butcher takes both a life estate and a vested remainder in fee simple absolute. Then, under the doctrine of merger, Dr. Butcher's life estate and vested remainder merge into a present fee simple absolute.

- The doctrine of merger is not part of the Rule in Shelley's Case; in our example it works in tandem with the Rule in Shelley's Case to give Dr. Butcher a fee simple absolute.

The doctrine of merger provides that whenever two successive, vested estates are owned by the same person, the smaller of the two estates will be absorbed by the larger.

- Thus, in our example, Dr. Butcher had both a life estate and a vested remainder following the life estate under the Rule in Shelley's Case, and, under the doctrine of merger, the life estate was merged into the vested remainder thereby resulting in a present fee simple absolute. Grutz's reversion is destroyed because of Shelley's case rule and the doctrine of merger- both intents of his are not followed.

Grutz conveys: "To Dr. Butcher for life, remainder to Dr. Paine for life, remainder to the heirs of Dr. Butcher.

What do Grutz and Butcher have?

- Under the Rule in Shelley's Case, Dr. Butcher has both a life estate and the ultimate remainder in fee simple absolute.

- However, the doctrine of merger does not apply-Dr. Butcher's two vested estates are not successive, because Dr. Paine has an intervening vested remainder for life.

- However, if Dr. Paine dies before Dr. Butcher, his remainder for life will terminate, and Dr. Butcher's life estate will then merge into his vested remainder (since there is no longer an intervening estate) and result in a fee simple absolute.

Suppose that Grutz conveys Blackacre "to A for life, then to A's children and their heirs."

(a) Does the Rule in Shelley's case apply?

(b) What, then, is the state of the title?

(a) No. The remainder must be to the "heirs" of the particular person. Thus, the remainder to "A's children" does not trigger the Rule.

(b)

- A life estate

- Children contingent remainder because we do not know if A has children.

Suppose Grutz, the owner of Blackacre in FSA, conveys it on January 2, 2023 "to Roger Clemens for his life." Then on January 3, Grutz conveys the future interest following Clemens' life estate "to Pedro Martinez."

Does Pedro have a remainder?

What was the State of the title following the conveyance on January 2?

On january 2, Clemens have a life estate.

Grutz has reversion in fee simple absoulute.

On january 3, Pedro has reversion in fee simple (not a remainder because a reversion continues to be recognized as a reversion even if the Grantor transfers it to a third person. So Pedro is the new owner of the Reversion.)

Grutz conveys: "to Roger Clemens for his life, then to Pedro Martinez for his life." What is the state of the title?

Clemens — has a Life Estate

Pedro — has a remainder in a life estate

Grutz — has a reversion

Notice that Pedro's remainder was created "after a life estate" (i.e. following Roger's life estate) and "in a life estate" (i.e. Pedro's remainder is a remainder for life).

Grutz conveys "to Dr. Butcher for life, remainder to those children of Dr. Paine who are alive at Dr. Butcher's death and their heirs". What kind of remainder do the children have?

Contingent remainder because it is a remainder to a class of person who are as yet ascertained. It will immediately become vested and possessory when Butcher dies as a present fee simple absolute.(the conditional language is part of the clause describing the remaindermen, so the remainder is contingent).

To Ross for life, and if Oscar survives Ross, then to Oscar and his heirs, but if Oscar does not survive Ross, then to Oscar's children and their heirs

Oscar: Contingent remainder subject to express condition precedent

Oscar's children: Alternative Contingent remainder

"To A for life, remainder to such of his children as survive him." A is alive and has 3 children, B, C & D. What is the state of the title?

3 Children: Contingent remainder (we don't know which children will survive)

"To A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive."

(a) Suppose at the time of this conveyance A is alive and has 3 children, B, C & D. What is the state of the title?

(b) Suppose A was alive and did not yet have any children?

(a)

- A life estate

- Children Vested Remainder Subject to Complete Defeasance. Clarify if this could be a Vested remainder subject to open too.

- Grutz reverter

(b) Children would have a contingent remainder.

Grutz conveys: "To Ollie for life and, if Billy survives Ollie, then to Billy and his heirs."

Ollie - life estate

Billy - Contingent remainder (there's a clear condition precedent)

Grutz - reversion in fee simple absolute (since Billy might not survive ollie, leaving Ollie with only a life estate which will not go to Billy anymore)

Grutz conveys: "To Ollie for life, then to Billy and his heirs, but if Billy dies in Ollie's lifetime, then to Ed Asner and his heirs."

Billy: Vested Remainder Subject to Complete Defeseance

Asner: Shifting Executory Interest in FSA (not a remainder)

to Roger for life, then to Pedro and his heirs. What kind of remainder does Pedro have?

A vested remainder because

1. he is a living, ascertained person and

2. the remainder will take effect immediatly upon Roger's death and is not subject to any condition precedant

Grutz conveys Blackacre to Clemens for life, and if the Red Sox win the World Series in 2024, then to Pedro and his heirs. What is the state of the title?

Clemens - life estate

Pedro - contingent remainder (there is a condition) (once the sox win, the condition is met, adn Pedro's conditional remainder becomes indefeasably vested remainder) (if sox don't win, Pedro has nothing since contingent remainder failed)

Grutz - reversion in fee simple absolute

"to A for life, remainder to A's children." Assume A has no children at the time. What kind of remainder is this?

The remainder here is a contingent remainder in favor of A's future — as yet unborn — children.

To A for life, remainder to those children of A who survive their father." A is alive and has 3 children: B, C and D. What is the state of the title?

A - life estate

Children - contingent remainder because we don't know who will be alive yet

Grantor - reversion since the last interest is a contingent remainder: one which would fail if all children die before A dies

("surviving their father" could also be seen as a condition precedent; child gets the remainder conditioned that they surive their father.)

"to Roger for life, and if the Red Sox win the World Series in 2024, then to Pedro Martinez and his heirs." What kind of remainder is this?

Contingent remainder (because it's subject to condition precedent).

To Ross for life, then to Oscar and his heirs, but if Oscar dies in Ross's lifetime, then to Oscar's children and their heirs. What kind of future interest does Oscar have?

Vested Remainder Subject to Complete Defeasance

To Ross for life, and if Oscar survives Ross, then to Oscar and his heirs, but if Oscar does not survive Ross, then to Oscar's children and their heirs.

What is the state of the title?

Ross has a life estate

Oscar has an alternative contingent remainder

The children have alternative contingent remainders

To A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive."

1. Suppose at the time of this conveyance A is alive and has 3 children, B,C & D. What is the state of the title?

2. Suppose A was alive and did not yet have any children? What is the state of the title?

1. A - life estate

Children - vested Remainder Subject to Complete defeasence (because the conditional language comes after the words giving a vested interest"

2. A - life estate

Children - contingent remainder because the children are yet unborn

Grutz conveys "To Dr. Butcher for life, then to Cornelius Husker and his heirs, but if Cornelius Husker has not graduated from law school by the time of Dr. B's death, then to John Lee Pettimore of Copperhead Road and his heirs" What is the state of the title?

Butcher - life estate

Cornelius - Vested Remainder Subject To Total Divestment (since the conditional language is after the words giving a vested interest)

Pettimore - Shifting executory interest

EA Poe conveys "To Dr. Tarr for life and, one year after Dr. Tarr's death, to Prof. Fether and his heirs."

What interest does Prof. Fether have? A remainder? Something else?

Fether - springing executory interest (because there is a gap of time during which no transferee is entitled to a present possessory freehold estate)

Sybert v. Sybert (1953) P 323

1942: JH Sybert's will: "to Fred for life, then to the heirs of his body in FSA"

1950: Fred dies childless and intestate with his wife (Eunice Sybert) as sole heir. The issue is whether the Rule in Shelley's case applies.

(a) What is Eunice Sybert's argument as the widow and sole heir of Fred Sybert?

(b) What is the argument for Fred's brothers?

(a) She says the Rule in Shelley's case applies and therefore Fred took both a Life Estate and a vested remainder in Fee Simple Absolute (the attempt to create a contingent remainder in Fred's heirs resulted in a vested remainder to Fred—Fee Tail not recognized)

(b) Fred's brothers argue that the Rule doesn't apply and that therefore the state of the title under the will was:

Fred: Life Estate

Fred's heirs of his body (surviving issue of Fred): contingent remainder

JH Sybert: Reversion

The contingent remainder failed and the brothers take the reversion as the heirs of the Testator, JH Sybert. Eunice, Fred's sole heir, takes nothing.

Suppose the grantor says "to A for life, remainder to A's surviving children." Does the rule in Shelley's case apply?

The rule to Shelley's case does not apply because A's surviving children are not his heirs

The rule in Shelley's case essentially rewrites the remainder as "A to life and his heirs", merger applies, and its fee simple absolute

Rule only applies when it says heirs

Today, of course, the modern deed is capable of directly creating any type of future interest which could have been created indirectly by a conveyance operating under the Statute of Uses. So Grutz can convey directly (without first creating any uses) "to B and his heirs next December 25." The state of the title is?

Grutz: Fee Simple Subject to an Executory Limitation

B: Springing Executory Interest in Fee Simple Absolute

Today, of course, the modern deed is capable of directly creating any type of future interest which could have been created indirectly by a conveyance operating under the Statute of Uses. So Grutz can convey directly (without first creating any uses) "to A and his heirs, but if A dies without having married, then to B and his heirs." The state of the title is?

A: Fee Simple Subject to an Executory Limitation

B: Shifting Executory Interest in Fee Simple Absolute

Thus Grutz conveys: "To A and his heirs so long as the property is not used for commercial purposes, then to B and his heirs."

What is the state of the title?

- A has a Fee Simple Determinable With an Executory Limitation

- B has a Shifting Executory Interest in Fee Simple Absolute

"To A and his heirs, but if A dies before B, then to B and his heirs."

What is the state of the title?

- A has a Fee Simple Subject to an Executory Interest

- B has a shifting executory interest in Fee Simple Absolute

Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Tim Wakefield on condition that the property not be used for commercial purposes, but if the premises are ever used for such purposes the grantor or his heirs shall have the right to re-enter and take possession."

The state of the title is?

Wakefield--Fee Simple Subject to a Condition Subsequent

Grutz--Power of Termination (sometimes called a "Right of Re-entry")

Suppose that on January 1 Grutz conveys Blackacre "to B and his heirs on next December 25." Perhaps Grutz is about to take a long journey and wishes to give Blackacre to his nephew, B, as a Christmas present. What is the state of the title?

Grutz has a fee simple subject to an executory interest

B has a springing executory interest in fee simple absolute

Suppose Grutz conveys Blackacre "to A and his heirs, but if A dies without having married, then to B and his heirs" What is the state of the title?

A has a fee simple subject to an executory interest

B has a shifting executory interest in fee simple

But as soon as B dies without having being married, it will be shifted back to A??

Suppose Grutz conveys Blackacre "to A for life, then to B and his heirs, but if B dies before A, then to C and his heirs."

(a) What is the state of the title?

(b) What happens if B dies and A is still alive?

(a)

A has a life estate

B has a vested remainder subject to complete defeasance

C has a shifting executory interest in fee simple absolute

(b)

A has a life estate still

B has nothing, the condition has occurred and it has been divested

C would have a vested remainder in FSA

Suppose Grutz conveys "to A for life, then to B and his heirs, but if B dies before C, then to C and his heirs."

(a) What is the state of the title?

(b) Now suppose A dies and both B and C are still alive?

(a)

A has the life estate

B has a vested remainder subject to complete defeasance

C has a shifting executory interest in fee simple absolute

(b)

A has no interest because the life estate is gone

B has a fee simple subject to an executory interest

C has a shifting executory interest

Grutz, the owner of Blackacre in Fee Simple Absolute, conveys it "to A and his heirs so long as the land is used only for residential purposes, but if the land is put to nonresidential use during A's lifetime, then to B and his heirs."

What is the state of the title?

A: Fee Simple Determinable with an Executory Limitation

B: Shifting Executory Interest in Fee Simple Absolute

Grutz: Possibility of Reverter in fee simple absolute

- If A dies and years down the road, the property is put to non-residential use

- If it ceases to be used for residential purposes after A has died.

Date 1--Lawrence Doyle and wife convey some kind of mess to Frank Doyle

Date 2--Lawrence Doyle executes a second deed to Frank purporting to remove the restrictions and convey a FSA

Date 3--Frank attempts to convey a FSA to Stoller by warranty deed

Date 4--Stoller agrees to convey a FSA to Bauman and warrants a marketable title

Bauman refuses to accept Stoller's deed at closing claiming Stoller lacked a marketable title in FSA.

(a) How did that dispute turn out?

(b) Now Stoller sues Frank Doyle's children seeking to quiet his title in FSA. What is Stoller's argument that he acquired a FSA from Frank on Date 3?

(a) Illinois statutes provide that a deed issued in the statutory form operates to convey fee simple title, even though it may impose limitations upon a lesser estate. The interest of each Doyle child in the estate was therefore never a contingent remainder and, as such, could not be destroyed by the merger of Lawrence Doyle's reversionary interest with Frank Doyle's interest, even if that interest had been a life estate.

(b) Stoller: Frank Doyle did not receive fee simple title from the first deed issued by Lawrence Doyle, but only a life estate. He relies on the application of the common law doctrine of destructibility of contingent remainders. The second deed from Lawrence Doyle conveyed his reserved reversionary interest to Frank Doyle, and that the merger of the reversionary interest with Frank Doyle's life estate interest terminated the remainder interests of Frank Doyle's wife and children. Stoller's argument requires us to determine whether the first deed in fact created a contingent remainder in Doyle's heirs.

Kids: Illinois statutes provide that a deed issued in the statutory form operates to convey fee simple title, even though it may impose limitations upon a lesser estate. Therefore, the first deed from Lawrence Doyle conveyed fee simple title to Frank Doyle and not a life estate. In addition, Lawrence Doyle's reservation of a right to reversion in the event that Frank Doyle should die childless rendered Frank Doyle's title determinable upon the occurrence of a condition subsequent. The result is a case of shifting uses, wherein title transposes to the second grantee. As such, title to the estate vested in each of Frank Doyle's children upon birth, thereafter reducing the interest of Frank Doyle to the equivalent of a life estate in equity.

"To Frank Doyle for life, then to Frank's surviving children, but if Frank dies without children surviving, the property shall revert to the Grantor.

(a) What is the state of the title?

(b) What happens when the Grantor later attempts to convey an absolute title to Frank?

(a)

- Frank Doyle has a life estate

- Frank's children have a contingent remainder

- Grantor retains a reversion (because it vested when it was conveyed. Only look at what was vested at the time of the conveyance which was in this case a life estate).

(b) Grantor grants away a reversion because he does not own the rest of it

"To Frank and his heirs, but if Frank dies with children surviving, then to the surviving children and their heirs; but if Frank dies without surviving children, the grantor may re-enter and take possession."

(a) What is the state of the title?

(b) What happens when the Grantor later attempts to convey an absolute title to Frank?

(a)

Frank has a fee simple subject to a condition subsequent and an executory interest.

The kids have a shifting executory interest

The grantor has a power of termination

(b)

Frank has a fee simple subject to executory limitation and a power of termination (court does not know what to call this).

The kids still have a shifting executory interest.

D & S Investment Company -------> to the City so long as the property is used for a city library, then to Fred Schallock and Floy Daggert their heirs and assigns forever. What is the state of the title...

(a) Without regard to RAP?

(b) With regard to RAP?

(a)

- The city has a fee simple determinable with an executory limitation.

- Fred and Floy have a shifting executory interest in fee simple absolute.

- D&S would have nothing

(b)

- The city can argue RAP violation of the rule against perpetuities in which case the city would have a FSA

D & S Investment Company -------> to the City so long as the property is used for a city library, then to Fred Schallock and Floy Daggert their heirs and assigns forever. Does this violate the rule against perpetuities?

Violation because the city could use it as a library for 200 years and then not.

To A and his heirs so long as the land is a farm then to Duncan and his heirs

What is the state of the title?

- A has a fee simple determinable with an executory limitation

- Duncan has a shifting executory interest

- But, this violates RAP

Grutz conveys "to the city so long as the property is used as a public library, then to Liam Neeson and his heirs."

What is the state of the title?

- City fee simple determinable with an executory limitation

- Apply the rule against perpetuities to Neeson's interests and it is void ad admisio

- Normal fee simple determinable now, there is no executory interest now

- Grutz has a possibility of reverter

Grutz conveys "to the city on condition that the property be used as a public library, but if the property ever ceases to be used as a public library, then to Liam Neeson and his heirs."

- City has a fee simple subject to an executory interest

- Liam Neeson has a shifting executory interest in fee simple absolute

- Then we apply the RAP and Liam Neeson's interest is gone ad admisio.

"to the city so long as the property is used as a public library." What is this?

City - Fee simple determinable

Grantor - possibility of reverter

"to the city on condition that the property be used as a public library," What is this?

City - Fee Simple Subject to Condition Subsequent

Grantor - power of termination

"To A for life then to the first child of A who graduates from Law School." Let's assume that A was alive and that no child of A had yet graduated from law school.

(a) What is the state of the title?

(b) Is there anything that may accelerate the determination of the contingency?

(c) Is there a "validating life" you can point to?

(a)

- A has a life estate

- The presently unascertained first child to graduate from law school has a contingent remainder in fee

- The grantor Grutz has a reversion

Yes to both (b) and (c) assuming we are in a jurisdiction that recognizes the Doctrine of Destructibility of Contingent Remainders.

In such a case, we can point to A (the "validating life") and say not later than A's death the contingency will certainly be determined. Either one of A's children will graduate from law school before A's death and the contingent remainder will become indefeasibly vested. Or none of A's children will have graduated from law school by the time of A's death in which case the contingent remainder will be destroyed and thus fail not later than the death of A (a life in being).

"To A for life then to the first child of A who graduates from Law School." Let's assume that A was alive and that no child of A had yet graduated from law school. Assume the jurisdiction has abolished the doctrine of distructibility.

(a) Does the contingent remainder in this problem violate the RAP?

(b) What happens to her contingent remainder upon A's death?

(a) Now there is no validating life because there is a possibility that A will have an after-born child who might delay the determination of the contingency.

- Because suppose A has a daughter, Hannah, who is born after the conveyance. Hannah is not a life in being at the time of the conveyance. It is possible (not certain, but possible) that the contingency won't be determined within the RAP period.

(b) It is not destroyed (because the Doctrine of Destructibility has been abolished in this jurisdiction). A's life estate terminates with his life, and the property reverts to the Grantor, who has a Fee Simple Subject to a Springing Executory Interest (the contingent remainder is not destroyed, but it now takes effect by divesting the Grantor's fee).

- It is not certain that the contingency will be determined within the period, because Hannah is not a life in being and she might live 80, 90, or even 100 more years without graduating from law school.

- Thus, the contingent remainder violates the RAP and is void from the beginning.

- The state of the title is A life estate, grantor reversion in Fee Simple Absolute. A's children have nothing.

Nebraska Statutory Rule Against Perpetuities

a) A nonvested property interest is invalid unless:

(1) When the interest is created, it is certain to vest or terminate no later than twenty-one years after the death of an individual then alive; or

(2) The interest either vests or terminates within ninety years after its creation.

Grutz, the owner of Blackacre in Fee Simple Absolute, conveys it: "To Andy Sipowicz and his heirs so long as the land is used only for residential purposes, but if the land is put to non-residential use during Andy's lifetime, then to Jack Bauer and his heirs."

(a) What is the state of the title?

(b) Now apply the rule against perpetuities. Is Jack's shifting executory interest valid under the RAP?

(a)

- Andy has a fee simple determinable with an executory limitation

- Jack has a shifting executory interest in fee simple absolute

- The grantor retains the possibility of reverter

(b)

The interest vests in Andy

It does not violate the RAP because it is limited to Andy's lifetime. Not later than his death, we will know one way or the other.

If he did not violate it, Bauer's interest will fail

You can save the contingency by limiting the time that the contingency is open.

To A for life then to the first child of A who reaches age 25. Assume A is alive and that no child of A has yet attained the age of 25. At the time of the conveyance A has 2 children: Bob who is 15 and Sally who is 13.

(a) Apply the rule against perpetuities.

(b) Suppose there is a third child named Hannah. What happens to the rule against perpetuities then?

(a)

Don't know for sure if Bob or Sally will for certain live to 25. Thus, RAP applies. Under the might-have-been rule, anything can happen in our imagination.

(b)

Not a life in being at the time. In a jurisdiction with a doctrine of destructibility, the rule is not violated. In a jurisdiction without it, the rule is violated.

Under the statute, the contingency is valid

On January 1, 2024, Grutz conveys to A for life then to such of A's descendants who are alive on January 1, 2050. Suppose the date was January 1, 2043?

Apply the rule against perpetuities

- Almost certainly true that vesting or failing will happen within 21 years.

- But without destructibility, there is no way to know certainly. Anyone can be hypothetically killed.

Grutz conveys "to A for life, remainder to A's widow for her life, remainder to the children of A living at his widow's death." Assume A is alive and is married to B at the time of the conveyance. They are both 50. They have two children.

(a) What does "A's widow" have? What do the children have?

(b) Apply the rule against perpetuities.

(a)

A has a contingent remainder in a life estate

Children have a contingent remainder in fee simple absolute

(b)

This violates the rule because there could be an afterborn widow. She could show up after the children are born if there is enough of an age difference. And she could delay the ultimate determination of the contingent remainder.

- Suppose: The conveyance was made on 1/1/2021. A and B divorce in 2030. On 1/1/2045, A marries C, a 22-year old woman who was born in 2023 (and thus is not a life in being at the time of the conveyance). Lots of after born children are born to A and his wives B and C.

Suppose on November 1, 2022, Grutz, the owner of Blackacre in Fee Simple Absolute, conveys it: "To A for life, then to A's children for their lives, and upon the death of A's last surviving child, then to A's living grandchildren and their heirs. Suppose that at the time of the conveyance A was an 8o year old widower and had only one child, A, Jr., who was 50 years old.

(a) What is the state of the title?

(b) Apply the rule against perpetuities.

(a)

A life estate

Children life estate for the lives of the children

Grandchildren contingent remainder

(b) The gift of B's children is good under the rule against perpetuities because it vests no later than B's death. However, the gift to B's grandchildren is invalid under the rule against perpetuities because, forty years after the conveyance, B could have a child and B could die three years later survived by that child whose life estate would then vest. Thirty years later that child could have a child (who is a grandchild of B) and then 20 years later that child could die. The gift to B's grandchild would then vest.