• Right to possess and use forever

• Right to transfer all present and future rights (inheritable/devisable)

• Right to liquidate assets

• Default estate today

FEE SIMPLE ABSOLUTE

• Right to possess and use only for lifetime of original grantee

LIFE ESTATE

• Right to possess and use only for lifetime of original grantee

• Right to transfer only rights for lifetime of original grantee (not inheritable/ devisable)

LIFE ESTATE

What if a living person transfers a life estate?

• Opal conveys Gemacre to Ruby for life, retaining a reversion herself.

• Ruby then conveys her life estate to Esmeralda.

• What does Esmeralda have?

What if a living person transfers a life estate?

• Opal conveys Gemacre to Ruby for life, retaining a reversion herself.

• Ruby then conveys her life estate to Esmeralda.

• Esmeralda has a life estate pur autre vie (for the life of another). The duration of the interest is still measured by Ruby’s life.

• Right to possess and use only for lifetime of original grantee

• Right to transfer only rights for lifetime of original grantee (not inheritable/devisable)

• Right only to present income; can’t liquidate capital (Doctrine of Waste)

LIFE ESTATE

• Right to possess and use only for lifetime of original grantee

• Right to transfer only rights for lifetime of original grantee (not inheritable/devisable)

• Right only to present income; can’t liquidate capital• Default Estate at Common Law

LIFE ESTATE

DEFAULT ESTATE (“To Bill.”)

•Common Law: Default was Life EstateBill gets Life EstateGrantor keeps Reversion

DEFAULT ESTATE (“To Bill.”)

• Common Law: Default was Life Estate– Bill gets Life Estate– Grantor keeps Reversion

• Today: Default is Fee Simple– Bill gets Fee Simple Absolute– Grantor keeps nothing

DEFEASIBLE FEES

DEFEASIBLE FEESRestatement Terms

•FEE SIMPLE DETERMINABLE

•FEE SIMPLE ON CONDITION SUBSEQUENT

•FEE SIMPLE ON EXECUTORY LIMITATION

FEE SIMPLE DETERMINABLE

• OPERATION: Self-Executing

FEE SIMPLE DETERMINABLE

• OPERATION: Self-Executing

• KEY LANGUAGE: “So long as”, “While”, “Until”

FEE SIMPLE DETERMINABLE

• OPERATION: Self-Executing

• KEY LANGUAGE: “So long as”, “While”, “Until”

• FUTURE INTEREST: Possibility of Reverter (in GRANTOR)

FEE SIMPLE DETERMINABLE

• OPERATION: Self-Executing• KEY LANGUAGE: “So long as”, “While”,

“Until” • FUTURE INTEREST: Possibility of

Reverter• EXAMPLE: To Estelle and her heirs so

long as asparagus is not grown on the property.

FEE SIMPLE ON CONDITION SUBSEQUENT

• OPERATION: Grantor must act

FEE SIMPLE ON CONDITION SUBSEQUENT

• OPERATION: Grantor must act

• KEY LANGUAGE: – “But if”, “provided that if”, “on condition

that if” PLUS– “O may [re]enter and [re]claim the land”

FEE SIMPLE ON CONDITION SUBSEQUENT

• OPERATION: Grantor must act

• KEY LANGUAGE: – “But if”, “provided that if”, “on condition that if”

PLUS– “O may [re]enter and [re]claim the land”

• FUTURE INTEREST: Right of [Re]Entry (in GRANTOR)

FEE SIMPLE ON CONDITION SUBSEQUENT

• OPERATION: Grantor must act

• KEY LANGUAGE: – “But if”, “provided that if”, “on condition that if” PLUS– “O may [re]enter and [re]claim the land”

• FUTURE INTEREST: Right of [Re]Entry

• EXAMPLE: To Estelle and her heirs, but if asparagus is grown on the property, I can reenter and claim the land

FEE SIMPLE ON EXECUTORY LIMITATION

• OPERATION: Either self-executing or grantee has to act.

FEE SIMPLE ON EXECUTORY LIMITATION

• OPERATION: Either self-executing or grantee has to act.

• KEY LANGUAGE: Creates interest in 2d grantee if condition violated

FEE SIMPLE ON EXECUTORY LIMITATION

• OPERATION: Either self-executing or grantee has to act.

• KEY LANGUAGE: Creates interest in 2d grantee if condition violated

• FUTURE INTEREST: Executory Interest (in 2d grantee)

FEE SIMPLE ON EXECUTORY LIMITATION:

EXAMPLES

• To Estelle and her heirs so long as asparagus is not grown on the property, otherwise to Bob

FEE SIMPLE ON EXECUTORY LIMITATION:

EXAMPLES

• To Estelle and her heirs so long as asparagus is not grown on the property, otherwise to Bob

• To Estelle and her heirs, but if asparagus is grown on the property, Bob can reenter and claim the land

DEFEASIBLE FEESRestatement Terms

•FEE SIMPLE DETERMINABLE (to grantor; automatic)

•F.S. ON CONDITION SUBSEQUENT (to grantor; must act)

•F.S. ON EXECUTORY LIMITATION (any to grantee)

WHITE v.

BROWN

LED ZEPPELIN

Discussion Questions E1-E4

DQE1: The White majority states that “the free

alienation of property [is] one of the most significant

incidents of fee ownership.”

Why is it significant?

DQE2:The White majority complains that “the words chosen by the testatrix are

not specific enough to clearly state her intent."

What do you think Jessie Lide’s intent is?

I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.

Why does the majority have problems

discerning Jessie Lide’s intent?

I wish Evelyn White to have my home to live in and not to be sold. Possible Characterizations

• Fee Simple

• Life Estate

• Conditional Fee– So long as not sold– So long as E lives there

• Conditional Life Estate

DQE3: WHAT ARE THE MAJORITY’S ARGUMENTS

THAT MS. LIDE INTENDED TO CREATE A FEE

SIMPLE?

MAJORITY ARGUMENTS(FEE SIMPLE)

• Presumption: grant conveys whole estate

• No gift over

• Partial intestacy disfavored

DQE3: WHAT ARE THE DISSENT’S

ARGUMENTSTHAT MS. LIDE INTENDED TO

CREATE A LIFE ESTATE?

DISSENT ARGUMENTS(LIFE ESTATE)

• Grantor limited power to dispose

• Grant says “to live in”

• No limits in gift to niece

I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.

Whose Arguments Seem Stronger?

HOLDING OF WHITE v. BROWN

The Property Can Be Sold!!!

DQE4:What additional facts might add weight to the majority

opinion?

To the dissent?

VESTED v. VESTED v. CONTINGENT CONTINGENT REMAINDERSREMAINDERS

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

REMAINDERREMAINDER

Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

VESTED REMAINDER

• Grantee is living ascertainable person

(Presumed if granted to a named individual)

VESTED REMAINDER

• Grantee is living ascertainable person AND

• Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate

VESTED REMAINDER

• Grantee is living ascertainable person AND

• Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate

• Example: To Aaron for life, then to Oona and her heirs.

CONTINGENT REMAINDER

• Grantee is presently unborn or unascertainable

*OR*

• Clause creating the remainder contains a condition on grantee taking the property

CONTINGENT REMAINDER:EXAMPLES

• “To Fred for life, then to Fred’s firstborn child.” Fred presently has no children. (Not born)

Suppose Fred has a Child…

CONTINGENT REMAINDER:EXAMPLES

• “To Fred for life, then to Fred’s firstborn child.” Fred presently has no children.

• “To Fred for life, then to Fred’s oldest child living at Fred’s death.”

(not ascertainable)

CONTINGENT REMAINDER:EXAMPLES

• “To Fred for life, then to Fred’s firstborn child.” Fred presently has no children.

• “To Fred for life, then to Fred’s oldest child living at Fred’s death.”

• “To Fred for life, then to Wilma and her heirs if Dino survives Fred.(condition precedent)

ANALOGY

Vested Remainder

Theater Ticket

Contingent Remainder Lottery Ticket

Life Estate + Vested Remainder

To Fred for Life, then to Wilma and her heirs

Life Estate + Contingent Remainder

Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.”

Life Estate + Contingent Remainder

Barney “to Fred for Life then to Wilma and her heirs if Dino survives Fred.”

Barney retains a reversion.

REMAINDERS “IN …” :

• “To Fred for life, then to Wilma for life.”

Wilma has a vested remainder in life estate

• “To Fred for life, then to Wilma and her heirs if

Dino survives Wilma.

Wilma has a contingent remainder in fee

simple

PROBLEMS A-D

Featuring The Supremes

(A): O conveys Baconacre "to Mayer and her heirs."

Mayer's only child, Armour, runs up large bills. Can Armour's

creditors reach any interest of Armour in Baconacre?

(A): O conveys Baconacre "to Mayer and her heirs."

Mayer wishes to sell Baconacre and use the proceeds to take a trip around the world. Can Armour prevent Mayer from doing this?

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

Ernie: ?

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

Ernie: Life Estate

Burt: ?

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

Ernie: Life Estate

Burt: Vested Remainder in Life Estate

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

Who owns the last piece?

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

Kermit has a reversion (in frog green!)

Ernie dies?

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

Kermit has a reversion

Ernie dies? Burt has life estate.

Burt dies?

(B): Kermit “to Ernie for life, then to Burt forever.” (Common Law)

Kermit has a reversion

Ernie dies? Burt has life estate.

Burt dies? Kermit or Kermit’s heirs have fee simple

(B): Kermit “to Ernie for life, then to Burt forever.” (Today)

Ernie: Life Estate

Burt: ?

(B): Kermit “to Ernie for life, then to Burt forever.” (Today)

Ernie: Life Estate

Burt: Vested Remainder

in Fee Simple

Kermit?

(B): Kermit “to Ernie for life, then to Burt forever.” (Today)

Ernie: Life Estate

Burt: Vested Remainder in Fee Simple

Kermit: Nothing

(B): Kermit “to Ernie for life, then to Burt forever.” (Today)

Ernie dies?

(B): Kermit “to Ernie for life, then to Burt forever.” (Today)

Ernie dies? Burt takes a fee simple absolute.

Burt dies?

(B): Kermit “to Ernie for life, then to Burt forever.” (Today)

Ernie dies? Burt takes a fee simple absolute.

Burt dies? Property passes by will or through intestacy.

(C): Elmer “to Sylvester for life, then to Bugs and his heirs.”

Sylvester: ?

(C): Elmer “to Sylvester for life, then to Bugs and his heirs.”

Sylvester: Life Estate

Bugs?

(C): Elmer “to Sylvester for life, then to Bugs and his heirs.”

Sylvester: Life Estate

Bugs: Vested Remainder in Fee Simple

(C): Elmer “to Sylvester for life, then to Bugs and his heirs.”

Bugs dies intestate without heirs. Impact?

(C): Elmer “to Sylvester for life, then to Bugs and his heirs.”

Bugs dies intestate without heirs.

Vested remainder passes to the state.

Sylvester dies. Effect?

(C): Elmer “to Sylvester for life, then to Bugs and his heirs.”

Bugs dies intestate without heirs.

Vested remainder passes to the state.

Sylvester dies.

State has a fee simple absolute.

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

Minnie: ?

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

Minnie: Life Estate

Pluto?

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

Minnie: Life Estate

Pluto: Vested Remainder in Term of Years.

Anything Else?

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

Minnie: Life Estate

Pluto: Vested Remainder in Term of Years.

Mickey: Reversion (to his heirs or devisees)

PROBLEMS E-H

Featuring The Beatles

(E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his

heirs.”

Bernie?

(E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his

heirs.”

Bernie: Life Estate

Jorge?

(E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his

heirs.”

Bernie: Life Estate

Jorge: Vested Remainder in Life Estate

Roger?

(E): Derek “to Bernie for life, then to Jorge for life, then to Roger and his

heirs.”

Bernie: Life Estate

Jorge: Vested Remainder in Life Estate

Roger: Vested Remainder in Fee Simple

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

Veronica: ?

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

Veronica: Life Estate

Betty?

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

Veronica: Life Estate

Betty: Contingent Remainder in Fee Simple

What happens if Betty dies at 17?

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

What happens if Betty dies at 17?

No instructions. What happens when a grantor does not fully dispose of the property in all possible scenarios?

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

If a grantor does not fully dispose of the property, we assume he kept the parts not mentioned for himself. Here, Reggie has a reversion. If Betty dies before turning 21, Reggie or his designees will get the property in fee simple when Veronica dies.

(F): Reggie “to Veronica for life, then to Betty and her heirs if Betty

attains the age of 21.”

What if Betty turns 21 while Veronica is alive?

(F): Reggie “to Veronica for life, then to Betty and her heirs if Betty attains the age of 21.” Betty turns

21.

Betty’s contingent remainder “vests” leaving her with a vested remainder in fee simple.

Reggie’s reversion “divests,” leaving him with nothing.

(6F) Reggie “to Veronica for life, then to Betty and her heirs if Betty

attains the age of 21.”

Veronica: Life Estate

Betty: Contingent Remainder in Fee Simple

Reggie: Reversion

What happens if Veronica dies when Betty is 17?

THE “READY

BETTY” JOKE

(G): “To my only son, Larry, for life, then to Larry's children and

their heirs." Larry has two children, Moe and Curly.

Larry?

(G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has

two children, Moe and Curly.

Larry: Life EstateMoe & Curly?

(G): “To my only son, Larry, for life, then to Larry's children and their heirs." Larry has

two children, Moe and Curly.

Larry: Life Estate

Moe & Curly: Vested Remainders

(in F.S.) Subject to OpenLarry has another child, Stella. Stella has?

(G): “To my only son, Larry, for life, then to Larry's children and their heirs."

Larry: Life Estate

Moe & Curly & Stella: Vested Remainders (in F.S.) Subject to Open

Curly dies, leaving his wife, Noreen, and a child, Orrin; Curly's will devises all his property to Noreen. What happens to Curly’s interest?

(G): “To my only son, Larry, for life, then to Larry's children and their heirs."

Larry: Life Estate

Moe & Noreen & Stella: Vested Remainders (in F.S.) Subject to Open

Larry dies. State of the title?

(G): “To my only son, Larry, for life, then to Larry's children and their heirs."

Larry dies. State of the title?

Moe & Noreen & Stella share fee simple absolute (tenants in common).