1. PROPERTY D SLIDES 3-17-14

2. Monday March 17 Music: Albéniz, Iberia Alicia Delarrocha, Pianist 2009 Re-recording of Grammy Winner for 1974 for Best Classical Performance without Orchestra Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2011

3. Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Major Studio Motion Picture in 2011

4. Name the Musical Group: 1 st Billboard #1 Hit in 1958 Won 5 Grammys; Nominated for 8 More Featured in Motion Picture in 2011

5. Pop Culture Update Me on 3/3: Top Model Under the Guns From Caracas to Kabul to Kiev, Our Aspiring Models Bring Fashion to the World’s War Zones

6. Pop Culture Update Me on 3/3: Top Model Under the Guns From Caracas to Kabul to Kiev, Our Aspiring Models Bring Fashion to the World’s War Zones Miami Herald on 3/9: Miami Company Takes Golfers Into Danger Zones You can play golf in Kabul on Afghanistan’s only course, protected by a professional security team --

7. You Can’t Make This Stuff Up Me on 3/3: Top Model Under the Guns From Caracas to Kabul to Kiev, Our Aspiring Models Bring Fashion to the World’s War Zones Miami Herald on 3/9: Miami Company Takes Golfers Into Danger Zones You can play golf in Kabul on Afghanistan’s only course, protected by a professional security team -- for only $40,000 to $80,000 for a five-day excursion.

8. LOGISTICS: Chapter 4 Test & Prep Wednesday Make-up class here at usual time. I will post additional sample Qs/tests & answers after class. Thursday – Sunday Extra Office Hours Each Day (See Course Page & My Door) I’ll Answer E-Mail Qs Sent Before Sunday @ 7:00 pm Next Monday: Test Here 8:00-9:10 am (Be Early!!!) Have Multiple #2 Pencils Bring Anonymous Grading Number (Available Online) Address Concerns (re Illness, Lateness, Problems in Room etc.) to Registrar or Dean of Students (NOT TO ME!!!)

9. LOGISTICS: Review Problems 4R- 4W Messy Old Exam Qs from Long Ago in a Galaxy Far Far Away (Before I Used Mid-Semester Test) In Class Tuesday & Wednesday, We’ll Do 4R-4U Identify Key Ambiguities/Questions, Then Work Through Some Possible Scenarios (Like Problem 4O Today) Get As Far As We Can Before 9:00 AM Wednesday I Will Post All Slides I Have on 4R-4U Even If We Don’t Get to Them After class Wednesday, I’ll Post Memo with Some Additional Follow-Through and Write-ups of 4V and 4W

10. LOGISTICS: Going Forward Comments & Best Answers to All Posted Old Exam Qs Available on Course Page Comments & Best Answers to All Posted Old Exam Qs Available on Course Page Chapter 5: Adverse Possession Chapter 5: Adverse Possession Supplement, Syllabus, Assignments on Course Page We’ll Begin Classroom Work at 9:00 am Wednesday Organized by Elements of Claim (Not by Case) Four Primary Cases Need to Read for Plot by Thursday Reread as Needed for Discussions of Individual Elements

11. QUICK WARM-UP/REVIEW 1: Remainders & Executory InterestsBasics Reversion v. RemainderReversion v. Remainder Vested v. Contingent RemainderVested v. Contingent Remainder Remainders in …Remainders in … Remainder v. Executory InterestRemainder v. Executory Interest Shifting v. Springing Executory InterestsShifting v. Springing Executory Interests

12. WARM-UP/REVIEW 1: Remainders & Executory Interests: Basics Reversion v. Remainder REVERSION: REVERSION: Future interest implicitly retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires. REMAINDER: 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.

13. WARM-UP/REVIEW 1: Remainders & Executory Interests: Basics Vested v. Contingent Remainder VESTED IF: Grantee is living ascertainable person AND Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate CONTINGENT IF: Grantee is presently unborn or unascertainable OR Clause creating the remainder contains a condition on grantee taking the property

14. WARM-UP/REVIEW 1: Remainders & Executory Interests: Basics Remainders in … “To Fred for life, then to Wilma for life.” in life estate. Wilma has a vested remainder in life estate. “To Fred for life, then to Wilma and her heirs if Dino survives Fred. in fee simple absolute. Wilma has a contingent remainder in fee simple absolute.

15. WARM-UP/REVIEW 1: Remainders & Executory Interests: Basics Remainder v. Executory Interest REMAINDER: REMAINDER: Future interest in a grantee that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor. EXECUTORY INTEREST: Future interest in a grantee that cuts off a prior vested interest (present estate or reversion or vested remainder) rather than waiting for it to expire naturally.

16. WARM-UP/REVIEW 1: Remainders & Executory Interests: Basics Shifting v. Springing Executory Interest Shifting Executory Interest cuts off interest of another grantee. Springing Executory Interest cuts off grantor’s fee simple or reversion.

17. WARM-UP/REVIEW 1: Remainders & Executory Interests More Advanced Alternative Contingent RemaindersAlternative Contingent Remainders Vested Remainders Subject to OpenVested Remainders Subject to Open Vested Remainders Subject to DivestmentVested Remainders Subject to Divestment Problems 4L-4NProblems 4L-4N

18. WARM-UP/REVIEW 1: Remainders & Executory Interests: More Advanced Alternative Contingent Remainder Two contingent remainders where the event that causes one to vest will destroy the other. Convention is that, where these are created, you always pencil in a reversion (even if it seems impossible that it will ever become possessory).

19. WARM-UP/REVIEW 1: Remainders & Executory Interests: More Advanced Alternative Contingent Remainder Two contingent remainders where the event that causes one to vest will destroy the other. Always pencil in a reversion. Jordan: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs.”Example: Jordan: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs.” Kevin has Life Estate Katherine & Sofia each have an Alternate Contingent Remainder (in F.S.) Jordan retains a Reversion

20. WARM-UP/REVIEW 1: Remainders & Executory Interests: More Advanced Alternative Contingent Remainder Jordan: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs.”Example: Jordan: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs.” What happens if Kevin dies & Katherine is alive but has not yet graduated from law school?

21. WARM-UP/REVIEW 1: Remainders & Executory Interests: More Advanced Alternative Contingent Remainder Jordan: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs.”Jordan: “To Kevin for life, then to Katherine and her heirs if she graduates from law school, but if she never graduates from law school, then to Sofia and her heirs.” Kevin dies; Katherine alive, hasn’t graduated.Kevin dies; Katherine alive, hasn’t graduated. Jordan’s Reversion  Fee Simple …Jordan’s Reversion  Fee Simple … If Destructability applies, both remainders destroyed, so J has FS Absolute.If Destructability applies, both remainders destroyed, so J has FS Absolute. If no DestructibilityIf no Destructibility Both remainders become executory interestsBoth remainders become executory interests Jordan has FS on Executory LimitationJordan has FS on Executory Limitation

22. WARM-UP/REVIEW 1: Remainders & Executory Interests: More Advanced Vested Remainder Subject to Open RemainderRemainder given to a class of recipients (as opposed to specifically named individuals),given to a class of recipients (as opposed to specifically named individuals), at least one of whom has qualified for the class,at least one of whom has qualified for the class, where other individuals could qualify for the class later.where other individuals could qualify for the class later. Example (4G): “To Larry for life, then to Larry's children and their heirs.“ Larry has two living children.

23. WARM-UP/REVIEW 1: Remainders & Executory Interests: More Advanced Vested Remainder Subject to Divestment Executory InterestVested Remainder followed by an Executory Interest that could cut the VR off before it becomes possessory. “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs.”Example (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs.” Kramer is 15 years old. Questions Before Moving on to New Material?

24. Vested Remainder Subject to Divestment (1) v. Vested Remainder in F.S. subj. to Exec. Lim. (2) (1) To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs. Condition might occur before B obtains possession.

25. Vested Remainder Subject to Divestment (1) v. Vested Remainder in F.S. subj. to Exec. Lim. (2) but if B dies before turning 21, then to C & his heirs. (1) To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs. Condition might occur before B takes possession. but if B ever uses the land for commercial purposes, to C & his heirs. (2) To A for life, then to B & her heirs, but if B ever uses the land for commercial purposes, to C & his heirs. Condition is a limit on B’s use of the land and cannot occur before B takes possession.

26. TERMINOLOGY: ME v. WORKBOOK but if B dies before turning 21, then to C & his heirs. To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs. Condition might occur before B takes possession, but also might occur after. WORKBOOK (p93): Vested Remainder Subject to Divestment in Fee Simple on Executory Limitation. ME: Phrase in italics is accurate but unnecessary. In multiple choice answers, I will simply call this interest a Vested Remainder Subject to Divestment (as long as it might occur before possession).

27. CORRECTION TO WORKBOOK (Problem 9-11) but if B ever allows A to be moved into a nursing home, then to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, then to C Condition must occur, if at all, while A is alive, thus before B gets possession. –Presumably (considering grantor’s likely intent), it would not violate the condition for B to allow someone to carry A’s corpse into a nursing home. (!)

28. CORRECTION TO WORKBOOK (Problem 9-11) but if B ever allows A to be moved into a nursing home, then to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, then to C Condition must occur, if at all, while A is alive, thus before B gets possession. B will eventually get either nothing or a fee simple absolute (assuming “today”) B has a vested remainder subject to divestment –(in Fee Simple Absolute) –NOT in Fee Simple on Executory Limitation

29. CORRECTION TO WORKBOOK (Problem 9-11) but if B ever allows A to be moved into a nursing home, then to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, then to C Condition must occur, if at all, while A is alive, thus before B gets possession. B will eventually get either nothing or a fee simple absolute (assuming “today”) B has a vested remainder subject to divestment [in FS Absolute] QUESTIONS?

30. Alt. Contingent Remainders (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (No Reversion in O)

31. Alt.Contingent Remainders (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. If A alive & B dies at 14 Both 1+2: If A alive & B dies at 14: B gets 0; C gets fee simple at A’s death

32. Alt. Contingent Remainders (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. If A alive & B turns 21 Both 1+2: If A alive & B turns 21: B has vested remainder C’s interest fails

33. Contingent Remainder (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (1) If A dies & B not yet 21:(1) If A dies & B not yet 21: Conditions not met for either B or C. Remainders either destroyed or become Springing Executory InterestsConditions not met for either B or C. Remainders either destroyed or become Springing Executory Interests O takes Fee Simple [on Executory Limitation in Modern View (exc. FL)]O takes Fee Simple [on Executory Limitation in Modern View (exc. FL)]

34. Contingent Remainder (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (2) If A dies & B not yet 21(2) If A dies & B not yet 21 No requirement that B turn 21 to take possession, so B does take possession and has Fee Simple on Executory Limitation.No requirement that B turn 21 to take possession, so B does take possession and has Fee Simple on Executory Limitation. C still has Shifting Executory Interest that will become possessory if B dies before turning 21.C still has Shifting Executory Interest that will become possessory if B dies before turning 21.

35. Contingent Remainder (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. Questions?

36. CORRECTION TO WORKBOOK (Problem 5-28) O to A for life, then to B, on condition that B has passed the bar.

37. CORRECTION TO WORKBOOK (Problem 5-28) O to A for life, then to B, on condition that B has passed the bar. –A has Life Estate –B has a Remainder (follows life estate) At First Looks Vested –Living Ascertainable Person –No Condition in Clause Creating the Interest (Walk to the Punctuation & Turn Around …) –BUT …

38. CORRECTION TO WORKBOOK (Problem 5-28) O to A for life, then to B, on condition that B has passed the bar. –A has Life Estate –B has a Remainder (follows life estate) At First Looks Vested BUT Condition that follows it does not create an interest in anybody else, so must attach to B’s remainder Comma after B unneeded & confusing. 

39. CORRECTION TO WORKBOOK (Problem 5-28) O to A for life, then to B, on condition that B has passed the bar. –A has Life Estate –B has a Contingent Remainder Condition is a “Condition Precedent” See 5-29, which strongly suggests that interest in 5-28 is a contingent remainder. QUESTIONS?

40. COMPARE O to A for life, then to B[,] on condition that B has passed the bar. A has Life Estate B has a Contingent Remainder O retains a Reversion on condition that if B ever fails the bar, then to C. O to A for life, then to B, on condition that if B ever fails the bar, then to C. A has Life Estate B has a Vested Remainder Subject to Divestment C has a Shifting Executory InterestC has a Shifting Executory Interest

41. SHENANDOAH: Problems 4L-4N APPALACHIAN TRAIL

42. SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." Tweety has 2 children, Heckle and Jeckle. Tweety: ?

43. SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children?

44. SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Contingent Remainder (in f.s.) (Must Survive Tweety) Peggy?

45. SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.): Only 2 Possibilities: – Tweety survived by children (who take) – Tweety not survived by children (Peggy takes)

46. SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Alternative Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.) Anything Else?

47. SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." Tweety has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.) Daffy: Reversion (even when alternate contingent remainders)

48. SHENANDOAH (4L): Daffy "to Tweety for life, then to such of Tweety's children as survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." Tweety: Life Estate Tweety’s Children: Alternative Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.) Daffy: Reversion (even when alternate contingent remainders)

49. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Billy: ?

50. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Billy: Life Estate Billy’s children: ?

51. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Billy: Life Estate Billy’s children: Contingent Remainder (in f.s.) (Unborn) Jo: ?

52. Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other.

53. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. When does contingent remainder in B’s children vest?

54. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Contingent remainder in B’s children vests when a child of B’s is born. When does contingent remainder in Jo vest?

55. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Contingent remainder in B’s children vests when a child of B’s is born. Contingent remainder in Jo vests when Billy dies survived by no children. Is the interest in Jo destroyed when the interest in the children vests?

56. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Billy: Life Estate Billy’s children: Contingent Remainder (in f.s.) Jo: Contingent Remainder (in f.s.) (Not alternate) Anything Else?

57. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Billy: Life Estate Billy’s children: Contingent Remainder (in f.s.) Jo: Contingent rem. (in f.s.) (Not alternate) Amanda: Reversion

58. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has no children. Billy: Life Estate Billy’s children: Contingent Rem. (in f.s.) (unborn) Jo: Contingent Rem. (in f.s.) (Not Alternative) Amanda: Reversion

59. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has a child, Sydney. Billy: Life Estate Sydney?

60. SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has a child, Sydney. Billy: Life Estate Sydney: Vested Remainder (in f.s.) … – Subject to Open (B can have more children) … – Subject to Divestment (interest lost if none of B’s children survive B) Jo?

61. but if at Billy's death he is not survived by any children, then to Jo and her heirs." SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has a child, Sydney. Billy: Life Estate Sydney: Vested Remainder (in f.s.) Subject to Open, Subject to Divestment Jo: Shifting Executory Interest (in f.s.) (would cut off vested remainder) Amanda?

62. but if at Billy's death he is not survived by any children, then to Jo and her heirs." SHENANDOAH (4M): Amanda "to Billy for life, then to Billy's children and their heirs, but if at Billy's death he is not survived by any children, then to Jo and her heirs." Billy has a child, Sydney. Billy: Life Estate Sydney: Vested Remainder (in f.s.) Subject to Open, Subject to Divestment Jo: Shifting Executory Interest (in f.s.) (would cut off vested remainder) Amanda: Nothing (Reversion divests when 1 st contingent remainder vests)

63. SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. Jimmy has two children, Perry & Della. Jimmy?

64. SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. Jimmy has two children, Perry & Della. Jimmy: Life Estate Lois?

65. SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. Jimmy has two children, Perry & Della. Jimmy: Life Estate Lois: Vested Remainder (in f.s.) Subject to Divestment J’s Children

66. but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. Jimmy has two children, Perry & Della. Jimmy: Life Estate Lois: Vested Remainder (in f.s.) Subject to Divestment J’s Children: Shifting Executory Interest (in f.s.) J’s Children: Shifting Executory Interest (in f.s.) Clark?

67. but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. SHENANDOAH (4N): Clark “to Jimmy for life, then to Lois & her heirs, but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. Jimmy has two children, Perry & Della. Jimmy: Life Estate Lois: Vested Remainder (in f.s.) Subject to Divestment J’s Children: Shifting Executory Interest (in f.s.) J’s Children: Shifting Executory Interest (in f.s.) Clark: Nothing

68. GRANTS IN (4L) & (4M) & (4N) ALL TRYING TO DO SAME THINGS: (1)To A for life, then … (2)If A has any surviving children, they take. (3)If no surviving children, to B. BUT The Precise Wording of Each Grant Creates a Slightly Different Set of Interests

69. (4L) & (4M) & (4N) Test Note #4: Test Will Include Grants Modeled on At Least One of These Problems. I’ll Ask You to: 1.Identify the Interests Created; and 2.Identify the State of the Title as Relevant Parties are Born or Die.

70. WARM-UP/REVIEW 2: Conditional InterestsBASICS Identifying Defeasible FeesIdentifying Defeasible Fees Defeasible Fees v. Finite Estate + Contingent Remainder Defeasible Finite Estates Future Interests that Follow Defeasible Estates

71. IDENTIFYING DEFEASIBLE FEES

74. WARM-UP/REVIEW 2: Conditional InterestsBASICS Identifying Defeasible Fees Defeasible Fees v. Finite Estate + Contingent RemainderDefeasible Fees v. Finite Estate + Contingent Remainder Defeasible Finite Estates Future Interests that Follow Defeasible Estates

75. DEFEASIBLE FEES v. (FINITE ESTATES +) CONTINGENT REMAINDERS

76. DEFEASIBLE FEES PRESENT INTEREST IS FEE CONTINGENT REMAINDERS PRESENT INTEREST IS FINITE

77. DEFEASIBLE FEES PRESENT ESTATE CUT OFF IF CONDITION MET CONTINGENT REMAINDERS PRESENT ESTATE TERMINATES NATURALLY

78. DEFEASIBLE FEES GRANTEE FUTURE INTEREST IN EITHER GRANTOR OR GRANTEE CONTINGENT REMAINDERS REMAINDER IN GRANTEE PLUS REVERSION IN GRANTOR

79. but if Totie loses 100 pounds, she may enter and retake the land. + Executory Interest 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 + Reversion in Pepe)

80. WARM-UP/REVIEW 2: Conditional InterestsBASICS Identifying Defeasible Fees Defeasible Fees v. Finite Estate + Contingent Remainder Defeasible Finite EstatesDefeasible Finite Estates Future Interests that Follow Defeasible Estates

81. Defeasible Finite Estates: Defeasible Finite Estates: Examples Term of Years on Condition Subsequent: “To Joshua for 20 years, but if he ever passes the bar exam, I can enter & retake.” Life Estate on Executory Limitation “To Richard for life, but to Chris & his heirs if Chris ever passes the bar exam.”

82. WARM-UP/REVIEW 2: Conditional InterestsBASICS Identifying Defeasible Fees Defeasible Fees v. Finite Estate + Contingent Remainder Defeasible Finite Estates Future Interests that Follow Defeasible EstatesFuture Interests that Follow Defeasible Estates

83. (Accessorizing) Defeasible Fees & Matching Future Interests (Accessorizing) FEE SIMPLE DETERMINABLE & Possibility of Reverter F.S. ON CONDITION SUBSEQ’T & Right of Re[Entry] F.S. ON EXECUTORY LIMITATION & Executory Interest

84. Defeasible Finite Estates & Matching Future Interests Defeasible Finite Estates Necessarily Create Two Future Interests One cuts off the finite estate if the condition is met) One follows at the end of the finite estate if it terminates naturally (i.e., if the condition is not met). If One Person Holds Both of These Future Interests, They Will Merge Into the “Larger” Interest

85. Defeasible Finite Estates & Matching Future Interests Defeasible Finite Estates Necessarily Create Two Future Interests If One Person Holds Both Future Interests, They Will Merge Into the “Larger” Interest Example (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." – Louise: Term of years determinable. – Thelma: Possibility of Reverter plus Reversion

86. Defeasible Finite Estates & Matching Future Interests Defeasible Finite Estates Necessarily Create Two Future Interests If One Person Holds Both Future Interests, They Will Merge Into the “Larger” Interest Example (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." – Louise: Term of years determinable. – Thelma: Possibility of Reverter plus Reversion  Reversion (Merger) (Captures idea that T will end up with land eventually no matter what)

87. Defeasible Finite Estates & Matching Future Interests Defeasible Finite Estates Necessarily Create Two Future Interests If One Person Holds Both Future Interests, They Will Merge Into the “Larger” Interest Example (E79): O “To A for life or until A divorces, then to B" – A: Life Estate on Executory Limitation. Shifting Executory Interest – B: Shifting Executory Interest + Vested Remainder

88. Defeasible Finite Estates & Matching Future Interests Defeasible Finite Estates Necessarily Create Two Future Interests If One Person Holds Both Future Interests, They Will Merge Into the “Larger” Interest Example (E79): O “To A for life or until A divorces, then to B" – A: Life Estate on Executory Limitation. Shifting Executory Interest – B: Shifting Executory Interest + Vested Remainder  Vested Remainder (Merger) (Captures idea that A will end up with land eventually no matter what)

89. otherwise to Mike and Mili.” 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. Take a moment and try this.

90. otherwise to Mike and Mili.” 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. Why is (b) the correct answer?

91. Conditions: Additional Information Unacceptable ConditionsUnacceptable Conditions Problem 4O Shapira Timing Issues

92. Unacceptable Conditions Conditions So Abhorrent …

93. Unacceptable Conditions Conditions So Abhorrent … You Can’t Even Impose Them on Your Own Children

94. Unacceptable Conditions Total Restraint on Alienation

95. Unacceptable Conditions 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.” Total Restraint on Alienation is Invalid

96. Unacceptable Conditions 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.” Total Restraint on Alienation is Invalid Pencil Out Unlawful Condition (and executory interest that turns on it)

97. Unacceptable Conditions 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.” Total Restraint on Alienation is Invalid Pencil Out Unlawful Condition (and executory interest that turns on it) Result is Vested Remainder in Fee Simple Absolute

98. Unacceptable Conditions 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.” Exam Question Fall 2007 & Spring 2010 1 st Time Nasty b/c New & at End of Test: (1/63 students got it) 2d Time (with warning) about 45% got it. READ CAREFULLY!!

99. Unacceptable Conditions Total Restraint on Alienation Partial Restraint OK if Reasonable

100. 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 (b/c nobody will purchase) See Casebook at P632-33 Maybe: “so long as the owner stays on the parcel every night.”

101. 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

102. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts “To Kyley if she murders Matt”

103. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage: Generally Barred Some Jurisd: Maybe OK if Life Estate Some Jurisd allow reasonable partial restraints E.g., “So long as she doesn’t marry until she turns 25” We’ll explore with Problem 4O & Shapira

104. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage Encouraging Divorce (Evil In-Laws Grant): “To Lindsay so long as she divorces Doug”

105. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage Encouraging Divorce Grant Penalizing Divorce Seems to be OK “To Lindsay for Life, but if she divorces Doug, to Ashley”

106. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage Encouraging Divorce Commonly Protected Characteristics Race-Based Limitations (Unenforceable) Sex-Based Upheld w/in Family Religion: (We’ll Discuss w Shapira)

107. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage Encouraging Divorce Commonly Protected Characteristics QUESTIONS?

108. Conditions: Additional Information Unacceptable Conditions Problem 4OProblem 4O Shapira Timing Issues

109. Yellowstone (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, devising all her property to Sherman. “devising” means?

110. Yellowstone (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.

111. Yellowstone (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: 1.Life Estate Determinable v. Fee Simple Determinable? 2.Is condition restraining second marriage void? 3.Does cohabitation violate a restraint on marriage? Then We’ll Work Through Decision Tree

112. EXAM TIP: “Which of the Following Arguments Does [Not] Support …” Can Arise in Context of – Fee Simple v. Life Estate (White, 4o) – FSD v. FSCS (Mahrenholz, 4i) – Whether a Condition is Valid (Shapira, 4o) – Timing Ambiguities (Tomorrow)

113. EXAM TIP: “Which of the Following Arguments Does [Not] Support …” For an Argument to “Support” a Particular Legal Result: 1.It Must Be Correct and 2.It Must Logically Suggest that the Result is More Likely or More Desirable Than the Alternative

114. YELLOWSTONE (PROBLEM 4O) GIANT GEYSER

115. Yellowstone (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?)

116. Yellowstone (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?

117. Yellowstone (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 LawPresumption of Life Estate if at Common Law “Use and Benefit” Sounds Like Life Estate (Hard to “Use” Land After Death)“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 LifetimeCondition/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)Reasonable to Think Archie would try to Protect Gloria (not Edith’s daughter)

118. Yellowstone (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

119. Yellowstone (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)?

120. Yellowstone (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

121. Yellowstone (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)?

122. Yellowstone (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 Possibility of Reverter + Reversion – Merges into Reversion

123. Yellowstone (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?

124. Yellowstone (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 property v. E’s right to control her life Court probably more likely to allow condition if it views E’s interest as just a life estate for support

125. Yellowstone (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

126. Yellowstone (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.”

127. Yellowstone (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?

128. Yellowstone (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.