MUSIC: Greatest Hits of 1790 Recorded Philharmonia Virtuosi of New York Richard Kapp, Conductor; Herbert Laws, Flute Chick Corea, Piano; Edward Carroll, Trumpet Help Yourself to Candy from Fishbowl!

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

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

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

TERMINOLOGY: ME v. WORKBOOK Workbook: Describes all present possessory estates as a “Possessory Estate in …” Fee Simple Absolute, Life Estate, etc. My Test Questions: Will not use the italicized phrase.

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

TERMINOLOGY: ME v. WORKBOOK Defeasible fee in the form of a Fee Simple Determinable BUT with the future interest in third party: Me (& Restatement): “Fee Simple on Executory Limitation” Workbook: “Fee Simple Determinable” (See Workbook p.72 fn19)

TERMINOLOGY: ME v. WORKBOOK I will post (in section on Qs & responses) any other relevant inconsistencies or ambiguities regarding the workbook that arise over the course of the week.

Review Problem 7L Revisited

(7L): 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: Contingent remainders (in f.s.) Peggy: Alternative contingent rem. (in f.s.) - Mirror Image Remainders: 1 st Vests only if 2d Fails Daffy: Reversion (even when alternate contingent remainders)

PROBLEMS 7M-7N

(7M): 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?

(7M): 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?

(7M): 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?

ALTERNATIVE CONTINGENT REMAINDERS Two contingent remainders for which the event that causes each one to vest will destroy the other.

(7M): 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 children vest?

(7M): 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 children vests when a child is born. When does contingent remainder in Jo vest?

(7M): 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 children vests when a child 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?

(7M): 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) Anything else?

(7M): 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

(7M): 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." B has child, Sydney. Effect (Beside Ratings Increase)? Billy: Life Estate Sydney?

(7M): 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." B has child, Sydney. Billy: Life Estate Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment. (Contingent remainder vests) Jo?

(7M): 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." B has child, Sydney. Billy: Life Estate Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment. Jo: Shifting Executory Interest (in f.s.) Amanda?

(7M): 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." B has child, Sydney. Billy: Life Estate Sydney: Vested Remainder (in f.s.), subject to open, subject to divestment. Jo: Shifting Executory Interest (in f.s.) Amanda: Nothing (reversion divested)

(7N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their heirs. Jimmy has children, Perry & Della. Jimmy?

(7N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their heirs. Jimmy has children, Perry & Della. Jimmy : Life Estate Lois?

(7N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their heirs. Jimmy has children, Perry & Della. Jimmy : Life Estate Lois: Vested remainder (in f.s.) subj. to divestment Perry/Della?

(7N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their heirs. Jimmy has children, Perry & Della. Jimmy : Life Estate Lois: Vested remainder (in f.s.) subj. to divestment Perry/Della: Shifting executory interest (in f.s.) Clark?

(7N): Clark “to Jimmy for life, then to Lois and her heirs, but if Jimmy is survived at his death by any children, then to such surviving children and their heirs. Jimmy has children, Perry & Della. Jimmy : Life Estate Lois: Vested remainder (in f.s.) subj. to divestment Perry/Della: Shifting executory interest (in f.s.) Clark? Nothing

(7L) (7M) (7N) TRYING TO DO SAME THINGS: (1) To A for life (2) If A has any surviving children, they should take (3) If no surviving children, to B BUT 3 DIFFERENT SETS OF INTERESTS CREATED

WED/THU CLASSES Info on 1L Electives: 7:45 Qs on Assmt #3 (due 11/9 or 11/10) Day & Eve. Office Hours: Check Course Page Finish 7O & Last-Minute Tips

WED/THU CLASSES Info on 1L Electives: 7:45 Qs on Assmt #3 (due 11/9 or 11/10) Day & Eve. Office Hours: Check Course Page Finish 7O & Last-Minute Tips Review Probs 7P-7S: OATS & RICE – Like 7I & 7O: Several Open Qs – First List Open Qs for Each – Then Go Through Possibilities for Some

EXAM IS DRAFTED Got all E1 names in (plus Graham, Anderson, Newman, Klein) by allowing one Joshua and one Michael to stand for all. Sorry to everyone I had to kill off.

TIMING AMBIGUITY To Andrew for life, then to Brian, but if Cheryl graduates from law school, then to Cheryl. If Cheryl graduates from law school during Andrew’s life estate, does she divest Andrew’s interest or just Brian’s?

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Cheryl graduates from law school, then to Cheryl. Common law presumption: If ambiguous, interest won’t divest life estate

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Cheryl graduates from law school, then to Cheryl. Now generally treated as a question of grantor’s intent.

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Cheryl graduates from law school, to Cheryl. To Andrew for life, then to Brian, but if Cheryl has graduated from law school, then to Cheryl.

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Cheryl graduates from law school, to Cheryl. To Andrew for life, then to Brian, but if Cheryl has graduated from law school, then to Cheryl. Verb Tenses suggest immediate for first; at end of life estate for second.

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Cheryl graduates from law school, then to Cheryl. Andrew is 16; Cheryl is 46.

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Cheryl graduates from law school, then to Cheryl. Andrew is 16; Cheryl is 46. Seems unlikely Cheryl will survive Andrew, so this suggests immediate divestment (or no point to grant).

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Cheryl. To Andrew for life, then to Brian, but if Brian graduates from law school, then to Cheryl.

TIMING AMBIGUITY: POSSIBLE ARGUMENTS To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Cheryl. To Andrew for life, then to Brian, but if Brian graduates from law school, then to Cheryl. Seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat as just cutting off B’s remainder

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.

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.

UNACCEPTABLE CONDITIONS Conditions So Abhorrent …

UNACCEPTABLE CONDITIONS Conditions So Abhorrent … You Can’t Even Impose Them on Your Own Children

UNACCEPTABLE CONDITIONS Total Restraint on Alienation

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

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)

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica. Total Restraint on Alienation is Invalid Pencil Out Unlawful Condition (and executory interest that turns on it) Result is a Vested Remainder in Fee Simple Absolute

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 at End of Test: (1/63 students got it) – 2d Time with warning about 45% got it. – READ CAREFULLY!!

UNACCEPTABLE CONDITIONS Total Restraint on Alienation – Partial Restraint OK if Reasonable Casebook says only if Promissory (P625) Other sources say sometimes Forfeiture

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 See Casebook at P632-33

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

UNACCEPTABLE CONDITIONS Doing Criminal Acts

UNACCEPTABLE CONDITIONS Total Restraint on Marriage – Some Jurisd: Maybe OK if Life Estate – Some Jurisd allow partial restraints Until turn 25 Shapira

UNACCEPTABLE CONDITIONS Obtaining Divorce

UNACCEPTABLE CONDITIONS Race-Based Limitations (Unenforceable) – Sex-Based Upheld w/in Family – Religion: (Discuss w Shapira)

Shapira v. Union National Bank BARLEY: DQS123-25

 SHAPIRA: DISTINCTIONS   Gift conditioned upon religious faith of beneficiary v. Gift conditioned upon marriage to person of particular faith  Why Relevant?

 SHAPIRA: DISTINCTIONS 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 1974 – Administrability

ADMINISTRABILITY  ADMINISTRABILITY  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. 

ADMINISTRABILITY  ADMINISTRABILITY  To Lucy so long as she remains a member of the Society of Friends.  To Linus, so long as he remains a good Catholic. 

 SHAPIRA: DISTINCTIONS   Gift conditioned upon divorce v. Gift conditioned upon marriage to person of particular faith (maybe  ) Why Relevant?

 SHAPIRA: DISTINCTIONS  Gift conditioned upon divorce v. Gift conditioned upon marriage to person of particular faith (maybe  ) Ct: Latter not sufficient to encourage fake M & divorce Grantee can’t avoid condition by saying “I will act in bad faith”

 SHAPIRA: DISTINCTIONS  Conditional gift with “gift over” to third party v. Conditional gift without “gift over” Why Relevant?

 SHAPIRA: DISTINCTIONS  Conditional gift with “gift over” to third party v. Conditional gift without “gift over” Comprehensive plan (likely  ) v. “In Terrorem” condition (maybe  )

 SHAPIRA: DISTINCTIONS   Forcing a marriage as condition of 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

 SHAPIRA: DISTINCTIONS   Quaker men (Maddox) v. Jewish women (Shapira)  Why Relevant?

 SHAPIRA: DISTINCTIONS   Quaker men (Maddox) v. Jewish women (Shapira)  Quakers = Too Few Available Partners  E.g., you must marry one of the Bronte Sisters 

DQ124.Maddox rules that these kinds of conditions are unacceptable where there is a sufficiently “ small number of eligible ” partners. How few partners must there be to meet the test?

DQ124.Maddox: unacceptable where there is a sufficiently “ small number of eligible ” partners. If you were living in a state with that test, how would you prove it was met?

DQ124.Was the Maddox opinion cited in Shapira correct to rule that these kinds of conditions are unacceptable where there is a sufficiently “ small number of eligible ” partners?

DQ124.Was Maddox correct to rule that these kinds of conditions are unacceptable where there is a sufficiently “ small number of eligible ” partners? Too much restriction on grantee v. Grantor ’ s Rights (can always argue that g’or should be able to dispose of own property as g’or wishes).

DQ125: Should a court enforce conditions that limit or mandate religious behavior for the grantee?

DQ122. Why should we allow grantors to have any control at all of what happens to land after they have died? Maybe allow life estates & vested remainders but no conditions on use?

(7O) BACK TO WHEAT 1.Archie in will: – “To my wife Edith, for her use & benefit, so long as she remains unmarried.” – Residue to daughter Gloria. 2.Edith moves in with male friend, Sherman. 3.Edith subsequently dies, devising her property to Sherman.

(7O): 3 QUESTIONS 1.“To my wife Edith, for her use & benefit, so long as she remains unmarried.” Life estate determinable or fee simple determinable?

(7O): 3 QUESTIONS 1.Life estate determinable or fee simple determinable? 2.Is condition restraining second marriage void as against public policy?

(7O): 3 QUESTIONS 1.Life estate determinable or fee simple determinable? 2.Is condition restraining 2d marriage void? 3.Is cohabitation a violation of a restraint on marriage?

(7O): 3 QUESTIONS 1.Life estate determinable or fee simple determinable? 2.Is condition restraining 2d marriage void? 3.Is cohabitation a violation of a restraint on marriage? Then Work Through Decision-Tree