WHITE v. BROWN

LIVE OAK Discussion Questions 93-96

DQ93: The White majority states that “the free alienation of property [is] one of the most significant incidents of fee ownership.” Why is it significant?

DQ94:The White majority complains that “the words chosen by the testatrix are not specific enough to clearly state her intent."

What do you think Jessie Lide’s intent is? 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.

Why does the majority have problems discerning Jessie Lide’s intent?

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

DQ94: WHAT ARE THE MAJORITY’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

MAJORITY ARGUMENTS (FEE SIMPLE) Presumption: grant conveys whole estate No gift over Partial intestacy disfavored

DQ95: WHAT ARE THE DISSENT’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

DISSENT ARGUMENTS (LIFE ESTATE) Use all language: grantor said to limit power to sell Grant says “to live in” No limits in gift to niece

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?

HOLDING OF WHITE v. BROWN The Property Can Be Sold!!!

DQ96:What additional facts might add weight to the majority opinion? To the dissent?

VESTED v. CONTINGENT REMAINDERS

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.

VESTED REMAINDER Grantee is living ascertainable person (Presumed if granted to a named individual)

VESTED REMAINDER Grantee is living ascertainable person AND Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate

VESTED REMAINDER Grantee is living ascertainable person AND 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.

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

CONTINGENT REMAINDER: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred presently has no children. (Not born)

Suppose Fred has a Child…

CONTINGENT REMAINDER: EXAMPLES “ To Fred for life, then to Fred’s oldest child living at Fred’s death.” (not ascertainable)

CONTINGENT REMAINDER: EXAMPLES “ To Fred for life, then to Wilma and her heirs if Dino survives Fred. (condition precedent)

ANALOGY Vested Remainder  Theater Ticket Contingent Remainder  Lottery Ticket

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

Life Estate + Contingent Remainder Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.”

Life Estate + Contingent Remainder Barney “to Fred for Life then to Wilma and her heirs if Dino survives Fred.” Barney retains a reversion.

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 Wilma. Wilma has a contingent remainder in fee simple