2. PROPERTY D SLIDES 3-3-16 National Cold Cuts Day

3. Thursday March 3 Music: Isaac Stern, 60 th Anniversary Celebration (1981) Thursday March 3 Music: Isaac Stern, 60 th Anniversary Celebration (1981) New York Philharmonic Orchestra; Violins: Isaac Stern, Itzhak Perlman, Pinchas Zucherman 1982 Grammy Award for Best Classical Performance (Soloists with Orchestra) SEQUOIA Critique of Rev. Prob. 3K Due Today @ 10 a.m.

4. WHITE BROWN continued WHITE v. BROWN continued

5. White White v. Brown (S73-77) Interprets Jessie Lide’s Will 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. Issue: What Interest in the Home Does This Language Create?

6. Olympic: DQ 4.03-4.04 EEL GLACIER

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

8. White White v. Brown Olympic: DQ4.03 MAJORITY ARGUMENTS (FEE SIMPLE) Presumption: Grant Conveys Whole Estate JL had FSA, so presume she gave FSA to EW Same idea as “default estate today is fee simple” No Gift Over (Will describes no interest in home after EW’s death) Partial Intestacy Disfavored (Try to read will to address all of JL’s property)

9. White White v. Brown Olympic: DQ4.03 WHAT ARE THE DISSENT’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

10. White White v. Brown Olympic: DQ4.03 DISSENT ARGUMENTS (LIFE ESTATE) Presumption: All Language Used Has Meaning ( same idea re statutes, contracts, etc.) Language Here Consistent with Life Estate: Says: “to live in” Says: “not to be sold” Contrast Language in Gift to Niece: No Limits (standard construction argument: different language=different meaning)

11. White White v. Brown Olympic: DQ4.03 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?

12. White White v. Brown Holds Interest is Fee Simple Absolute Could you Read Grant as Fee Simple Conditioned on Land Not Being Sold? No. Restraints on Alienation are Inconsistent with Fee Simple. Even if Condition Explicit, Court Would Pencil It Out as Against Public Policy. THUS…

13. White White v. Brown Holds Interest is Fee Simple Absolute Result: The Property Can Be Sold!!!

14. White White v. Brown Olympic: DQ4.04 Imagination Exercise: Possible Relevant Facts Not in Opinion Legal Relevance Here: Both Sides Rely on “Presumptions” Means Can Use Other Facts to Overcome/Rebut Important Exam Skill Big Part of Lawyering Q Can Use for Short Problems/Issue-Spotter If Consistent with Rest of Facts If Relevant to Issues Raised

15. White White v. Brown Olympic: DQ4.04 Imagination Exercise: Possible Relevant Facts Not in Opinion To Add Weight to Majority Position (Fee Simple)? To Add Weight to Dissent Position (Life Estate)?

16. White White v. Brown What Actually Happened? 1.EW had stroke, moved in w daughter 2.Probably wants to sell house b/c rental income not much 3.Significance of case: If life estate, most of value goes to nieces/nephews If fee simple (as court held), EW gets money for medical & living expenses

17. White White v. Brown Grantor’s Intent v. “Channeling” Function 1.Recurring problem with estates/future interests: laypeople don’t know relevant categories. 2.Thus, they don’t know how to signal what they wish to future court. 3.Important roles that lawyers play in helping with wills: a.Ask Qs to discern client wishes (“What if Evelyn gets sick?”) b.Channel client desires into language that gives legal effect to those wishes.

18. White White v. Brown Test Note #1: Test Will Include At Least One Grant (Yielding Multiple Questions) That Could Be Either Fee Simple or Life Estate, So You Need to Know Arguments Distinguishing the Two QUESTIONS?

19. LOGISTICS: Completion of Chapter 3 I’ll Give You Write-Up of Vezey & Expectations re Rest of Assigned Material by End of Break I’ll Give You Write-Up of Vezey & Expectations re Rest of Assigned Material by End of Break Additional Chapter 3 Review Problems Assigned for Dean’s Fellow March 22 & 25 Additional Chapter 3 Review Problems Assigned for Dean’s Fellow March 22 & 25

20. LOGISTICS: Chapter 4 Test Preparation I’ll Post by Wednesday of Break: I’ll Post by Wednesday of Break: General Test Info & Instructions Page; E-Mail Me if Qs Assignments for Classes after Break including Additional Instructions for Problems 4I & 4O Additional Instructions for DQs following Shapira Bank of Sample Qs & Entire Fall 2007 Test Along with: List of Qs That Require Material We’ll Cover After Break Answers to Qs You’re Ready For

21. LOGISTICS: Chapter 4 Test Preparation I’ll Post by Afternoon of Thurs. 3/17: I’ll Post by Afternoon of Thurs. 3/17: Rest of Answers to Already Posted Qs (that We are Covering) Additional Tests & Answers In Addition to Regular Office Hours 3/15-3/17, I’ll Post & Hold Additional Office Hours: Thurs afternoon 3/!7 Fri afternoon 3/18 Sat afternoon 3/19 Sun afternoon  early evening 3/20

22. OTHER LOGISTICS I’ll Post on Course Page During Break: Chapter 5 Materials & Updated Syllabus Updated Assignment Sheet Covering the Rest of March Info Memo on Chapter 1 More Old Exam Qs with Comments/Best Answers Additional Final Exam Preparation Instructions to Submit Sample Exam Answers Posted; E-Mail Me if Qs Reminder: If you want to submit more than one, first submission must be e-mailed to me by Noon on Wednesday of Spring Break

23. Vested v. Contingent Remainders

24. 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.

25. VESTED REMAINDER 1.Grantee is living ascertainable person (can presume this if granted to a named individual.)

26. VESTED REMAINDER 1.Grantee is living ascertainable person AND 2.Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate.

27. VESTED REMAINDER 1.Grantee is living ascertainable person AND 2.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.

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

29. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder If Fred presently has no children, grantee is unborn, so Remainder is Contingent.

30. Suppose Fred has a child, Pebbles…

31. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder Once Fred fathers his first child, grantee is born and ascertainable, so Remainder is now Vested. Thus, we say that, at the birth of Pebbles, the Contingent Remainder “Vests”

32. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s oldest child living at Fred’s death.” Fred has Life Estate Interest in Child Follows Life Estate, so it’s a Remainder Even if F has living children now, can’t know which of the children will be alive at F’s death, so grantee is unascertainable, so Remainder is Contingent.

33. REMAINDERS: EXAMPLES “To Fred for life, then to Wilma and her heirs if Dino survives Fred.” Fred has Life Estate Interest in Wilma Follows Life Estate, so it’s a Remainder Condition must be met before Wilma can take, so Remainder is Contingent.

34. Memory/Comprehension Aids Contingent v. Vested Remainders: Memory/Comprehension Aids Meaning/Derivation of Vested Right Clearly Established Right that’s Hard to Undo E.g., “Vested” Employee Benefits vest Derivation: Putting on Robes of Office (Investment) Analogy: Vested Remainder  Theater Ticket Contingent Remainder  Lottery Ticket

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

36. Life Estate + Contingent Remainder Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.” I’ll Show Contingency by Drawing Dotted Line, Off of the Primary Time Line, that Begins at the End of the Finite Estate

37. Life Estate + Contingent Remainder Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.” What happens to property when Fred dies if Dino doesn’t survive Fred? Someone must get it!

38. Life Estate + Contingent Remainder Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.” What happens to property when Fred dies if Dino doesn’t survive Fred? If grant doesn’t distribute some of the available rights, then those rights are retained by the grantor.

39. Life Estate + Contingent Remainder Barney “to Fred for Life then to Wilma and her heirs if Dino survives Fred.” Barney retains a reversion. HINT: If there’s a contingent remainder, the grantor always retains a reversion.

40. 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 Fred. Wilma has a contingent remainder in fee simple absolute

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

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

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

44. TERMINOLOGY: ME v. WORKBOOK Workbook: Adds language to define nature of future interests in grantor. E.g., Reversion in Fee Simple Absolute Possibility of Reverter in Fee Simple Absolute

45. 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

46. Acadia: Problems 4A-4D Acadia Sunrise

47. Acadia: (4A) O conveys Baconacre "to Mayer and her heirs” Mayer's only child, Armour, runs up large bills. Can Armour's creditors reach any interest of Armour in Baconacre?

48. Acadia: (4A) O conveys B-Acre "to Mayer and her heirs” Point of 4A is meaning of “and her heirs” Clarifies that M has a Fee Simple Creates no interest in anyone else Presumptive heirs have a “mere expectancy”

49. Acadia: (4A) O conveys Baconacre "to Mayer and her heirs” Mayer wishes to sell Baconacre and use the proceeds to take a trip around the world. Can Armour prevent Mayer from doing this?

50. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie?

51. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: ?

52. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder Remainder b/c Follows Life Estate Vested b/c Burt is Named (so Living & Ascertainable Muppet) and No Condition Precedent Vested Remainder in …?

53. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder in Life Estate At Common Law To Create Fee Simple Interest, need “and his Heirs.” Without language indicating fee simple, default estate is Life Estate.

54. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder in Life Estate Who Owns the Rest (rights to property after both Ernie & Burt are dead)?

55. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder in Life Estate Kermit: Reversion (in Frog Green!) Follows finite interest if not explicitly granted to someone else State of the Title When Ernie Dies?

56. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Burt: Life Estate Kermit: (retains) Reversion When Burt Dies?

57. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Kermit (or Kermit’s Successors) have Fee Simple Absolute

58. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (Common Law) Ernie: Life Estate Burt: Vested Remainder in Life Estate Kermit: Reversion

59. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: ?

60. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: Vested Remainder in Fee Simple -Default Estate Today is Fee Simple Kermit?

61. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Ernie: Life Estate Burt: Vested Remainder in Fee Simple Kermit: Nothing (not easy being green) State of the Title When Ernie Dies?

62. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Burt: Fee Simple Absolute When Burt Dies?

63. to Ernie for lifethen to Burt forever Acadia: (4B) Kermit “to Ernie for life, then to Burt forever.” (TODAY) Burt: Fee Simple Absolute When Burt Dies? Property passes by Burt’s will or through intestacy to Burt’s heirs.

64. to Sylvester for lifethen to Bugs and his heirs Acadia: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: ?

65. to Sylvester for lifethen to Bugs and his heirs Acadia: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs:?

66. to Sylvester for lifethen to Bugs and his heirs Acadia: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs: Vested Remainder in Fee Simple [Absolute] Bugs dies intestate without heirs. What Effect?

67. to Sylvester for lifethen to Bugs and his heirs Acadia: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” Sylvester: Life Estate Bugs: Vested Remainder in Fee Simple Bugs dies intestate without heirs. Vested Remainder passes to State by Escheat (like rest of Bugs’s property) Sylvester Dies: What Effect?

68. to Sylvester for lifethen to Bugs and his heirs Acadia: (4C) Elmer “to Sylvester for life, then to Bugs and his heirs.” When Bugs died intestate without heirs, Vested Remainder passed to State by Escheat. When Sylvester dies, Vested Remainder becomes Fee Simple. So: State has Fee Simple Absolute

69. Acadia: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie?

70. to Minnie for life Acadia: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto?

71. then to Pluto for 99 years.” Acadia: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Anything Else?

72. then to Pluto for 99 years.” Acadia: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Mickey: Reversion

73. then to Pluto for 99 years.” Acadia: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Mickey: Reversion (eventually to his successors) Somebody has to own the rights to the property after the first two finite interests are completed. Because Mickey did not give away those rights, he must still have them at the time of the grant.

74. then to Pluto for 99 years.” Acadia: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” Minnie: Life Estate Pluto: Vested Remainder in Term of Years. Mickey: Reversion (eventually to his successors) Note we say that Mickey has a Reversion even though we are pretty certain he won’t be alive when it becomes possessory (after all, he’s a mouse). When Pluto’s interest ends, Mickey’s successors will take possession.

75. BADLANDS: Problems 4E-4H NORBECK PASS

76. Badlands: (4E) Derek“to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie?

77. to Bernie for life Badlands: (4E) Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge?

78. to Bernie for life Badlands: (4E) Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge: Vested Remainder in Life Estate. Note that even though Jorge has to survive Bernie for his interest to become possessory, we don’t describe this as a Contingent Remainder because the condition is not stated explicitly. Roger?

79. to Bernie for life Badlands: (4E) Derek “to Bernie for life, then to Jorge for life, then to Roger and his heirs.” Bernie: Life Estate Jorge: Vested Remainder in Life Estate. Roger: Vested Remainder in Fee Simple.

80. Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: ?

81. to Veronica for life Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: Life Estate Betty?

82. to Veronica for life Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: Life Estate Betty: Contingent Remainder in Fee Simple (condition of turning 21 must be met before she can get property) Anything Else?

83. to Veronica for life Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: Life Estate Betty: Contingent Remainder in Fee Simple Reggie: Reversion Always Created Along with Contingent Remainder Covers Rights to Property After Veronica Dies if Betty’s Condition Not Met

84. to Veronica for life Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty is 15. Veronica: Life Estate Betty: Contingent Remainder in Fee Simple Reggie: Reversion

85. to Veronica for life Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica: Life Estate Betty: Contingent Remainder in Fee Simple Reggie: Reversion What if Betty turns 21 while Veronica is alive?

86. to V for life Badlands: (4F) Reggie “to V for life, then to B and her heirs if B attains the age of 21.” ***B turns 21 while V alive*** Veronica: Life Estate Betty’s Contingent Remainder “vests” leaving her with a Vested Remainder in Fee Simple Reggie’s Reversion now can never become possessory, so we say it “divests,” leaving him with nothing.

87. to Veronica for life Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica: Life Estate Betty: Contingent Remainder in Fee Simple Reggie: Reversion What if Betty dies at age 17 while Veronica is alive?

88. to V for life Badlands: (4F) Reggie “to V for life, then to B and her heirs if B attains the age of 21.” ***B dies at 17 while V alive*** Veronica: Life Estate The condition can never be met, so Betty’s Contingent Remainder “fails” leaving her (and her successors) with nothing Reggie’s Reversion stays in place, so he or his successors will get the property when Veronica dies.

89. to Veronica for life Badlands: (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica: Life Estate Betty: Contingent Remainder in Fee Simple Reggie: Reversion What if Veronica dies while Betty is still age 17? Life Estate is Over Betty Can’t Take, Because Condition Not Met We’ll Come Back to This After We Introduce Executory Interests

90. Typo in Problem 4G: “Larry” should be “Hughie”, so problem should read as follows: Hughie (4G) Daisy, a widow, devises Duckacre "to my only son, Hughie, for life, then to Hughie's children and their heirs." At the time of conveyance Hughie has two children, Dewey and Louie. Two years later April is born to Hughie and his wife. Then Louie dies, leaving his wife, May, and a child, June; Louie's will devises all his property to May. Then Hughie dies. Who owns Duckacre?

91. Badlands: (4G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie?

92. Badlands: (4G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie: Life Estate Dewey & Louie?

93. Badlands: (4G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie: Life Estate Dewey & Louie: Vested Remainders (in Fee Simple) Subject to Open Remainders are still vested b/c M&C certain to get at least a share of the property. Use of “subject to open” makes clear that exact share of the property they will get is uncertain; reduces if more children born. NOTE: We don’t use phrase “subject to open” with contingent remainders, which are always uncertain.

94. Badlands: (4G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has two living children, Dewey and Louie. Hughie: Life Estate Dewey & Louie: Vested Remainders (in Fee Simple) Subject to Open Hughie has additional child, April. April has?

95. Badlands: (4G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie has 3 living children, Dewey, Louie, April. Hughie: Life Estate Dewey & Louie & April: Vested Remainders (in Fee Simple) Subject to Open Louie (L) dies, leaving his wife, May, and a child, June; L's will devises all property to May. What happens to L’s interest?

96. Badlands: (4G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie had 3 children, Dewey, Louie, April. Hughie: Life Estate Dewey & May & April: Vested Remainders (in Fee Simple) Subject to Open Nothing in grant requires that H’s children survive him As in Problem 4C, Vested Remainder in Fee Simple passes at death like any other property. Hughie dies. State of the title?

97. Badlands: (4G): “To my only son, Hughie, for life, then to Hughie's children and their heirs." Hughie Dies, ending Life Estate Dewey & May & April: Share Fee Simple Absolute (as Tenants-in-Common) For this course, only need to know that they’d share; don’t need to know term “tenants in common” or what it means.