Johnson, p. 175: Practice Problems

# SOME OF THESE ANSWERS MAY BE WRONG! You should do these problems for yourself or try other ones in your casebook. SORRY ABOUT THAT.

1.          “Orville to Andy and his heirs so long as the land is farmed; but if it is not farmed to Bonnie and her heirs”: Andy has a fee simple subject to an executory limitation [or a fee simple determinable, or maybe even a fee simple subject to a condition subsequent], and Bonnie has an executory interest in fee simple absolute [it can’t be a remainder because it follows a vested fee simple].  The problem is that Andy could die and his heirs could be on the land for hundreds of years, farming, and then stop.  So it could be hundreds of years before the executory interest would turn possessory.  That violates the Rule Against Perpetuities!  So we have to reclassify, and Andy has a fee simple determinable (it’s no longer subject to an executory limitation…and it’s definitely not a fee simple subject to a condition subsequent either) and Orville has a possibility of reverter.  Bonnie has nothing.  It would fix it to say “To Andy and his heirs so long as Andy farms the land”.

2.          “Orville to Annie and her heirs so long as the land is farmed”: Annie has a fee simple determinable and Orville has the possibility of reverter.  The Rule Against Perpetuities isn’t violated in this case.  But what if the Orville sold the possibility of reverter to Bonnie?  That’s why possibilities of reverter were difficult to sell.  What if the gift was: “To A and her heirs, but if the land is not farmed to B and her heirs”?  A has a fee simple subject to a condition subsequent, B has an executory interest in fee simple absolute.  But is the Rule Against Perpetuities violated?  Yes, because you could farm forever!  It could fail to vest in B in 21 years.  Therefore, the gift to B and her heirs is no good!  It looks like A just has a fee simple absolute and O has nothing!  That’s why we need to distinguish between fees simple determinable and fees simple subject to a condition subsequent.  With the fee simple determinable, the farming condition is part of A’s estate.  When you cut off the executory interest, the condition is still part of it and A has the possibility of reverter.  On the other hand, with the fee simple subject to a condition subsequent, you have the condition about farming being part of the executory interest, so when that interest gets cut off, the condition does too.  These are radically different results depending merely on where you put the comma!

3.          “Orville to Arthur and his heirs so long as the land is farmed, but if it is not farmed, to Brooke for life”: Arthur has a fee simple subject to an executory limitation, Brooke has an executory interest for life, and Orville has possibility of reverter.  Brooke’s gift doesn’t violate the Rule Against Perpetuities because it can only vest during her lifetime.  Thus, we can use Brooke as the life in being for that gift.  If Brooke dies, her interest goes away and we’re just left with Orville’s possibility of reverter and Arthur’s fee simple determinable.  Note that we can apply the rule before we figure out what Orville has.

4.          “Orville to Adam for life, then to Adam’s children for life, then to Adam’s grandchildren who survive their parents”: Purportedly, Adam has a life estate, Adam’s children have a contingent remainder for life (unless Adam already has children alive, in which case the children alive have a vested remainder subject to open [but that’s a contingent remainder for the purposes of the Rule Against Perpetuities]), and Adam’s grandchildren either have a contingent remainder in fee simple absolute or a vested remainder subject to open in fee simple absolute (this remainder is contingent for two reasons: we don’t know who they are, and they must survive their parents).  The gift to the children is okay, because the children will be ascertained when Adam dies.  If Adam has more children after the date of this gift, then Adam dies and any other children and grandchildren die, then we might not know whether there will be any grandchildren that survive the “new” child until 21 years after the death of everyone living at the time of the gift.  Thus, though the gift to Adam’s children will be okay, the gift to the grandchildren will violate the Rule Against Perpetuities and Orville will have a reversion instead.  All in all, after the Rule, you’ll have a life estate in Adam, a life estate in Adam’s children, and a reversion in Orville.

5.          “‘Orville to Arvid for life, then to his widow, and then to his children who survive her.’  Assume that Arvid is 89 and is married to Bella, his wife of 65 years [that’s a long time!], and that they have three children”: First off, purportedly, Arvid has a life estate, his widow has a contingent remainder for life (because it is unascertained just who his widow will be or whether he’ll have one, like if he gets divorced) and then a contingent remainder in fee simple absolute to his children who survive whatever widow he leaves behind (they may or may not be ascertained).  Here we have the “unborn widow” problem at common law.  Let’s say Bella and all the children die, but Arvid remarries, say to Cruella, who wasn’t born at the time of the gift.  Arvid works as the validating life for the gift to Cruella.  Arvid and Cruella (miraculously) have a kid, Donatello.  Then Arvid dies (and thus both his widow and his children are ascertained at his death).  It may be more than 21 years before we know whether Donatello will survive Cruella.  Therefore, strangely enough, the gift to Cruella (or Bella or any other potential widow) will be okay, but the gift to Arvid’s children fails and thus Orville keeps a reversion in fee simple absolute.  Note that the children in being at the time of the gift don’t work as validating lives for anybody, either.  There is no life in being that will make this gift valid.  Note that this gift would succeed if all the recipients of the gift were named.  Actually, all you would need to do is name the widow.  So, in the end, Arvid has a life estate, the children have a contingent remainder in fee simple absolute, and Orville has a reversion.

6.          “Orville to Amanda for life, then to Amanda’s children who survive her”: Purportedly, Amanda gets a life estate, and Amanda’s children get a contingent remainder in fee simple absolute (because they not only might not be unascertained, but also they need to survive her) and Orville will have a reversion.  Now this gift seems okay, because if we use Amanda as the life in being, we will know exact which children have survived her at the time of her death.  I think both gifts are okay.

7.          “Orville to Abby for life, then to her children who reach the age of 30”: Abby purportedly has a life estate, Abby’s children have a contingent remainder in fee simple absolute, and Orville has a reversion in fee simple absolute.  Here we have a problem with the gift to the children.  Abby could have a kid after the date of the gift, then she could croak.  Then it would be, by definition, more than 21 years before we would know whether that child was going to reach the age of 30.  However, if the rule of destructibility is still in effect, the gift would be okay because we would know at the time of Abby’s death whether the remaindermen are ready to take.  The remainder will either vest in Abby’s children if they are 30 already, or else it will be destroyed and go back to Orville by reversion.  So Abby has a life estate, Abby’s children have a contingent remainder in fee simple absolute, and Orville has a reversion in fee simple absolute.

8.          “Orville to Andre for life, then to Andre’s heirs”:  Here’s a classic Rule in Shelley’s Case problem.  Purportedly, Andre gets a life estate, and Andre’s heirs get a contingent remainder in fee simple absolute (because they are unascertained at the date of the gift).  Orville also has a reversion in fee simple absolute, though it may be somewhat of a fiction.  However, under the Rule, if it is still applicable, Andre will simply get a fee simple absolute.  We have (1) one instrument, (2) a freehold estate in the ancestor, (3) a purported contingent remainder in the ancestor’s “heirs”, and (4) the two estates are of the same “quality” (both legal).  There is no Rule Against Perpetuities problem, though, because Andre’s heirs would be ascertained at Andre’s death, even in the absence of the Rule in Shelley’s Case.

9.          “Orville to Alan for life, then to Orville’s heirs”: Here’s the Doctrine of Worthier Title problem [only when this is an inter vivos gift].  Purportedly, there is a life estate in Alan, followed by a contingent remainder in fee simple absolute to Orville’s heirs, and a reversion in Orville (again, mostly fictional, but must be there because he gave away a vested estate of a lesser quantum than what he had).  But under the Doctrine of Worthier Title, the remainder to Orville’s heirs becomes simply a reversion in Orville.  So the gift would be the same as if you simply said: “Orville to Alan for life.”  The contingent remainder in the heirs is wiped out!

10.      “Orville to Alain for life, then to Orville and his heirs”: This kind of seems like a fancy way of saying “Orville to Alain for life”, giving Alain a life estate with a reversion in fee simple absolute that is implicitly suggested by the gift.  I don’t think this runs into the Doctrine of Worthier Title problem.  Instead, I think we just read it as “To Alain for life.”  How is this different from the previous problem?  It says “to Orville and his heirs” and not just “to Orville’s heirs”.

11.      “‘Orville to Alana and her heirs so long as the land is used for charitable purposes.’  Subsequent to this conveyance, Orville conveys his property ‘to Binford and his heirs’”: Initially, and purportedly, Alana has a fee simple determinable and Orville has the possibility of reverter.  Then Orville sells what he has to Binford.  It is quite uncertain whether the possibility of reverter can be sold or not (in other words, whether it’s alienable).  If it can’t be, then things they as they are and no rules are violated.  If it is sold, “the name stays the same” and Binford has the possibility of reverter.  Is the possibility of reverter valid?  Sure, because it’s vested right from the start and forever.  The thing is, if these two conveyances were made in the same gift, then Alana would have had a fee simple determinable, also known as a fee simple subject to an executory limitation, and Binford would have had an executory interest.  However, that executory interest would have been killed by the Rule Against Perpetuities, because that interest could stay contingent way, way, way into the future and far beyond the deaths of both Alana and Binford.  You never know how long the land will be used for charitable purposes!  It could be hundreds of years!

Practice problems revisited using Illinois and Ohio statutes

O.R.C. § 2131.08. Statute against perpetuities.

(C)     Any interest in real or personal property that would violate the rule against perpetuities, under division (A) of this section, shall be reformed, within the limits of the rule, to approximate most closely the intention of the creator of the interest. In determining whether an interest would violate the rule and in reforming an interest, the period of perpetuities shall be measured by actual rather than possible events. * * *

1.          “Orville to Andy and his heirs so long as the land is farmed; but if it is not farmed to Bonnie and her heirs.”

a.      Under Illinois law: This gift doesn’t seem to be affected, and the executory interest in Bonnie and her heirs would still violate the Rule Against Perpetuities.

b.     Under Ohio law: Since Ohio law measures by actual rather than possible events, I think we will wait and see whether the land is still being farmed 21 years after the death of the last life in being at the time of this gift (Braunstein suggests it would be 21 years after Andy died).  If it is still being farmed, I think the gift must be reformed to destroy the contingent remainder.  The remainder has to vest in someone (maybe becoming possessory) or just end.  Orville maybe wanted to keep the land as a farm, but he’s only allowed to control the land 21 years after Andy, Bonnie and himself are all dead.  We would need more information about what Orville really wanted.

4.          “Orville to Adam for life, then to Adam’s children for life, and then to Adam’s grandchildren who survive their parents.”

a.      Under Illinois law: I can’t see a different effect.  If we knew how old Adam was, we might have help.  If Adam is over 65 or infertile, then he can’t have any more children and thus the gift to the grandchildren would be invalid.

b.     Under Ohio law: The weird situation that could destroy the gift to the grandchildren won’t actually do so unless that weird situation comes to pass (i.e. all Adam’s children die, then Adam has a kid and dies and then the kid has a kid and it takes more than 21 years to find out if the kid survives the parent).  We could reform the gift so that it’s to the children living at the time of Adam’s death and then the grandchildren living at the time of the children’s death.  In all likelihood, though, even though this would violate the Rule Against Perpetuities in theory, it won’t offend in practice and so we’ll let it stand unless actual facts prove otherwise.  If Adam dies without any afterborn children, then you’re done.  If he did have an afterborn child, you’ll have to wait and see whether the gift to the grandchildren who survive their parents becomes vested within the lifetime of any of the lives in being at the time of the creation of the instrument.

5.          “‘Orville to Arvid for life, then to his widow, and then to his children who survive her.’  Assume that Arvid is 89 and is married to Bella, his wife of 65 years, and that they have three children.”

a.      Under Illinois law: We have lots of help!  First off, we can assume that Arvid can’t have any more children under subparagraph (c)(3)(B), and that any widow is already born under subparagraph (c)(1)(C).  So all the gifts are okay because we are assured that the widow will be a life in being.

b.     Under Ohio law: It’s exceedingly unlikely that, among other things, Arvid will get remarried and have another kid.  If this really unlikely thing doesn’t happen, then we have no Rule Against Perpetuities problem.  But note that we have to wait for a lot of stuff!  How might we reform this one?  Maybe we would say that the property only goes to those children who were in existence at the time of the gift.

7.          “Orville to Abby for life, then to her children who reach the age of 30.”

a.      Under Illinois law: No problem!  Under subparagraph (c)(2), we simply change the “30” to a “21” and it’s good!

b.     Under Ohio law: If Abby doesn’t die until her children are already over 30, then there’s no problem.  Actually, as long as any children left at her death are at least 9 years old, the gift will surely be good.  If there are any children younger than that, we can reform the gift such that the children only have to reach 21, for example, or we can put the property in trust until the children reach 30.