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Shenandoah: Life Estate Determinable vs. Fee Simple Determinable

This presentation discusses the ambiguous conditions and future interests created in a will, specifically regarding a life estate determinable and fee simple determinable. It analyzes arguments supporting each view and the resulting future interest for the named parties.

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Shenandoah: Life Estate Determinable vs. Fee Simple Determinable

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  1. PROPERTY A SLIDES 3-20-15

  2. Friday March 20 Music: Billie HolidayBillie Holiday Sings (1952) TEST IS ESSENTIALLY DONE • Some completely new problems • Mostly questions/answers from posted Bank or Tests, some altered a bit, all with new names. • Contains names of all students from Redwood, Shenandoah & Yellowstone & plus some Biscaynes (I’m saving rest for Final Exam) • Apologies to those of you I had to kill off. Office Hours Every Day from Today  Monday (See Course Page for Times & Locations)

  3. Conditions: Timing AmbiguityChange Grant: Possible Arguments To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder Questions on Timing Ambiguities?

  4. Conditions: Additional Information • UnacceptableConditions • Shapira • Timing Issues • Problem 4O

  5. SHENANDOAH: Problem 4O APPALACHIAN TRAIL

  6. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. • Gloria is not Edith’s child. • Edith moves in with male friend, Sherman. • Edith then dies, devisingall her property to Sherman. “devising” means?

  7. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. Note on Future Interests Created in Wills • The future interest that is retained by Archie (when he grants present interest to Edith) then passes to Gloria through the residuary clause. • For purposes of naming the property rights involved, we treat this future interest as being held initially by Archie (the grantor), because it is not explicitly described as being granted to a third party.

  8. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. Three Qs/Ambiguities I Said We’d Discuss: • Life Estate Determinable v.Fee Simple Determinable? • Is condition restraining secondmarriage void? • Does cohabitationviolate a restraint on marriage? Then We’ll Work Through Decision Tree

  9. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. (Q1) Arguments Supporting Fee Simple Determinable (as opposed to Life Estate Determinable?)

  10. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. • Arguments Supporting FSD Include: • Presumption of Fee Simple if Today • No Explicit Reference to “Life” • No Explicit Gift Over Listed(See White v. Brown) • Arguments Supporting Life Estate Determinable?

  11. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. (Q1) Arguments Supporting Life Estate Determinable Include: • Presumption of Life Estate if at Common Law • “Use and Benefit” Sounds Like Life Estate (Hard to “Use” Land After Death) • Condition/Language is Consistent with Intent to Provide Shelter/Support for Edith During Her Lifetime • Reasonable to Think Archie would try to Protect Gloria (not Edith’s daughter)

  12. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. • Caselaw in many states today interpreting “for use and benefit:” • Majority View: creates Fee Simple • Minority View: creates Life Estate

  13. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. Majority View: • E has Fee Simple Determinable • What is Remaining Future Interest in Archie (passed to Gloria through residuary clause)?

  14. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. Majority View: • E has Fee Simple Determinable • A  G: Possibility of Reverter

  15. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. Minority View: • E has Life Estate Determinable • What is Remaining Future Interest in Archie (passed to Gloria through residuary clause)?

  16. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. Minority View: • E has Life Estate Determinable • A G: Possibility of Reverter + Reversion • Merges into Reversion

  17. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. (Q2) If Edith had never married, condition probably would be void as against public policy. (Allowed for life estates in a few states.) Should we treat condition restraining second marriage differently from one restraining first marriage?

  18. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. (Q2) Is condition restraining second marriage void as against public policy? • Policy Concerns: • A’s right to control his property v. E’s right to control her own life • Stereotypes about older persons (cf. Webb) • Court probably more likely to allow condition if it views E’s interest as just a life estate for support

  19. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. (Q2) Is condition restraining second marriage void as against public policy? Result: • If not void, nothing changes • If void, pencil out condition

  20. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. • If condition void, pencil out condition: “To my wife Edith, for her use & benefit, so long as she remains unmarried.”

  21. Shenandoah (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. • If condition void, pencil out condition: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” • Resulting Interests: • Majority: E = Fee Simple Absolute • Some: E = Life Estate + G = Reversion If Void, What Happens when E dies?

  22. Shenandoah (4O): Archie in will: “To my wife E, for her use & benefit, so long as she remains unmarried.” Residue to G. E then dies leaving all property to S. If condition void, resulting interests: • Majority: E = Fee Simple Absolute • When E Dies, S gets FSA through E’s will. • Some: E = Life Estate + G = Reversion • When E dies, Life Estate ends, and G has FSA.

  23. (4O): Shenandoah: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S (Q3) Does cohabitation violate a restraint on marriage? • Only need to resolve if condition is valid.

  24. (4O): Shenandoah: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S • Does cohabitation violate a restraint on marriage? • Only need to resolve if condition is valid. • Discussion: Literal Argument v. Inconsistency w Grantor’s Purpose (cf. Mahrenholz) • Restatement Position: • Not a Violation • For Restatement to Address, Must Have Come Up Pretty Often • Other Reasons Not to Marry from Pensions & Social Security

  25. (4O): Shenandoah: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to S (Q3) Does cohabitation violate a restraint on marriage? • Only need to resolve if condition is valid. • Since arguments both ways, need to follow through for both possibilities for both possible readings of grant

  26. (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to SMinority: E = LED G = Reversion (incl. Poss. of Reverter) If Condition is Violated? • E immediately loses title • G’s Poss of Reverter FSA If Condition is Not Violated? • Parties’ Interests Don’t Change

  27. (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to SMinority: E = LED G = Reversion (incl. Poss. of Reverter) If Condition is Violated? • E immediately loses title • G’s Poss of Reverter FSA E Dies? • E has no interest to pass on G = FSA If Condition is Not Violated? • Parties’ Interests Don’t Change E Dies? • E’s Life Estate ends • G’s Reversion  FSA G = FSA

  28. (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to SMajority: E = FSD G = Poss. of Reverter If Condition is Violated? • E immediately loses title • G’s Poss of Reverter FSA If Condition is Not Violated? • Parties’ Interests Don’t Change

  29. (4O): Shenandoah: A in Will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to Gloria. E shacks up with Sherman. E dies; devises everything to SMajority: E = FSD G = Poss. of Reverter If Condition is Violated? • E immediately loses title • G’s Poss of Reverter FSA E Dies? • E has no interest to pass on G = FSA If Condition is Not Violated? • Parties’ Interests Don’t Change E Dies: What Happens?

  30. (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Branch of Decision Tree: Edith Dies Majority: Condition Valid + No Violation Edith has FSD; Gloria has Possibility of Reverter What happens to Condition When Edith Dies?

  31. (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Decision Tree: Edith Dies Majority: Condition Valid + No Violation Edith has FSD; Gloria has Possibility of Reverter • What happens to Condition When Edith Dies? • Edith Can’t Remarry After Death (As Far as We Know ) • Thus Condition Can Never Occur • So Condition Effectively Disappears • Sherman has Fee Simple Absolute; Gloria’s Interest Fails

  32. COMPARE “To E & her heirs so long as she remains unmarried.” Condition limited to E, so ends at E’s death. Successors after that take Fee Simple Absolute “To E & her heirs so long as alcohol is never sold on the premises.” Condition not limited to E, so it survives her. Successors take Fee Simple Determinable.

  33. Qs on Problem 4O?

  34. ALL: DQ4.15 Should a court enforce conditions that limit or mandate religious behavior for the grantee?

  35. ALL: DQ4.12 Why should we allow grantors to have any control at all of what happens to land after they have died? • Might say can choose who gets, but only can give fee simple absolute. • Maybe allow life estates & vested remainders but no conditions on use.

  36. BISCAYNE: Review Problems 4R + 4S SUNRISE AT ADAMS KEY

  37. 4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS?

  38. 4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS • Today or “At Common Law”? • R alive or dead? • Condition void? • M’s interest intended to cut off life estate? Details in Review Problem Write-Up on Course Page

  39. 4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” ONE (EASY) BRANCH OF DECISION TREE • Condition Void  Pencil out M’s interest • R Alive As written, contingent remainder in R’s heirs (unascertainable) Plus Reversion in R RESULT: • Stacy has Life Estate • Contingent Remainder in R’s Heira • Renee has Reversion

  40. 4R: Biscayne Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” SECOND BRANCH OF DECISION TREE • R Dead  Remainder is vested in R’s heirs as defined by intestacy statute. • Today  Interest in Marni is in fee simple (not life estate). • Condition valid; M’s interest intended to cut off life estate  Both of the other interests could be cut off by M. RESULT: • Stacy has Life Estate Subject to Executory Limitation • Renee’s [Ascertained] Heirs have Vested Remainder in FS Subj to Divestmt • Marni has a Shifting Executory Interest in Fee Simple

  41. 4S: BISCAYNE • Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it.” • Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil. • Betsy replaced the existing brothel with an ad agency. • NOT AMBIGUITIES • Common Law v. Today (Ad Agency) • Who is X’s “heir”? Y not P • AMBIGUITIES/Qs

  42. 4S: BISCAYNE • Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it.” • Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil. • Betsy replaced the existing brothel with an ad agency. AMBIGUITIES/Qs • Condition Valid? • Heirs take automatically v. must act? • Ad Agency Violate Condition  FURTHER ANALYSIS & BRANCHES OF DECISION TREE IN WRITE-UP OF REVIEW PROBLEMS

  43. ARCHES: Problem 4U DELICATE ARCHES

  44. (4U) (Arches)R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” - C on land writes novels & does deals on phone.- C dies; J is not 35.NOT AMBIGUITY- Common Law v. Today (Deals on the Phone)- Cf. Medical or Law School, which date to medieval EuropeAMBIGUITIES/Qs in GRANT ITSELF?

  45. (4U) (Arches) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 AMBIGUITIES/QUESTIONS IN GRANT? • Life Estate or Fee? • When Does J’s Interest Take Effect? AMBIGUITIES/QUESTIONS AFTERWARD?

  46. (4U) (Shenandoah) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 AMBIGUITIES ARISING AFTER • Condition Violated by Writing/Deal-Making? • Destructibility Apply? Details in Review Problem Write-Up on Course Page

  47. (4U) (Shenandoah) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 BRANCHES OF DECISION TREE Lots of Variations in Sample Qs

  48. LOGISTICS: Going Forward • INFO ON EFI TEST • NCAA POOL • CRITIQUES & CRITIQUE PROBS • SAMPLE EXAM Qs • PREP & LAST 4 WEEKS

  49. CHAPTER 5: ADVERSE POSSESSIONTHE PREMIERE EVENT

  50. Adverse Possession: OverviewConnections to Rest of Course Type of Involuntary Transfer of Property Rights Like Shack & JMB & Eminent Domain Loss of Property Rights for Policy Reasons About Relationship of Property & Time Like Chapters 3 and 4 Here: Losing Property Rights Via Passage of Time

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