1. PROPERTY E SLIDES 3-7-13

2. DENALI: Problem 4M continued Denali Caribou

3. DENALI (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

4. DENALI (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?

5. DENALI (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?

6. but if at Billy's death he is not survived by any children, then to Jo and her heirs." DENALI (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?

7. but if at Billy's death he is not survived by any children, then to Jo and her heirs." DENALI (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)

8. EVERGLADES: Problem 4N EGRET IN MANGROVE SWAMP

9. Everglades (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?

10. Everglades (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?

11. Everglades (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

12. but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. Everglades (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?

13. but if Jimmy is survived at his death by any children, then to such surviving children & their heirs. Everglades (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

14. 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

15. (4L) & (4M) & (4N) Test Note #4: Test Will Include Grants Modeled on At Least Two 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.

16. LOGISTICS If we don’t finish all of Problem 4O today: I’ll still post all Problem 4O slides with today’s slide show In class on Mon. 3/18, I’ll go over the slides we don’t cover today. Assignment Sheet Updated to Include Monday 3/18. Shapira DQ71: Be ready to explain the series of distinctions made by the court and how they fit into its reasoning. Review Problems 4P-4S: As with Problem 4O, we’ll start by identifying legal and factual ambiguities/Qs you need to resolve to do the problem, then follow up by working through some of the resulting possibilities.

17. LOGISTICS Chapter 4 Exam (Thurs 3/21): – Relevant Info & Materials Now at Top of Course Page – E-Mail Me if Qs Submitting Sample Exam Qs for My Review – Instructions on Course Page – If you wish to submit more than one, deadline for first submission is on Friday March 15 – E-Mail Me if Qs

18. Conditions: Additional Information

19. 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)

20. Conditions: 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?

21. Conditions: 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. Today: Generally treated as question of Grantor’s intent.

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

23. Conditions: 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 Suggests grantor intended Cheryl’s interest to cut off Andrew’s (or little point to the grant).

24. Conditions: Timing Ambiguity Possible Arguments (1)To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Cheryl. 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

25. Conditions: Timing Ambiguity Possible Arguments (1)To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Cheryl. (2)To Andrew for life, then to Brian, but if Brian graduates from law school, then to Cheryl. 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

26. 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.

27. 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?

28. Unacceptable Conditions Conditions So Abhorrent …

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

30. Unacceptable Conditions Total Restraint on Alienation

31. 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

32. 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)

33. 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

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

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

36. 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

37. 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

38. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts

39. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage Some Jurisd: Maybe OK if Life Estate Some Jurisd allow partial restraints E.g., “Until she turns 25” We’ll explore after break with Shapira

40. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage Obtaining Divorce

41. Unacceptable Conditions Total Restraint on Alienation Doing Criminal Acts Total Restraint on Marriage Obtaining Divorce Race-Based Limitations (Unenforceable) Sex-Based Upheld w/in Family Religion: (Discuss After Break w Shapira)

42. EXAM TIP: “Which of the Following Arguments [Does Not] Support …” Can Arise in Context of – Fee Simple v. Life Estate – FSD v. FSCS – Timing Ambiguities – Whether a Condition is Valid

43. 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

44. EVERGLADES: Problem 4O EGRET IN MANGROVE SWAMP

45. EVERGLADES (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?

46. EVERGLADES (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. 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.

47. EVERGLADES (4O): Archie in will: “To my wife Edith, for her use & benefit, so long as she remains unmarried.” Residue to daughter Gloria. Last Time: Three Qs/Ambiguities to 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

48. EVERGLADES (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?)

49. EVERGLADES (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 Today –No Explicit Reference to “Life” –No Explicit Gift Over Listed (See White v. Brown) Arguments Supporting Life Estate Determinable?:

50. EVERGLADES (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“Use and Benefit” Sounds Like Life Estate Condition is Consistent with Intent to Provide Shelter/Support for Edith During Her LifetimeCondition 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)

51. EVERGLADES (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

52. EVERGLADES (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

53. EVERGLADES (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)?

54. EVERGLADES (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

55. EVERGLADES (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)?

56. EVERGLADES (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 – See Problem 4H

57. EVERGLADES (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? Any reason here to treat second marriage differently from first marriage?

58. EVERGLADES (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 if it views E’s interest as just a life estate for support

59. EVERGLADES (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

60. EVERGLADES (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.”

61. EVERGLADES (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 What Happens when E dies?

62. EVERGLADES (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.

63. EVERGLADES (4O): Archie in will: “To my wife E, for her use & benefit, so long as she remains unmarried.” Residue to G. E then moves in with Sherman (Q3) Does cohabitation violate a restraint on marriage? Only need to resolve if condition is valid.

64. EVERGLADES (4O): Archie in will: “To my wife E, for her use & benefit, so long as she remains unmarried.” Residue to G. E then moves in with Sherman (Q3) Does cohabitation violate a restraint on marriage? Discussion: Literal Argument v. Inconsistency w Grantor’s Purpose Restatement Position: Not a Violation (Note: For Restatement to Address, Must Have Come Up Pretty Often)

65. EVERGLADES (4O): Archie in will: “To my wife E, for her use & benefit, so long as she remains unmarried.” Residue to G. E then moves in with Sherman (Q3) Does cohabitation violate a restraint on marriage? If Yes: As soon as condition violated, E’s interest ceases & G has Fee Simple Absolute If No: Nothing Changes

66. EVERGLADES (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. Majority View E = Fee Simple Determinable G = Possibility of Reverter E Dies, Condition Valid, No Violation State of the Title?

67. EVERGLADES (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. Majority View: E = FSD; G = Poss. of Reverter E Dies, Condition Valid, No Violation – Sherman has Fee Simple Absolute Edith Can’t Remarry After Death Thus Condition Can Never Occur So Condition Effectively Disappears

68. EVERGLADES (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. Minority View E = Life Estate Determinable G = Reversion E Dies, Condition Valid, No Violation State of the Title?

69. EVERGLADES (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. Minority View: E = Life Est. Det.; G = Reversion E Dies, Condition Valid, No Violation – Gloria has Fee Simple Absolute Edith’s Interest is Life Estate Nothing to Pass on in E’s Will

70. Qs on Problem 4O?