prop chap 4

Estates in Land and Future Interests

The Feudal Structure

1066 (Norman Conquest) Concept of subinfeudation

The Peasants

Services

The King

Freehold and Nonfreehold Estates

The concept of seisen Possession plus obligation to perform incidences of feudal tenure Incidents of freehold estates

Homage and fealty Aids (Ransom money) Fines

Typically payable on conveyance by substitution, not subinfeudation

Relief Form of feudal inheritance tax when land passed to heir

Wardship and Marriage (a real “cash cow”) Nonfreehold estates

Ancestor of current leases

The Statute Quia Emptores Terrarum Subinfeudation vs. substitution 1290 The Statute Quia Emptores

Makes land freely alienable

without payment of the fine

Common law versus equitable estates

Common law estates

Holder of “present possessory estate”had seisen

Estates created as a “use” The utility of the use Ability to will property away and deprive King

of the relief The Statute of Uses (1536) The Statute of Wills (1540)

Important Common Law Statutes

De donis 1285 (coverts fee simple conditional into a fee tail)

Quia Emptores-1290 (makes property alienable) Statute of Uses 1536 (Converts equitable estates

created by way of a “use” into legal estates Statute of Wills 1540 (permits disposition of all

property by will)

Types of Common-law Present Possessory Estates Durational concept-Lasting to infinity

In Who? Fee simple absolute Fee simple determinable Fee simple on condition subsequent Fee simple conditional (pre-1285) Fee tail (Statute de donis) Life estate

Types of Non-freehold estates

Term of years Periodic tenancy Tenancy at will Tenancy at sufferance

Future Interests Recognized as common-law estates

Remainders Indefeasibly vested remainder Vested remainder subject to open Vested remainder subject to complete divestment Contingent remainder

Reversionary Interests Reversions Possibility of reverter Right of entry for condition broken

Recognized as equitable estates Executory interests

Shifting executory interest Springing executory interest

Effect of Statute of Uses

Words of Purchase vs. Words of Limitation

Words of purchase-describe who takes by grant, gift, inheritance or bequest

Words of limitation-describe the

duration of the estate taken by the transferee

A and his heirs

What are the words of purchase? What are the words of limitation?

AWords of purchase

and his heirs Words of limitation

Infinity

A and his heirs-Critical Characteristics What are the critical attributes of the fee simple absolute

Alienable, devisable and descendible Lasts for a perpetuity

Exam Question

Oscar, who owns Blackacre in fee simple absolute, conveys Blackacre to “Barney and his heirs.” Barney has a:

(a) Fee simple absolute

(b) Fee tail

(c) Life estate

(d) Term of years

(e) Fee simple on condition subsequent

This question is worth one point

White v. Brown-The Fee Simple Absolute What are the facts of this case?

Decedent willed her home to Evelyn White “to live in and not to be sold

Ms. White brought construction proceeding for court to declare that will left her a “fee simple absolute.”

Decedent’s heirs (who are they?) claim decedent bequeathed Ms. White only a life estate.

Words about Family

Spouse Partner Child Issue / Descendant

Child Grandchildren

Stepchild Sibling

Ancestor Collateral Half-brother/half-sister

Forfeiture vs. Disabling Restraints

To A but if A purports to sell the property, then to B.

To A and the property shall never be sold

Exam Question

Oscar, who owns Blackacre in fee simple absolute, conveys Blackacre to “Charlie and his heirs.” Charlie has a:

(a) Fee simple absolute

(b) Fee tail

(c) Life estate

(d) Term of years

(e) Fee simple on condition subsequent

This question is worth one point-The correct answer is (a)

Mahrenholz v. County Board Of School Trustees of Lawrence County What are the facts of this case?

Mahrenholz v. County Board of School Trustees of Lawrence County On March 17, 1941 property owned in fee simple absolute by W.E. and

Jennie Hutton On March 18, 1941 W.E. Hutton and Jennie Hutton convey to Trustees

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

W.E. Hutton died intestate on July 18, 1951 with Harry Hutton as his only legal heir

Jennie Hutton died intestate on February 18, 1969 with Harry Hutton as her only legal heir

On May 30, 1973, School stopped teaching classes on property but thereafter used it to store vehicles

On May 7, 1977, Harry conveys to Mahrenholz On September 6, 1977, Harry disclaims interest Plaintiffs sue to quiet title Illinois Statute?

Fee Simple Determinable vs. Fee Simple on Condition Subsequent If the limitation or condition is violated when

does the cause of action begin to run if the holder of the possibility of reverter or right of entry for condition broken has to sue for possession Conceptually By case law

Fee Simple Determinable vs. Fee Simple on Condition Subsequent O to A and his heirs so long as no liquor is

sold on the premises (WP/WL) O to A and his heirs provided that if liquor is

sold on the premises O may re-enter and claim the property (WP/WL)

O to A and his heirs to be used for any purpose other than the sale of liquor Rule of construction where conveyance

ambiguous?

O deeds Whiteacre A and his heirs so long as liquor is not sold on the premises. A dies intestate. A’s spouse (S) takes possession of the area left of the black line, A’s heir (H) takes possession of the rest. S sells liquor in the shaded portion. What is the effect of this on H?

Fee Simple Determinable

Fee simple conditional / Fee tail

How created? Characteristics of estate

Before 1285 After 1285

Fee tail Fee tail male Fee tail female Fee tail special

“and the heirs of his body”

“and the male heirs of his body”

“and the female heirs of his body”

“and the heirs of his body with X”

Robins Island Preservation Fund, Inc. v. Southold Development Corp.

What are the facts of this case?

In 1715, Joseph Wickham, Sr. purchased Robins Island. In 1734, JWS wills to Joseph Wickham, Jr. "and to the male heirs of his body lawfully begotten or to be begotten forever." (Creating what?)

In 1749, Joseph, the tenant-in-tail, died and Robins Island passed to his son, Parker Wickham. (Creating what?).

In 1779 the New York State Legislature passed the Act of Attainder of 1779 declaring British loyalists as ipso facto convicted of "adherence" to the British. (Effect on Parker?)

In 1782, the New York abolished the estate tail. (Effect?)

In 1783, New York ceases the land declared confiscated by the 1779 Act of Attainder. Parker Wickham fled to Connecticut where he remained until his death in 1785. At the same time, his eldest son, Joseph Parker Wickham, his likely heir, left the United States for Great Britain.

In 1784, the New York State Legislature passed an act for the sale of estates confiscated pursuant to the 1779 Act of Attainder. Under that Act, Robins Island was sold to Benjamin Tallmedge and Caleb Brewster in fee simple. SDC claims title to Robins Island as the successor-in-interest to these two individuals.

Current State of the Fee Tail

Death without issue

O conveys to A and the heirs of his body, then to B and his heirs. State the title?

O conveys to A and his heirs but if A dies without issue then to B and his heirs. State the title? At what point in time might it be determined

that A dies without issue? A’s death When either at A’s death or the death of a

descendant of A, there are no more living issue of A.

Life Estate How created?

“for life” O to A for life. What does A have? What does O have” O to A for life. A to B. What does A have? What does B have?

What does O have? B dies survived by A and O A dies survived by B and O

O to A for life. A to B for life. What does A have? What does B have? What does O have? B dies survived by A and O. A dies survived by B and O

Problems

Problem 4, Page 276 Problem 6, Page 277

Trusts vs. Legal Interests

Problem 9, page 279

Future Interests-Review

Remainder Vested Vested subject to partial

divestment Vested subject to complete

divestment Contingent

Executory interests (limitations) Shifting Springing

Reversionary interests Reversion Possibility of reverter Right of entry for

condition broken

Remainder-General Definition

A remainder is a future interest limited in favor of a transferee which may become possessory immediately upon the termination (upon the happening of a limitation) of a prior possessory estate simultaneously created

Vested Remainder

An indefeasibly vested remainder is a remainder that will, in all events, become possessory immediately upon the termination of the prior possessory estate (either in the remainderman or her successor)-- no “ifs, no “ands”, no “buts”.

Vested Remainder Subject to Open

A vested remainder subject to open (also known as a vested remainder subject to partial divestment) is a vested remainder limited in favor of a class of persons collectively described (and typically related to each other though a common ancestor) of which there is at least one living member.

Contingent Remainder

A contingent remainder is a remainder that is subject to a condition precedent. It also includes remainders limited in favor of unborn or unascertained persons for whom the condition precedent includes either being born or being ascertained.

Vested Remainder Subject to Complete Divestment

A vested remainder subject to complete divestment is a remainder limited in favor either a born or ascertained individual or in favor of a class of persons of which there is one living member which is subject to the happening of a condition subsequent and not a condition precedent.

If the condition subsequent occurs, the vested remainder could fail; if the vested remainder becomes possessory as a fee simple estate before the condition subsequent occurs, the fee simple will terminate. In both cases, another estate (known as a shifting executory interest) will either vest in interest or possession.

Shifting Executory Interest

A shifting executory interest is a future interest limited in favor of a transferee which can become possessory only by divesting the present possessory freehold interest or a vested future interest limited in favor of another transferee. A divesting occurs only upon the happening of a condition. Shifting executory interests divest other grantees, not grantors.

(Note: The one exception to this rule was that a shifting executory interest is the future interest in a transferee following a fee simple determinable even though a fee simple determinable ends, if it ends at all, upon the happening of a limitation rather than a condition).

Springing Executory Interest

The springing executory interest is a future interest limited in favor of a transferee which can become possessory only after some period of time during which there is no other transferee entitled to a freehold estate, and which, if it becomes possessory, divests the grantor of a retained interest in the property

State the Title-Part I

O conveys Blackacre to A for life, then to B and his heirs Words of purchase; words of limitation State the title A has a life estate, B has a vested remainder. O has nothing

O conveys Blackacre to A for life and upon A’s death to B and his heirs if B attains the age of 21. State the title. A has a life estate, B has a contingent remainder, contingent

on reaching age 21, O has a reversion. State the title if, during A’s lifetime, B reaches age 21. State the title if A dies survived by B age 25

State the Title-Part II

O conveys to A for life and, if B survives A, then to B and her heirs. State the title. A has a life estate, and B has a contingent

remainder and O has a reversion Suppose three years later, A dies. State the

title. Suppose A and B die under such

circumstances that from all outward appearances it cannot be determined who survived whom

State the Title-Part III

O conveys to A for life and upon A's death to B's heirs. State the title, and, if it depends, on what does it depend? Assume B is alive. Suppose B dies during A's

life survived by X as his sole heir. At B's death, state the title.

If X survives A, state the title. If X survives B but dies before A, state the

title. O conveys to A for life and upon A’s death and if B

marries A’s widow, then to B and his heirs.

State the Title-Part IV

O conveys to A for life and upon A's death if B survives A then to B and his heirs but if B does not survive A then to C and his heirs. Life estate in A, alternative contingent remainders in B

and C, reversion in O O conveys to A for life and upon A's death to B and his heirs but if

B dies before A then to C and his heirs. Life estate in A, vested remainder subject to divestment

in B, shifting executory interest in C, nothing in O

Contingent Remainders v. Vested Remainders Subject to Complete Divestment

O conveys to A for life and upon A's death if B

survives A then to B and his heirs but if B does not survive A then to C and his heirs.

O conveys to A for life and upon A's death to

B and his heirs but if B dies before A then to C and his heirs.

Contingent Remainders v. Vested Remainders Subject to Complete Divestment

O conveys to A for life and upon A's death if B

survives A then to B and his heirs but if B does not survive A then to C and his heirs.

O conveys to A for life and upon A's death to

B and his heirs but if B dies before A then to C and his heirs.

Alternative Contingent Remainders

Vested Remainder Subject to Complete Divestment followed by a shifting executory interest

O conveys Blackacre to A for life, then to B and his heirs if B survives A, but if B does not survive A, then to C and his heirs.

O conveys Blackacre to A for life, then to B and his heirs but if B does not survive A, then to C and his heirs.

Intermission

Contingent Remainder, Contingent Remainder

Contingent Remainder, Contingent remainder

Vested Remainder Subject to Divestment, Shifting Executory Interest


Vested Remainder Subject to Divestment, Shifting Executory Interest (and now once more with feeling)


Vested Remainder Subject to Divestment, Shifting Executory Interest

State of the Title-Part V

O conveys to A for life and one day after A dies to B and his heirs.

O conveys to B and his heirs 21 years from now.

O conveys to A for life and upon A's death to B and his heirs but, if B dies without issue, then to C and his heirs. Remember this!!!!!!.

Exceptions to Right Eye Test

O deeds property to A for life, then to B and his heirs if B survive A. B has a contingent remainder. Why doesn’t

the right eye test result in B having a vested remainder subject to divestment?

The 2 or more transferee rule O deeds property to A for life, then to B and

his heirs if B survives A but if B does not survive A, then to C and his heirs.

State the Title-Part VI

O conveys to A for life and upon A's death to A's children and their heirs. At the time of the conveyance A has no children. State the title? One year later A has one child. State the title. The next year A has another child. State the title. The next year A has a third child. State the title. The next year A dies. State the title.

Suppose, in the year A's first child is born, A desires to rent Blackacre to B for ten years. You represent B. What advice would you give B?

State the Title-Part VII

O conveys A for life and upon A's death to A's children and their heirs. At the time of the conveyance A has a child C-1 living. Thereafter, C-2 is born. C-1 dies in A’s lifetime leaving her spouse S as the sole devisee under her will. A later dies survived by S and by C-2. State the title.

State the Title-Part VIII

O conveys to A for life and upon A's death to B for life and, upon the termination of both life estates, to C and her heirs. If B dies before A would you conclude B never had anything?

O conveys to A for life, and upon A's death to A's children and their heirs but if none of A's children survive A, then to B and his heirs. At the time of conveyance, A, B and A's two children, C and D, are living. State the title. Three years later C and D die. State the title.

Class Closing Rules

The Walton Story Physiologically Rule of convenience- Class closes when ANY

member of the class is entitled to demand possession of his share No outstanding present possessory estate No condition precedent unfulfilled for

potential demandant within the class.

Class Closing Problems-Part I

T wills Blackacre to B’s children who survive T. B and three children of B survive T. State the title? Suppose 2 years later, B has a fourth child. Is

that child entitled to a share of Blackacre?

Class Closing Problems-Part II

O conveys Blackacre to A for life, and upon A’s death, to such of A’s children as survive A. State the title. At the time of the conveyance is the class gift

to A’s children closed? When will the class close? Does the class close physiologically or under

the rule of convenience, or both?

Class Closing Problems-Part III O conveys Blackacre to A for life, then to B’s children who

attain age 21. State the title at the time of the conveyance. A dies survived by B and by a child of B who is age

14. Is the class open or closed at A’s death? One year after A dies, B has another child. Is this child

included in the class? Eight years after A dies, B has a third child. Is this

child included in the class, and, if it depends, on what does it depend?

If B had died in A’s lifetime, what would have been the state of the title and which of B’s children would be in the class?

In re Estate of Earle

What are the facts of this case? T died on 2/19/28 Gift of $100,000 for each and every male child of testator’s

sons bearing the name of Earle On 7/11/49 Anthony Wayne Earle was born Is he entitled to $100,000?

This is a gift of a separate sum to a class of person, not a gift of an aggregate sum to a class of person

When does the class close? At T’s death At death of T’s last surviving son

In re Estate of Earle

What does the court hold. Is the holding consistent with the rule of convenience

The rule of convenience would have closed the class at T’s death but the rule can give way to a contrary intent

What problem arises by holding the gift open until the death of T’s last surviving son?

Problem

T wills Blackacre to H for life, then to T’s heirs. At T’s death, A and B would be T’s heirs if T died intestate. At H’s death C and D would be T’s heirs. Who takes?

Remember

In re Estate of Huston

What is the disposition in this case?

T wills property in trust to his wife for life, then to his children for their lives and upon the death of the survivor of them “the whole of the principal. . .shall be distributed in equal portions to and among my grandchildren, the children of any deceased grandchild taking their deceased parents share.”

In re Estate of Huston

What is the issue presented for decision?

Whether the remainder limited in favor of grandchildren who predeceased testator’s last surviving child but who left no surviving children was transmissible through their estates to their heirs or devisees. In other words, were their interests impliedly subject to a condition of surviving to the time of distribution

In re Estate of Huston-Competing Rules of

Construction

Court to construe language consistent with testator’s intent

Testator knew how to express conditions of survivorship in other sections of will; absence of such expression with respect to grandchildrens’ gift suggests no such condition intended

Preference for vested construction????? Preference that only living take so they can enjoy

the property Avoidance of taxes

O conveys to A and his heirs

Rule of Destructibility

At common law, if a contingent remainder was not ready to become possessory when the preceding estate terminated, the property reverted to the grantor (testator) and the contingent remainder was forever destroyed.


Purpose of rule Not applicable to trusts Not applicable to executory interests

Rule of Destructibility-Examples

O deeds Blackacre to A for life, then to B and his heirs if B reaches age 21. During A’s lifetime, B reaches age 21 During A’s lifetime, B dies, age 18 At A’s death, B survives. B is age 22 At A’s death, B survives, age 18

O deeds Blackacre to A for life, then to A’s children who attain age 21. A dies survived by children ages 22 and 14. State the title?

Merger

The concept of merger (Life estates and next vested estates) O conveys Blackacre to A for life, then to B

and his heirs. B sells his remainder to A or, alternatively, A sells his life estate to B.

Rule of Destructibility-Exception

If the life estate and the next vested estate were created simultaneously with the contingent remainder, they life estate and the next vested estate do not merge to destroy the contingent remainder. O conveys Blackacre to A for life, then to A’s first

born daughter and the heirs of her body, then to A and her heirs

T wills Blackacre to A for life, then to B’s heirs and the rest of T’s estate to A.


Abolished in almost all states, except Florida

The Rule in Shelley’s Case

If a life estate is created in A and a remainder is created in A’s heirs, the remainder is deemed to have been created in A rather than A’s heirs.

If after the Rule in Shelley’s Case, A would have a life estate and the next vested estate, they would merge to give A a fee simple.

Reason for the rule?

Rule in Shelley’s Case-Examples

O conveys Blackacre to A for life, remainder to A’s heirs.

O conveys Blackacre to A for life, then to A’s first born son, then to A’s heirs.

O conveys Blackacre to A for life, then to A’s daughter Emily and the heirs of her body, then to A’s heirs.

O conveys Blackacre to A for life, then to B and his heirs but if A returns from Iowa, then to A’s heirs.

The Doctrine of Worthier Title

If a remainder is limited in favor of the grantor’s heirs, the remainder is void and the grantor has a reversion Rule of law Rule of construction

Doctrine of Worthier Title

O conveys Blackacre to A for life, then to O’s heirs. If doctrine a rule of law, what does A, O’s heirs and

O have? If doctrine a rule of construction, what does A, O’s

heirs and O have?

prop chap 4

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