Property
Class Notes
Let’s
do it! So Edward Haley left a holographic (handwritten) will. A holographic will has to be handwritten and
signed. It’s an exception to the general
rule that a testator must sign a will, have it notarized and have it signed by witnesses. If the whole thing is in the testator’s
handwriting, you have some assurance that it’s not a forgery.
What
interests are created by the will? Eva
Haley gets a life estate in all his land.
He leaves the residue of his estate that Eva hasn’t consumed to Garland
Pigg. It looks like Eva has the power to
consume or dispose of the real and personal property. Then, whatever is not disposed of goes to
What’s
the agreement that Eva and
Braunstein
feels sorry for Eva. He gets the feeling
that she was in a panic and was in a big hurry to do everything. He also thinks her lawyers didn’t do a very
good job.
There
were 152 acres, and Eva owned half of it anyway even before Edward’s
death. The only part in controversy is
the half that she didn’t own. We’ll talk
more about this when we do marital property.
The law favored men a lot in the bad old days!
What
did the lower court find? There was a question
of consideration for the agreement. The trial
court found that the agreement was unenforceable for lack of consideration. That would mean that you go back and use the
will. The reason there is no consideration,
according to the trial court, is because
The
court in this case talks about the relationship between Pigg and Edward Haley. Why is it relevant? They were distant relatives. But the lawyer for Pigg mustered all the
evidence he could find to show a personal relationship between the two. The lawyer wants to make it seem reasonable
and natural that Haley would want to provide for Pigg after his death.
What
if there had been no will? Mrs. Haley
would have gotten everything because they had no children. Under the law of most states, the surviving
spouse would inherit everything.
Who
found the will? Mrs. Pigg found it while
rooting around her husband’s things. The
will was found among his genealogical notes.
Was this really intended as a will?
Braunstein thinks it’s an open question.
When you really want something to be your will, you let people
know. Maybe this will was just
tentative. Maybe at one time he intended
it to be final, but instead of tearing it up, he just put it aside. This document was not kept in a place that you
would usually expect to store important papers.
Mrs. Haley’s lawyer could have made the argument that this document was
not intended to be a will at all.
The
two big issues are: (1) What are the interests created? (2) Were there any interests that
What
does Eva say? Eva says two things:
1. She had a fee simple
absolute. She based her argument on the common
law rule, similar to Black v. Black, where when a life estate with
absolute power of disposal is given to the first taker, it rises to the level
of a fee simple absolute. How would this
case have been decided if the court had found that she had a fee simple
absolute? If she has a fee simple
absolute, Pigg can’t have a remainder under the will. If he doesn’t have a remainder under the
will, then there was no consideration. He had nothing to give up, and thus didn’t
part with anything of value.
2. But then there’s a statute
that says there actually is a
remainder that consists of whatever the life tenant doesn’t consume or
dispose. She could dispose of everything
and there would be nothing left for Pigg.
But if she disposes of less than everything, there would be something
left that would go to Pigg upon her death.
How does she work with the statute to say that she wins anyway? She says that Pigg must prove that there will
be something left upon her death, which she probably can’t do.
Pigg,
on the other hand, says that the will created an express life estate in Eva with a remainder in him. He says that he really did give up something
in the agreement, and thus it should be enforced. Pigg argued that he had a “chance” and he
gave up that chance.
What
we have here is a life estate in Eva with the power to dispose and a remainder
in fee simple in Pigg. We don’t know
what the remainder is worth, but it’s at least possible that it’s worth
something. When he gives up the right to
personal property, that constitutes consideration for Eva’s promise.
Courts
tend to enforce these agreements because if they can come to an agreement it’s
usually better than if they have to litigate.
Litigation sucks!
It’s
a confusing case because of the consideration, but it’s not that confusing in
the future interests sense. It’s clear
that there’s a life estate with the remainder to Pigg, but then there’s an
absolute power to dispose. There are
several different views on the effect of that power, and the court has to sort
out which is right and how it applies.
Woodrick
is the daughter. She sues her mother and
brother. We have a life estate in the
mother, Catherine, and then remainders in fee simple absolute in the two
children. The issue is whether the owner
of the remainder can sue in order to prevent waste. She can!
Notice
how this is another common pool problem!
When more than one person owns a piece of property jointly, it creates
the incentive to commit waste. If a life
tenant thinks about fixing up the property, the incentive is not so great. If they take care of the property, they have
to pay the whole cost, but they may not get the whole benefit. Most of the benefit might go to the owner of
the remainder. We have
externalities! By taking care of the
place, the life tenant confers an external benefit to the owner of the
remainder.
So
the law steps in! When we have this kind
of situation, we’ll have a rule that says that the life tenant more or less has
to take care of the property. This rule
is designed to cure these misincentives inherent in the situation.
There
are two competing definitions of “waste”.
At old time common law, any change at all is waste, even if it improves
the property! But
There’s
permissive waste and voluntary (intentional) waste. If you destroy the place on purpose, that’s voluntary. If you break your duty to keep up the place,
that’s permissive waste.
The
idea of beneficial or ameliorative waste is that if you’re going to make a
change to your place and you’re a tenant, you better go bargain with your landlord
first before you end up in court.
Was
there waste in this case? The court lets
the barn be destroyed. Tearing the barn
down is deemed an improvement. But then
why does Wood have to pay damages to the daughter? Braunstein doesn’t get why there were damages. If she can tear the barn down because there’s
no waste, but then they have to pay damages for waste, what the heck is going
on? It’s logically incoherent, though
there might be a good reason that the court did what it did.
Also,
the son owns half the remainder. Why
doesn’t he get any damages?
You
must have the law of waste once we separate possession from ownership. A life tenant will have an incentive to
commit waste, and that’s why the government needs to step in and regulate.
Take
a look at the one page future interests thing while you’re studying future
interests.