PROPERTY A SLIDES3 x 5 = 15

Thursday March 5 Thursday March 5 Music: Isaac Music: Isaac Stern, Stern,

6060thth Anniversary Celebration (1981) Anniversary Celebration (1981) New York Philharmonic Orchestra; Violins:

Isaac Stern, Itzhak Perlman, Pinchas Zucherman1982 Grammy Award for Best Classical Performance (Soloists with Orchestra)

Very Last Lunch Today: Meet on Brix @ 11:55Ahmed * Fellig *Powell

Yellowstone Critique Due Today @ 10 a.m.Yellowstone Critique Due Today @ 10 a.m.

Review Problem 3D (S64-65) (Capacity)

•Shenandoah= Ps (A & B)• Melendez, Laura• Chen, Connie • Steckler, Steve• Halperin, Daniel• Usman, Sarah• Alternate: Mason, Joanne

•Redwood = Defendant MMS• Ganase, Ketan• Whitley, Dexter• Corrales, Brenda• Ahmed, Feras• Engstrom, Dave• Alternate: Fellig, Zevi

Critique of Review Problem 3D (Capacity: Biscayne)

• General Instructions @ Bottom of General Instructions @ Bottom of Assignment SheetAssignment Sheet• You are critiquing Capacity arguments made in class You are critiquing Capacity arguments made in class

today. (as opposed to other issues in the Problem)today. (as opposed to other issues in the Problem)

• Plaintiff = Arguments that K lacked capacity/will is Plaintiff = Arguments that K lacked capacity/will is invalidinvalid

• Defendant = Arguments K had capacity/will is validDefendant = Arguments K had capacity/will is valid

•Written Submission Due by E-Mail Sat 3/7 @ 10 Written Submission Due by E-Mail Sat 3/7 @ 10 a.m.a.m.

• E-Mail me if QsE-Mail me if Qs

Review Problem 3D (S64-65) (Capacity)

Shenandoah= Ps (A & B) Redwood = Defendant MMS

Evidence of Capacity/Incapacity Generally

• Evidence from Before the Day of Will Signing Ceremony & Surrounding Circumstances

• Evidence from the Day of the Ceremony

•

Review Problem 3D (S64-65) (Capacity)

Shenandoah= Ps (A & B) Redwood = Defendant MMS

Application of Traditional Three-Part Test

a.Natural Objects of Her Bounty: Evidence/Qs Here?

b.Nature/Extent of Her Property: Evidence/Qs Here?

c.Nature of Disposition: Evidence/Qs Here?

Mahrenholz v.Mahrenholz v.County BoardCounty Board

Tomorrow: ARCHES: DQ4.05Mahrenholz Major Events

DELICATE ARCHES

Tomorrow: BISCAYNE: DQ4.11Violation of School Purposes Condition?Violation of School Purposes Condition?

SUNRISE AT ADAMS KEY

Vested v.Vested v.ContingentContingent

Remainders Remainders ContinuedContinued

VESTED REMAINDER

1. Grantee is living ascertainable person AND

2. Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate

Example: To Aaron for life, then to Oona and her heirs.

CONTINGENT REMAINDER•Grantee is presently unborn or unascertainable *OR*•Clause creating the remainder contains a condition on grantee

taking the property• Examples from Tuesday:• “To Fred for life, then to Fred’s firstborn child.” • If F has never had a child: UnbornUnborn

• “To Fred for life, then to Fred’s oldest child living at Fred’s death.”• While F is alive: UnascertainableUnascertainable

REMAINDERS: EXAMPLES

“To Fred for life, then to Wilma and her heirs if Dino survives Fred.”•Fred has Life Estate•Interest in Wilma• Follows Life Estate, so it’s a Remainder• Condition must be met before Wilma can take, so Remainder is

Contingent.

Contingent v. Vested Remainders:Memory/Comprehension AidsMemory/Comprehension Aids

•Meaning/Derivation of Vested Right• Clearly Established Right that’s Hard to Undo• E.g., “Vested” Employee Benefits

• Derivation: Putting on Robes of Office (Investvestment)

•Analogy:• Vested Remainder Theater Ticket• Contingent Remainder Lottery Ticket

Life Estate + Vested Remainder

To Fred for Life, then to Wilma and her heirs.

Life Estate + Contingent Remainder

Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.”

I’ll Show Contingency by Drawing Dotted Line, Off of the Primary Time Line, that Begins at the End of the Finite Estate

Life Estate + Contingent Remainder

Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.”

What happens to property when Fred dies if Dino doesn’t survive Fred? Someone must get it!

Life Estate + Contingent Remainder

Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.”

What happens to property when Fred dies if Dino doesn’t survive Fred? If grant doesn’t distribute some of the available rights, then those rights are retained by the grantor.

Life Estate + Contingent Remainder

REMAINDERS “IN …” :

• “To Fred for life, then to Wilma for life.”

Wilma has a vested remainder in life estate

• “To Fred for life, then to Wilma and her heirs if Dino survives Fred.

Wilma has a contingent remainder in fee simple absolute

TERMINOLOGY: ME v. WORKBOOK

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

TERMINOLOGY: ME v. WORKBOOK

•Workbook: Describes all present possessory estates (Fee Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”•My Test Questions: Will not use the italicized phrase.

TERMINOLOGY: ME v. WORKBOOK

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

TERMINOLOGY: ME v. WORKBOOK

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

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

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

SHENANDOAH (Problems 4A-4E)

APPALACHIAN TRAIL

Shenandoah: (4A) O conveys Baconacre "to Mayer and her heirs”

Mayer's only child, Armour, runs up large bills. Can Armour's creditors reach any interest of

Armour in Baconacre?

Shenandoah: (4A) O conveys B-Acre "to Mayer and her heirs”

Point of 4A is meaning of “and her heirs”• Clarifies that M has a Fee Simple• Creates no interest in anyone else• Presumptive heirs have a “mere expectancy”

Shenandoah: (4A) O conveys Baconacre "to Mayer and her heirs”

Mayer wishes to sell Baconacre and use the proceeds to take a trip around the world.

Can Armour prevent Mayer from doing this?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

•Ernie?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

•Ernie: Life Estate

•Burt: ?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

•Ernie: Life Estate•Burt: Vested Remainder• Remainder b/c Follows Life Estate• Vested b/c Burt is Named (so Living & Ascertainable

Muppet) and No Condition Precedent• Vested Remainder in …?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

•Ernie: Life Estate•Burt: Vested Remainder in Life Estate

At Common Law • To Create Fee Simple Interest, need “and his Heirs.”•Without language indicating fee simple, default estate is Life

Estate.

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

• Ernie: Life Estate• Burt: Vested Remainder in Life Estate

•Who Owns the Rest (rights to property after both Ernie & Burt are dead)?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

• Ernie: Life Estate• Burt: Vested Remainder in Life Estate

•Kermit: Reversion (in Frog Green!)• Follows finite interest if not explicitly granted to someone else

State of the Title When Ernie Dies?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

•Burt: Life Estate•Kermit: (retains) Reversion

•When Burt Dies?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

•Kermit (or Kermit’s Successors) have Fee Simple Absolute

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

• Ernie: Life Estate•Burt: Vested Remainder in Life Estate•Kermit: Reversion

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (TODAY)

•Ernie: Life Estate

•Burt: ?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (TODAY)

•Ernie: Life Estate•Burt: Vested Remainder in Fee Simple

- Default Estate Today is Fee Simple•Kermit?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (TODAY)

• Ernie: Life Estate•Burt: Vested Remainder in Fee Simple•Kermit: Nothing (not easy being green)

State of the Title When Ernie Dies?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (TODAY)

•Burt: Fee Simple AbsoluteWhen Burt Dies?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (TODAY)

•Burt: Fee Simple AbsoluteWhen Burt Dies?

Property passes by Burt’s will or through intestacy to Burt’s heirs.

Shenandoah: (4C) Elmer “to Sylvester to Sylvester for lifefor life, then to Bugs and his heirsthen to Bugs and his heirs.”

•Sylvester: ?

Shenandoah: (4C) Elmer “to Sylvester to Sylvester for lifefor life, then to Bugs and his heirsthen to Bugs and his heirs.”

•Sylvester: Life Estate•Bugs:?

Shenandoah: (4C) Elmer “to Sylvester to Sylvester for lifefor life, then to Bugs and his heirsthen to Bugs and his heirs.”

• Sylvester: Life Estate•Bugs: Vested Remainder in Fee Simple [Absolute]

Bugs dies intestate without heirs. What Effect?

Shenandoah: (4C) Elmer “to Sylvester to Sylvester for lifefor life, then to Bugs and his heirsthen to Bugs and his heirs.”

• Sylvester: Life Estate

•Bugs: Vested Remainder in Fee Simple • Bugs dies intestate without heirs. • Vested Remainder passes to State by Escheat (like rest of

Bugs’s property)Sylvester Dies: What Effect?

Shenandoah: (4C) Elmer “to Sylvester to Sylvester for lifefor life, then to Bugs and his heirsthen to Bugs and his heirs.”

•When Bugs died intestate without heirs, Vested Remainder passed to State by Escheat.•When Sylvester dies, Vested Remainder becomes Fee Simple. •So: State has Fee Simple Absolute

Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.”

•Minnie?

Shenandoah: (4D) Mickey “to Minnie for to Minnie for lifelife, then to Pluto for 99 years.”

•Minnie: Life Estate•Pluto?

Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” then to Pluto for 99 years.”

•Minnie: Life Estate•Pluto: Vested Remainder in Term of Years.•Anything Else?

Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” then to Pluto for 99 years.”

•Minnie: Life Estate•Pluto: Vested Remainder in Term of Years.•Mickey: Reversion

Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” then to Pluto for 99 years.”

• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.

•Mickey: Reversion (eventually to his successors)• Somebody has to own the rights to the property after the

first two finite interests are completed. Because Mickey did not give away those rights, he must still have them at the time of the grant.

Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” then to Pluto for 99 years.”

• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.

•Mickey: Reversion (eventually to his successors)•Note we say that Mickey has a Reversion even though we

are pretty certain he won’t be alive when it becomes possessory (after all, he’s a mouse). When Pluto’s interest ends, Mickey’s successors will take possession.

Shenandoah: (4E) Derek“to Bernie for life, then to Jorge for life, then to Roger and his heirs.”

•Bernie?

Shenandoah: (4E) Derek “to Bernie for lifeto Bernie for life, then to Jorge for life, then to Roger and his heirs.”

•Bernie: Life Estate• Jorge?

Shenandoah: (4E) Derek “to Bernie for lifeto Bernie for life, then to Jorge for life, then to Roger and his heirs.”

•Bernie: Life Estate• Jorge: Vested Remainder in Life Estate.• Note that even though Jorge has to survive Bernie for his interest

to become possessory, we don’t describe this as a Contingent Remainder because the condition is not stated explicitly.

•Roger?

Shenandoah: (4E) Derek “to Bernie for lifeto Bernie for life, then to Jorge for life, then to Roger and his heirs.”

•Bernie: Life Estate• Jorge: Vested Remainder in Life Estate.•Roger: Vested Remainder in Fee Simple.

YELLOWSTONE (Problems 4F-4G)

GIANT GEYSER

Yellowstone: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15.

•Veronica: ?

Yellowstone: (4F) Reggie “to Veronica for lifeto Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15.

•Veronica: Life Estate•Betty?

Yellowstone: (4F) Reggie “to Veronica for lifeto Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15.

•Veronica: Life Estate•Betty: Contingent Remainder in Fee Simple (condition of

turning 21 must be met before she can get property)•Anything Else?

Yellowstone: (4F) Reggie “to Veronica for lifeto Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15.

•Veronica: Life Estate•Betty: Contingent Remainder in Fee Simple •Reggie: Reversion• Always Created Along with Contingent Remainder• Covers Rights to Property After Veronica Dies if Betty’s Condition Not Met

Yellowstone: (4F) Reggie “to Veronica for lifeto Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15.

• Veronica: Life Estate• Betty: Contingent Remainder in Fee Simple • Reggie: Reversion

Yellowstone: (4F) Reggie “to Veronica for lifeto 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 if Betty turns 21 while Veronica is alive?

Yellowstone: (4F) Reggie “to V for lifeto V for life, then to B and her heirs if B attains the age of 21.”

***B turns 21 while V alive***

•Veronica: Life Estate•Betty’s Contingent Remainder “vests” leaving her with a

Vested Remainder in Fee Simple•Reggie’s Reversion now can never become possessory, so we

say it “divests,” leaving him with nothing.

Yellowstone: (4F) Reggie “to Veronica for lifeto 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 if Betty dies at age 17 while Veronica is alive?

Yellowstone: (4F) Reggie “to V for lifeto V for life, then to B and her heirs if B attains the age of 21.”

***B dies at 17 while V alive***

•Veronica: Life Estate• The condition can never be met, so Betty’s Contingent

Remainder “fails” leaving her (and her successors) with nothing•Reggie’s Reversion stays in place, so he or his successors will

get the property when Veronica dies.

Yellowstone: (4F) Reggie “to Veronica for lifeto 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 if Veronica dies while Betty is still age 17? • Life Estate is Over• Betty Can’t Take, Because Condition Not Met•We’ll Come Back to This After We Introduce Executory Interests

Yellowstone: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly.

• Larry?

Yellowstone: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly.

• Larry: Life Estate•Moe & Curly?

Yellowstone: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly.

• Larry: Life Estate•Moe & Curly: Vested Remainders (in Fee Simple)

Subject to Open• Remainders are still vested b/c M&C certain to get at least a share of the

property.• Use of “subject to open” makes clear that exact share of the property they

will get is uncertain; reduces if more children born. • NOTE: We don’t use phrase “subject to open” with contingent remainders,

which are always uncertain.

Yellowstone: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has two living children, Moe and Curly.

• Larry: Life Estate• Moe & Curly: Vested Remainders (in Fee Simple) Subject to Open• Larry has additional child, Stella. Stella has?

Yellowstone: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has 3 living children, Moe, Curly, Stella.

• Larry: Life Estate•Moe & Curly & Stella: Vested Remainders (in Fee Simple) Subject to

Open• Curly (C) dies, leaving his wife, Noreen, and a child, Orrin; C's will

devises all property to Noreen. What happens to C’s interest?

Yellowstone: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry had 3 children, Moe, Curly, Stella.

• Larry: Life Estate• Moe & Noreen & Stella: Vested Remainders (in Fee Simple) Subject to Open• Nothing in grant requires that L’s children survive him• As in Problem 4C, Vested Remainder in Fee Simple passes at death like any

other property.• Larry dies. State of the title?

Yellowstone: (4G): “To my only son, Larry, for life, then to Larry's children and their heirs."

• Larry Dies, ending Life Estate• Moe & Noreen & Stella: Share Fee Simple Absolute (as Tenants-in-Common)• For this course, only need to know that they’d share; don’t need to know

term “tenants in common” or what it means.

DEFEASIBLE FEES

•Dotted Line indicates Conditional Interest•Open Circle indicates that it would cut off present interest

(usually at an unspecified time) as opposed to waiting for it to be complete.

DEFEASIBLE FEES:Two Relevant Distinctions

1.Automatic termination v. Needs action by future interest holder

2.Who holds future interest?: GrantorGrantor v. GranteeGrantee

DEFEASIBLE FEES:Restatement Terms

• Fee Simple Determinable

• Fee Simple on Condition Subsequent

• Fee Simple on Executory Limitation

DEFEASIBLE FEES:Fee Simple Determinable

•OPERATION: Self-Executing (Automatically Terminates Fee Simple When Condition Occurs)

DEFEASIBLE FEES:Fee Simple Determinable

•OPERATION: Self-Executing •KEY LANGUAGE: “So long as”, “While”, “Until” (References to

Time)

DEFEASIBLE FEES:Fee Simple Determinable

•OPERATION: Self-Executing•KEY LANGUAGE: “So long as”, “While”, “Until” • FUTURE INTERESTFUTURE INTEREST: “Possibility of Reverter” (in : “Possibility of Reverter” (in

GRANTOR)GRANTOR)

DEFEASIBLE FEES:Fee Simple Determinable: Example

To Estelle and her heirs so long as asparagus is not grown on the property.

DEFEASIBLE FEES:Fee Simple on Condition Subsequent

•OPERATION: Grantor (or Successor) Must Act to Terminate Fee Simple

DEFEASIBLE FEES:Fee Simple on Condition Subsequent

•OPERATION: Grantor Must Act •KEY LANGUAGE: • “But if”, “provided that if”, “on condition that if”

PLUS• “O may [re]enter and [re]claim the land”

DEFEASIBLE FEES:Fee Simple on Condition Subsequent

• OPERATION: Grantor Must Act• KEY LANGUAGE: “But if”, “provided that if”, “on condition that if” PLUS “O may

[re]enter and [re]claim the land”

• FUTURE INTERESTFUTURE INTEREST: “Right of [Re]Entry” : “Right of [Re]Entry” (in (in GRANTOR)GRANTOR)

DEFEASIBLE FEES:Fee Simple on Condition Subsequent: Example

EXAMPLE: To Estelle and her heirs, but if asparagus is grown on the property, I can reenter and claim the land