PUT ASSIGNMENT #4 IN ENVELOPE ON CHAIR

PUT ASSIGNMENT #4 IN ENVELOPE ON CHAIRGreatest Hits of 1790 PERFORMANCES 1979-80

Philharmonia Virtuosi of New YorkRichard Kapp, Conductor

WARM-UP/REVIEW

Terminology

TERMINOLOGY: ME v. WORKBOOK

• Workbook: Adds language to define nature of future interests in grantor. E.g., – Reversion in Fee Simple Absolute

– Poss. Of Reverter in Fee Simple Absolute


• Workbook: Adds language to define nature of future interests in grantor. E.g., – Reversion in Fee Simple Absolute– Poss. Of Reverter in Fee Simple Absolute

• My Test Questions: Only will add this sort of language for remainders


• Workbook: Describes all present possessory estates as a “Possessory Estate in …” Fee Simple Absolute, Life Estate, etc.



• My Test Questions: Will not use the italicized phrase.



• Maybe there to help you remember important rule: You can have only one present possessory estate at any given time with respect to a particular parcel of land.


Defeasible fee in the form of a Fee Simple Determinable BUT with the future interest in third party:

• Me (& Restatement): “Fee Simple on Executory Limitation”

• Workbook: “Fee Simple Determinable” (See Workbook p.72 fn19)


I will post (in section on e-mail Qs & responses) any other relevant inconsistencies or ambiguities regarding the workbook that arise over the course of the week.

WARM-UP/REVIEW

Working with Conditional/Defeasible

Present Estates

WARM-UP/REVIEWWorking with Conditional/ Defeasible Present Estates

1. Identifying Defeasible Fees

IDENTIFYING DEFEASIBLE FEES

W ho Holds Future Interest?G rantor (or unnam ed) or 2d G rantee


If G rantor (or unnam ed):H ow does it operate?

Self-Executing or G rantor M ust Act

If 2d G rantee:Fee S im ple on Executory L im ita tion

(p lus Executory In terest)



• Remember, unlike the Workbook, I will give you ambiguous grants and you will need to be able to recognize arguments about whether the language should be interpreted to end the fee automatically when the condition is violated or instead to give the future interest-holder a choice.


• Remember, unlike the Workbook, I will give you ambiguous grants.

• More general point: Most of my questions are harder than the end-of-chapter problems in the workbook.


If Self-Executing:Fee S im ple D eterm inab le

(p lus Possib ility o f R everter)

If Grantor M ust Act:Fee S im ple on C ond ition Subsequent

(p lus R ight o f Entry)

If Grantor (or unnam ed):H ow does it opera te?

Self-Executing or G rantor M ust Act

If 2d G rantee:Fee S im ple on Executory L im ita tion

(p lus Executory In terest)


WARM-UP/REVIEWWorking with

Conditional/Defeasible Present Estates

1. Identifying Defeasible Fees

2. Distinguishing Defeasible Fees from Finite Estates + Contingent Remainders

DEFEASIBLE FEES

v. CONTINGENT REMAINDERS

DEFEASIBLE FEES

• PRESENT INTEREST IS FEE

CONTINGENTREMAINDERS

• PRESENT INTEREST IS FINITE

DEFEASIBLE FEES

• PRESENT ESTATE CUT OFF IF CONDITION MET


• PRESENT ESTATE TERMINATES NATURALLY

DEFEASIBLE FEES

• FUTURE INTEREST IN EITHER GRANTOR OR GRANTEE


• REMAINDER IN GRANTEE PLUS REVERSION IN GRANTOR

Pepe grants Tealacre to Rory and his heirs, but if Totie loses 100 pounds, she may enter and retake the land. (Fee Simple

on Executory Limitation + Executory Interest)

Pepe grants Tealacre to Rory for life, then to Totie if she loses 100 pounds.

(Life Estate + Contingent Remainder)



1. Identifying Defeasible Fees2. Distinguishing Defeasible Fees from

Finite Estates + Contingent Remainders

3.Defeasible Finite Estates

DEFEASIBLE FINITE ESTATES

Can create conditions cutting off finite estates, yielding, for example:

• Life Estate Determinable

• Term of Years on Condition Subsequent

• Life Estate on Executory Limitation

Defeasible Finite Estates: Example (7H): Thelma "to Louise for 99 years if Louise so long live."

Louise: Term of years determinable.

Thelma: Possibility of Reverter +

Reversion =

Reversion (Merger)



1. Identifying Defeasible Fees2. Distinguishing Defeasible Fees from Finite

Estates + Contingent Remainders3. Defeasible Finite Estates

4.Timing Ambiguity

TIMING AMBIGUITY

To Andrew for life, then to Brian, but if Cheryl graduates from law school, then to Cheryl.

If Cheryl graduates from law school during Andrew’s life estate, does she divest Andrew’s interest or just Brian’s?

TIMING AMBIGUITY: POSSIBLE ARGUMENTS


Common law presumption: If ambiguous, interest won’t divest life estate



Now generally treated as a question of grantor’s intent.


To Andrew for life, then to Brian, but if Cheryl graduates from law school, to Cheryl.

To Andrew for life, then to Brian, but if Cheryl has graduated from law school, then to Cheryl.


To Andrew for life, then to Brian, but if Cheryl graduates from law school, to Cheryl.

To Andrew for life, then to Brian, but if Cheryl has graduated from law school, then to Cheryl.

Verb Tenses suggest immediate for first; at end of life estate for second.



Andrew is 16; Cheryl is 46.



Andrew is 16; Cheryl is 46.

Seems unlikely Cheryl will survive Andrew, so this suggests immediate divestment (or no point to grant).


To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Cheryl.

To Andrew for life, then to Brian, but if Brian graduates from law school, then to Cheryl.


To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Cheryl.

To Andrew for life, then to Brian, but if Brian graduates from law school, then to Cheryl.

Seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat as just cutting off B’s remainder

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica so long as she never tries

to sell Mason-acre, otherwise to Mike and Mili.” At the time of the grant, Jessica has a

(a) Vested remainder in fee simple determinable.

(b) Vested remainder in fee simple absolute.

(c) Vested remainder in fee simple on executory limitation.

(d) Vested remainder subject to divestment.


to sell Mason-acre, otherwise to Mike and Mili.” At the time of the grant, Jessica has a

(a) Vested remainder in fee simple determinable.

(b) Vested remainder in fee simple absolute.

(c) Vested remainder in fee simple on executory limitation.

(d) Vested remainder subject to divestment.

UNACCEPTABLE CONDITIONS

Conditions So Abhorrent …

You Can’t Even Impose Them

on Your Own Children


• Total Restraint on Alienation


to sell Mason-acre, otherwise to Mike and Mili.”

• Total Restraint on Alienation is Invalid


to sell Mason-acre, otherwise to Mike and Mili.”

• Total Restraint on Alienation is Invalid• Pencil Out Unlawful Condition (and executory interest

that turns on it)

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica.


that turns on it)• Result is a Vested Remainder in Fee Simple Absolute

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica.


that turns on it)• Result is a Vested Remainder in Fee Simple Absolute• Nasty Exam Q from Fall 2007 (b/c at End of Test)


• 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


• Doing Criminal Acts


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

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


• Obtaining Divorce


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

– Religion: (Discuss w Shapira)

(7O) 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.

(7O): 3 QUESTIONS1. “To my wife Edith, for her use & benefit, so

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

(7O): 3 QUESTIONS1. Life estate determinable or fee simple

determinable?

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


determinable?

2. Is condition restraining 2d marriage void?

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


determinable?

2. Is condition restraining 2d marriage void?

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

Then Work Through Decision-Tree

(7O): 1st QUESTION: ARGUMENTS?

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

Life estate determinable or fee simple determinable?

(7O): 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)

(7O): 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

(7O): 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

(7O): 1st QUESTION

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

• Some: E = Life Estate Determinable A G =

(7O): 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 7H)

(7O): 1st QUESTION: RECAP

• Edith’s Interest– Majority: E has F.S. Determinable– Some: E has Life Estate Determinable

• Gloria holds future interest through residuary clause

(7O): 2d QUESTION: ARGUMENTS?

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

(7O): 2d QUESTION: Recap

• Is condition restraining 2d marriage void as against public policy?

• Policy Discussion: A’s right to control property v. E’s right to control her life

• Maybe more likely OK if just life estate for support

(7O): 2d QUESTION

• Is condition restraining 2d marriage void as against public policy? Result:–If not void, nothing changes

–If void, pencil out condition

(7O): 2d QUESTION

• If condition void, pencil out condition

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

(7O): 2d QUESTION

If condition void, pencil out condition– “To my wife Edith, for her use & benefit.”

• Majority: E = Fee Simple Absolute

• Some: E = Life Estate + G = Reversion

(7O): 2d QUESTION

If condition void, pencil out condition: “To my wife Edith, for her use & benefit.” Edith Dies?

• Majority: E = Fee Simple Absolute S= Fee Simple Absolute

(7O): 2d QUESTION

If condition void, pencil out condition: “To my wife Edith, for her use & benefit.” Edith Dies?

• Some: E = Life Estate + G = Reversion G = Fee Simple Absolute

(7O): 3d QUESTION:ARGUMENTS?

• Is cohabitation a violation of a restraint on marriage? (Only need to resolve if condition is valid).

(7O): 3d QUESTION• Is cohabitation a violation of a restraint on

marriage?

– If yes, Gloria gets fee simple absolute.– If no (Restatement position) nothing

changes

(7O): E Dies, Condition Valid, No Violation


– Some: E = Life Estate Determinable G = Possibility of Reverter +Reversion = Reversion (Merger)

– Who Gets?



– Some: E = Life Estate Determinable G = Possibility of Reverter +Reversion = Reversion (Merger)

G = Fee Simple Absolute



– Majority: E = Fee Simple Determinable G = Possibility of Reverter

– Who Gets?



– Majority: E = Fee Simple Determinable G = Possibility of Reverter

–S = Fee Simple Absolute (Condition Can Never Occur)

LOGISTICS

• Info on Friday’s Test Posted. Qs?

• Sweet Sixteen Pool

• Rest of Syllabus, Materials & Assignments Posted

Shapira v. Union National Bank

EAGLES: DQS105-107

SHAPIRA: DISTINCTIONS (DQ105A)

Gift conditioned upon religious faith of beneficiary

v. Gift conditioned upon marriage to person of particular faith

Why Relevant?

SHAPIRA: DISTINCTIONS

• Gift conditioned upon religious faith of beneficiary v. Gift conditioned upon marriage to person of particular faith

– Belief v. Conduct (Marriage in 1974)

– Administrability

ADMINISTRABILITY ADMINISTRABILITY

• To Pigpen, so long as the kitchens and bathrooms are always kept very clean.

• To Schroeder, so long as he never plays any work by Beethoven on the piano.

ADMINISTRABILITY ADMINISTRABILITY

• To Lucy so long as she remains a member of the Society of Friends.

• To Linus, so long as he remains a good Catholic.


Gift conditioned upon divorce


Why Relevant?


Gift conditioned upon divorce


• Ct: Latter not sufficient to encourage fake M & divorce• Grantee can’t avoid condition by saying “I will act in

bad faith”


Conditional gift with “gift over” to third party

v. Conditional gift without “gift over”

Why Relevant?


Conditional gift with “gift over” to third party

v. Conditional gift without “gift over”

Comprehensive plan

v. “In Terrorem” condition


Forcing a marriage as condition of completed gift

v. Withholding gift until marriage made

Why Relevant?


Forcing a marriage as condition of completed gift

v. Withholding gift until marriage made

• Remedy: Injunction v. Forfeiting Gift

• Like case involving divorce settlement requirement that child be raised in partic. faith: Won’t impose contempt/crim sanctions for not following religion

SHAPIRA: DISTINCTIONSQuaker men (Maddox)

v. Jewish women (Shapira)Why Relevant?


Quaker men (Maddox)

v. Jewish women (Shapira)• Quakers = Too Few Available Partners • E.g., you must marry one of the Bronte Sisters

DQ106. Maddox rules that these kinds of conditions are unacceptable where there is a sufficiently “small number of eligible” partners.

How few partners must there be to meet the test?

DQ106. Maddox: unacceptable where there is a sufficiently “small number of eligible” partners.If you were living in a state with that test, how would you prove it was met?

DQ106. Was the Maddox opinion cited in Shapira correct to rule that these kinds of conditions are unacceptable where there is a sufficiently “small number of eligible” partners?

DQ106. Was Maddox correct to rule that these kinds of conditions are

unacceptable where there is a sufficiently “small number of eligible”

partners? Too much restriction on grantee

v. Grantor’s rights

DQ107: Should a court

enforce conditions that limit or mandate religious behavior for

the grantee?

DQ104. Why should we allow grantors to have any control at all of

what happens to land after they have died?

Maybe allow life estates & vested remainders but no conditions on

use?

RULESRULES THAT THAT FURTHER FURTHER

ALIENABILITYALIENABILITY

featuring featuring FalconsFalcons

DOCTRINE OF WORTHIER TITLE

• Remainder or executory interest in grantor’s heirs treated as future interest in grantor



• Today usually a rule of construction, not a rule of law




• Abolished in many jurisdictions




• Abolished in many jurisdictions

• NOTE: Grantor must be alive at time of grant for DWT to apply


Example: While alive, Oscar conveys: “to Agnes for life, then to my heirs.”

Doctrine of Worthier Title

Example: While alive, Oscar conveys: “to Agnes for life, then to my heirs.”

As written:

Agnes has life estate

O’s heirs have contingent remainder

O has reversion


O “to Agnes for life, then to my heirs.”

As written: Agnes has life estate

O’s heirs have contingent remainder

O has reversion

If A dies, and no destructability, O has fee simple on exec. limitation & heirs have springing executory interest.


O “to Agnes for life, then to my heirs.”As written: Agnes has life estate

O’s heirs have contingent remainderO has reversion

If A dies, and no destructability, O has fee simple on exec. limitation & heirs have springing executory interest.

NOT VERY MARKETABLE!!



Effect of Doctrine:

Agnes has life estate

Remainder in O’s heirs treated as “remainder” in O = reversion.



Effect of Doctrine: Agnes has life estate

Remainder in O’s heirs treated as “remainder” in O = reversion.

If A dies, O has fee simple absolute

(7P): Sleepy “to Happy for life, then to the heirs of Sleepy."

As Written:

Happy?


As Written:

Happy: Life Estate

Sleepy’s Heirs?


As Written: Happy: Life Estate

Sleepy’s Heirs: Contingent Remainder

Other?


As Written: Happy: Life Estate


Sleepy: Reversion

Effect of Doctrine of Worthier Title?

(7P): S “to H for life, then to the heirs

of S." As Written: Happy: Life Estate


Sleepy: Reversion

Effect of Doctrine of Worthier Title:

Happy: Life Estate

Sleepy: Reversion

(7P): S “to H for life, then to the heirs of S.”

Sleepy dies, devising all to ANA. Intestacy statute would give S’s

property to Bashful if no will.Effect As Written? Happy: Life Estate


Sleepy: Reversion



property to Bashful if no will.Effect As Written? Happy: Life Estate

Sleepy’s Heirs: Contingent Remainder Bashful: Vested Remainder

Sleepy: Reversion Nothing (Divests)



property to Bashful if no will.Effect if Doctrine Applies? Happy: Life Estate

Sleepy: Reversion



property to Bashful if no will.Effect if Doctrine Applies?

Happy: Life Estate

Sleepy: Reversion ANA: reversion

RULE OF CONSTRUCTIONINTERPRET GRANT ACCORDING TO

RULE UNLESS EVIDENCE OF GRANTOR’S INTENT TO THE

CONTRARY

Doctrine of Worthier Title as a Rule of Construction

GEORGE LEAVES BUSH-ACRE:

“TO JEB FOR LIFE, THEN TO JEB’S CHILDREN FOR THEIR LIVES,

THEN TO MY HEIRS”


“TO JEB FOR LIFE, THEN TO JEB’S CHILDREN FOR THEIR LIVES,

THEN TO MY HEIRS”

We presume George would have wanted to regain complete control of Bush-Acre had he thought he would still be alive after Jeb & children all

gone.


George leaves Bush-acre “to Jeb for life, then to Jeb’s children for their lives, then to my heirs. It is my wish that the Doctrine of Worthier Title

not apply to this grant”

WHAT HAPPENS?


George leaves Bush-acre “to Jeb for life, then to Jeb’s children for their lives, then to my heirs. It is my wish that the Doctrine of Worthier Title

not apply to this grant”

DON”T APPLY RULE!!

RULE IN SHELLEY’S CASE

IF -- One Instrument

– Creates Life Estate in A

– Plus Remainder in A’s Heirs

– Both Equitable or Both Legal

Remainder in A’s heirs Remainder in A

RULE IN SHELLEY’S CASE• RULE OF LAW, NOT RULE OF

CONSTRUCTION

RULE IN SHELLEY’S CASE

• RULE OF LAW, NOT RULE OF CONSTRUCTION

• ELIMINATED BY STATUTE IN MOST STATES

(7Qi): Will "to Grace for life, then to Grace's children and

their heirs."Effect of the Rule in Shelley’s

Case?

(7Qi): Will "to Grace for life, then to Grace's children and

their heirs."Effect of the Rule in Shelley’s Case?

None.

Remainder to “children” not “heirs”

(7Qii): Johnny “to Jay for life, then to Jay's heirs if Jay

survives David."

Effect of the Rule in Shelley’s Case?

(7Qii): Johnny “to Jay for life, then to Jay's heirs if Jay

survives David."Effect of the Rule in Shelley’s Case?

To Jay for life, then to Jay, if Jay survives David.

(7Qiii): Cher "to Chastity for 100 years if she so long live, then

to Chastity's heirs."


(7Qiii) : Cher "to Chastity for 100 years if she so long live,

then to Chastity's heirs."

Effect of the Rule in Shelley’s Case? None.

Chastity has term of years determinable, not life estate.

(7Qiv): Bill "to Chelsea for life." Bill subsequently devises the reversion to Chelsea's heirs.


(7Qiv): Bill "to Chelsea for life." Bill subsequently devises the reversion to Chelsea's heirs.Effect of the Rule in Shelley’s Case?

None.

Not done in one instrument.

(7Qv): Al "to Tipper for life, then to Tipper's heirs. I intend that the rule in Shelley's Case

shall not apply."


(7Qv): Al "to Tipper for life, then to Tipper's heirs. I intend that the rule in Shelley's Case

shall not apply." Effect of the Rule in Shelley’s Case?

Rule applies.

Rule of Law, not construction.

(7Qv): Al "to T for life, then to T's heirs. I intend that the rule … shall not

apply." Rule applies.

“To Tipper for life, then to Tipper”

into fee simple absolute.

“At Common Law”

v.

“Today”

Default Estate

“At Common Law” v. “Today”

Life Estate Fee Simple

“to X and the Heirs of his Body”


Created a Traditional

Fee Tail

Traditional Fee Taileliminated;

state statutes provide different results when

this language usedNot responsible for details

of this

Doctrine of Destructability of Contingent Remainders


Appliedeverywhere

Eliminated in allstates except Florida

Doctrine of Worthier Title“At Common Law” v. “Today”

Appliedeverywhere

as Rule of Law

Eliminated in some states;

Rule of Construction in others

Rule in Shelley’s Case“At Common Law” v. “Today”

Appliedeverywhere

as Rule of Law

Eliminated in most states

Documents

PUT ASSIGNMENT #4 IN ENVELOPE ON CHAIR