PROPERTY D SLIDES

Tuesday March 18 Music: Mozart, Horn Concertos Dennis Brain, Trumpet Philharmonia Orchestra (Recorded 2005)

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities  Decision Tree (Scrap Paper) 1.Life Estate Determinable v. Fee Simple Determinable? 2.Is condition restraining second marriage void? 3.Does cohabitation violate a restraint on marriage?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree 1.Life Estate Determinable (LED) v. Fee Simple Determ. (FSD)? – Serious Arguments Both Ways; States Split – Majority: FSD + Possibility of Reverter – Minority: LED + (Possibility of Reverter + Reversion)  Reversion 2.Is condition restraining second marriage void? 3.Does cohabitation violate a restraint on marriage ?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree 1.Life Estate Determinable (LED) v. Fee Simple Determ. (FSD)? Majority: FSD + Possibility of Reverter Minority: LED + (Possibility of Reverter + Reversion)  Reversion 2.Is condition restraining second marriage void? Arguments Both Ways; More Likely Valid if Life Estate – If Valid, No Change in Interests – If Void, Pencil Out Condition + Future Interest that Depends on Condition 3.Does cohabitation violate a restraint on marriage ?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree 1.Life Estate Determinable (LED) v. Fee Simple Determ. (FSD)? 2.Is condition restraining second marriage void? Arguments Both Ways; More Likely Valid if Life Estate Majority: FSD + Possibility of Reverter Condition Valid: FSD + Possibility of Reverter Condition Void: Pencil Out Condition  Edith has Fee Simple Absolute Minority: LED + (Possibility of Reverter + Reversion)  Reversion 3.Does cohabitation violate a restraint on marriage ?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree 1.Life Estate Determinable (LED) v. Fee Simple Determ. (FSD)? 2.Is condition restraining second marriage void? Majority: FSD + Possibility of Reverter Condition Valid: FSD + Possibility of Reverter Condition Void: Edith has Fee Simple Absolute Minority: LED + (Possibility of Reverter + Reversion)  Reversion Minority: LED + (Possibility of Reverter + Reversion)  Reversion Condition Valid: LED + Reversion Condition Valid: LED + Reversion Condition Void: Life Estate (Unconditional) + Reversion Condition Void: Life Estate (Unconditional) + Reversion 3.Does cohabitation violate a restraint on marriage ?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree 1.Life Estate Determinable (LED) v. Fee Simple Determ. (FSD)? 2.Is condition restraining second marriage void? Majority: Condition Valid: FSD + Possibility of Reverter Majority: Condition Void: Edith has Fee Simple Absolute – Minority: Condition Valid: LED + Reversion – Minority: Condition Void: Life Estate (Unconditional) + Reversion 3.Does cohabitation violate a restraint on marriage? –Only need to resolve if condition is valid.

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Does cohabitation violate a restraint on marriage? – Only need to resolve if condition is valid. – Discussion: Literal Argument v. Inconsistency w Grantor’s Purpose (cf. Mahrenholz) – Restatement Position: Not a Violation For Restatement to Address, Must Have Come Up Pretty Often

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree 1.Life Estate Determinable (LED) v. Fee Simple Determ. (FSD)? 2.Is condition restraining second marriage void? Majority: Condition Valid: FSD + Possibility of Reverter Majority: Condition Void: Edith has Fee Simple Absolute – Minority: Condition Valid: LED + Reversion – Minority: Condition Void: Life Estate (Unconditional) + Reversion 3.Does cohabitation violate a restraint on marriage? –Arguments Both Ways –If Condition Valid & Violation, Gloria Takes Immediately –If Condition Invalid or Void, No Change

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree If Condition Valid & Violation, Gloria Takes Immediately If Condition Invalid or Void, No Change Majority: Condition Valid: FSD + Possibility of Reverter – Violation: Gloria has Fee Simple Absolute – No Violation: FSD + Possibility of Reverter Majority: Condition Void: Edith has Fee Simple Absolute Minority: Condition Valid: LED + Reversion Minority: Condition Void: Life Estate (Unconditional) + Reversion

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Three Qs/Ambiguities & Decision Tree If Condition Valid & Violation, Gloria Takes Immediately If Condition Invalid or Void, No Change Majority: Condition Valid: FSD + Possibility of Reverter – Violation: Gloria has Fee Simple Absolute – No Violation: FSD + Possibility of Reverter Majority: Condition Void: Edith has Fee Simple Absolute Minority: Condition Valid: LED + Reversion – Violation: Gloria has Fee Simple Absolute – No Violation: LED + Reversion Minority: Condition Void: Life Estate (Unconditional) + Reversion

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Decision Tree: Edith Dies Majority: Condition Valid +Violation: Gloria has Fee Simple Absolute Majority: Condition Valid + No Violation: FSD + Possibility of Reverter Majority: Condition Void: Edith has Fee Simple Absolute Minority: Condition Valid + Violation: Gloria has Fee Simple Absolute Minority: Condition Valid + No Violation: LED + Reversion Minority: Condition Void: Life Estate (Unconditional) + Reversion

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Decision Tree: Edith Dies Majority: Condition Valid +Violation: Gloria has Fee Simple Absolute Majority: Condition Valid + No Violation: FSD + Possibility of Reverter Majority: Condition Void: Edith has Fee Simple Absolute  Sherman Minority: Condition Valid + Violation: Gloria has Fee Simple Absolute Minority: Condition Valid + No Violation: LED + Reversion  Minority: Condition Void: Life Estate (Unconditional) + Reversion 

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Decision Tree: Edith Dies Majority: Condition Valid + No Violation Edith has FSD; Gloria has Possibility of Reverter What happens to Condition When Edith Dies?

(4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to A’s daughter Gloria (not E’s daughter). E shacks up with Sherman. E dies; devises everything to S Final Decision Tree: Edith Dies Majority: Condition Valid + No Violation Edith has FSD; Gloria has Possibility of Reverter What happens to Condition When Edith Dies? – Edith Can’t Remarry After Death (As Far as We Know ) – Thus Condition Can Never Occur – So Condition Effectively Disappears Sherman has Fee Simple Absolute; Gloria’s Interest Fails

COMPARE “To E & her heirs so long as she remains unmarried.” Condition limited to E, so ends at E’s death. Successors after that take Fee Simple Absolute “To E & her heirs so long as alcohol is never sold on the premises.” Condition not limited to E, so it survives her. Successors take Fee Simple Determinable.

Qs on Problem 4O?

Conditions: Additional Information Unacceptable Conditions Problem 4O ShapiraShapira Timing Issues

YELLOWSTONE: (DQs ) GIANT GEYSER

Yellowstone: DQ4.13  SHAPIRA: DISTINCTIONS  We’ll Explore Shapira Reasoning by Looking at Five Key Distinctions Drawn by the Opinion

Yellowstone: DQ4.13  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Why Relevant?

Yellowstone: DQ4.13  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

Yellowstone: DQ4.13  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 1974 – Can Use Case to Support Conditions Requiring Conduct Affecting Religious Concerns but not Coercing Belief Administrability

Yellowstone: DQ4.13  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.

Yellowstone: DQ4.13  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?

Yellowstone: DQ4.13  SHAPIRA: DISTINCTION #2  Gift conditioned upon divorce  v. Gift conditioned upon marriage to person of particular faith (maybe  ) Why Relevant?

Yellowstone: DQ4.13  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” (this concern arises regarding many legal issues)

Yellowstone: DQ4.13  SHAPIRA: DISTINCTION #3  Conditional gift with “gift over” to third party v. Conditional gift without “gift over” Comprehensive Estate Plan (likely  ) v. “In Terrorem” Condition (maybe  )

Yellowstone: DQ4.13  SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  Why Relevant?

Yellowstone: DQ4.13  SHAPIRA: DISTINCTION #4   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

Yellowstone: DQ4.13  SHAPIRA: DISTINCTION #5  Quaker Men (Maddox)  v.  Jewish Women (Shapira) Why Relevant?

Yellowstone: DQ4.13  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 Yellowstone: DQ4.14 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 Yellowstone: DQ4.14 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? (Cf. Lawyering Q on Final Exam)

Shapira v. Union National Bank Yellowstone: DQ4.14 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 Yellowstone: DQ4.14 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 Yellowstone: DQ4.15 Should a court enforce conditions that limit or mandate religious behavior for the grantee?

Questions on Shapira?

ALL: DQ4.12 = 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

Conditions: Additional Information Unacceptable Conditions Problem 4O Shapira Timing IssuesTiming Issues

Conditions & the Statute of Limitations If Condition is Self-Executing: Statute Runs from First Moment Condition is Violated, Which Creates Trespass Claim If Future Interest Holder Must Act to Take: – If claiming condition was violated only by a single discrete act, presumably statute runs from the time of that act. – If claiming condition was violated by a continuing series of acts (as in 4I), presumably statute continually restarts as long as acts go on (but risk of waiver if aware of)

Conditions: Timing Ambiguity To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. If Caitlin graduates from law school during Andrew’s life estate, does she divest Andrew’s interest or just Brian’s?

Conditions: Timing Ambiguity Possible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. Common Law Presumption: If ambiguous, interest won’t divest life estate. Today: Generally treated as question of Grantor’s intent, so look at context. I won’t test this as a difference between Common Law & Today

Conditions: Timing Ambiguity Possible Arguments (1)To Andrew for life, then to Brian, but if Caitlin graduates from law school, to Caitlin. (2)To Andrew for life, then to Brian, but if Caitlin has graduated from law school, then to Caitlin. Differences in wording, especially verb tenses, suggest C takes immediately for (1); at end of Life Estate for (2).

Conditions: Timing Ambiguity Possible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. Andrew is 16; Caitlin is 46. Seems unlikely Caitlin will survive Andrew Suggests grantor intended Caitlin’s interest to cut off Andrew’s (or little point to the grant).

Conditions: Timing Ambiguity Change Grant: Possible Arguments (1)To Andrew for life, then to Brian, but if Caitlin Andrew graduates from law school, then to Caitlin. Seems purpose of grant is either: To discourage A from going to law school To provide support for A unless he becomes a lawyer and can support himself Either way, suggests C’s interest should cut off A’s Life Estate, because it’s not aimed at either B or C.

Conditions: Timing Ambiguity Change Grant: Possible Arguments (1)To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. (2)To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder

Conditions: Timing Ambiguity Change Grant: Possible Arguments (1)To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. (2)To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder Questions on Timing Ambiguities?

Rules Furthering Alienability

Underlying Problem Contingent future interests limit marketability of land. – Buyers don’t want to take subject to conditions. – Sometimes hard to find future interest holders to buy them out Illinois Rule Banning Transfers of Poss. of Reverter & Rt. Of Entry Cf. Mathesons & Crandon Park Especially Big Issue if Future Interest Held by Person Not Presently Ascertainable, Like “Heirs” of a Living Person

NEW ACRONYM: NOTIO

NOTIO Not on Test; Information Only PRONOUNCED NO SHOW

Rules Furthering Alienability Doctrine of Destructability of Contingent RemaindersDoctrine of Destructability of Contingent Remainders Doctrine of Worthier Title Rule in Shelley’s Case Rule Against Perpetuities (NOTIO)

Doctrine of Destructability of Contingent Remainders Example from Yesterday 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 has Life Estate Katherine & Sofia each have Alternate Contingent Remainders Jordan retains a Reversion

Doctrine of Destructability of Contingent Remainders First Common Application: Destroyed if Contingency Not Met When Finite Estate Ends 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 has Life Estate Katherine & Sofia each have Alternate Contingent Remainders Jordan retains a Reversion

Doctrine of Destructability of Contingent Remainders Second Common Application: Destroyed if Finite Estate & Reversion Merge 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 has Life Estate Katherine & Sofia each have Alternate Contingent Remainders Jordan retains a Reversion

Rules Furthering Alienability Doctrine of Destructability of Contingent Remainders Doctrine of Worthier TitleDoctrine of Worthier Title Rule in Shelley’s Case Rule Against Perpetuities (NOTIO)

DOCTRINE OF WORTHIER TITLE Remainder or executory interest in grantor’s heirs treated as future interest in grantor if grantor alive at time of grant (i.e., grant is not in will).

DOCTRINE OF WORTHIER TITLE Remainder or executory interest in grantor’s heirs treated as future interest in grantor if grantor alive at time of grant (i.e., grant is not in will). At Common Law: Rule of Law Today – Abolished in many jurisdictions – Where it still exists, a Rule of Construction, not a Rule of Law

RULE OF CONSTRUCTION INTERPRET GRANT ACCORDING TO RULE UNLESS EVIDENCE OF GRANTOR’S INTENT TO THE CONTRARY

DOCTRINE OF WORTHIER TITLE Example: While alive, Oscar conveys: “to Agnes for life, then to my heirs.”

Doctrine of Worthier Title Example: While alive, Oscar conveys: “to Agnes for life, then to my heirs.” As written: Agnes has life estate O’s heirs have contingent remainder (unascertained) O has reversion

DOCTRINE OF WORTHIER TITLE O “to Agnes for life, then to my heirs.” As written: Agnes has life estate O’s heirs have contingent remainder O has reversion If A dies, and no destructability, O has fee simple on exec. limitation & heirs have springing executory interest.

DOCTRINE OF WORTHIER TITLE O “to Agnes for life, then to my heirs.” As written: Agnes has life estate O’s heirs have contingent remainder O has reversion If A dies, and no destructability, O has fee simple on exec. limitation & heirs have springing executory interest. NOT VERY MARKETABLE!!

DOCTRINE OF WORTHIER TITLE O “to Agnes for life, then to my heirs.” Effect of Doctrine: Agnes has life estate Remainder in O’s heirs treated as “remainder” in O = reversion.

DOCTRINE OF WORTHIER TITLE O “to Agnes for life, then to my heirs.” Effect of Doctrine: Agnes has life estate Remainder in O’s heirs treated as “remainder” in O = reversion. If A dies, O has (very marketable) fee simple absolute

ARCHES: Problem 4P DELICATE ARCHES

(4P): Sleepy “ to Happy for life, then to the heirs of Sleepy." As Written: Happy?

(4P): Sleepy “ to Happy for life, then to the heirs of Sleepy." As Written: Happy: Life Estate Sleepy’s Heirs?

(4P): Sleepy “ to Happy for life, then to the heirs of Sleepy." As Written: Happy: Life Estate Sleepy’s Heirs: Contingent Remainder Other?

(4P): Sleepy “ to Happy for life, then to the heirs of Sleepy." As Written: Happy: Life Estate Sleepy’s Heirs: Contingent Remainder Sleepy: Reversion Effect of Doctrine of Worthier Title?

(4P): S “ to H for life, then to the heirs of S." As Written: Happy: Life Estate Sleepy’s Heirs: Contingent Remainder Sleepy: Reversion Effect of Doctrine of Worthier Title: Happy: Life Estate Sleepy: Reversion

(4P): S “ to H for life, then to the heirs of S. ” Sleepy dies, devising all to ANA. Intestacy statute would give S ’ s property to Bashful if no will. Effect As Written? Happy: Life Estate Sleepy’s Heirs: Contingent Remainder Sleepy: Reversion

(4P): S “ to H for life, then to the heirs of S. ” Sleepy dies, devising all to ANA. Intestacy statute would give S ’ s property to Bashful if no will. Effect As Written? Happy: Life Estate Sleepy’s Heirs: Contingent Remainder  Bashful: Vested Remainder Sleepy: Reversion  Nothing (Divests)

(4P) : S “ to H for life, then to the heirs of S. ” Sleepy dies, devising all to ANA. Intestacy statute would give S ’ s property to Bashful if no will. Effect if Doctrine Applies? Happy: Life Estate Sleepy: Reversion

(4P) : S “ to H for life, then to the heirs of S. ” Sleepy dies, devising all to ANA. Intestacy statute would give S ’ s property to Bashful if no will. Effect if Doctrine Applies? Happy: Life Estate Sleepy: Reversion  ANA: reversion

Doctrine of Worthier Title as a Rule of Construction GEORGE LEAVES BUSH-ACRE: “TO JEB FOR LIFE, THEN TO JEB’S CHILDREN FOR THEIR LIVES, THEN TO MY HEIRS”

Doctrine of Worthier Title as a Rule of Construction “TO JEB FOR LIFE, THEN TO JEB’S CHILDREN FOR THEIR LIVES, THEN TO MY HEIRS” We presume George would have wanted to regain complete control of Bush-Acre had he thought he would still be alive after Jeb & children all gone. Thus, treat contingent remainder in heirs as a reversion in George, absent evidence of different intent.

Doctrine of Worthier Title as a Rule of Construction George leaves Bush-acre “to Jeb for life, then to Jeb’s children for their lives, then to my heirs. It is my wish that the Doctrine of Worthier Title not apply to this grant” WHAT HAPPENS?

Doctrine of Worthier Title as a Rule of Construction George leaves Bush-acre “to Jeb for life, then to Jeb’s children for their lives, then to my heirs. It is my wish that the Doctrine of Worthier Title not apply to this grant” DON’T APPLY RULE!! Retain Contingent Remainder in George’s Heirs, which will only vest when George dies.