1. PROPERTY D SLIDES 3-15-16 Florida Primary Day National Everything-You-Think is Wrong Day

2. Tuesday March 15 Music: Wynton Marsalis, Trumpet Classic Wynton (1998)

3. Previously in Property D Chapter 4: Distinctions You Should Know Present Possessory Estates v. Future Interests Fee Simple v. Finite Present Estates Interests Following Finite Estates: Reversions v. Remainders Vested v. Contingent Remainders Common Law v. Today Defeasible Interests: Determinable v. on Condition Subsequent (We’ll Review Before Doing Problem 4I)

4. Present Possessory Estates v. Future Interests WARM-UP/REVIEW: Basic Distinctions Present Possessory Estates v. Future Interests PRESENT POSSESSORY ESTATE: PRESENT POSSESSORY ESTATE: Entitles holder to immediate and current use and possession of the land in question. FUTURE INTEREST: FUTURE INTEREST: Holder has no right to immediate and current use and possession of the land, but instead right to potentially use and possess the land at some point in the future. Possession may be relatively certain to occur (e.g., Vested Remainders, some Reversions) or dependent on uncertain conditions (e.g., Contingent Remainders, Possibilities of Reverter)

5. Present Possessory Estates v. Future Interests WARM-UP/REVIEW: Basic Distinctions Present Possessory Estates v. Future Interests PRESENT POSSESSORY ESTATES Fee Simple Fee Simple Life Estate Life Estate Term of Years Term of Years Fee Tail Fee Tail FUTURE INTERESTS ReversionReversion Possibility of ReverterPossibility of Reverter Right of [Re]EntryRight of [Re]Entry Vested RemainderVested Remainder Contingent RemainderContingent Remainder Executory InterestExecutory Interest

6. Fee Simple v. Finite Present Estates WARM-UP/REVIEW: Basic Distinctions Fee Simple v. Finite Present Estates FEE SIMPLE: FEE SIMPLE: Entitles holder to immediate and current use and possession of the land in question and rights to use, possess and transfer it for the infinite future. FINITE PRESENT ESTATE: FINITE PRESENT ESTATE: Entitles holder to immediate and current use and possession of the land in question. Rights end at a fixed point in the future: Life Estate: Life Estate: End of Original Grantee’s Life Term of Years: Term of Years: End of Specified Length of Time Fee Tail Fee Tail (Common Law) : End of Grantee’s Direct Line of Descent

7. WARM-UP/REVIEW: Basic Distinctions Interests Following Finite Estates Reversion v. Remainder REVERSION: REVERSION: Future interest implicitly retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires. REMAINDER: 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.

8. Vested v. Contingent Remainder WARM-UP/REVIEW: Basic Distinctions Vested v. Contingent Remainder VESTED IF: Grantee is living ascertainable personGrantee is living ascertainable person AND Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate.Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate. CONTINGENT IF: Grantee is presently unborn or unascertainableGrantee is presently unborn or unascertainable OR Clause creating the remainder contains an explicit condition on grantee taking the property.Clause creating the remainder contains an explicit condition on grantee taking the property.

9. Remainders in … WARM-UP/REVIEW: Basics 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. Wilma has a contingent remainder in fee simple absolute.

10. WARM-UP/REVIEW: Basic Distinctions Common Law v. Today “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., 1600-1800) “Today”: Dates after modern streamlining of the rules. (e.g., 1950-present)

11. WARM-UP/REVIEW: Basic Distinctions Common Law v. Today “At Common Law” Default Estate = Life EstateDefault Estate = Life Estate Fee Tail is AvailableFee Tail is Available “Today” Default Estate = Fee SimpleDefault Estate = Fee Simple Fee Tail Eliminated in All JurisdictionsFee Tail Eliminated in All Jurisdictions

12. Executory Interests

13. Executory Interest Future interest in grantee. Cuts off prior vested interest (present estate or reversion or vested remainder) rather than waiting for it to expire naturally.

14. Pre-1536 (= Pre- Limitations on Future Interests in Grantees Pre-1536 (= Pre-“ Common Law ”) Limitations on Future Interests in Grantees Must follow finite estate. Must be capable of taking effect at the expiration of preceding estate. Must not take effect before the expiration of the preceding estate. Elimination of these Rules in 1536 Allows Creation of Executory Interests

15. Executory Interests Shifting v. Springing Executory Interest No legal consequence; just categorization grantee Shifting Executory Interest cuts off interest of another grantee grantor’s Springing Executory Interest cuts off grantor’s fee simple or reversion Physical Model/Analogy (if helpful)

16. Executory Interests EXAMPLES Shifting Executory Interest:, otherwise to Brandon and his heirs. To Danny & his heirs so long as no tobacco is grown on the land, otherwise to Brandon and his heirs.

17. Executory Interests EXAMPLES Springing Executory Interest: To Blayne if she passes the California bar exam. Grantor who started with Fee Simple Absolute is left with Fee Simple on Executory Limitation

18. to Veronica for life then to Betty and her heirs if Betty attains the age of 21 (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Riverdale High Let’s Return to Problem 4F & Riverdale High

19. to Veronica for life (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; Condition Not Met So Who Gets What?

20. to Veronica for life Veronica dies while Betty is still age 17 (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Common Law destroyed If contingency not met when prior estate ends, contingent remainder is destroyed. Betty has nothing. If Betty isn’t ready, she loses her “table.” Reggie’s Reversion becomes Fee Simple Absolute

21. Doctrine of Destructability of Contingent Remainders ( Common Law) First Common Application destroyed. If contingency not met when prior estate ends, contingent remainder is destroyed.

22. Doctrine of Destructability of Contingent Remainders Today: Today: Overruled by statute or caselaw in every American jurisdiction except …

23. (Today Doctrine of Destructability of Contingent Remainders (Today ) Overruled by statute or caselaw in every American jurisdiction except …

24. to Veronica for life Veronica dies while Betty is still age 17 (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Today (except FL) If contingency not met when prior estate ends, we wait to see if it is met later. Betty’sbecomes an executory interest. Betty’s remainder becomes an executory interest. Reggie takes possession and has fee simple on executory limitation (cut off if B turns 21)

25. to Veronica for life (4F) Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Veronica dies while Betty is still age 17 Today (except FL)

26. Doctrine of Destructability of Contingent Remainders (Common Law) Second Common Application Where there is a life estate, one or more contingent remainders, and a reversion, and the life estate and reversion merge into a fee simple, the contingent remainders are destroyed.

27. Doctrine of Destructability of Contingent Remainders Second Common Application Elyse “to Gina for life, then to Haley if Haley passes a bar exam.

28. Doctrine of Destructability of Contingent Remainders Second Common Application (Common Law) Elyse “to Gina for life, then to Haley if Haley passes a bar exam. Gina purchases Reversion from Elyse  Merge Life Estate & Reversion Merge  Fee Simple Absolute Haley’s Contingent Remainder is Destroyed

29. Today (Everywhere except Florida) Merger without Destruction Elyse “to Gina for life, then to Haley if Haley passes a bar exam. Gina purchases Reversion from Elyse  Merge Life Estate & Reversion Merge  Fee Simple on Executory Limitation Haley’s Contingent Remainder Becomes an Executory Interest

30. PROBLEMS 4J-4N: PLEASE HOLD QUESTIONS UNTIL WE FINISH PROBLEM 4N

31. OLYMPIC: Problems 4J-4L EEL GLACIER

32. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda?

33. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted?

34. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted: Contingent Remainder (if today: in f.s.) Anything Else?

35. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary a proper funeral." Rhoda: Life Estate Ted: Contingent Remainder (if today: in f.s.) Mary: Reversion

36. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper funeral." Rhoda: Life Estate Ted? (Does Change from Mary’s Funeral to Rhoda’s Affect Nature of Ted’s Interest?)

37. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper funeral." Rhoda: Life Estate Ted? (Does Change from Mary’s Funeral to Rhoda’s Affect Nature of Ted’s Interest?) HINT: What would make a funeral not “proper”?

38. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Mary Rhoda a proper funeral." Rhoda: Life Estate Ted can’t possibly give Rhoda a “proper” funeral by the time Rhoda dies. There will be a gap in time between the end of R’s life estate and Ted’s interest. Thus, Ted’s interest cannot be a remainder; So Ted has …?

39. Olympic: (4J): Mary "to Rhoda for life, then to Ted if Ted gives Rhoda a proper funeral." Rhoda: Life Estate Mary: Reversion Ted: Springing Executory Interest (would cut off grantor’s interest: reversion)

40. EXAM TIP: USE COMMON SENSE!! Can’t give a “proper” funeral to a person until after the person has died.

41. EXAM TIP: USE COMMON SENSE!! Can’t give a “proper” funeral to a person until after the person has died. Similarly, if an interest has been conveyed in a will, you can assume the grantor is dead (will would not have become effective until death of grantor).

42. Life Estates & Remainders: Additional Information

43. ME v. TEXTBOOK (P523) The Textbook says the Common Law rule that a Life Estate was the default estate did not apply to grants in wills. For our purposes, assume that, at Common Law, a Life Estate was the default estate under all circumstances.

44. Alternative Contingent Remainders Two contingent remainders where the event that causes one to vest will destroy the other.

45. Alternative Contingent Remainders Two contingent remainders where the event that causes one to vest will destroy the other. Example: Jordan grants: “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”.

46. Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other. Example: 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. Here, only two possibilities: either (1) Katherine will graduate from law school (and would then take) or (2) she will die before graduating from law school (Sofia would then take)

47. Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other. Example: Example: 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.” Note: Even though the alternative contingent remainders might appear to exhaust all possibilities, the convention is that you still must pencil in a reversion in the grantor to fill up the time line. Thus, –Kevin has Life Estate –Katherine & Sofia each have an Alternate Contingent Remainder (in F.S.) –Jordan retains a Reversion

48. Vested Remainder Subject to Divestment Vested Remainder followed by an Executory Interest that could cut it off before it becomes possessory. Same as what textbook calls “Vested Remainder Subject to Complete Defeasance” (P596)

49. Contingent Remainder (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (No Reversion in O)

50. EXAM TIP: COMMON MISTAKES Contingent Remainder Subject to Open Contingent Remainder Subject to Divestment Executory Interest Subject to Divestment

51. EXAM TIP: COMMON MISTAKES Contingent Remainder Subject to Open Contingent Remainder Subject to Divestment Executory Interest Subject to Divestment These Phrases Only Used for Vested Remainders

52. Olympic (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George ?

53. REDWOOD (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer?

54. Olympic (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment Vested b/c K not reaching 21 is condition on Elaine’s interest; K doesn’t have to reach 21 to get possession Subject to Divestment b/c K can lose interest before it becomes possessory if he dies before 21 while G alive Elaine?

55. but if Kramer does not attain the age of 21, then to Elaine and her heirs." Olympic (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment Elaine: Shifting Executory Interest (in f.s.) Elaine: Shifting Executory Interest (in f.s.) Executory Interest b/c would cut off K’s Vested Rem. (or Fee if K gets possession before turning 21) Shifting b/c cutting off grantee’s interest Note: If there’s a vested remainder, can’t have a second remainder following same finite interest.

56. but if Kramer does not attain the age of 21, then to Elaine and her heirs." Olympic (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer is 15 years old. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment Elaine: Shifting Executory Interest (in f.s.) Elaine: Shifting Executory Interest (in f.s.) What if Kramer then turns 21 before George dies?

57. but if Kramer does not attain the age of 21, then to Elaine and her heirs." Olympic (4K): “To George for life, then to Kramer and his heirs; but if Kramer does not attain the age of 21, then to Elaine and her heirs." Kramer turns 21; George still alive. George: Life Estate Kramer: Vested Rem. (in f.s.) Subj. to Divestment Elaine: Shifting Executory Interest (in f.s.) Interest fails. Elaine: Shifting Executory Interest (in f.s.) Interest fails.

58. Alt. Contingent Remainders (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (No Reversion in O)

59. Alt.Contingent Remainders (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. If A alive & B dies at 14 Both 1+2: If A alive & B dies at 14: B gets 0; C gets fee simple at A’s death

60. Alt. Contingent Remainders (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & heirs if she turns 21, but if B dies before 21, then to C & heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. If A alive & B turns 21 Both 1+2: If A alive & B turns 21: B has vested remainder C’s interest fails

61. Contingent Remainder (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (1) If A dies & B not yet 21:(1) If A dies & B not yet 21: Conditions not met for either B or C. Remainders either destroyed or become Springing Executory InterestsConditions not met for either B or C. Remainders either destroyed or become Springing Executory Interests O takes Fee Simple [on Executory Limitation in Modern View (exc. FL)]O takes Fee Simple [on Executory Limitation in Modern View (exc. FL)]

62. Contingent Remainder (1) v. Vested Remainder Subject to Divestment (2) (1) To A for life, then to B & her heirs if she turns 21, but if B dies before 21, then to C and his heirs. Reversion in O. (2) To A for life, then to B & her heirs, but if B dies before 21, then to C & his heirs. (2) If A dies & B not yet 21(2) If A dies & B not yet 21 No requirement that B turn 21 to take possession, so B does take possession and has Fee Simple on Executory Limitation.No requirement that B turn 21 to take possession, so B does take possession and has Fee Simple on Executory Limitation. C still has Shifting Executory Interest that will become possessory if B dies before turning 21.C still has Shifting Executory Interest that will become possessory if B dies before turning 21.

63. Olympic (4L): 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 has 2 children, Heckle and Jeckle. Tweety: ?

64. Olympic (4L): 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 has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children?

65. Olympic (4L): 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 has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Contingent Remainder (in f.s.) (Must Survive Tweety) Peggy?

66. Olympic (4L): 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 has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.): Only 2 Possibilities: Tweety survived by children (who take) Tweety not survived by children (Peggy takes)

67. Olympic (4L): 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 has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Alternative Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.) Anything Else?

68. Olympic (4L): 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 has 2 children, Heckle and Jeckle. Tweety: Life Estate Tweety’s Children: Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.) Daffy: Reversion (even when alternate contingent remainders)

69. Olympic (4L): 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: Alternative Contingent Remainder (in f.s.) Peggy: Alternative Contingent Remainder (in f.s.) Daffy: Reversion (even when alternate contingent remainders)

70. ACADIA: Problems 4M-4N Sunrise

71. Acadia (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: ?

72. Acadia (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: ?

73. Acadia (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 Remainder (in f.s.) (Unborn) Jo: ?

74. Alternative Contingent Remainders Two contingent remainders for which the event that causes one to vest will destroy the other.

75. Acadia (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. When does contingent remainder in B’s children vest?

76. Acadia (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. Contingent remainder in B’s children vests when a child of B’s is born. When does contingent remainder in Jo vest?

77. Acadia (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. Contingent remainder in B’s children vests when a child of B’s 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?

78. Acadia (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 Remainder (in f.s.) Jo: Contingent Remainder (in f.s.) (Not alternate) Anything Else?

79. Acadia (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 Remainder (in f.s.) Jo: Contingent rem. (in f.s.) (Not alternate) Amanda: Reversion

80. Acadia (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

81. Acadia (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?

82. Acadia (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?

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

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

85. Acadia (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?

86. Acadia (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?

87. Acadia (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

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

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

90. 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

91. (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.

92. (4L) & (4M) & (4N) QUESTIONS?

93. Remainders & Executory Interests: Additional Information

94. Vested Remainder Subject to Divestment (1) v. Vested Remainder in F.S. subj. to Exec. Lim. (2) (1) To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs. Condition might occur before B obtains possession.

95. Vested Remainder Subject to Divestment (1) v. Vested Remainder in F.S. subj. to Exec. Lim. (2) but if B dies before turning 21, then to C & his heirs. (1) To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs. Condition might occur before B takes possession. but if B ever uses the land for commercial purposes, to C & his heirs. (2) To A for life, then to B & her heirs, but if B ever uses the land for commercial purposes, to C & his heirs. Condition is a limit on B’s use of the land and cannot occur before B takes possession.

96. TERMINOLOGY: ME v. WORKBOOK but if B dies before turning 21, then to C & his heirs. To A for life, then to B & her heirs, but if B dies before turning 21, then to C & his heirs. Condition might occur before B takes possession, but also might occur after. WORKBOOK (p93): Vested Remainder Subject to Divestment in Fee Simple on Executory Limitation. ME: Phrase in italics is accurate but unnecessary. In multiple choice answers, I will simply call this interest a Vested Remainder Subject to Divestment (as long as it might occur before possession).

97. CORRECTION TO WORKBOOK (Problem 9-11) but if B ever allows A to be moved into a nursing home, then to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, then to C Condition must occur, if at all, while A is alive, thus before B gets possession. Presumably (considering grantor’s likely intent), it would not violate the condition for B to allow someone to carry A’s corpse into a nursing home. (!)

98. CORRECTION TO WORKBOOK (Problem 9-11) but if B ever allows A to be moved into a nursing home, then to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, then to C Condition must occur, if at all, while A is alive, thus before B gets possession. B will eventually get either nothing or a fee simple absolute (assuming “today”) B has a vested remainder subject to divestment (in Fee Simple Absolute) NOT in Fee Simple on Executory Limitation

99. CORRECTION TO WORKBOOK (Problem 9-11) but if B ever allows A to be moved into a nursing home, then to C O to A for life, then to B, but if B ever allows A to be moved into a nursing home, then to C Condition must occur, if at all, while A is alive, thus before B gets possession. B will eventually get either nothing or a fee simple absolute (assuming “today”) B has a vested remainder subject to divestment [in FS Absolute] QUESTIONS?

100. CORRECTION TO WORKBOOK (Problem 5- 28) O to A for life, then to B, on condition that B has passed the bar.

101. CORRECTION TO WORKBOOK (Problem 5-28) O to A for life, then to B, on condition that B has passed the bar. A has Life Estate B has a Remainder (follows life estate) At First Looks Vested Living Ascertainable Person No Condition in Clause Creating the Interest (Walk to the Punctuation & Turn Around …) BUT …

102. CORRECTION TO WORKBOOK (Problem 5-28) O to A for life, then to B, on condition that B has passed the bar. A has Life Estate B has a Remainder (follows life estate) At First Looks Vested BUT Condition that follows it does not create an interest in anybody else, so must attach to B’s remainder Comma after B unneeded & confusing. 

103. CORRECTION TO WORKBOOK (Problem 5-28) O to A for life, then to B, on condition that B has passed the bar. A has Life Estate B has a Contingent Remainder Condition is a “Condition Precedent” See 5-29, which strongly suggests that interest in 5-28 is a contingent remainder. QUESTIONS?

104. COMPARE O to A for life, then to B[,] on condition that B has passed the bar. A has Life Estate B has a Contingent Remainder O retains a Reversion on condition that if B ever fails the bar, then to C. O to A for life, then to B, on condition that if B ever fails the bar, then to C. A has Life Estate B has a Vested Remainder Subject to Divestment C has a Shifting Executory InterestC has a Shifting Executory Interest

105. REVIEW: DEFEASIBLE FEES & DEFEASIBLE FINITE PRESENT ESTATES

106. DEFEASIBLE FEES: Two Relevant Distinctions GrantorGrantee 1.Who holds future interest?: Grantor v. Grantee 2.Automatic termination v. Needs action by future interest holder Yields Following Flow Chart

107. FLOW CHART: IDENTIFYING DEFEASIBLE FEES

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

111. Review: Accessorizing Review: Accessorizing Defeasible Fees & Matching Future Interests FEE SIMPLE DETERMINABLE & Possibility of Reverter F.S. ON CONDITION SUBSEQUENT & Right of Re[Entry] F.S. ON EXECUTORY LIMITATION & Executory Interest

112. Defeasible Finite Estates Review: Examples of Defeasible Finite Estates Term of Years on Condition Subsequent: “To Gabriel for 20 years, but if he ever passes the bar exam, I can enter & retake.” Life Estate on Executory Limitation “To Brett for life, but to Steve & his heirs if Steve ever passes the bar exam.”

113. REVIEW Defeasible Finite Estates Matching Future Interests REVIEW Defeasible Finite Estates & Matching Future Interests TwoDefeasible Finite Estates Necessarily Create Two Future Interests One cuts off the finite estate if the condition is met One follows at the end of the finite estate if it terminates naturally (i.e., if the condition is not met). If One Person Holds Both of These Future Interests, They Will Merge Into the “Larger” Interest

114. REVIEW Defeasible Finite Estates Matching Future Interests REVIEW Defeasible Finite Estates & Matching Future Interests TwoDefeasible Finite Estates Necessarily Create Two Future Interests If One Person Holds Both of These Future Interests, They Will Merge Into the “Larger” Interest Example (4H): Thelma conveys “To Louise for 99 Years if Louise so long live." Louise: Term of years determinable. Thelma: Possibility of Reverter plus Reversion  Reversion (Merger) Merger captures idea that T will end up with land eventually no matter what.

115. REVIEW Defeasible Finite Estates Matching Future Interests REVIEW Defeasible Finite Estates & Matching Future Interests TwoDefeasible Finite Estates Necessarily Create Two Future Interests If One Person Holds Both of These Future Interests, They Will Merge Into the “Larger” Interest Example (E79): O “To A for life or until A divorces, then to B" A: Life Estate on Executory Limitation. Shifting Exec. Int. B: Shifting Exec. Int. + Vested Remainder  Vested Rem. (Merger) Merger captures idea that B will end up with land eventually no matter what.

116. OLYMPIC: Problem 4I EEL GLACIER

117. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." J opens a restaurant that serves several dishes cooked with wine or flamed with brandy and at Sunday brunch offers a free glass of champagne. The restaurant is successful, and 11 years after its opening D wants to buy it and add a bar. Advise D.

118. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS Corresponds to Plausible Sequence of Multiple Choice Qs FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

119. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS FSD or FSCS? CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

120. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." FSD or FSCS? Does Orrin’s interest vest automatically (FSD) or does he have to act (FSCS)? Arguments for Each Position?

121. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." FSD or FSCS : Arguments Include: “ So long as” & condition built into 1 st clause suggest FSD Moment of violation likely pretty clear, so can be FSD “Right to re-enter” & 2 clauses suggest FSCS “Retains” suggests FSCS b/c implies that O’s right can be held for some period of time after violation Most states: Presumption favoring FSCS Mahrenholz: More like punishment than purpose (suggests FSCS)

122. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS FSD or FSCS? Some Arguments Each Way CONDITION VIOLATED? EFFECT OF VIOLATION? ADVICE RE PURCHASE

123. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." Does It Violate Condition if J’s Restaurant: (i)Serves several dishes cooked with wine or flamed with brandy? (ii)At Sunday brunch offers complimentary glass of Champagne?

124. Olympic: (4I): O conveys "to J and her heirs so long as the premises are not used for sale of beer, wine, or liquor, and if beer, wine, or liquor is sold on the premises, O retains a right to re-enter the premises." MULTI-STEP ANALYSIS FSD or FSCS? CONDITION VIOLATED? No Direct Sale of Liquor for $$$; Cooking Removes Actual Alcohol; Flavored Dishes Maybe Not w/in Intent BUT: Cost of Alcohol Incorporated in Purchase Price; Diners Buying Alcohol in Meals; Glass of Champagne Maybe w/in Intent BUT: Cost of Alcohol Incorporated in Purchase Price; Diners Buying Alcohol in Meals; Glass of Champagne Maybe w/in Intent EFFECT OF VIOLATION? ADVICE RE PURCHASE