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Acquisition of Property

A. INTRODUCTION

M.B.

1. Property rights defined: The ordinary person thinks of property as things while lawyers think of property as rights: o o o o o Exclude Possess Transfer/Dispose Use Enjoy

How do property rights originate? o o o o o o Conquest; Social custom; Claims based on possession; Claims based on labor or investment; Family relations; or Government assignments by law and k, etc.

Ways we acquire property: Possession is a protected property right. The first person to get possession of an unowned thing usually becomes its owner. To satisfy the possession requirement, the possessor must exercise physical control over the object and must intend to control it and exclude others from it. o First possession y y y o Discovery Capture Creation

Subsequent possession y y y Find Adverse Possession Gift or Bequest

If two people claim to have discovered something, who has the stronger claim? A person simply does not become the owner of an object that already has an owner simply by taking possession of it. The possessor is legally obligated to return the object to its owner.

B. THE RULE OF CAPTURE 1. What is the difference between ownership and possession? The person who acquires ownership by taking possession of an object is entitled to all the same legal rights as any other owner. A person simply does not become the owner of an object that

already has an owner simply by taking possession of it. The possessor is legally obligated to return the object to its owner. 2. Acquisition by discovery The title of land, which has been discovered and conquered, belongs entirely to the conquering nation, subject only to the right of those natives present to occupy the land. o Johnson v. M Intosh y y P claims title to land that he got from Indian chiefs in 1773 and in 1775. The Indian chiefs were working under the proper authority of tribes when they sold their lands to the plaintiff. y y P sought to have the land grants recognized by the U.S government. The court ruled that the Europeans conquered the land from the native Indians and they were only given occupancy right and they were never given the right to sell their land. After the revolutionary war, England transferred their absolute rights to the United States. Therefore, the Indian chiefs did not enjoy the right to sell the land to private individuals. a) What is the difference between acquisition by discovery and acquisition by conquest? o A Acquisition by discovery entails the sighting or finding of unknown or unchartered territory. landing and the symbolic taking of possession frequently accompany it. Acts that would give to a title must subsequently be perfected, within a reasonable time, by settling in effective occupation.

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and making an o

Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror.

b) John Locke s Labor Theory

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´« every man has a property in his own person. « The labor of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided, and left in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.µ
Haslem v. Lockwood: y P racked manure into heaps and accumulated it onto a public street intending to take it away the next day. y Before he could do that, the D found the heaps or manure and hauled them off in his cart. y The manure belonged to the owners of the animals that dropped it but it had been abandoned. y Because of this, it belonged to the P who had changed its original condition and greatly enhanced its value by his labor.

In plain English, if a person works on something, it becomes his. o

 

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3. Acquisition by Capture Actual bodily seizure is not necessary. Capture is not enough. Pursuit is required. If a wild animal has been mortally wounded or trapped so that capture is virtually certain, the animal is treated as captured. If a person does not actually possess the animal: o o o Mortal wounding of animal by one who is not abandoning his pursuit my equal possession. Encompassing or securing the animal with nets or toils Must show intent to appropriate the beast or deprive the animal of its natural liberty y Pierson v. Post:     }= Post = Pierson possession Mere pursuit of an animal does not give one a legal right to it. Based on Puffendorfs definition of occupancy of beasts. You have to have mortal damage to animal and deprive animal of its natural ability. You have to show intent that you want the animal in order for it to become yours. The law requires capture rather than pursuit. a. Rationale- Policy bases 1. Competition  This ensures the beneficial use of resources because more wild animals are captured. Society does not reward the pursuer, only the captor promoting a more effective means of capture. 2. Ease of administration  Rewarding capture is easier to administer than rewarding pursuit or prospect of capture, which is difficult to determine. It promotes certainty and efficient administration. b. Wounded or trapped animals  If an animal has been mortally wounded or trapped so that capture is virtually certain, the animal is treated as captured. But if the animal is only in the process of being entrapped and is definitely not captured. c. Interference by non-competitor  Rule of capture allows a competitor who also seeks to capture an animal to interfere with the others mere pursuit. However, a person who does not seek to capture an animal, but rather to interfere with the otherd s capture seeks to disrupt the efficient use of resources and must be stopped. o Keeble v. Hickeringill: y Landowners are considered prior possessors (first possessors) of wild animals on their land Pursuit = Occupancy Pursuit ‚ Possession. Pursuit + _________=

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y

Although the Plaintiff never had actual physical possession of the ducks, the Plaintiff still had property rights in the ducks because they were on his property.

y d. Custom 

The Defendant maliciously interfered with the Plaintiffd s livelihood.

Although the general rule is that the captor must acquire physical control over the animal, in some hunting trades, a custom, which is thought to be more effective, may dictate a different result. o Ghen v. Rich: y Reasonable local usage gives title to the first taker of a whale who by acts of appropriation. y The common law mandates that control is a necessary prerequisite to someone being able to possess a wild animal. However, the instant case is unique. y First, the Plaintiff did everything in his power to possess the animal. y Second, the widespread custom in the industry recognized this as the only realistic form of possession.

e. Wild animals with animus revertendi (return of habit) a.k.a Domestic Animals. o Captured wild animals that develop a habit of return continue to belong to the captor when they roam at large. The reason behind this rule is that domesticated animals are valuable to society and this effort to tame wild animals is rewarded.

C. ACQUISITION BY CREATION A person can acquire property by creating. The primary purpose in recognizing property by creation is to reward labor. I. Intellectual Property o o IP is the e catchall label or property in ideas.

The term includes copyrights, patents, and trademarks but may also cover property in a

persona. - To avoid monopoly and encourage competition, the law allows copying and imitation of ideas, as opposed to their expression.  Cheney Brothers v. Doris Silk Corp: y The } could not secure a copyright or a patent on its patterns and could not recover as a result of the ds copying.

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y

Since there is no common law copyright law, the }ds property right is limited to chattels that embody the invention, not the design pattern that has a short life.

y

Therefore, although the not actionable.

copied the }ds patterns the imitation is

y

The Plaintiff has no property right to prevent any imitation of it. The United States Constitution (Constitution) confers only Congress the power to create this right, not the court.

- There are exceptions like the right to publicity. A person may not use a celebrities name, likeness, voice or signature for profit without the celebrities consent. The in creating a persona of value is protected against anotherds

celebrityds labor using it for profit. 

Vanna White v. Samsung Electronics America, Inc: y It was held that, even though there is no intent to deceive, the use of an imitation (not a likeness) of a celebrity for commercial profit infringes her right of publicity.

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Unfair competition - Courts have sometimes protected labor and investment under the law of unfair competition.  International News Service v. Associated Press: y A property right can be found in an individualds labor an investment, but that right can only be held against a competitor, not the general public. y There is a quasi property interest in news collected by an agency against other news collection agencies. y It is unfair competition when one party interferes with the normal operation of anotherds legitimate business precisely at the point where profit is to be reaped. y Information contained in news is in the public domain and therefore cannot be subject to private ownership. y But when a news organization makes a substantial expenditure in obtaining the news, they will be protected from having the information appropriated by a competitor.

II. Rights in Body Products o Moore v. Regents of the University of California

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some property is not alienable and some Right to Exclud e o The right of property is described by William Blackstone as: . Shack     D sought to enter Pds property in order to administer medical and legal assistance to a laborer Owner insister that visits must be conducted in the office Dds reduced to leave and were charged with trespass Court ruled that ownership rights in property do not include the right to bar migrant laborers working on the property from access to governmental services  A mands right in real property is not absolute.Jacques v. This right however has no practical meaning if the State will not enforce it. to stop . Steenberg Homes.Although most property is freely transferable. Inc  A private landowner has the right to exclude other from his land. . assets. and the relationship ends. .The Drds who created the cell line therefore created original ownership. Limitations to the right to exclude: .The court held that the patient had only the right to sue the Drds for failure to d isclose their research and economic interest in the patientds cells. .State v. 6 . private of public may justify entry upon the lands of another o o o The rights of property are not endless.Relations of mutual dependence involving joint efforts. in total exclusion to the right of any other individual in property can be given away but not sold .. The rights and reliance interests of others must be protected. the universe. . Necessity.Non-owners who have relied on a relationship with the owner that made such access possible in the past may be granted partial or total immunity from having such access revoked when this is necessary to achieve justice.That sole and despotic dominion which one man claims and exercises over the external things of the world.Supreme Court held that a man did not have a property right in his spleen following its removal from his body by doctors who made it into a patented cell line of great commercial value. . property rights must be redistributed among the parties to protect the legitimate interests of the more vulnerable persons. o The right to exclude= the right to deny others from enjoying (use or possess) oned s Without this right other may simply take as they wish and the owner would be unable them.

there must be physical control of the property and the intent to assume dominion over it. a ind r must show: An intent to control the property and The act of control Categories of e foundf property o Lost property .The jeweler refused to give the jewel back to Chimney Sweep saying that the Chimney Sweep did not own it.The Chimney Sweep was the prior possessor.Chimney Sweep finds a jewel and takes it to a jeweler to have it appraised . er owner.Chimney Sweep was entitled to recover from the jeweler either the jewel or the full money value of the jewel.Property that the owner accidentally and casually parted with possession and does not  know where to find property. . . 1. To protect the interests of the more vulnerable persons in reasonably relying on the continuation of the relationship To distribute resources earned by the more vulnerable party for contributions to joint efforts To fulfill needs of the more vulnerable persons. o Armory v. 2. Hanna v. For o o poss ssion . Prior possessor o o Possession is eleven points in the law. ACQUISITION BY FIND An owner of property does not lose title by losing the property. The rule that a prior possessor wins over a subsequent possessor is an important and fundamental one. Peel y Peel owned a large house requisitioned by the government to quarter soldiers £¤ ¤ £ £ 7 . It applies to both personal property and real property. Owner of Premises The finders rule: A finder prevails as against all but the for true owner or prior possessors. o Just like capture.Property rights are redistributed to non-owners:    Rights to Include o Right to include is the right to let others enjoy ones assets. The ownerds rights persist even though the article has been lost or mislaid A find has rights superior to everyone but the true .. Finder vs. and therefore has the superior right. Delamirie . D.

P told D. it also extinguishes the old title of the owner and creates a new title by operation of law in the adverse possessor. Mislaid property goes to the owner of the premises. The P did not acquire the right to take the property from the shop.Property intentionally placed somewhere and then forgotten. Medina: y y Someone forgot his pocket book on the table at a barbershop. o Treasure Trove .The purpose of the classifying the property this way is to facilitate the return of the object to the true owner: because it is assumed that the object was is found. . ACQUISITION BY ADVERSE POSSESSION o If. the owner is thereafter barred from bringing an action in ejectment.y y y Mislaid property Peel bought the house two years earlier and never moved in A soldier found a brooch in the house hidden on a window ledge. 8 . the Dds subsequent acts in receiving and hold the property in the manner he d d ing id oes not create any. uninterrupted possession. intentionally placed where it where she placed it and will return  McAvoy v. o Title acquired by adverse possession cannot be recorded because it does not arise from a recordable document but rather from the operation of law. o Abandoned property . D agreed y y y Owner didndt come back andP sued for the pocket book Judge ruled that the P could not maintain his action.Owner voluntarily and intentionally relinquished ownership with intent to give up both title and possession. within the number of years specified in the state statute of limitations.Any money or coin. The soldier prevailed over Peel because Peel never moved into the house and took physical possession of it. o o Acquiring title to property by long. silver plate or bullions hidden in the earth E. the owner of land does not take legal action to eject a possessor who claims adversely to the owner. Running of the statute of limitation on the ownerds action in ejectment not only bars the ownerds claim to possession. gold. o . it is likely that the true owner will remember to the shop to claim it. the owner of the of the barbershop to hold on to it incase the owner came back otherwise to advertise it. but it was the duty of the D to use reasonable care for the safe keeping of the same until the owner should call for it y The P acquired no original right to the property.

the 9 . o Statutory period for adverse possession varies from state to state from five to twenty one years. which o N= Notorious . o Court ruled that a party may acquire land through adverse possession if that party is a mistaken belief that she had title to the property.The purpose of the continuity requirement is to give the owner notice that the possessor is trespasses. Kunto: y Use of a summer home only during the summer for the statutory period is continuous use claiming ownership. Gorski: o Dds son made improvements to their house that encroached on Pd s lot by 15inches. o O= Open .His or her acts must be such that will constitute reasonable notice to the owner that she is claiming dominion. so that the owner can defend his rights.Continuous possession requires only the degree of occupancy and use the average owner would make of the particular type of property. . . secret or hidden activities do not satisfy the notorious and open requirement  Manilllo v. size. . D stated that it was a mistaken belief that the property belonged to them. o C= Continuous . Requirements of Adverse Possession Adverse possession formula o o AdNoche + Possession + Passage of Certain Amount of Time = Adverse Title A= Actual . and that the entries are not just a series of ¥ ¥ possession.o He must file a quiet title action against the former owner barred by the statute of limitations.The acts must be appropriate to the condition. o In order to constitute e open and notorious true owner must have actual knowledge o a minor encroachment along a common border.Stealthy.Open acts are acts that look like typical acts of an owner of property that the community observing them would infer the actor to be claiming ownership.  Howard v. and locality of the land. starts the statute of limitations running.The primary purpose of the entry requirement is to trigger the cause of action.

y Effectively. this element is satisfied. .Y.Tacking has two views:   American rule.f 10 .Keeps the statute running against the true owner regardless of privity between possessors o H= Hostile/ Adverse . seasonal use of a property is permitted when it is consistent with the type of property involved. Good Faith Test y y  The adverse possessor must believe that he owns the title to the land Must innocently (but mistakenly) believe that the is the true owner.The clock does not stop if the true owner transfers his interest.There are three approaches regarding claimantds state of mind :  Objective test: y The adverse possessords subjective belief about who owns the property is irrelevant. without permission from the true owner. statutes provide that if the claimant does not enter with color of title.Requires privity between the possessor English rule. Lutz: o N. Intentional Trespass Test y The adverse possessor must know that he does not actually own the land and subjectively intend to take title from the true owner.y Similarly. this test rewards intentional wrongdoers while offering no protection to good faith occupants. y  His conduct is deemed objectively hostile and adverse.Tacking permits the later possessor to add years of possession to satisfy an adverse possession statute of limitation.Privity means that the possessor voluntarily transferred his interest or physical possession to a subsequent possessor . . . . y IF he uses the land as a reasonable owner would use it. y The court stretched the definition of privity (shared rights and responsibilities that is connected through possession of the property) y Kunto required privity for tacking.  Valkenburg v. regardless of his subjective intent. adverse possession can be claimed only where the land e has been protected by a substantial in closuref or has been e usually cultivated or improved.Time runs against the true owner from the time when adverse possession began. The possession must be uninterrupted and voluntary.

where the stolen goods are including the identity of the possessor of the paintings. . o o Once the remedy is barred. The conduct of the owner. 11 . the owner must retake possession by using the property in manner that suited to its cond ition.Y. Snyder  The COA accrues when the owner first knows.It means that the ad verse possessords possession is as exclusive as one would characterize an ownerds normal use of such land . y Due diligence rule o The statute of limitations does not begin to run on the owner of stolen goods as long as the owner continues to use due diligence in looking for them.o Hence. o NY also puts the risk of buying stolen goods on purchases. whereas adverse possession of chattels seldom is. the adverse possessor has title.  Color of title refers to a claim founded on a written instrument or a judgment or decree that is for some reason defective and invalid o E= Excusive . is controlling. or reasonably should know through the exercise of due diligence. o The discovery rule has been adopted in most jurisdictions. a person without color of title would have to show in that a hunting cabin is a e usual improvementf and that taking sand and gravel was a e usual cultivationf in order to win.This d oesndt mean absolute exclusivity . ADVERSE POSSESSION OF CHATTELS o A person can acquire title to chattels by adverse possession just as he can acquire title to land. There are two approaches: y New York rule o NY holds that the statute of limitations does not begin to run on the owner of stolen goods until the owner knows who has the goods and makes a demand for return of the goods that is rejected. Difference between adversely possessing land and adversely possessing chattels: Adverse possession of land is open and notorious. in N. who can often protect themselves by making inquiries. o OdKeeffe v. .Adverse possessords possession must not be shared with either the true owner or the general public. not the possessor.To interrupt the ad verse possessords exclusive possession.

G. Right to use ii. 2) Trespass on the case y 3) Trover y A suit in trover was used to recover the value of the Pds chattel that the D had converted Trover d not apply to trespass to land . This action included trespass to chattels and trespass to land. F. zoning laws. is questionable in many cases The purchaser can lessen the risk of buying stolen goods by inquiries of the seller The owners were not protected.. o The law protects the owner over the purchaser for three reasons:    Whether the purchaser was really bona fide. you must prove the elements of adverse possession i.g. Right to Exclud subject to some restrictions e. REMEDIES OF A POSSESSOR (at common law) Actions to recover damages 1) Trespass o Trespass required a showing that D intentionally or negligently acted to inflict a direct. Rights of owners i. This would occur where one of the elements of a trespass action was missing e. indirect or consequential injury rather than an immediate injury. Right to transfer iii. mistaken e improvement. forcible injury to the Pds property or property. AdNOCHE o Tacking is also applied to statutes of limitations in actions of replevin of chattels. o o The basis for a trespass action is injury to possession. civil rights laws.o In those jurisdictions. owners would spend more money on protective devices to prevent theft.. where it has been adopted. id .e. y Bona fide purchaser of stolen goods o A bona fide purchaser of stolen goods is not protected against the claim of the owner unless the statute of limitations has run on the owner. 12 . etc. Privity is required. which is not a socially productive expenditure. and did not know the goods were stolen.g.

possessory interest of or a future interest.PERSONAL PROPERTY ACQUISITION BY GIFT A gift is a voluntary transfer of property without consideration. y Gift causa mortis o o o This is a gift made in contemplation of immediately approaching death. There must be (i) intent by the donor to make a gift (ii) delivery to the donee. Reasons for the delivery requirement . If the alleged donor only in the future. Manual transfer usually satisfies the requirement but it is not necessary. o Acceptance by the donee will be presumed when the gift is of value to the donee. I) Intent The donor must intend to make a present. ing y Promise compared o A promise to give property in the future is not a gift. a court will examine the donords verbal andwritten statements and the other circumstances surround the gift.B. a promise without consideration) is not enforceable as a gift or under the law of contracts (because there was no consideration). In determining whether the alleged donor had the requisite intent to make a present gift. A gift transfers to the donee right now. Requirements for a gift are strictly enforced in gifts causa mortis. and (iii) acceptance of the chattel by the donee. there must be intent on the part of the donor to make a gift. delivery by the donor to the donee and acceptance of the gift by the donee. irrevocable gift. ii) Delivery Delivery requires an act giving up dominion and passing control to the donee.e. The gift is revoked if the donor recovers from the illness that prompts the gift. Two kinds of gifts: y Gift inter vivos o This is a gift made during the donords life when there is no threat of impend d ing eath. In order for an inter vivos to be valid.. o o It must be absolute and irrevocable to be valid. whether of a presently M. the gift is an unenforceable promise because it is not supported by consideration. A gratuitous promise (i.

instrument in writing).. o Constructive delivery y Constructive delivery is the hardening over of the means of obtaining possession and control (e. reliance is placed on the objective act of d elivery. key). This is permitted when actual manual delivery is impracticable.o Ritual y Delivery of the chattel impresses the grantor with the legal significance and finality of the act. the presence of the object in the granteeds hand substantiates his claim of a gift. Moreover. o Symbolic delivery y Symbolic delivery is the handing over of some object that represents the thing given (e.  Donors intent y  Constructive delivery can include any acts that the donor deems sufficient to pass a present interest. the policy wasndt part of the gift to the P. o Evidentiary y Delivery of the chattel is reliable. she realizes it belongs to another. 14 . or in some other way relinquishing dominion and control. Bost y P filed suit against the D (the administrator of the deceasedds estate) claiming the D converted gifts the d eceased had mad to her by gift causia mortis.g. This is permitted when actual manual delivery is impracticable. s o Protective y Requiring delivery protects the unwary or barely competent donor from making improvident oral statements. y The life insurance policy was present in the room when the deceased gave his keys to the P and the policy was capable of actual manual delivery. objective evidence of the grantords intent to give.g. e y The P was entitled to the furniture in the room that could be opened by the key not the insurance policy. Once she hands over the object. Alternative methods of delivery There are several types of acts are acceptable as substitutes for e handing overf . There is no need to rely on oral testimony. Newman v.

15 . no gift takes place until the agent makes delivery to the donee. no gift is made when a donor retains the right to revoke the gift. despite the fact that he never retained possession of the painting y The court held that a valid intervivos gift was made as the donor never intended to make a gift to his son. However. but where the gift is beneficial to the donee. if the donor makes delivery to a third party who is the doneeds agent or an ind epend ent agent. iii) Acceptance The donee must accept the gift. only constructive delivery was needed as actual delivery of the painting to the P and acceptance is deemed presumed as it is a benefit to the donee. Most courts tod uphold ay a gift to be d elivered by a third party (not d onords agent) on the d onords d eath. o Gruen v. o Revocable gifts y Generally. Gruen: y P commenced an action seeking a declaration that he is the rightful owner of a painting that his deceased father had given to him. acceptance is presumed.o Delivery through third person y If a donor makes a delivery to his agent. the gift is effective on d elivery to the third party.

granting the land e to A and his heirsf . o Life estate y A life estate is an estate that will end necessarily at the death of the person. o Fee Simple y y An estate that has the potential of enduring forever. THE FEE SIMPLE 1.POSSESSORY ESTATES A. but will necessarily cease if and when the first fee tail tenant has no lineal descendants to succeed him in possession. o o Example: It is created by granting the property e to A for lifef Leasehold estate y Includes estates the endure o For any fixed calendar period or any period of time computable by the calendar called a e term of yearsf regardless of the length of the period or o From period to period until the landlord or tenant gives notice to terminate at the end of a period (called a e periodic tenancyf ) or o So long as both the landlord and the tenant desire (called a e tenancy at will B. the owner of Blackacre. There are two types of estates: o Freehold estates y y o Present possessory estates Future possessory interests M. ¦ ). each indicating the period of time for which the land might be held.e. Possessory estates Present possessory estates The common law developed estates. o Example: Created by O. Resembles absolute ownership. o Example: Created by O granting the property e to A and the heirs of his bodyf . and the holder of a fee simple is commonly called the owner of the land. o Fee tail y A fee tail is an estate that has the potential of enduring forever. . maximum rights in the land.B. Fe Simple Absolute (FSA) e o o A fee simple absolute is absolute ownership i. It is of potentially infinite duration.

or may lose. Under modern law. It includes: o y Identify the person in whom the estate is created e.g. o mise s Example: O conveys Blackacre eto School Board so long as the pre are use for school purpose d s (has words o limitation) ¨ 17 Words of limitation § y Words of purchase   © . the ownerds heir inherits the fee simple. eand he he r irs . Creation of a fee simple y At common law it was necessary to use words of inheritance to create a fee simple by deed y The ancient requirements of words of inheritance in a deed have been abolished in all states. the property.g. eto A o o Identify the type of escape created e. a deed is presumed to pass the largest estate the grantor or testator owned. it is of course not absolute. o Fee Simple Determinable (FSD) y A fee simple estate so limited that will automatically end when some specified event happens... but they may be used for other purposes as well.only blood relatives take as heirs Parents Collateral relatives Escheat: When a fee simple owner dies without a will and without heirs the fee simple escheats to the state. Defeasible fees are most commonly encountered in deeds restricting the use of land. Defeasible fees A fee simple can be created so that it is defeasible on the happening of some event and the owner of the fee simple them loses. o Example: eTo A conve a fe simple if the grantor had a fe simple ys e e o If the fee simple owner does not devise his land but dies without a will. nor will it end on the happening of any event. If a person d without a will his/her heirs are: ies y y y y y y y y y y Spouse at common law Next of kin Issue Children Adopted children Nonmarital children Stepchildren.o o o There are no limitations on its inheritability It cannot be divested. If the fee simple is defeasible.

y First giving the grantee an unconditional fee simple and then providing that the grantor or her heirs may divest the fee simple if a specified condition happens create a FSSCS. o Restraints on marriage are sometimes struck down as violations of public policy. or a epowe of r  or eto A. the restraint may be struck down. o Fee Simple Subject to Condition Subsequent (FSSCS) y A fee simple that does not automatically terminate but may be cut short (divested) at the grantors election when a stated condition happens. Fee Simple subject to an executory limitation (FSSEL)  y If the grantor creates a FSSCS. th t i X e nt h ppe d. as long as the stated event has not happened. while with FSSCS. y A fee simple determinable may be transferred or inherited in the same manner as any other fee simple.y If the contingency occurs. the grantor has a future interest called a possibility of Reverter. It terminates automatically and reverts back to the grantor. But the fee simple remains subject to the limitation no matter who owns it. the estate automatically ends. On the other hand. y The interest is sometimes called a eright to re nte e r te rminationf or a eright of re acquisitionf . y FSSCS is a fee simple because it may endure forever. O merely has the power to reenter and to terminate the estate. If the purpose of the restraint is to penalize the marriage. the grantor must act to retake the property or the granteeds estate continues. when the new spouses obligation of support arises. y y FSSCS does not automatically end on the happening of the condition. if the purpose is to support until marriage. Diffe nce be e a FSD and a FSSCS re s twe n o FSD automatically ends regardless of whether the grantor does anything.     18 . o Example: eto A. y Because there is a possibility that the granteeds determinable fee may come to an end on the happening of the stated event. ve ve ns y The estate may be transferred or inherited in the same manner as any other fee simple until the transferor is entitled to and does exercise the right of entry. upon condition that if X e nt happe ve ns provide howe r. The estate continues in the grantee until the grantor exercises her power of reentry and terminates the estate. the restraint is valid. If the contingency occurs. the grantor retains a right of entry.

ii. One of the chief interests of landowners was to keep land in the family. land was the basis of family power. ii. an instrument using words of inheritance and words confining succession to the issue of the grantee created a fee tail. The judge he that A could conve ir irs s ld y a e simple i a child was born to A. Abolished fee simple conditional and permitted the creation of a new estate in land. b. First attempt to tie up land in the family. The fee tail was invented for just that purpose. y e e e the f amily. Statute de Donis Conditionalibus i. THE FEE TAIL 1. status and wealth. Creation of Fee Tail At common law. e s to e ach succe d ge ration in turn.A FSSEL is a fee simple that on the happening of a stated event is automatically divested in favor of a third person (not the grantor). eTo A and the he of his bodyf . o o Example: eto A and the he of his bodyf irs The term ehe of the bodyf re e to the grante ds issue or line d sce ants. Example: 1. Nature of Estate A fee tail has two characteristics: i. IfA had issue A couldconve a f e simple and transf r the land outsid . 3. the fee tail. a. During tenantds life o o The tenant in fee tail could not defeat the rights of the tenantds lineal d escend ants The tenant only had a life estate   19 . cutting of the rights ofAds issueand the re rsione f ve r. Ads e re ore state was thought ofas a f e simple cond e itional upon having issue .to keep the land safe for succeeding generations. Fee Simple Conditional i. The f . Characte ristics The f e tail originally had two main characte e ristics: 1. Historical background In feudal England. e 2. C. It includ s irs f rs e al e nd e not only child n but also grand re child n and morere re mote d sce ants as we The f e tail goe e nd ll. It lasts as long as the grantee or any of his descendants survives It is inheritable only by the grantees descendants 3. 2. e ing ne 4.

a descendant edie without issue d f) the land would re rt to the grantor or he could dire the land to go to anothe the f ve ct r. or to any holder of the remainder named in the grant creating the fee tail. o Reversion  O conveys Blackacre eto A and the he of his bodyf. Types of Fee Tail A grantor could specifically tailor a fee tail o A fee tail male limited succession to male descendants of the grantee. 5. r irsf. a fee tail can be converted into a fee simple absolute. a fee tail female could be created but it was rare. A has a f e tail.e. y y A has a fee tail B has a vested remainder in fee simple to become possessory on the expiration of the fee tail y Bds interest is called a remainder rather than a reversion because a reversion can be created only in the grantor or testatord s heirs. cutting off all rights of the original tenantds issue. O irs e had a re rsion in f e simple to be ve e come posse ssory upon e xpiration ofthe f e e tail. On tenantds death o o Only the issue of the original grantee could inherit the fee tail. Mod ern Law o The fee tail has been abolished in England and in all but four American states (Delaware. re ore making possible the f uture inte sts ofre rsion and re re ve mainde r. o The fee tail cannot be devised by a will.  o  Example: To A and the male heirs of his body Only the granteeds issue by a specific spouse could inherit a fee tail special. the property is returned to the original grantor. Maine.. o Remainder  Example: O conveys Whiteacre eto A and the he of his body. the land automatically goes to his descendants 2. and if A die irs s without issue to B and he he . Disentailing Today.o On death. Example: To A and the heir of his bodies by wife B 6. Similarly. y 7. If the blood descendants of the original grantee run out. eed 8. by a d . Future interests of a fee tail To keep the land in the family on expiration of a fee tail (i. Massachusetts and Rhode Island. The analogous future interest in a grantee is called a remainder. 20 .

Type ofLif Estate s e s a. rs e ct A has no childre n. or subject to an executory limitation. ve might violate the rule against re straints on alie nation. s e . iii. 1. ct xe e Construction proble . Example: o eto the children of A for their lives. D. c. tains the right to re nte e r. the or s. ge an e . b. THE LIFE ESTATE A lif e e state e ndure f a pe s or riod ofone or more human live s. A has lif e e state te rminable upon marriage This is a f e simple de rminable as .o Where abolished. For life of grantee i. Example: o O conveys Blackacre eto A for life the grante . the land re rts to O. ii. The general rule is that the remainder does not become possessory until all life tenants die. o O conveys eto A for life but if A doe not use the land for agricultural . s purpose O re s.f A . The usual life estate is measured by the granteeds life. Def easible lif estates e i. A life estate. ms 21 . que o O conveys eto A for life but if B marrie during Ads life . e te oppose to a lif e d e state de rminable The re te . Examples: o O conveys eto A for life so long as A re mains unmarrie df. iii. In a class i.f e ts state in the land f so long as A live On Ads d ath. Pur autre vie i. This is a life estate measured by the life of someone other than the owner of the life estate. e ve grantor.f A has a lif e e state subje to ct a condition subse nt. s time to B. straint on marriage howe r. subject to condition subsequent. ii. It can be created so as to be determinable. ii.f d. remainder to B. A. has a lif e e state subje to an e cutory limitation. like a fee simple. A life estate can be created in several persons. most courts construe eto A and the he of his bodyf to give A a f e irs e simple Some state give a f e simple absolute Othe give a f e simple subje to conditions if . can be made defeasible.

g. Until happening of named event and reentry by grantor Right of Entry Possibility of Reverter (See Fee Simple Subject to an Executory Interest. bank loans. 2. o Disabling restraint: A disabling restraint withholds from the grantee the power of transferring her interest o Promissory restraint: A promissory restraint provides that the grantee promises not to transfer his interest. below) 22 . THE RULE AGAINST RESTRAINTS ON ALIENATION There are three types of direct restraints: o Forfeiture restraint: Provides that if the grantee attempts to transfer his interest. below) (See Fee Simple Subject to an Executory Interest. etc. then automatically to grantor. 3. This problem is alleviated by creation of an equitable life estate. if is forfeited to another person. lease of land.i. which creates obstacles to various transactions e. Alienability of Life Estate A life tenant can transfer whatever estate she has. Limited Utility of Legal Life Estate Such an estate is limited because of its inflexibility. Interpretation of ambiguous language as to what estate is created depends on the facts of each case and the grantors probable intent. PRESENT POSSESSORY ESTATES CORRELATIVE PRESENT EXAMPLES ESTATE DURATION FUTURE INTEREST IN GRANTOR FEE SIMPLE ABSOLUTE "To A & his heirs" "To A & his heirs FEE SIMPLE DETERMINABLE so long as ____" "until _____" "while ______" FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT "To A & his heirs. E. but if____" "Upon condition that _____" Forever None CORRELATIVE FUTURE INTEREST IN THIRD PARTY None As long as condition is met.

ve Subje to ct Condition Subse nt. above) Executory (Se Fe Simple e e eTo A & his he irs but if____ to Bf Until happe ning of e nt. que above ) "To A & the he irs ofhis bodyf "To A f lif " or or e "To A f the lif or e ofB" LIFE ESTATE (MAY BE DEFEASIBLE) "To A f lif ."Provided that ____" "However _____" "To A & his heirs for so long a FEE SIMPLE SUBJECT TO AN EXECUTORY INTEREST _____and if not___ to Bf As long as condition is met. or e but if______. (See Fee Simple Determinable. then to third party. ve Re rsion ve Exe cutory inte st re Until the e of nd the me asuring lif e None Re mainde r Re rsion ve Until A and his line die out None (but Re rsion ve re mainde is r possible ) None (but se e be low) interest FEE TAIL 23 . to B" the me asuring lif e or the happe ning ofthe name d e nt. or e the to B" n Until the e of nd "To A f lif .

and Bds cred itors can reach the remaind er It is an existing property interest which will become possessory in the future 2. o Example:       O conveys Blackacre eto A for life and on Ads d ath to Bf . y Because O did not convey a fee simple to anyone but only a life estate. INTRODUCTION 1. ii. the future interest must be either a reversion. Future Interest in the Grantor Future interests are divided into to basic groups: i. a. The remainder exists as a property interest in Blackacre. which is a lesser estate than a fee simple. Possibility of Reverter 3. Before Ad s death. Reversion 2. Remainder. Executory interest 3. B can transfer the remainder to C. e A has a possessory life estate B has a future interest called a remainder It will become possessory on Ads death. conveys Blackacre eto A for life f. and 5.FUTURE INTERESTS A.O has a reversion. b. owning Blackacre in fee simple. Reversion o A reversion is a future interest left in the grantor after the grantor conveys a vested estate of a lesser quantum than he has. A future interest is a present. If O had conveyed a fee simple to A. Blackacre will revert to O. possibility of Reverter or right of entry. y When A dies. Future interests retained by the grantor Future interests created in a grantee If the grantor retains the future interest. non-possessory interest capable of becoming possessory in the future. O would not have a reversion. Right of entry 4. o Example: y O. There are five kinds of future interests: 1. As with other property interest. Possibility of Reverter 24 .

a. Has the capacity of becoming possessory at the expiration of the prior estates ii. determinable.right of entry 4. o Example: y O conveys Blackacre eto the Board of Education.Reversion y Fee simple determinable. owning a fee simple has conveyed a fee simple determinable to the Board. Remainder o A remainder is a future interest in a grantee that: i. o Example: y O conveys Blackacre eto the Board of Education so long as Blackacre is use to school purpose d s. e B and he he r irs. c. Cannot divest the prior estates o Example: o O conveys Blackacre eto A for life and on Ads d ath. it must be either a remainder or an executory interest. O has a right of entry. to .f y The Board has a fee simple subject to condition subsequent.f y The Board of Education has a determinable fee y O has a Possibility of Reverter y Ods interest is not a reversion because O. d. Correlative estate o Possessory estates have correlative future interests in the grantor y Life estate.f 25 .o A Possibility of Reverter arises when a grantor carves out of her estate a determinable estate of the same quantum. In almost all cases it follows a determinable fee. but if the Board ce s to use Blackacre for school purpose O re ase s. subject to condition subsequent or executory limitation) are of the same quantum. Right of entry o A right of entry is retained when the grantor creates an estate subject to condition subsequent and retains the power to cut short the estate.possibility of Reverter y Fee simple on condition subsequent. Future Interests in Grantees If a future interest is created in a grantee. tains a eright to re nte e r. y All fees simple (Absolute.

o The basic difference between a remainder and an executory interest is that a remainder never divests the prior estate. a useful device to give the groom assurances that the bride would come to the altar endowed with property. b. and it will not divest Ad s life estate prior to Ad s death. n ve 26 . must divest or cut short the prior estate. o A shifting interest is a useful device to shift title upon the happening of come uncertain event.Shifting executory interest: o O conveys Blackacre eto A and his he irs. o Example. o A springing interest was. o Bds interest is a remainder because it can become possessory on Ad s death. B. o Example 1:  O conveys Blackacre eto A for life the to re rt to O. REVERSION A reversion is a future interest left in the grantor after she conveys a lesser estate than she has. B has a remainder in fee simple.f o o A has a fee simple subject to executory limitation B has a shifting executory interest. in early days. or spring out of the grantor at a future date. The interest may be expressly retained or may arise by operation of law. whereas an executory interest almost always does.f . to B and he he r irs.f O re tains the fe simple and cre s an e cutory e ate xe inte st in A to spring out of O in the futurewhe A marrie re n s B. o Example. Bds interest can become possessory only by divesting A of the fee simple. in order to become possessory.o A has a possessory life estate. Executory interest o An executory interest is a future interest in a grantee that.Springing executory interest: o O conveys Blackacre eto my daughte A whe she marrie r n s B. but if B graduate s from law school.

f r s O has a reversion because. Significance o The significance of a reversion being vested is that it is alienable. o Example 2:   O conveys Whiteacre eto A for life . ve Othe re rsions may or may not be r ve come posse ssory: o Example:       1. If A dies before B. and is not subject to the Rule against perpetuities. Distinguish. By common law dogma. 27 . Note that O does not have a contingent reversion. Some reversions will certainly become possessory: o Example:  O conveys eto A for life re rsion to O. Where it is not expressly retained. if B dies before A. a reversion will arise by operation of law where no other disposition is made of the property after expiration of the lesser estates. o The transferee.Possibility of Reverter o A possibility of Reverter arises where the grantor carves out of his estate a determinable estate of the same quantum. Blackacre will go to B at Ads d eath.an interest that cannot become possessory until the preceding estate terminates. which can be divested by Bds interest becoming possessory to Ads d eath. ve O conveys Blackacre eto A for life re . of course. o There is no such interest as a epossibility of re rsionf. Blackacre will return to O at Ads d eath. gets only what the transferor had. o o Most often it arises where the grantor conveys a fee simple determinable. 3. mainde to B if B survive A.f . accelerates into possession upon the termination of the preceding estate. So O has a vested reversion. 2. A reversion arises where the grantor conveys a lesser estate than he has and does not in the same conveyance create a vested remainder in fee simple. all reversions are vested. Alienability o A reversion has always been regarded as fully transferable both inter vivos and by way of testate or interstate succession.f O has a reversion in fee simple by operation of law Reversions are vested interests All reversion are vested interests even though not all reversions will necessarily become Possessory.

O has a possibility te e of re rte ve r. and choses were inalienable.f y 1. but rather as a special right in the grantor to forfeit the granteeds estate if he wished. A has a fee simple subject to condition subsequent. o On the death of the owner of a possibility of reverter the possibility of reverter was treated as a thing.C. both during life and by will. POSSIBILITY OF REVERTER A possibility of Reverter is a future interest remaining in the grantor when a fee simple Determinable is created. Alie nability At common law: o A possibility of reverter was not viewed as an existing interest. but rather as a mere possibility of becoming an interest. the grantor has a right of entry. e r take Blackacre . D. and alienability is an inherent characteristic of any property interest. a right of entry cannot be created in a grantee. The right of entry is sometimes called ea powe of r te rminationf. Alienability At common law: o The right of entry was inalienable inter vivos because it was treated as a chose in action. ate e d xe re 1. O has a right of entry for breach of the condition subsequent. Like a possibility of reverter. o Example: y O conveys Blackacre eto A and his he irs. RIGHT OF ENTRY When a grantor creates an estate subject to condition subsequent and retains the power to cut short terminate the estate. Rationale: The possibility of reverter is now viewed as a property interest. o It was not thought of as a property interest. 28 . The analogous future inte st ve r ate e re cre d in a grante is calle an e cutory inte st. A possibility of re rte cannot be cre d in a grante . it descended to the owners heirs.f A has a de rminable fe . At modern law: o A possibility of reverter is freely alienable. but if intoxicating liquor is e r ve sold on the pre mise O has a right to re nte and re s. o Example:  O conveys Blackacre eto A and his he so long as liquor is not irs sold on the pre mise s.

however. Example:    2. the grantords heirs could exercise the right of entry or enforce the possibility of reverter hund s of years after the grantords d red eath. O conveys the right of entry to his son.o A right of entry could be released. to the owner of the fee simple. in others. At modern law: o In some states. o But courts are divided on whether retroactive application is unconstitutional as a taking of property without compensation. the mere attempt to transfer a right of entry destroys it. but if it fails to maintain an ove rpass. o These interests are not subject to the Rule against perpetuities. and because it was inheritable. after which the preceding fee simple becomes absolute o Some states have made the termination statute retroactive. which generally prevented the creation of future interests to become possessory far in the future. O conveys Blackacre eto Railroad company. statutes have been enacted expressly limiting the period during which a possibility of reverter or right of entry can exist. applying it to existing possibilities of reverter and rights of entry. the right of entry is now alienable. and it was inheritable by the heirs of the grantor. the common law is followed. In the harsher states. Termination At common law: o A right of entry or a possibility of reverter could endure indefinitely. In some states. 29 . however. this attempt to convey the right destroys it. o The typical statute limits them to 30 years. o o In a few states. At modern law: o o This remains the law in the large majority of states. and the railroad has a fee simple absolute. O has the right to re nte and re e r take Blackacre .f Subsequently.

descendible and devisable. ALIENABILITY 30 . Transferable. descendible and devisable.FUTURE INTEREST IN GRANTOR CORRELATIVE FUTURE INTEREST PRESENT INTEREST EXAMPLE RIGHTS OF GRANTOR Estate automatically reverts to grantor on "To A for REVERSION Life Estate life" life tenants death Estate automatically reverts to grantor upon "To A so long as alcohol is POSSIBILITY OF REVERTER Fee Simple Determinable not used on the premises" the occurrence of the stated event Transferable.

"To A on condition that if alcohol is used on the premises. O shall have the Fee Simple Subject to RIGHT OF ENTRY Condition Subsequent right to reenter an retake the premises. grantor must exercise his right of entry. Descendible and devisable. but some courts hold hot transferable inter vivos 31 ." Estate does not revert automatically.

At common law. the land ere mains awayf inste ofre rting to the grantor.f . n n B has a remainder because Bds interest is capable of becoming possessory upon the termination of the life estate. the to B and his he n irs. the fore A doe not have a re re . and if A die without issue to B and irs s . or a term of years. Example: y O conveys eto A is A marrie B. lawyers call Bds interest a remaind er.f O has cre d no pre ding e s ate ce state in anyone . instead it always waits patiently for the preceding estate to expire. A remainder cannot follow a fee simple.f y If the fee tail has not been abolished. It was said that B had the fee simple subject to Ad s term of years. o It is called a remainder because on the expiration of the preceding estate. ad ve o A remainder never divests pr cuts short the preceding estate.Fee tail: y O conveys eto A and the he of his body. Must follow a fee tail. B has a vested remainder in fee simple. o o Unlike a reversion. a life estate. Must have preceding estate o A remainder can be created only by express grant in the same instrument in which the preceding possessory estate is created. 2. Definition o A remainder is a future interest created in a grantee that is capable of becoming a present possessory estate on the expiration of a prior possessory estate created in the same conveyance in which the remainder is created. A has a fee tail. o Example. and B has a remainder in fee simple. y Today.E. REMAINDER 1.f A has a term of years. y A has a Springing Executory Interest 2. his he irs. it cannot arise by operation of law.term of years: y y y y O conveys eto A for 10 ye ars. Bds interest was not called a remainder. 32 . life estate or term of years o o o The estate preceding a remainder can be a fee tail. Essential Characteristics The essential characteristics of every remaind are: er 1. o Example: y y O conveys Blackacre eto A for life the to B if B is the living. Example. s mainde r.

turns from Rome during the life of A.f B has a remainder for a term of years. ing d eterminable. rather. 3. Any interest d er ivesting or following a fee simple must be an executory interest. n B has a remainder. o o o A remainder cannot divest a preceding estate prior to its normal expiration. Example: y y O conveys eto A for life the to B. o Example:   O conveys eto A for life the to B for 10ye . the to C for life the to n .f y B does not have a remainder. o A contingent remainder is a remainder that is either created in an unascertained person or subject to a condition precedent. n ars.f . A divesting interest in a transferee in an executory interest. not a remainder. a term of years. C has a remainder for life.f y A gets a life estate 33 . Must be capable of becoming possessory on natural termination of preceding estate. in those er jurisd ictions where such an estate is permitted a fee tail. A vested remainder is a remainder that is both created in an ascertained person and is not subject to any condition precedent. o Compare: y O conveys eto A for life but if B re . n irs s ach inte st in re se nce que . or. n D. Estates in Remaind er An estate in remaind may be a fee simple. and D has a remainder in fee simple 4. to B in fe simple e .3. a life estate. . because B takes when the preceding estate (Ads life estate) expires. Always classify the interests in order: o Example:  O conveys eto A for life the to B and his he if B survive e . Classification of Remainders o o Remainders are classified either as eve df or econtinge ste ntf. There can be no remaind after a fee simple. not a remaind This applies to all types of fee simple includ fee simple er. Bds taking d ivests Ads estate and thus B has a shifting executory interest.

Bds remaind escheats er to the state.f If A has no children. y eIf B does not survive A. 2. It is a remaind to e e er a class. e and ifB d oes not survive A.f a. If B dies intestate and without heirs during Ads life. er but the class membersd shares are not yet fixed because more persons can subsequently become members of the class. at least one of whom is qualifiedto take possession. Vested remaind subject to open er The remaind is vested in a class of persons.the interest is a remaind because it is capable ofbecoming possessory on termination er ofthe lif estate and cannot cut the lif estate short. the remainder is contingent because no person qualifies as a child. B. (A class is closed if others can no longer enter the class). or e. Sub classif ication ofvested remaind ers A remaind created in an ascertained person and not subject to a cond er ition preced ent. in f simple. if B survives A. n r irsf B takes possession on Ads death If B dies before A. ee er 1. At Ads d eath.y B has a remainder (because it is capable of becoming possessory on termination of the life estate and will not cut the life estate short) It is a remainder in fee simple. It is a contingent remaind because it ee er is subject to the express cond ition preced ent. Bds child ren. Ind easibly vested remaind ef er The hold ofthis interest is certain to acquire possession in the f er uture andwill be entitled to permanently retain the estate. Bds heirs or d evisees are entitled to possession Therefore. o Example:      O conveys eto A for life the to B and he he . the remainder is vested in B subject to eope upf and le n t in othe childre r n. y It is a contingent remainder because it is subject to the express condition precedent. If A has a child. the state takes the property. Bds remainder is sometimes called eve d subje to partial dive ste ct stme ntf. Bds remainder is indefeasibly vested. Example: e To A f lif then to B in f simplef creates a vested remaind in B. to Bds child ren and their heirsf. 34 . o Example:     O conveys eto A for life the to Ads childre n n.

It is closed if it is not possible for others to enter the class. o Example. The remainder is contingent because the takers are not ascertained at the time of the conveyance.unborn children:     O conveys eto A for life the to Ads childre . 3. the remainder is contingent. the remainder vests in that child subject to open and let in other children born later. A remainder can be both vested subject to open and vested subject to complete divestment (e. 1) Re mainde in unasce rs rtaine pe d rsons A re mainde in an eunasce r rtaine df pe rson me ans the pe rson is not ye born or cannot be t de rmine until the happe te d ning ofan e nt. Such a re ve mainde is continge r nt. If B dies during Ads life. o Example. Alie nability A ve d re ste mainde is alie r nable inte vivos and de r visable by will.g. the remaind will vest in Bds heirs at Bds d er eath. Once the remainder has vested in B. Continge re nt mainde rs A re mainde is continge ifgive to an unasce r nt n rtaine pe d rson or subje to a condition pre de ct ce nt. It de nds to he ifnot sce irs othe rwise dispose of Howe r. it can be limite so as to be dive d at de d . n n s to B.f) 4. n irs. o Class Gifts: A gift to a group of persons described as a class.   It is open if it is possible for other persons to enter the class. rs rs irs o A class is either open or closed. ve d ste ath. b. therefore. If a child is born. 35 . echildre of n Af.g. the takers are not ascertained. e..f B is alive. ies Because no one is an heir of the living (but only an heir apparent). eHeirsf are persons who succeed to Bds property if B d intestate. eto A for life the to the childre of A. Vested subject to divestment This is a remainder that can be completely divested by a condition subsequent or by an inherent limitation of the remainder estate. the interests of the unborn children are called executory interest because they may partially divest B. Bds heirs will be ascertained only at his death.Heirs:       O conveys eto A for life the to Bds he . but if no child survive A.f A has no children. . n n. ebrothe and siste ofAf or ehe ofAf..

n s B has a subject remainder subject to an express condition precedent. there is a reversion in O. It is not contingent on Bds surviving A. e The words eon Ads d athf me ly re rs to the natural te e re fe rmination of the life e state and d not state a cond o ition pre d nt ce e o A remainder subject to condition precedent other than survivorship is not also subject to an implied condition precedent of survivorship. Bds heirs or d ies evisees take the property. to Bf y y y Bds remainder is contingent on Ad s dying without issue. Whenever O creates a vested remainder in fee simple. the remaind vests ind er efeasibly in B. Example: y y y y  O conveys eto A for life the to B if B marrie C. n . Thus. which must occur before the remainder becomes possessory. What isndt a condition precedent? o o The termination of a condition preceding is not a condition precedent. The language that merely refers to the termination of the preceding estate is surplusage and does not create a condition precedent. A condition precedent is an express condition set forth in the instrument. there is never a reversion in fee simple in O. and if A subsequently d without issue. s .  What is a condition precedent? o o A condition precedent is a condition expressly stated in the instrument.f . The condition precedent is marrying C. It B marries C during Ads life.o Reversion    In each of the two examples. o Example: y y O conveys eto A for life and on Ads d ath. there is a reversion to O. o Example: y O conveys eto A for life the to Ads issue and if A die without issue . to Bf . 2) Remainders subject to condition precedent A remainder subject to a condition precedent is a contingent remainder. Whenever O creates a contingent remainder in fee simple. Bds remaind passes to Bds heirs or d er evisees. 36 . if B dies before A.

REMAINDERS: CONTINGENT VS. VESTED CONTINGENT REMAINDER Created in an unascertainable person (not yet born or cannot be determined) OR Subject to a condition precedent expressed in the instrument Created in an ascertained person AND Not subject to a condition precedent. VESTED REMAINDERS 37 .

divesting the grantor. to C. O stated the condition of survivorship twice. Distinguish. and the property would revert to O. once in connection with each remainder. F. Here. 38 .f The attempted contingent future freehold in Ads heirs was void at law prior to the statute of uses because it was impossible to transfer seisin either to A or to Ads heirs (unascertained ). n s B has a vested remainder subject to divestment by Cds executory interest. to C. n s s survive A. but if B doe not survive A.3. If this happened.f r irs A has a springing executory interest It will divest the fee simple of O. The words ethe to Bf give B a ve d re n ste mainde the clause following is a r. but if B doe not . dive sting clause giving the prope . o Example:    O conveys eto A for life the to B. the transferor if it becomes possessory Example: y y O conveys eto A for 100 ye ars if A so long live the to Ads he .f B and C have alternative contingent remainders A condition precedent has been expressly attached to Bds remaind er O intended exactly the same thing as in the preceding example but her intention was phrased differently. both B and C would be ready to take on the termination of the life estate. The words must be read in sequence and the interests classified in sequence.  Example: y y y  O conveys eto A and he he if A quits smoking. life estate could terminate prior to the life tenants death by forfeiture or merger. rty to C if B die be s fore A. n irs. EXECUTORY INTERESTS o Springing executory interest  A springing executory interest is a future interest in a grantee that springs out of the grantor at a date subsequent to the granting of the interest. a) Reversion in O with alternative contingent remainders A common law. o Example:      O conveys eto A for life the to B if B survive A.f .conditions subsequent Whether a condition is precedent or subsequent depends on the words of the instrument.

the limitation to Ads heirs was given effect as a springing interest. FUTURE INTERESTS IN GRANTEES REVERSION IN FUTURE INTEREST EXAMPLE GRANTOR FOLLOWING FUTURE INTEREST? INDEFEASIBLY VESTED REMAINDER "To A for life. like the springing interest. B's remainder transferable during life and at death TRANSFERABLE? 39 . The shifting interest. o Shifting executory interest     A shifting executory interest is a future interest in a grantee that divests a preceding estate in another grantee prior to its natural termination. and a shifting executory interest shifts the estate from one grantee to another.y After the statute. because it is a divesting interest. there is no preceding estate).except in the case of a future interest in a grantee following a fee simple determinable.. then to B" No. Bds interest cannot be a remainder. The difference between them is that a shifting interest divests a grantee. remainder certai to become possessory Yes. A springing executory interest springing out of the grantor (e. divests a prior interest. The executory interest does not divest it but rather succeeds it. Example: y O conveys eto A and his he irs. This executory interest is neither springing nor shifting because the fee simple determinable ends by its own special limitation. An executory interest is always either springing or shifting interest. but if B re turns from Rome to B and . B has shifting executory interest. whereas a springing interest divests the grantor.g. and remainders never divest.f y y y A has a fee simple subject to an executory interest. his he irs.

" No transferable during life and C's death of A is then alive. Yes B reaches 21. No reversion. B's remainder is "To A for life." B is 17." B is alive. then to B's heirs. A's children are certain of possession Yes." B has a vested remainder subject to divestment by C. but is not transferable to B's death if B predeceases A. Yes is transferable during life. but remainder fails if B dies under 21 No. B's remainder transferable during life at death B's remainder transferable during life No. B's remainder transferable during life at 40 . Yes transferable during life. C's remainder is transferable during life and at C's death if A is then alive." A has a child. "To A. but if B returns from Rome. then to B. then to B if B survives A. " To A for life. then to A's children. then to A's children who survive A. to C. B has a vested remainder subject to open." A has a child. "To A for life. "To A for life. B. no 33 child is alive B's contingent remainder "To A for life. but "To A upon her marriage. but if B dies before A. then to B if CONTINGENT REMAINDER "To A for life. to No. no possibility of property reverting to grantor Yes but not transferable at B's death if B predeceases A. No. and if B does not survive A. B.VESTED REMAINDER SUBJECT TO OPEN VESTED "To A for life." A has no children." grantor has possessory Yes. then to B. then to A's children. to B" No Yes C's executory interest is EXECUTORY INTEREST "To A for life. REMAINDER SUBJECT TO DIVESTMENT C. to C" Yes but fails if b predeceases A. but if b does not survive A. no one is heir of B until B dies B's remainder is transferable during life.

fee until A's marriage death NOTE: In a few states. contingent remainders and executory interest are not transferable during life except in certain circumstances. 41 .

S. 2) Te rmination oflif e e state The lif e e state can te rminate e r on the d ath ofthe lif te ithe e e nant or be ore the lif te f e nants d ath. RULES RESTRICTING CONTINGENT REMAINDERS (MOSTLY ABOLISHED) There are three rules restricting remainders: i. at the o lif te e nants d ath) is d stroye . still in effect in a few states. b) Artificial termination of life estate A contingent remainder that does not vest on the artificial termination of the life estate of the life estate is destroyed. At Ads death. in a ing s. and a reversion in O. The Rule in Shelleyds case iii.. survived by B.G. 42 . a conveyance by which a life tenant or a tenant in tail purported to convey a fee simple). maind r to Ads child n which re e re ach 21. B has no heirs. The contingent remainder in the heirs of B is destroyed. Subsequently.f the re maind r is d stroye e e d ifno child ofA has re ache 21 at Ads d ath. The pre d e d e ce ing state can be a f e tail or a lif e e e state . The destructibility rule ii. a) Natural te rmination oflif e e state A continge re nt maind r that d s not ve on the natural te e oe st rmination ofthe lif e e state (i. eArtificial te rminationf re e to the f f rs ollowing me thods ofte rmination: iv.e. conveyance eto A for life re . A dies. o This is wholly obsolete in the U. e e d Example:       O conveys eto A for life re . states that a contingent remaind in landis er d estroyed if it d oes not vest before or at the time the preced freehold estate end Thus. contingent remainder in the heirs of B.. a person forfeited his property by a tortuous conveyance (i.f r irs B is alive This conveyance creates a life estate in A. the O owns the land. The d octrine of Worthier Title 1) Destructibility of Contingent Remaind ers This common law rule. It is this late proposition that make therule more d f e r s ificult than it appe ars. mainde to the he of B.e . because no one can be an heir of the living. Forf iture e o At common law.

o The lesser estate is merged into the larger (fee simple) and ceases to exist as a separate estate. r irs n o o o A conveys his fee tail to O. The life estate merges into the reversion. Example: o A conveyance eto A and the he of his body. the reversioner. mainde to B if B survive A. mainde to Ads r child n who survive A. y  O has a fee simple absolute. The life estate and reversion do not merge at that time. Merger o If the life estate and a vested remainder or reversion in fee simple come into the hands of the same person. Bds remainder is not destroyed. o A life tenant and reversioner can therefore conspire to destroy contingent remainders. However. A can destroy Bds remaind by d er isentailing.f . otherwise the intent of T in creating the remainder would be frustrated. 43 .fee tail y y Life estates merge into a fee simple.v. and if A die irs s without issue to B and he he if B is the living.f r s While B is alive. they do not merge at that time to destroy intervening contingent remainders. y Example: o T devises Blackacre eto A for life re .f re o o A is also Tda heir and inherit the reversion. A conveys her life estate to O. C) Interests not affected by destructibility rule The destructibility rule does not apply to the following interests in property. o But if A subsequently conveys the life estate and reversion to B. Exception. the estates then merge. but fees tail do not.simultaneous creation y If a life estate and the next vested estate are created simultaneously. destroying the contingent remainder.  Exception. o Example: y y y O conveys eto A for life re . and Bods contingent remaind is d er estroyed . any intermediate contingent remainders are destroyed.

Vested remainder: o O conveys eto A for life the to B for life the to Ads .Executory interest: o O conveys eto A for 100 ye ars if A so long live the to Ads s. n childre who survive A. The children have an executory interest.1) Vested remainders and executory interests Vested remainders and executory interests cannot be destroyed by a gap in seisin. n childre who survive A. Term of years 44 . o o o Later O conveys his interest to A. re who survive A. It is not a remainder because there is no preceding freehold. y Example. the childrends executory interest is not affected / O now has a fee simple subject to Ads childrend s executory interest but no longer subject to Ad s term of years. The remainders. but if A die le s aving childre to Ads child n n. and if A d s without child n. y Example. destructibility rule applies only to contingent Example. title shall re ie re turn to O. n .Executory interest: o O conveys eto A.f n o o o o o o o A has a term of years determinable. the fee simple owner. The two most common ways of ed avoid ing the rule are as follows.f o A has a fee simple. Therefore. There can be no contingent remainder after a term of years. D) Avoid ance of rule The d estructibility rule can easily avoid by a competent lawyer. This cannot affect the executory interest in Ads children. 1. the subject also to a possibility of reverter in O. o y O takes a life estate for Ads life. A conveys his term to O. subject to divestment by an executory interest in Ads child ren who survive A. They take the land on Ads d eath.f n o o A conveys his life estate to O The life estate cannot merge into the reversion because the vested remainder in B blocks it.

the destructibility rule can be avoided. and Ads life estate and vested remaind merge. 3. It makes land alienable one generation earlier. n irsf.  Then the remainder in A merges with Ads life estate. o Example. n irs The rule in Shelleyds case converts the remainder limited to ethe he of Ad s bodyf into a re irs mainde in f e tail in A.Remainder to A s heirs:  O conveys eto A for life the to Ads he . probably a fee simple.o If a drafter creates a term of years rather than a life estate. Rule in Shelleyds case This rule has been abolished in most states except Arkansas. o Doctrine of merger o The doctrine of merger is an entirely separate doctrine from the Rule in Shelleyds case. If one instrument creates a freehold in land in A and purports to create a remaind in Ads heirs er (of in the heirs of Ads bod andthe estates are both equitable. er o Example. giving A a fee simple in possession. The Rule in She yds case conve lle rts the re mainde limite to Ad s he into a r d irs re mainde in f e simple in A. r e  Then the doctrine of merger steps in.f . Delaware.    45 . y The doctrine of merger may or may not apply after the rule in Shelleyds case has operated on the instrument.  The doctrine of merger is that a life estate in A and a remainder in A will merge unless: y y There is an intervening estate or The remainder in A is subject to a condition precedent to which his life estate is not subject. then the remaind becomes a remaind in y) er er fee simple (of a fee tail in A). Ind iana and possibly a few other states. r e The fee tail is then changed into whatever estate is substituted for a fee tail under state law. 2.Remainder to heirs of A    s bo y: O conveys eto A for life the to the he of Ads body. Trustees o The destructibility rule can be avoided by creating trustees to preserve contingent remainders.

b) Life estate in remaind er The freehold can be a life estate in possession or a life estate in remaind er. 2) eAnd purports to cre ate a re maind rf e The rule applie to a re s maind r to the he ofA. to B for life re . then the Rule in Shelleyds Case applies. and upon Wds d ath r e or re marriage re . 1) Subje to cond ct ition pre d nt ce e Ifthe lif e e state in A is subje to a cond ct ition pre d nt that is not also applicable to ce e the apply.f irs the s o The life estate is subject to a condition precedent that does not apply to the remainder. e n though the is an ve re inte ning e rve state be e the lif e twe n e state and re maind r. e  Contingent remainder re maind r to Ads he e irs.  Example: o O conveys. the Rule in She yds case d s not lle oe 46 .a) Life estate determinable The life estate can be determinable or subject to condition subsequent  Example: o T devises farm eto my wife W during he widowhood. if the language in example A has been omitted and the condition precedent of B marrying C were construed to be a condition precedent on the remainder as well as on Bds life estate. would have taken a remaind in fee simple subject to the er cond ition preced ent of marrying C. y Therefore. eTo A for life the if B marrie C. The rule in Shelleyds case applies to a conveyance eto A for life the to B for life re . But note: If B marries C during Ads life.f B has a re maind r in f e simple e e . s . the lif te e irs e nant. the rule in Shelleyds Case would have applied B . o o The rule in Shelleyds case does not apply. maind r e to Bds he irs. mainde r to the he of B (whe r or not B marrie C). n. giving W the remainder. maind r to Wds he e irs. the Rule in Shelleyds case then applies. n .  Remainder subject to same condition precedent y If the remainder is subject to the same condition precedent as the life estate.f o o The rule in Shelleyds case applies. The remainder merges with Wds life estate. giving W a fee simple.

the doctrine applie to both pe rn s rsonal prope rty as we as land.f . o The rule is sometimes known as a rule against a remainder in grantords heirs o Example:    O conveys eto A for life the to Ods he . 4. 47 . contingent on Ads surviving B. Testamentary branch of Doctrine o If a person devises land to his heirs. has been created. In mode law. n irs s o A has a life estate and a contingent remainder. not an executory interest. The life estate and contingent remaind d not merge er o  Executory interest o The rule in Shelleyds Case applies only where a remainder. o Therefore.f The remainder to Ods heirs is void and O has a reversion. the future interest is void and the grantor has a reversion. Doctrine ofWorthie Title r The Doctrine ofWorthie Title has an inte vivos branch and a re r r stame ntary branch. the devise is void and the heirs take by descent. n irs. the rule in Shelleyds case applies to a conveyance eto A for life the Ads he if A survive B. the doctrine was a rule oflaw applicable to land only. At common law. ll  Inter vivos branch of doctrine o When an inter vivos conveyance purports to create a future interest in the heirs of the grantor. .o The remainder may be a remainder contingent on the happening of some condition precedent. 3) eIn Ad s he (or the he of Ad s body)f irs irs The re mainde must be give to Ad s he or he ofthe body inde inite line of r n irs irs f succe ssion rathe than a spe ic class oftake r cif rs.

" If A has no children who are at least 21 at the time of RESULT her death. raises a A has a fee simple A has a life estate. 48 . property reverts to grantor." To A for life.e. "To A for life. MODERN STATUS Abolished in most jurisdictions Abolished in most jurisdictions. the grantor has a reversion to A's heirs. remainder to A's EXAMPLE children who reach 21. then RULE IN SHELLEY'S CASE If an instrument creates a freehold estate in A and a remainder in A's heirs. DOCTRINE OF WORTHIER TITLE Inter vivos conveyance attempting to create a future interst in the grantors heirs is ineffective. Generally treated as rule of construction (i. the remainder in fee simple in A.. then to my heirs at law." "To A for life. so grantor has a reversion.TECHNICAL RULES OF THE COMMON LAW DESTRUCTION OF CONTINGENT REMAINDERS Contingent remainders are destroyed if not RULE vested at time of termination of preceding estate.

does not apply in this country to testamentary grants.rebuttable presumption). A's children have MODERN RESULT indestructible contingent remainder or an executory interest A has a life estate and A's heirs have a contingent remainder Grantor's heirs have a future interest given to them under the instrument. 49 . Property reverts to grantor.

The remainder in fee simple in B is a vested remainder when created.born two years later. THE RULE AGAINST PERPETUITIES    The rule against perpetuities was developed to destroy all contingent future interests.but this is more than 21 years after the deaths of A and D (the only relevant lives).  Interests subject to the rule o o The rule applies to contingent remainders and executory interests. reversion. The remainder for life given to Ads child ren will best if at all. the interest is void. procreates another child. The gift is void. at Ads d eath. Therefore. y y The following year.H. if at all. No interest is good unless it must vest. 50 . Some 25years later. A dies. Hope becomes a lawyer and claims the gift. It does not apply to vested interests (vested remainder. not later than 21 years after some life in being at the creation of the interest.f A has no children. It is possible for the first child of A who becomes a lawyer to be a child not alive at the time of the conveyance. bereft at Dds death and desiring a lawyer in the family. the gift is void. including executory interests (which are indestructible). The conveyance is entirely valid. possibility of reverter.Hope. Reason for period: o A parent could realistically and perharps wisely assess the capabilities of living members of the members of the family. but look at the interest at the time of creation. n n ir s. and right of entry) o Example:       O conveys eto A for life the to Ads childre for the live the to B and . n his he irs. o Example:      O conveys eto the first child of A who be come a lawye s rf A has a daughter D in law school. Then A. What might happen test: o If there is any possibility that a contingent interest will vest too remotely. Reason it doesndt work: y y D may die before becoming a lawyer. Courts do not wait to see what actually happens.

y Example 2: o o eTo Ads children who reach 21f A is the validating life. provided the claimant can prove the interest will vest or fail within 21years of the persons death.f The validating life is A because the contingency (marries or birth of child) must happen. the validating life must be a person alive at the creation of the contingent interest.  Validating life y Example 1: o o eTo A when A marriesf or e to Ads children. The gift must vest or fail within the lives of the members of the property class. Therefore. within 21 years after Ads d eath. o The remainder is void because you cannot prove it will necessarily vest or fail within 21 years of Ads d eath. The members of the property class are the validating life.  Validating lives y Example: o Professor Jones gives $1.f A has no childre at Td s de n ath. if at all. o o o The gift is good. Lives in being o Any person who can affect the vesting of the interest and who is alive at the creation of the interest can be a validating life. A child in womb y When the interest is created is treated as a life in being if the child is later born alive. if at all. n n ach 25. o When lives in being is determined   Generally.. Any gestation periods are included within the permissible perpetuities period. the gift will vest. within Ads life.  No validating life (void gift) y Example: o T conveys eTo A for life the to Ads childre who re . Every child of A must necessarily reach 21 within 21 years of Ads d eath plus a periodof gestation. 51 .000 to be divided among all members of her property class who has admitted to the bar.

o Remote possibilities   An interest is void under the Rule Against Perpetuities if by any possibilityhowever remote. This leads to the assumption leads to the unborn widow case.  Executory interest y An executory interest following a fee simple determinable or divesting a fee simple cannot vest in interest before it vests in possession.o It will be known by the last survivor or maybe sooner. o Meaning of eve stf:   The rule does not apply to vested interests.the interest might vest beyond the perpetuities period. the interest is void. y An executory interest following a determinable fee or divesting a fee simple only when the condition happens and it becomes a possessory estate. o Evidence that a person is 80 years of age or have had a hysterectomy or vasectomy is irrelevant. and the man may in the future marry a woman not now alive. if the gift to one member of the class might vest too remotely. but it does not apply to executory interests. the whole class gift is void (all-ornothing rule). 52 .  Fee Simple Determinable y A possibility of reverter is exempt from the rule. If a situation can be imagined in which the interest might not vest or fail within the relevant lives in being plus 21 years. y The fertile octogenarian o The law conclusively presumes that a person can have children as long as the person is alive. Therefore.  Application to Defeasible Fees o The rule against perpetuities does not apply to possibilities of reverter and rights of entry. o Example:  A mans present wide may die or be divorced.which members of the class are admitted to the bar. Class gifts y Do not vest in any member of the class until the interests of all members have vested. which are regarded as vested interests. y The unborn widow o The law assumes that a persons surviving spouse might turn out to be a person not now alive.

and not B. leaving a determinable fee in the church. and their heirs.nor in a devisee. y Example: o O conveys Blackacre eto the School Board so long as use for d school purpose and if the land shall ce s. O has a possibility of reverter. y If the testator creates a fee simple determinable by will. Any executory interest following a fee simple determinable that violates the rule against perpetuities is struck out. irs. o Board has a fee simple determinable. which will automatically end when the land ceases to be used for school purposes. the testatords heirs have a possibility of reverter. irs. ase to be use for d school purpose to A and his he s.have a possibility of reverter.y y An executory interest is subject to it. All the re and re s.  Fee Simple Determinable Created by Will y A possibility of reverter is an interest retained by the grantor if the fee simple determinable is created by a deed. Ads executory interest is void. the testatords heirs retain it if the fee simple d eterminable is created by a will. if valid. o Tds heirs. n st mainde of my r prope rty I de vise to B. but if Blackacre shall ce ase to be use for school purpose to A and his he d s. y A possibility of reverter cannot be created in a grantee. followed by a void executory interest in a devisee. leaving the fee simple determinable standing. y Example: o T devises Blackacre eto a Baptist Church so long as use for d church purpose the to A. 53 .f o Ads executory interest.  Fee Simple Subject to an Executory Limitation y Example: o O conveys Blackacre eto the School Board. o It might not become possessory for centuries. would be transmissible to Ad s heirs. as with a blue pencil.f o Ads executory interest violates the RAP and is struck out.f o The executory interest in A is void under the RAP for the same reason Ads executory interest in the preced example is void ing . Therefore. and so on through time.

then to A's child ren for life. Valid Y is the measuring life. Invalid Unborn wid problem." Valid Invalid d evisees hund s of years from now. then to M's grand child ren. remaind to those of er B's siblings who reach age 21. red (A's interest is stricken. then to his wid for ow life. then to A's surviving d escend ants." "To A for life. then to Z. INTERESTS UNDER THE RULE AGAINST PERPETUITIES EXAMPLE "To A for life. VALIDITY EXPLANATION 54 ." "To X for life." M is 80 years old and Invalid Fertile octogenarian problem. then to A's child ren for life then to B" Valid B's remaind is vested on creation er A may have a child after the interest is created and so may have "To A for life. then to M's child ren for their lives. but if at her d eath Y is not survived by child ren. for life. then to such of B's child ren who become lawyers" "To A for life. Bds interest as a resid uary d evisee would be an executory interest. ow Valid Invalid d isposition who becomes a lawyer more than 21 years after B's d eath." Valid This falls within the charity-tocharity exception The interest may vest in A's heirs or "To school Board so long as it is used for a school. were given the future interest after the determinable fee.o If B. No unborn wid problems because the ow gift is to W. then to A's surviving child ren. then to his wife W. and Bds interest would be void . then to the Red Cross." " To School Board so long as it is used for a school.) B's parents can be used as measuring lives B may have a child born after the "To B for life." Invalid grand child ren beyond the perpetuities period . then to Y. then to A" "To B for life." "To M for life. life in being. the residuary devisee. then to A's grand child ren.

to C. Life REVERSION "To A for life. No No No 55 ." IN GRANTOR POSSIBILITY OF REVERTER "To A so long as liquor is not sold on the premises. "To A for life." A has a child X. C. term of years Fee Simple Determinable Fee Simple RIGHT OF ENTRY "To A. term of years Fee tail. but if B pre-deceases A. No "To A for life. then to A's children. then to B" Subject to Condition Subsequent Fee tail. term of years No Yes." (B has a vested Fee tail.the slothful executor problem." estate. SUMMARY OF FUTURE INTERESTS SUBJECT TO CORRELATIVE FUTURE INTEREST EXAMPLE PRESENT INTEREST PERPETUITIES RULE AGAINST Fee tail. Life Estate. Life estate. C. but if liquor is sold on the premises. Term of Years. D and E (all born today at Obie Hospital). B." Invalid Administrative contingency." INDEFEASIBLY VESTED REMAINDER IN GRANTEE VESTED REMAINDER SUBJECT TO OPEN VESTED REMAINDER SUBJECT TO "To A for life. B. Valid A. At the death of A. then to B. "Trust income to Polo Club.As long as the class remains open.has had a hysterectomy. D. and E are measuring lives." The residue of my estate to my descendants who are living when my estate is distributed. O has a right to reenter. the corpus to Z and his heirs. Life estate.

Yes. Term of Years. Life "To A for life.DIVESTMENT remainder subject to divestment." (C has a shifting executory interest) Fee Simple." Estate.) Fee tail. then to A's surviving children. Life Estate. Term of Years. Life Estate. Fee "To A when she passes the bar exam. Fee tail. then to B. but if N predeceases A." "To A for life. Yes Yes CONTINGENT REMAINDER SPRINGING EXECUTORY INTEREST SHIFTING EXECUTORY INTEREST 56 . Fee Simple. Term of Years. tail. to C.