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Present and Future Estates

Present Estates • Non-freehold estates (e.g. tenancies; discussed in chapter 5)


• Freehold estates Future Estates
o Fee simple absolute • Those originally created in the grantor
o Fee simple defeasible o Possibility of reverter
 Fee simple determinable o Right of re-entry (power of termination)
 Fee simple subject to condition subsequent o Reversion
 Fee simple subject to an executory limitation • Those originally created in someone other than the grantor
o Fee tail (and fee simple conditional) o Remainder
o Life estate o Executory interest

PRESENT INTERESTS
Future Estate Created by: Duration Transferability
Fee Simple Absolute N/A -“To A and his heirs” Unlimited Deed
-“To A, his heirs and assigns” Will
-“To A” Intestacy
Fee Simple Determinable Possibility of reverter -“To A so long as . . .” Potentially infinite so Deed
(automatic) -“To A until . . .” long as condition does Will
-Specific provision for automatic reverter not occur Intestacy
Fee Simple Subject to Right of re-entry -“To A on condition that . . .” Potentially infinite until Deed
Condition Subsequent (not automatic) -“To A provided that . . .” condition and re-entry Will
-Provision for right of re-entry on condition occur Intestacy
Fee Simple Subject to EL Executory interest -“To A and his heirs, but if ____ happens, Potentially infinite if Deed
then to B and his heirs” contingency does not Will
occur Intestacy
st
Fee Tail (Fee Simple -Reversion (to O) -“To A and the heirs of his body” From life of 1 taker Deed (short term)
Conditional) -Remainder (to B) -“To A and heirs of his body, remainder to B” until descendants cease Heirs of body
Life Estate -Reversion (to O) -“To A for life” Life of grantee (or Deed (by will in
-Remainder (to B) -“To A for the life of B” (pur autre vie) other person indicated) pur autre vie)
FUTURE INTEREST
Description Created by:
Possibility of reverter Follows a fee simple determinable “To A so long as . . .”
Right of entry (power of termination) Follows a fee simple subject to condition subsequent “To A but if _____ I may reenter and take
back”
Reversion Any other future interest created in grantor “To A for life” or “to A for 10 years”

Remainder – created in someone other than the Contingent remainder


grantor §156 1. Unascertainable taker “To A for life, then to heirs of B”
1. Created at same time and by same instrument that 2. Subject to condition precedent “To A for life, then to B if B survives A”
creates the prior estate(s)
2. Cannot follow a fee simple [absolute (impossible) Vested remainder
or any fee simple defeasible]; thus, follows life estates 1. Subject to condition subsequent “To A for life, then to B, but if B . . . then to C”
(except defeasible life estates: to A for life unless A 2. Subject to open “To A for life, then to children of B
does ___) 3. Vested indefeasibly “To A for life, then to B”
3. Cannot cut short the prior estates
4. Must not be a “built in” time gap between
termination of prior estate and remainder (possibility
of a gap is not fatal – certainty of a gap is fatal)
Executory limitation Any future interest created in someone other than “To A, but if A . . . then to B”
grantor that is not a remainder; shifting or springing “To A who will take possession when 21”

Various Rules
• Destructibility
o A contingent remainder is destroyed if it is not qualified and ready to take when the prior life estate ends
o Due to destructibility, O retains a reversion whenever there is a contingent remainder
o Even in cases of alternative contingent remainders, O retains a reversion
 Merger – if the holder of a life estate obtains the reversion, the interest merge leaving him with fee simple absolute
• Rule in Shelley’s Case (no longer good law)
o “To A for life, remainder to the heirs of A” is rewritten to read “To A for life, remainder to A and his heirs”
 The re-written interest merge, leaving A with fee simple absolute
o Medieval result was that the heirs of A took the land by descent, not by purchase from O (ensure feudal revenues)
o An absolute rule (not merely a rule of construction)
o Rule only applied when:
 Freehold estate in the ancestor
 Remainder to heirs or heirs of the body of the ancestor
 Both estates were created simultaneously
 Interest must have been either both legal or both equitable
 Reference to “heirs” was in technical sense (i.e. not meaning “children” or “issue”)
• Doctrine of worthier title
o A conveyance of a remainder to the heirs of O is a nullity and leaves O with a reversion
o In the case of a will, the heirs take by intestate succession what O intended to give them by will (result is unchanged)
o In the case of a deed, the doctrine nullifies the contingent remainder
 Generally viewed only as a rule of construction (will not be used to frustrate the intent of O)
• Rule of Convenience
o Operates separate and apart from the RAP, but it can have an impact
o Causes an open class to close the entire class when the first member could take possession
o The rule can save a gift that would otherwise fail the RAP
o Example
 To A for life, then to A’s grandchildren.
• If it could vest too late as to any member of the class, it fails as to the entire class. This violates the RAP so the gift
fails.
 Take into account the ROC, the class of children and grandchildren will close at A’s death so now we have a different RAP
problem. Now the latest it can vest is no longer the last grandchild being born but it is A’s death.
 If the problem said all children who reach 21, the class would close at A’s death and include all children who are 21 at A’s
death and all children alive at A’s death. Now, A must die and a child must be 21 to close the class. When a child turns 21, all
children alive at that time are included.
• Rule against perpetuities
o No interest is good unless it is certain to vest (if ever) within 21 years of the end of the life of someone alive at time of creation
o Prevents landowners from tying up a property through a series of contingent remainders or executory interests
o Applies to non-vested interest (contingent remainders and executory interests) as well as vested remainders subject to open
o The effect of a violation is to strike the offending phrase from the conveyance
o Fact variations to remember
 All living humans are considered fertile regardless of age
 The widow and survivors are unknown until A’s death
o Sequence of evaluation
 Identify present and future interests
 What event will vest the interest?
 What is the latest vesting could occur? (Can back up 21 years)
 Who is certain to be there? (Often has two answers when condition involves the last child [child and parent])
 Is that person(s) alive today?