2. PROPERTY D SLIDES 3-3-14

3. Monday March 3 Music: Vivaldi, Four Seasons (1723) Monday March 3 Music: Vivaldi, Four Seasons (1723) Itzhak Perlman, Violin London Philharmonic Orchestra (Recording 1977; Remastered 1987) 1978 Grammy Award for Best Classical Performance (Soloist with Orchestra)

4. PROPERTY D: 3/3

5. GOVERNOR SWAP Have you ever wondered whether the grass is greener in a different state? Two governors, one from a red state and one from a blue state, discover that it often isn't when they hand over the keys to their offices and literally switch administrations for two weeks.

6. SERENGETI DANCE MOMS of the SERENGETI Follow young tribal dancers’ early steps on the road to stardom with their doting mothers in tow for every rehearsal, performance and bow … all while dodging crocodiles and hippos at the water hole next to their studio.

7. BUSH DYNASTY The Story of the Family that (Sometimes) Runs the USA This Week: Can Jeb Still Get the Cool Job in Washington After His Kid Brother Got There First?

8. Survivor Chef Antarctica Contestants prepare gourmet dishes with penguins, seals, and killer whales they have to catch themselves. Featuring Padma Lakshmi & Shaun White Featuring Padma Lakshmi & Shaun White

9. Top Model Under the Guns From Caracas to Kabul to Kiev, Our Aspiring Models Bring Fashion to the World’s War Zones Who Will Be Eliminated Tonight? “Take Cover, Girl!!!” Tyra BanksAnderson Cooper

10. Previously in Property D Chapter 3 Continued: Wills Review of Formalities in Rev Probs 3A & 3B Substantial Compliance Doctrine as an Alternative to Strict Adherence to Formalities Langbein on Purposes of Formalities Arguments For & Against Substantial Compliance Application of NJ/UPC Test to Weiss & Rev Prob 3B Capacity (Traditional Test & Strittmater & Rev Prob 3C) Undue Influence ( Webb; FL & OK Tests; Rev Probs 3B & 3F)

11. Previously in Property D Intro to Chapter 4 Overview: Study Hints & Policy Concerns Present Possessory Estates Fee Simple Absolute Finite Estates Term of Years Life Estate Fee Tail Quick Intro to Future Interests that Follow Finite Estates Reversion Remainder

12. Review Problem 3F (S76) (Continued) Part of Lawyering Question Dentist Shelly Asks re Great Aunt’s Abbigail’s Will A (76) died of brain tumor; A’s personal trainer, Matt (37) left his job to care for A when she became ill. Under Will (must assume proper formalities) – M gets “most” of A’s “sizable estate” – S gets A’s house, which includes space for medical/dental practice

13. Review Problem 3F (S76) (Continued) Last Time: Research Regarding … Effect of Invalidity of Will Undue Influence Legal Research Some Factual Research

14. Review Problem 3F (S76) (Continued) Undue Influence: Factual Research Last Time: How much of estate goes to M (total amount and % of estate) A’s Relationship w Deceased Husband (re strength of character) S’s relationship with A, including evidence re A’s intent to leave property to S before she met M or got sick. Info on M (history, finances, behavior, involvement with will-drafting) Other Factual Research? Other Factual Research?

15. Review Problem 3F (S76) (Continued) Undue Influence: Other Factual Research Includes: Evidence Going to Likelihood of Loss of Free Will A’s Character & Behavior/Any Changes? Nature of A/M relationship; evidence of large gifts A’s relationship w other friends/relatives & their treatment before and after M arrives Evidence Going to A’s Strength/Weakness of Mind (Overlap w Capacity) Possible effects of A’s medical condition, treatment and meds Evidence of A’s actual behavior/condition around time will executed

16. Review Problem 3F (S76) (Continued)Capacity Leave for You

17. WHITE v. BROWN

18. White White v. Brown (S87-91) Interprets Jessie Lide’s Will I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Issue: What Interest in the Home Does This Language Create?

19. REDWOOD: DQ 4.01-4.04 REDWOODS & FERNS

20. White White v. Brown DQ4.01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.” Why is it significant?

21. White White v. Brown DQ4.01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.” Significance Includes: 1.Allows land to move to owner who can make most valuable use of it 2.Means land is relatively liquid asset (can sell or mortgage for $). Related Rosendorf idea: maximizing owner’s control & freedom.

22. White White v. Brown Redwood: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. The White majority complains that “the words chosen by the testatrix are not specific enough to clearly state her intent."

23. White White v. Brown Redwood: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. What do you think Jessie Lide’s intent is? Why must house not be sold?

24. White White v. Brown Redwood: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. Why does the majority have problems discerning Jessie Lide’s intent?

25. White I wish Evelyn White to have my home to live in and not to be sold. White v. Brown: Possible Characterizations I wish Evelyn White to have my home to live in and not to be sold. Fee Simple Life Estate Conditional Fee So long as not sold So long as E lives there Conditional Life Estate

26. White White v. Brown Redwood: DQ4.03 WHAT ARE THE MAJORITY’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

27. White White v. Brown Redwood: DQ4.03 MAJORITY ARGUMENTS (FEE SIMPLE) Presumption: Grant Conveys Whole Estate JL had FSA, so presume she gave FSA to EW Same idea as “default estate today is fee simple” No Gift Over (Will describes no interest in home after EW’s death) Partial Intestacy Disfavored (Try to read will to address all of JL’s property)

28. White White v. Brown Redwood: DQ4.03 WHAT ARE THE DISSENT’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

29. White White v. Brown Redwood: DQ4.03 DISSENT ARGUMENTS (LIFE ESTATE) Presumption: All Language Used Has Meaning ( same idea re statutes, contracts, etc.) Language Here Consistent with Life Estate: Says: “to live in” Says: “not to be sold” Contrast Language in Gift to Niece: No Limits

30. White White v. Brown Redwood: DQ4.03 I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Whose Arguments Seem Stronger?

31. White White v. Brown Holds Interest is Fee Simple Absolute Could you Read Grant as Fee Simple Conditioned on Land Not Being Sold? No. Restraints on Alienation are Inconsistent with Fee Simple. Even if Condition Explicit, Court Would Pencil It Out as Against Public Policy. THUS…

32. White White v. Brown Holds Interest is Fee Simple Absolute Result: The Property Can Be Sold!!!

33. White White v. Brown Redwood: DQ4.04 Imagination Exercise: Possible Relevant Facts Not in Opinion Legal Relevance Here: Both Sides Rely on “Presumptions” Means Can Use Other Facts to Overcome/Rebut Important Exam Skill Big Part of Lawyering Q Can Use for Short Problems/Issue-Spotter If Consistent with Rest of Facts If Relevant to Issues Raised

34. White White v. Brown Redwood: DQ4.04 Imagination Exercise: Possible Relevant Facts Not in Opinion To Add Weight to Majority Position (Fee Simple)? To Add Weight to Dissent Position (Life Estate)?

35. White White v. Brown What Actually Happened? 1.EW had stroke, moved in w daughter 2.Probably wants to sell house b/c rental income not much 3.Significance of case: If life estate, most of value goes to nieces/nephews If fee simple (as court held), EW gets money for medical & living expenses

36. White White v. Brown Grantor’s Intent v. “Channeling” Function 1.Recurring problem with estates/future interests: laypeople don’t know relevant categories. 2.Thus, they don’t know how to signal what they wish to future court. 3.Important roles that lawyers play in helping with wills: a.Ask Qs to discern client wishes (“What if Evelyn gets sick?”) b.Channel client desires into language that gives legal effect to those wishes.

37. White White v. Brown Test Note #1: Test Will Include At Least One Grant (Yielding Multiple Questions) That Could Be Either Fee Simple or Life Estate, So You Need to Know Arguments Distinguishing the Two QUESTIONS?

38. Vested v. Contingent Remainders

39. FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REMAINDER Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

40. VESTED REMAINDER 1.Grantee is living ascertainable person (can presume this if granted to a named individual.)

41. 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.

42. 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.

43. CONTINGENT REMAINDER Grantee is presently unborn or unascertainable *OR* Clause creating the remainder contains a condition on grantee taking the property

44. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder If Fred presently has no children, grantee is unborn, so Remainder is Contingent.

45. Suppose Fred has a child, Pebbles…

46. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder Once Fred fathers his first child, grantee is born and ascertainable, so Remainder is now Vested. Thus, we say that, at the birth of Pebbles, the Contingent Remainder “Vests”

47. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s oldest child living at Fred’s death.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder Even if F has living children now, can’t know which of the children will be alive at F’s death, so grantee is unascertainable, so Remainder is Contingent.

48. 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.

49. Memory/Comprehension Aids Contingent v. Vested Remainders: Memory/Comprehension Aids Meaning/Derivation of Vested Right Clearly Established Right that’s Hard to Undo E.g., “Vested” Employee Benefits vest Derivation: Putting on Robes of Office (Investment) Analogy: Vested Remainder  Theater Ticket Contingent Remainder  Lottery Ticket

50. Life Estate + Vested Remainder To Fred for Life, then to Wilma and her heirs.

51. 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

52. 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!

53. 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.

54. Life Estate + Contingent Remainder Barney “to Fred for Life then to Wilma and her heirs if Dino survives Fred.” Barney retains a reversion. HINT: If there’s a contingent remainder, the grantor always retains a reversion.

55. 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

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

57. 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.

58. 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.

59. 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

60. 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

61. SHENANDOAH (Problems 4A-4E) APPALACHIAN TRAIL

62. 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?

63. 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”

64. 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?

65. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie?

66. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: ?

67. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then 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 …?

68. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then 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.

69. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then 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)?

70. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then 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?

71. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Burt: Life Estate Kermit: (retains) Reversion When Burt Dies?

72. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Kermit (or Kermit’s Successors) have Fee Simple Absolute

73. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder in Life Estate Kermit: Reversion

74. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: ?

75. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: Vested Remainder in Fee Simple -Default Estate Today is Fee Simple Kermit?

76. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then 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?

77. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Burt: Fee Simple Absolute When Burt Dies?

78. to Ernie for lifethen to Burt forever Shenandoah: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Burt: Fee Simple Absolute When Burt Dies? Property passes by Burt’s will or through intestacy to Burt’s heirs.

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

80. to Sylvester for life then to Bugs and his heirs Shenandoah: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs:?

81. to Sylvester for life then to Bugs and his heirs Shenandoah: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs: Vested Remainder in Fee Simple [Absolute] Bugs dies intestate without heirs. What Effect?

82. to Sylvester for life then to Bugs and his heirs Shenandoah: (4C) Elmer “to Sylvester for life, then 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?

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

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

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

86. then to Pluto for 99 years.” Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Anything Else?

87. then to Pluto for 99 years.” Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Mickey: Reversion

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

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