Property Class Notes 2/17/04

Braunstein will miss class on the 27^th. It’s a Friday.

If “A’s children” get a remainder, and A doesn’t have any children yet, what kind of remainder do A’s children own? It’s a contingent remainder!

The children, if they don’t exist, are unascertained. The most common groups of people who are unascertained are (1) heirs of living people, and (2) unborn children.

We do reclassify remainders based on changes in fact even though we don’t change remainders into reversions and vice versa.

When you have a contingent remainder subject to condition precedent, and then the condition is satisfied, read the grant as though the condition is “struck out”.

What we’re doing is a matter of language. Sometimes the difference between a contingent remainder and a vested remainder subject to divestment is entirely a matter of language.

Almost anything that can be phrased as a condition precedent can be phrased as a condition subsequent. The difference is between “if” and “but if” or “unless”.

A vested remainder subject to divestment is also known as a vested remainder in fee simple absolute subject to a condition subsequent.

When a grantor conveys a vested estate of a lesser quantum than that which he had, the grantor retains a reversion.

“Vested remainder subject to divestment” and “vested remainder subject to a condition subsequent” are two ways of saying the same thing.

More on the fee tail

We already talked about this to some extent. This estate is created by the words: “To A and the heirs of his body”. Those words don’t create a present interest in the “heirs of A’s body”, at least at common law. Those are just words of limitation.

The fee tail represents a “contest” between the older and younger generations. It’s sometimes called “dead hand control”. The older generation wants to tie up the land forever or for a long time, while the younger generation wants to be able to do whatever it wants with the property.

There is also a contest going on between the government and individuals. The government wants to try to collect taxes in every generation. Prior to the income tax, estate taxes were much more important than they are now. The fee tail was a way to avoid the estate tax, at least as it was imposed in England, because it was only one transfer. The subsequent transfers, from A to A’s son and grandson and great-grandson, etc., didn’t count as taxable conveyances.

Braunstein says that as long as there are taxes, there will be lawyers trying to minimize them.

The other problem with the fee tail is that it ties the property up for a very long time. You can’t convey a fee simple absolute until A’s issue all die out! If you want to develop the property, they’re not going to buy it because all they can get is A’s interest. A’s interest will terminate on A’s death. The policy behind this is that property should be employed in commerce. That’s why the fee tail has been abolished in most states and severely limited in the others. Fee tails can always be converted into the fee simple absolute.

The fee tail was preceded by the fee simple conditional. This is another example of government and rich people and their attorneys fighting with each other. The owner of the fee simple conditional had the power to convey a fee simple absolute as soon as issue were born. So having a baby made the father rich!

The fee simple conditional was abolished by De Donis Conditionalibus in 1285. The younger generation wins for the time being by finding a way to convert the fee simple conditional into a fee simple absolute. Later, the older generation wins again by establishing the fee tail.

Different states have dealt with the fee tail in different ways. The two most common are:

1. “To A and the heirs of his body” creates a fee simple absolute in A.

2. In most states, all you have to do to disentail the estate is to sell the property. In fact, you can sell the property and then buy it right back. The person you sell the property to and buy it back from is called a “straw man”.

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