Estates in Land and Future Interests

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Estates in Land and Future Interests

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Title: Estates in Land and Future Interests

1
Estates in Land and Future Interests
2
The Feudal Structure

1066 (Norman Conquest)
Concept of subinfeudation

The King
Services
The Peasants
3
Freehold and Nonfreehold Estates

The concept of seisen
Possession plus obligation to perform incidences
of feudal tenure
Incidents of freehold estates
Homage and fealty
Aids (Ransom money)
Fines
Typically payable on conveyance by substitution,
not subinfeudation
Relief
Form of feudal inheritance tax when land passed
to heir
Wardship and Marriage (a real cash cow)
Nonfreehold estates
Ancestor of current leases

4
The Statute Quia Emptores Terrarum

Subinfeudation vs. substitution
1290 The Statute Quia Emptores

Makes land freely alienable without payment of
the fine
5
Common law versus equitable estates
6
Common law estates

Holder of present possessory estatehad seisen
Estates created as a use
The utility of the use
Ability to will property away and deprive King of
the relief
The Statute of Uses (1536)
The Statute of Wills (1540)

7
Important Common Law Statutes

De donis 1285 (coverts fee simple conditional
into a fee tail)
Quia Emptores-1290 (makes property alienable)
Statute of Uses 1536 (Converts equitable estates
created by way of a use into legal estates
Statute of Wills 1540 (permits disposition of all
property by will)

8
Types of Common-law Present Possessory Estates

Durational concept-Lasting to infinity
In Who?
Fee simple absolute
Fee simple determinable
Fee simple on condition subsequent
Fee simple conditional (pre-1285)
Fee tail (Statute de donis)
Life estate

9
Types of Non-freehold estates

Term of years
Periodic tenancy
Tenancy at will
Tenancy at sufferance

10
Future Interests

Recognized as common-law estates
Remainders
Indefeasibly vested remainder
Vested remainder subject to open
Vested remainder subject to complete divestment
Contingent remainder
Reversionary Interests
Reversions
Possibility of reverter
Right of entry for condition broken
Recognized as equitable estates
Executory interests
Shifting executory interest
Springing executory interest
Effect of Statute of Uses

11
Words of Purchase vs. Words of Limitation

Words of purchase-describe who takes by grant,
gift, inheritance or bequest
Words of limitation-describe the duration of the
estate taken by the transferee

12
A and his heirs

What are the words of purchase?
What are the words of limitation?

A Words of purchase
and his heirs Words of limitation
Infinity
13
A and his heirs-Critical Characteristics

What are the critical attributes of the fee
simple absolute
Alienable, devisable and descendible
Lasts for a perpetuity

14
Exam Question
Oscar, who owns Blackacre in fee simple absolute,
conveys Blackacre to Barney and his heirs.
Barney has a (a) Fee simple absolute (b) Fee
tail (c) Life estate (d) Term of years (e) Fee
simple on condition subsequent
This question is worth one point
15
White v. Brown-The Fee Simple Absolute

What are the facts of this case?

Decedent willed her home to Evelyn White to
live in and not to be sold Ms. White brought
construction proceeding for court to declare that
will left her a fee simple absolute. Decedents
heirs (who are they?) claim decedent bequeathed
Ms. White only a life estate.
16
Words about Family

Spouse
Partner
Child
Issue / Descendant
Child
Grandchildren
Stepchild
Sibling

Ancestor
Collateral
Half-brother/half-sister

17
Forfeiture vs. Disabling Restraints

To A but if A purports to sell the property, then
to B.
To A and the property shall never be sold

18
Exam Question
Oscar, who owns Blackacre in fee simple absolute,
conveys Blackacre to Charlie and his heirs.
Charlie has a (a) Fee simple absolute (b) Fee
tail (c) Life estate (d) Term of years (e) Fee
simple on condition subsequent
This question is worth one point-The correct
answer is (a)
19
Mahrenholz v. County Board Of School Trustees of
Lawrence County

What are the facts of this case?

20
Mahrenholz v. County Board of School Trustees of
Lawrence County

On March 17, 1941 property owned in fee simple
absolute by W.E. and Jennie Hutton
On March 18, 1941 W.E. Hutton and Jennie Hutton
convey to Trustees this land to be used for
school purposes only otherwise to revert to
Grantors herein.
W.E. Hutton died intestate on July 18, 1951 with
Harry Hutton as his only legal heir
Jennie Hutton died intestate on February 18, 1969
with Harry Hutton as her only legal heir
On May 30, 1973, School stopped teaching classes
on property but thereafter used it to store
vehicles
On May 7, 1977, Harry conveys to Mahrenholz
On September 6, 1977, Harry disclaims interest
Plaintiffs sue to quiet title

Illinois Statute?
21
Fee Simple Determinable vs. Fee Simple on
Condition Subsequent

If the limitation or condition is violated when
does the cause of action begin to run if the
holder of the possibility of reverter or right of
entry for condition broken has to sue for
possession
Conceptually
By case law

22
Fee Simple Determinable vs. Fee Simple on
Condition Subsequent

O to A and his heirs so long as no liquor is sold
on the premises (WP/WL)
O to A and his heirs provided that if liquor is
sold on the premises O may re-enter and claim the
property (WP/WL)
O to A and his heirs to be used for any purpose
other than the sale of liquor
Rule of construction where conveyance ambiguous?

23
Fee Simple Determinable
O deeds Whiteacre A and his heirs so long as
liquor is not sold on the premises. A dies
intestate. As spouse (S) takes possession of the
area left of the black line, As heir (H) takes
possession of the rest. S sells liquor in the
shaded portion. What is the effect of this on H?
24
Fee simple conditional / Fee tail

How created?
Characteristics of estate
Before 1285
After 1285
Fee tail
Fee tail male
Fee tail female
Fee tail special

and the heirs of his body
and the male heirs of his body
and the female heirs of his body
and the heirs of his body with X
25
Robins Island Preservation Fund, Inc. v. Southold
Development Corp.

What are the facts of this case?

26
In 1715, Joseph Wickham, Sr.
purchased Robins Island. In 1734, JWS wills to
Joseph Wickham, Jr. "and to the male heirs of his
body lawfully begotten or to be begotten
forever." (Creating what?)In 1749, Joseph, the
tenant-in-tail, died and Robins Island passed to
his son, Parker Wickham. (Creating what?). In
1779 the New York State Legislature passed the
Act of Attainder of 1779 declaring British
loyalists as ipso facto convicted of "adherence"
to the British. (Effect on Parker?)In 1782,
the New York abolished the estate tail.
(Effect?)In 1783, New York ceases the land
declared confiscated by the 1779 Act of
Attainder. Parker Wickham fled to Connecticut
where he remained until his death in 1785. At the
same time, his eldest son, Joseph Parker Wickham,
his likely heir, left the United States for Great
Britain.In 1784, the New York State Legislature
passed an act for the sale of estates confiscated
pursuant to the 1779 Act of Attainder. Under
that Act, Robins Island was sold to Benjamin
Tallmedge and Caleb Brewster in fee simple. SDC
claims title to Robins Island as the
successor-in-interest to these two individuals.
27
Current State of the Fee Tail
28
Death without issue

O conveys to A and the heirs of his body, then to
B and his heirs. State the title?
O conveys to A and his heirs but if A dies
without issue then to B and his heirs. State the
title?
At what point in time might it be determined that
A dies without issue?
As death
When either at As death or the death of a
descendant of A, there are no more living issue
of A.

29
Life Estate

How created?
for life
O to A for life. What does A have? What does O
have
O to A for life. A to B. What does A have? What
does B have? What does O have?
B dies survived by A and O
A dies survived by B and O
O to A for life. A to B for life. What does A
have? What does B have? What does O have?
B dies survived by A and O.
A dies survived by B and O

30
Problems

Problem 4, Page 276
Problem 6, Page 277

31
Trusts vs. Legal Interests

Problem 9, page 279

32
Future Interests-Review

Reversionary interests
Reversion
Possibility of reverter
Right of entry for condition broken

Remainder
Vested
Vested subject to partial divestment
Vested subject to complete divestment
Contingent
Executory interests (limitations)
Shifting
Springing

33
Remainder-General Definition
A remainder is a future interest limited in favor
of a transferee which may become possessory
immediately upon the termination (upon the
happening of a limitation) of a prior possessory
estate simultaneously created
34
Vested Remainder
An indefeasibly vested remainder is a remainder
that will, in all events, become possessory
immediately upon the termination of the prior
possessory estate (either in the remainderman or
her successor)-- no ifs, no ands, no buts.
35
Vested Remainder Subject to Open
A vested remainder subject to open (also known as
a vested remainder subject to partial divestment)
is a vested remainder limited in favor of a class
of persons collectively described (and typically
related to each other though a common ancestor)
of which there is at least one living member.
36
Contingent Remainder
A contingent remainder is a remainder that is
subject to a condition precedent. It also
includes remainders limited in favor of unborn or
unascertained persons for whom the condition
precedent includes either being born or being
ascertained.
37
Vested Remainder Subject to Complete Divestment
A vested remainder subject to complete divestment
is a remainder limited in favor either a born or
ascertained individual or in favor of a class of
persons of which there is one living member which
is subject to the happening of a condition
subsequent and not a condition precedent. If
the condition subsequent occurs, the vested
remainder could fail if the vested remainder
becomes possessory as a fee simple estate before
the condition subsequent occurs, the fee simple
will terminate. In both cases, another estate
(known as a shifting executory interest) will
either vest in interest or possession.
38
Shifting Executory Interest
A shifting executory interest is a future
interest limited in favor of a transferee which
can become possessory only by divesting the
present possessory freehold interest or a vested
future interest limited in favor of another
transferee. A divesting occurs only upon the
happening of a condition. Shifting executory
interests divest other grantees, not
grantors. (Note The one exception to this rule
was that a shifting executory interest is the
future interest in a transferee following a fee
simple determinable even though a fee simple
determinable ends, if it ends at all, upon the
happening of a limitation rather than a
condition).
39
Springing Executory Interest
The springing executory interest is a future
interest limited in favor of a transferee which
can become possessory only after some period of
time during which there is no other transferee
entitled to a freehold estate, and which, if it
becomes possessory, divests the grantor of a
retained interest in the property
40
State the Title-Part I

O conveys Blackacre to A for life, then to B and
his heirs
Words of purchase words of limitation
State the title
A has a life estate, B has a vested remainder. O
has nothing
O conveys Blackacre to A for life and upon As
death to B and his heirs if B attains the age of
21. State the title.
A has a life estate, B has a contingent
remainder, contingent on reaching age 21, O has a
reversion.
State the title if, during As lifetime, B
reaches age 21.
State the title if A dies survived by B age 25

41
State the Title-Part II

O conveys to A for life and, if B survives A,
then to B and her heirs. State the title.
A has a life estate, and B has a contingent
remainder and O has a reversion
Suppose three years later, A dies. State the
title.
Suppose A and B die under such circumstances that
from all outward appearances it cannot be
determined who survived whom

42
State the Title-Part III

O conveys to A for life and upon A's death to B's
heirs. State the title, and, if it depends, on
what does it depend?
Assume B is alive. Suppose B dies during A's life
survived by X as his sole heir. At B's death,
state the title.
If X survives A, state the title.
If X survives B but dies before A, state the
title.
O conveys to A for life and upon As death and if
B marries As widow, then to B and his heirs.

43
State the Title-Part IV

O conveys to A for life and upon A's death if B
survives A then to B and his heirs but if B does
not survive A then to C and his heirs.
Life estate in A, alternative contingent
remainders in B and C, reversion in O
O conveys to A for life and upon A's death to B
and his heirs but if B dies before A then to C
and his heirs.
Life estate in A, vested remainder subject to
divestment in B, shifting executory interest in
C, nothing in O

44
Contingent Remainders v. Vested Remainders
Subject to Complete Divestment

O conveys to A for life and upon A's death if B
survives A then to B and his heirs but if B does
not survive A then to C and his heirs.

O conveys to A for life and upon A's death to B
and his heirs but if B dies before A then to C
and his heirs.

45
Contingent Remainders v. Vested Remainders
Subject to Complete Divestment

O conveys to A for life and upon A's death if B
survives A then to B and his heirs but if B does
not survive A then to C and his heirs.

O conveys to A for life and upon A's death to B
and his heirs but if B dies before A then to C
and his heirs.

46
Contingent Remainders v. Vested Remainders
Subject to Complete Divestment

O conveys to A for life and upon A's death if B
survives A then to B and his heirs but if B does
not survive A then to C and his heirs.

O conveys to A for life and upon A's death to B
and his heirs but if B dies before A then to C
and his heirs.

47
Contingent Remainders v. Vested Remainders
Subject to Complete Divestment

O conveys to A for life and upon A's death if B
survives A then to B and his heirs but if B does
not survive A then to C and his heirs.

O conveys to A for life and upon A's death to B
and his heirs but if B dies before A then to C
and his heirs.

Vested Remainder Subject to Complete Divestment
followed by a shifting executory interest
Alternative Contingent Remainders
48

O conveys Blackacre to A for life, then to B and
his heirs if B survives A, but if B does not
survive A, then to C and his heirs.

O conveys Blackacre to A for life, then to B and
his heirs but if B does not survive A, then to C
and his heirs.

49
Intermission
50
Intermission
51
Contingent Remainder, Contingent
Remainder Contingent Remainder, Contingent
remainder Vested Remainder Subject to Divestment,
Shifting Executory Interest Contingent Remainder,
Contingent Remainder Vested Remainder Subject to
Divestment, Shifting Executory Interest (and now
once more with feeling) Contingent Remainder,
Contingent Remainder Vested Remainder Subject to
Divestment, Shifting Executory Interest
52
State of the Title-Part V

O conveys to A for life and one day after A dies
to B and his heirs.
O conveys to B and his heirs 21 years from now.
O conveys to A for life and upon A's death to B
and his heirs but, if B dies without issue, then
to C and his heirs. Remember this!!!!!!.

53
Exceptions to Right Eye Test

O deeds property to A for life, then to B and his
heirs if B survive A.
B has a contingent remainder. Why doesnt the
right eye test result in B having a vested
remainder subject to divestment?
The 2 or more transferee rule
O deeds property to A for life, then to B and his
heirs if B survives A but if B does not survive
A, then to C and his heirs.

54
State the Title-Part VI

O conveys to A for life and upon A's death to A's
children and their heirs. At the time of the
conveyance A has no children. State the title?
One year later A has one child. State the
title.
The next year A has another child. State the
title.
The next year A has a third child. State the
title.
The next year A dies. State the title.
Suppose, in the year A's first child is born, A
desires to rent Blackacre to B for ten years.
You represent B. What advice would you give B?

55
State the Title-Part VII

O conveys A for life and upon A's death to A's
children and their heirs. At the time of the
conveyance A has a child C-1 living. Thereafter,
C-2 is born. C-1 dies in As lifetime leaving her
spouse S as the sole devisee under her will. A
later dies survived by S and by C-2. State the
title.

56
State the Title-Part VIII

O conveys to A for life and upon A's death to B
for life and, upon the termination of both life
estates, to C and her heirs. If B dies before A
would you conclude B never had anything?
O conveys to A for life, and upon A's death to
A's children and their heirs but if none of A's
children survive A, then to B and his heirs. At
the time of conveyance, A, B and A's two
children, C and D, are living. State the title.
Three years later C and D die. State the title.

57
Class Closing Rules

The Walton Story
Physiologically
Rule of convenience- Class closes when ANY member
of the class is entitled to demand possession of
his share
No outstanding present possessory estate
No condition precedent unfulfilled for potential
demandant within the class.

58
Class Closing Problems-Part I

T wills Blackacre to Bs children who survive T.
B and three children of B survive T. State the
title?
Suppose 2 years later, B has a fourth child. Is
that child entitled to a share of Blackacre?

59
Class Closing Problems-Part II

O conveys Blackacre to A for life, and upon As
death, to such of As children as survive A.
State the title.
At the time of the conveyance is the class gift
to As children closed?
When will the class close?
Does the class close physiologically or under the
rule of convenience, or both?

60
Class Closing Problems-Part III

O conveys Blackacre to A for life, then to Bs
children who attain age 21.
State the title at the time of the conveyance.
A dies survived by B and by a child of B who is
age 14. Is the class open or closed at As death?
One year after A dies, B has another child. Is
this child included in the class?
Eight years after A dies, B has a third child. Is
this child included in the class, and, if it
depends, on what does it depend?
If B had died in As lifetime, what would have
been the state of the title and which of Bs
children would be in the class?

61
In re Estate of Earle

What are the facts of this case?
T died on 2/19/28
Gift of 100,000 for each and every male child of
testators sons bearing the name of Earle
On 7/11/49 Anthony Wayne Earle was born
Is he entitled to 100,000?
This is a gift of a separate sum to a class of
person, not a gift of an aggregate sum to a class
of person
When does the class close?
At Ts death
At death of Ts last surviving son

62
In re Estate of Earle

What does the court hold.
Is the holding consistent with the rule of
convenience
The rule of convenience would have closed the
class at Ts death but the rule can give way to a
contrary intent
What problem arises by holding the gift open
until the death of Ts last surviving son?

63
Problem

T wills Blackacre to H for life, then to Ts
heirs. At Ts death, A and B would be Ts heirs
if T died intestate. At Hs death C and D would
be Ts heirs. Who takes?

64
Remember
Estates and Future Interest Review Problems
65
In re Estate of Huston

What is the disposition in this case?

T wills property in trust to his wife for life,
then to his children for their lives and upon the
death of the survivor of them the whole of the
principal. . .shall be distributed in equal
portions to and among my grandchildren, the
children of any deceased grandchild taking their
deceased parents share.
66
In re Estate of Huston

What is the issue presented for decision?

Whether the remainder limited in favor of
grandchildren who predeceased testators last
surviving child but who left no surviving
children was transmissible through their estates
to their heirs or devisees. In other words, were
their interests impliedly subject to a condition
of surviving to the time of distribution
67
In re Estate of Huston-Competing Rules of
Construction

Court to construe language consistent with
testators intent
Testator knew how to express conditions of
survivorship in other sections of will absence
of such expression with respect to
grandchildrens gift suggests no such condition
intended
Preference for vested construction?????
Preference that only living take so they can
enjoy the property
Avoidance of taxes

68
O conveys to A and his heirs
69
Rule of Destructibility

At common law, if a contingent remainder was not
ready to become possessory when the preceding
estate terminated, the property reverted to the
grantor (testator) and the contingent remainder
was forever destroyed.

70
Rule of Destructibility

Purpose of rule
Not applicable to trusts
Not applicable to executory interests

71
Rule of Destructibility-Examples

O deeds Blackacre to A for life, then to B and
his heirs if B reaches age 21.
During As lifetime, B reaches age 21
During As lifetime, B dies, age 18
At As death, B survives. B is age 22
At As death, B survives, age 18
O deeds Blackacre to A for life, then to As
children who attain age 21. A dies survived by
children ages 22 and 14. State the title?

72
Merger

The concept of merger (Life estates and next
vested estates)
O conveys Blackacre to A for life, then to B and
his heirs. B sells his remainder to A or,
alternatively, A sells his life estate to B.

73
Rule of Destructibility-Exception

If the life estate and the next vested estate
were created simultaneously with the contingent
remainder, they life estate and the next vested
estate do not merge to destroy the contingent
remainder.
O conveys Blackacre to A for life, then to As
first born daughter and the heirs of her body,
then to A and her heirs
T wills Blackacre to A for life, then to Bs
heirs and the rest of Ts estate to A.

74
Rule of Destructibility

Abolished in almost all states, except Florida

75
The Rule in Shelleys Case

If a life estate is created in A and a remainder
is created in As heirs, the remainder is deemed
to have been created in A rather than As heirs.
If after the Rule in Shelleys Case, A would have
a life estate and the next vested estate, they
would merge to give A a fee simple.
Reason for the rule?

76
Rule in Shelleys Case-Examples

O conveys Blackacre to A for life, remainder to
As heirs.
O conveys Blackacre to A for life, then to As
first born son, then to As heirs.
O conveys Blackacre to A for life, then to As
daughter Emily and the heirs of her body, then to
As heirs.
O conveys Blackacre to A for life, then to B and
his heirs but if A returns from Iowa, then to As
heirs.

77
The Doctrine of Worthier Title