Estates in Land and Future Interests

The Feudal Structure

 1066 (Norman Conquest)  Concept of subinfeudation

The King

Services

The Peasants

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 Form of feudal inheritance tax when land passed to heir

Relief





Wardship and Marriage (a real cash cow)

Ancestor of current leases

 Nonfreehold estates

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 estatehad seisen The utility of the use Ability to will property away and deprive King of the relief

 Estates created as a use

 

 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
Executory interests  Shifting executory interest  Springing executory interest

 Recognized as equitable estates



 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?

A
Words 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. Decedents 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 Illinois Statute? Plaintiffs sue to quiet title

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?

Fee Simple Determinable

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

Fee simple conditional / Fee tail

 How created?  Characteristics of estate
 

and the heirs of his body

Before 1285 After 1285

 Fee tail  Fee tail male  Fee tail female  Fee tail special
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?

 

As death When either at As 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
 Reversionary interests  Remainder
    

Vested Vested subject to partial divestment Vested subject to complete divestment Contingent Shifting Springing

Reversion Possibility of reverter Right of entry for condition broken

 Executory interests (limitations)

 

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

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

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

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

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,

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 As 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 As 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 As death and if B

marries As 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  O conveys to A for life

and upon A's death if B survives A then to and his heirs but if B does not survive A then to C and his heirs.

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  O conveys to A for life

and upon A's death if B survives A then to and his heirs but if B does not survive A then to C and his heirs.

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  O conveys to A for life

and upon A's death if B survives A then to and his heirs but if B does not survive A then to C and his heirs.

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  O conveys to A for life

and upon A's death if B survives A then to and his heirs but if B does not survive A then to C and his heirs.

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

 O conveys Blackacre to

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.

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

Intermission

Intermission

Contingent Remainder, Contingent Remainder Contingent Remainder, Contingent remainder Vested Remainder Subject to Divestment, Shifting Executory Interest Contingent Remainder, Contingent Remainder Vested Remainder Subject to Divestment, Shifting Executory Interest (and now once more with feeling) Contingent Remainder, Contingent Remainder 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 doesnt 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, C2 is born. C-1 dies in As 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 Bs 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

As death, to such of As children as survive A.

   

State the title. At the time of the conveyance is the class gift to As 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 Bs 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 As 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 As lifetime, what would have been the state of the title and which of Bs 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 testators 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 Ts death At death of Ts 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 Ts death but the rule can give way to a contrary intent  What problem arises by holding the gift open until the

death of Ts last surviving son?

Problem
T wills Blackacre to H for life, then to Ts heirs. At Ts death, A and B would be Ts heirs if T died intestate. At Hs death C and D would be Ts 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 testators 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

testators 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.

Rule of Destructibility
 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 As lifetime, B reaches age 21 During As lifetime, B dies, age 18 At As death, B survives. B is age 22 At As death, B survives, age 18

 O deeds Blackacre to A for life, then to As 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 As first born daughter and the heirs of her body, then to A and her heirs T wills Blackacre to A for life, then to Bs heirs and the rest of Ts estate to A.

Rule of Destructibility
 Abolished in almost all states, except Florida

The Rule in Shelleys Case

 If a life estate is created in A and a remainder

is created in As heirs, the remainder is deemed to have been created in A rather than As heirs.  If after the Rule in Shelleys 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 Shelleys Case-Examples

 O conveys Blackacre to A for life, remainder to As

heirs.  O conveys Blackacre to A for life, then to As first born son, then to As heirs.  O conveys Blackacre to A for life, then to As daughter Emily and the heirs of her body, then to As heirs.  O conveys Blackacre to A for life, then to B and his heirs but if A returns from Iowa, then to As heirs.

The Doctrine of Worthier Title

 If a remainder is limited in favor of the grantors

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 Os heirs.  If doctrine a rule of law, what does A, Os heirs and O have?  If doctrine a rule of construction, what does A, Os heirs and O have?