CHAPTER 4 TEST LOGISTICS FOR TEST THURSDAY Room Assignments: – Last name A-P: Room F309 – Last name R-Z: Room A110 Have #2 Pencils Ready Get Anonymous Grading Number from MyUM & Bring It PRE-TEST OFFICE HOURS Today: 2:00-6:00 pm (My Office) Tomorrow: 8:00-10:00 am & 1:30-3:30 pm (My Office) Wednesday: 3:00-8:00 B449 (Library Study Room)

CHAPTER 4 TEST LOGISTICS TEST IS ESSENTIALLY DONE A couple of completely new problems Mostly questions from posted Bank or Tests, some altered a bit, all with new names Contains names of all students from Acadia, Denali, Everglades & Glacier (except Matts and Erins) Apologies to those of you I had to kill off.

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

CORRECTION TO WORKBOOK (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 …

CORRECTION TO WORKBOOK (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.

CORRECTION TO WORKBOOK (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?

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 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

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 cannot occur before B takes possession.

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: Vested Remainder Subject to Divestment in Fee Simple on Executory Limitation ME: Vested Remainder Subject to Divestment (as long as it might occur before)

CORRECTION TO WORKBOOK (9-11) but if B ever allows A to be moved into a nursing home, to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, 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

CORRECTION TO WORKBOOK (9-11) but if B ever allows A to be moved into a nursing home, to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, 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 QUESTIONS?

Shapira v. Union National Bank GLACIER: DQ71-73 Glacier Mountain Lion

GLACIER: DQ71  SHAPIRA: DISTINCTIONS  We’ll Explore Shapira Reasoning by Looking at Five Key Distinctions Drawn by the Opinion

GLACIER: DQ71  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Why Relevant?

GLACIER: DQ71  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Coercing Belief  v. Conduct  Administrability

GLACIER: DQ71  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Coercing Belief  v. Conduct  – Note View of Marriage in 1977 – Can Use to Support Conditions Requiring Conduct Affecting Religious Concerns but not Coercing Belief Administrability

GLACIER: DQ71  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Administrability: Compare:  To Pigpen, so long as the kitchens and bathrooms are always kept very clean.  To Schroeder, so long as he never plays any work by Beethoven on the piano.

GLACIER: DQ71  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Administrability: Compare:  To Lucy so long as she remains a member of the Society of Friends.  To Linus, so long as he remains a good Catholic. QUESTIONS?

GLACIER: DQ71  SHAPIRA: DISTINCTION #2  Gift conditioned upon divorce  v. Gift conditioned upon marriage to person of particular faith (maybe  ) Why Relevant?

GLACIER: DQ71  SHAPIRA: DISTINCTION #2  Gift conditioned upon divorce  v. Gift conditioned upon marriage to person of particular faith (maybe  ) Court: Latter not sufficient to encourage fake marriage & divorce Grantee can’t avoid condition by saying “I will act in bad faith” (issue often occurs in law)

GLACIER: DQ71  SHAPIRA: DISTINCTION #3  Conditional gift with “gift over” to third party v. Conditional gift without “gift over” Why Relevant?

GLACIER: DQ71  SHAPIRA: DISTINCTION #3  Conditional gift with “gift over” to third party v. Conditional gift without “gift over” Comprehensive Plan (likely  ) v. “In Terrorem” Condition (maybe  )

GLACIER: DQ71  SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  Why Relevant?

GLACIER: DQ71  SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  Why Relevant?

 SHAPIRA: DISTINCTIONS  Forcing a marriage as condition of completed gift v. Withholding gift until marriage made  Remedy: Injunction v. Forfeiting Gift Like case involving divorce settlement requirement that child be raised in partic. faith: Won’t impose contempt/crim sanctions for not following religion

GLACIER: DQ71  SHAPIRA: DISTINCTION #5  Quaker Men (Maddox)  v.  Jewish Women (Shapira) Why Relevant? Richard Nixon (per Resnick)

GLACIER: DQ71  SHAPIRA: DISTINCTION #5  Quaker Men (Maddox)  v.  Jewish Women (Shapira) Quakers = Too Few Available Partners  E.g., you must marry one of the Bronte Sisters 

Shapira v. Union National Bank GLACIER: DQ72 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “ small number of eligible ” partners. How few partners must there be to meet the test?

Shapira v. Union National Bank GLACIER: DQ72 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “ small number of eligible ” partners. If you were living in a state with that test, how could you prove whether it was met?

Shapira v. Union National Bank GLACIER: DQ72 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “ small number of eligible ” partners. Assuming that some partial restraints on marriage are allowed, is the Maddox rule a good result?

Shapira v. Union National Bank GLACIER: DQ72 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “ small number of eligible ” partners. Good result? Too much restriction on grantee v. Grantor ’ s Rights (can always argue that grantors should be able to dispose of their own property as they wish).

Shapira v. Union National Bank GLACIER: DQ73 Should a court enforce conditions that limit or mandate religious behavior for the grantee?

ALL: DQ70 = Big Underlying Q 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

Problems 4P-4S (Review) We’ll Go Through Today in Time We Have –Identify & Discuss Key Ambiguities/Questions –Do Some Possible Iterations Slides Posted for Today Will Include All on These Problems (Even Those We Don’t Get Through) I’ll Post Memo with Some Additional Follow- Through Tomorrow We Start Chapter 5 (Materials & Assignments Already Posted)

OLYMPIC: Problem 4P SUNSET IN THE PARK

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

4P: Olympic Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS R alive or dead? M’s interest intended to cut off life estate? Condition void? Today or “At Common Law”?

(4P: Olympic) AMBIGUITIES R alive or dead? M’s interest intended to cut off life estate? Condition void? Today or “At Common Law”?

(4P: Olympic) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” R alive or dead: Why matters?

(4P: Olympic) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” R alive, “to my heirs” = contingent remainder R dead, “To my heirs” = vested remainder subject to divestment.

(Olympic: 4P) AMBIGUITIES R alive or dead? M’s interest intended to cut off life estate? Condition void? Today or “At Common Law”?

(Olympic: 4P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” M’s interest cut off life estate? Arguments ?

(Olympic: 4P) R “to S for life, then to my heirs, but should S marry before she turns 35, to M.” M’s interest cut off life estate? – punishes S for early marriage – discourages fortune hunters – maybe concern w Stacy support for Marni – no “then to Marni” BUT: could have placed right after life estate Could check for other facts (ages of S&M) (!)

(Olympic: 4P) AMBIGUITIES R alive or dead? M’s interest intended to cut off life estate? Condition void? Today or “At Common Law”?

(Olympic: 4P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” Partial Restraint on Marriage: OK to Postpone Marriage Until 35?

(Olympic: 4P) R “to S for life, then to my heirs, but should S marry before she turns 35, to M.” Partial Restraint on Marriage OK? Probably OK if only effects remainder (no harm to S) Check S’s age – Not much effect if S is 33 – Bigger deal if S is 14 or engaged to be married soon Might argue concern about effects on safe pregnancies – Bigger deal if S is ill and might die before 35 (Ibeh) If void, pencil out condition & resulting interest in M If void, pencil out condition & resulting interest in M

(Olympic: 4P) AMBIGUITIES R alive or dead? M’s interest intended to cut off life estate? Condition void? Today or “At Common Law”?

(Olympic: 4P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” At Common Law or Today: Why Matters?

(4P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” At Common Law: M’s interest presumed to be in Life Estate Today: M’s interest presumed to be in fee simple absolute NOTE: Even at common law, a grant “to my heirs” was presumed to be in fee simple; no need to write “to my heirs and their heirs.”

REVUE: “ At Common Law ” v. “ Today ”

Default Estate “At Common Law” v. “ Today ” Life Estate (Must use “and M’s Heirs” to create fee simple.) Fee Simple

“to X and the Heirs of his Body” “At Common Law” v. “ Today ” Created a Traditional Fee Tail Traditional Fee Tail eliminated; state statutes provide different results when this language used

Doctrine of Destructability of Contingent Remainders “ At Common Law ” v. “ Today ” Applied everywhere Eliminated in all states except Florida

(Olympic: 4P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” Work Through Decision Tree: One Example

(Olympic: 4P) R “to S for life, then to my heirs, but should S marry before she turns 35, to M.” Example: Condition void, Renee alive, today. – S?

(Olympic: 4P) R “to S for life, then to my heirs, but should S marry before she turns 35, to M.” Example: Condition void, Renee alive, today. – S: Life Estate – R’s Heirs?

(Olympic: 4P) R “to S for life, then to my heirs, but should S marry before she turns 35, to M.” Example: Condition void, Renee alive, today. – S: Life Estate – R’s Heirs: Contingent Remainder in F.S. – R?

(Olympic: 4P) R “to S for life, then to my heirs, but should S marry before she turns 35, to M.” Example: Condition void, Renee alive, today. – S: Life Estate – R’s Heirs: Contingent Remainder – R: Reversion – M?

(Olympic: 4P) R “to S for life, then to my heirs, but should S marry before she turns 35, to M.” Example: Condition void, Renee alive, today – S: Life Estate – R’s Heirs: Contingent Remainder – R: Reversion – M: Nothing

YOSEMITE: Problems 4Q-4R HALF DOME

(4Q) (Yosemite): Xaviera, in her valid will: “I grant Brothelacre to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it. I leave the rest of my property to my friend Phil.” Xaviera was survived by no issue or spouse, but by her mother, Yvonne. Betsy later closed the existing brothel and replaced it with an ad agency. AMBIGUITIES/QUESTIONS?

(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be used as house of prost., but if not, my heirs can take it. I leave the rest of my property to friend P.” X survived by mother, Y. B closed brothel and opened ad agency. AMBIGUITIES Condition Valid? Heirs take automatically v. must act Ad agency violate grant? NOT AMBIGUITIES Common Law v. Today (Ad Agency) Who is X’s “heir”: Y not P

(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be used as house of prost., but if not, my heirs can take it. I leave the rest of my property to friend P.” X survived by mother, Y. B closed brothel and opened ad agency. AMBIGUITIES? Condition Valid?

(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be used as house of prost., but if not, my heirs can take it. I leave the rest of my property to friend P.” X survived by mother, Y. B closed brothel and opened ad agency. AMBIGUITIES? Condition Valid? – If in Nevada or other jurisdiction where prostitution legal. – If not?

(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be used as house of prost., but if not, my heirs can take it. I leave the rest of my property to friend P.” X survived by mother, Y. B closed brothel and opened ad agency. AMBIGUITIES? Condition Valid? – If in jurisdiction where prostitution legal. – If not, pencil out both condition and the grant to heirs dependent on it, leaving B with Fee Simple Absolute. Heirs take automatically v. must act? (Arguments)

(Yosemite: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be used as house of prost., but if not, my heirs can take it.” Automatically Single Purpose Time Language Condition in 1 st Clause Must Act Two Clauses “can take it” Presumption

(4R) (Yosemite) 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. VERY HARD (ESPECIALLY IF ESSAY Q)!! Multiple Variations in Old Tests

(Yosemite: 4R) 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?

(Yosemite: 4R) 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 Life Estate or Fee? Condition Violated by Writing/Deal-Making? When Does J’s Interest Take Effect? Destructibility Apply? NOT AMBIGUITIES Common Law v. Today (Deals on the Phone) Cf. Medical or Law School, which date to medieval Europe

(YOSEMITE: 4R) 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 Life Estate or Fee? – Arguments/Missing Facts?

(YOSEMITE 4R) 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 Life Estate or Fee? – “support & benefit” v. presumption of fee – “then to J” looks like remainder – Check age of J (more likely fee if J very young) – Is condition intended to be just on C (more likely life estate) or on whoever owns the land (more likely fee)? – Check relationship between R & C: Any reason to think it’s a support life estate? Note that arguments about whether J’s interest intended to cut off life estate are similar.

(YOSEMITE 4R) 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 Condition Violated?

(YOSEMITE 4R) 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 Condition Violated? Maybe literally because commercial transactions taking place at least partially on site. (Literal arguments generally taken seriously when interpreting grants) BUT: – Still being used as residence, so “supporting” C – Customers not coming to site to shop – Pretty common for people to work some at home & do online transactions Could check cases or local zoning laws on “commercial purposes” Was R aware that C wrote novels at home? If so, presumably would have said something more specific if intended to prevent (Bandstra)

(YOSEMITE 4R) 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 If C had life estate & when C dies, condition not violated: J had contingent remainder; condition not met. R (or Successor = S) had reversion. What Happens at C’s Death?

(YOSEMITE 4R) 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 If C had life estate & when C dies, condition not violated: J had contingent remainder; condition not met. R (or Successor = S) had reversion. What Happens at C’s Death? – If destructability: R or S has fee simple absolute. – If no destructability: R or S has fee simple on executory limitation J has springing executory interest J has springing executory interest

OLYMPIC: Problem 4S SUNSET IN THE PARK

PROBLEM 4S (Olympic) T (in will): “to the Holy Shrine Church to be used for church purposes, but if not, to my son D if he is still living.” Use of Property: – Parking Lot – Empty for Several Months – Winter Homeless Shelter Run by Parishioner D dies & leaves interest to J

PROBLEM 4S (Olympic) T (in will): “to the Holy Shrine Church to be used for church purposes, but if not, to my son D if he is still living.” AMBIGUITIES in GRANT?

PROBLEM 4S (Olympic) T (in will): “to the Holy Shrine Church to be used for church purposes, but if not, to my son D if he is still living.” AMBIGUITIES in GRANT Is limit on HSC supposed to survive D? Is Dick’s interest self-executing or did he have to act to retake the property?

PROBLEM 4S (Olympic): T (in will): “to the Holy Shrine Church to be used for church purposes, but if not, to my son D if he is still living.” Use of Property Violate Grant?: – Parking Lot – Empty for Several Months – Winter Homeless Shelter Run by Parishioner

FIN