Property Class Notes 2/5/04


Fee simple absolute


This is what we mean when we talk about owning something.  It’s the whole bundle of sticks!  When you get fee simple absolute, you get all of these fabulous prizes!


1.     Possession without condition

2.     Title that is indefinitely inheritable (after the 1540 Statute of Wills): you can leave the property to whoever you want when you die.

3.     Your property is freely alienable after 1290 and the Quia Emptores: while you’re alive you can also sell your property to anyone you want.

4.     Your possession is for potentially infinite duration: there is nothing inherent in the estate that will cause it to end.  The only thing that would cause the estate to end would be forfeiture for treason, where the property would revert to the sovereign.


Because a fee simple absolute is everything, it’s not followed by anything.  There is no future interest because there is nothing left to own.


People have been dying a lot longer than wills have been authorized by statute!  Before there were wills, property passed down by “Canons of Descent” which promoted the ownership of the oldest son.  Males were preferred over females and older children were preferred over younger children.  After the Statute of Wills of 1540, your property could be left to anybody you want.


In the old days, estates were not thought of as relationships between people, but actual things in themselves.  This was called the “reification” of estates.


All of this started with the invasion of England by William the Conqueror in 1066.  William set up a feudal system.  The word “fee” comes from the same root as the word “feudal”.  A lot of the history, though, is “mostly made up”, according to Braunstein and others.  The history is kind of revisionist.  English lawyers in the 16th and 17th century used this history to rationalize the very complex system of land titles that they had created.  Inventing this history gives some credence to such a complicated system.  But that’s the end of the history lesson.


Creation of the fee simple absolute


“O hereby grants Blackacre to A and her heirs”…this phrase includes words of purchase and words of limitation.


“To A” are words of purchase and define just who gets the property.  “And her heirs” are words of limitation that says not who gets the property, but what they get.  Don’t worry about the word “purchase” in situations where it’s really a gift.  It’s just terminology.


This is what the Statute of Quia Emptores did.  That’s how the fee simple absolute became alienable.  The heirs are considered to own nothing in reality.


So in the conveyance above, A takes Blackacre in fee simple absolute, and the heirs get nothing.  When you convey property to “A and her heirs”, the heirs get absolutely nothing.  It is true that A’s heirs will likely be her children and will likely inherit either by virtue of being heirs of statute or by A’s will.  But if the heirs take anything, they’ll take it by virtue of the statute or will.  They get nothing by virtue of this gift.  Recall that A doesn’t have any heirs because living people don’t have heirs.


Fee tail


This is a “tailored” estate.  This estate was designed to keep property in the family.  While the fee simple absolute could be transferred to anyone and left or devised to anyone, the fee tail was different.  It was designed to keep family lands in the family.  Not only do you keep family lands in the family, but you keep them undivided.  Part of the purpose of this estate is to preserve concentrations of wealth.


In the French Revolution, this was thought to be so pernicious in its effect that in the Napoleonic code it was provided that you must divide the property among your children.  The idea was to get rid of the concentration of wealth that the fee tail was designed to preserve.


We will see that the fee tail has been largely abolished.


1.     Possession here is without condition.

2.     Modification of inheritability is limited to the grantee’s direct line.

3.     Only the grantee’s limited interest is alienable.  The grantee can sell a life estate, but it reverts to the grantee’s line when the grantee dies.

4.     This estate is not of infinite duration: it ends when the tenant in the tail’s line dies without issue.  At some point, in other words, the line could simply die out.


Because the fee tail falls short of the fee simple absolute, it must be followed by a future interest.  If the future interest is retained by the grantor or the grantor’s heirs, then it’s a reversion.  If I say: “to A and the heirs of her body”, that gives A a fee tail but leaves a reversion to me in fee simple absolute.  If I say: “to A and the heirs of her body and then to B and her heirs” then I create a fee tail for A with a remainder for B (a future interest in fee simple absolute).  B doesn’t get any possessory interest until A’s line dies out.  But that doesn’t mean B doesn’t own anything.  B owns a future interest!


A remainder is created in a transferee, while a reversion is retained by the transferor or grantor.


You could even have several tails!  “To A and the heirs of her body and then to B and the heirs of his body and then to C and the heirs of her body and then to D and his heirs.”


Note how important form is to these transactions!


Whether you classify something as a reversion or a remainder can make a tremendous difference as to its validity.  By the way, reversions and remainders are not possessory interests, they are future interests.


“Prima genitor” was an old rule that means that males had preference and older children had preference.


Life estate


Here’s the stuff you get:


1.     You get possession without condition.

2.     This estate is not inheritable by its very nature.

3.     The life estate is alienable, but A’s life is still the measuring life.  (This is called a life estate pur autre vie.)

4.     The estate ends with the death of the life tenant.


This is a lot less than a fee simple absolute!  That means that this estate is also always followed by a future interest: either reversion in the grantor, or remainder in a transferee.  Remainder off of a life estate is probably the most frequently used future interest.  For example, “To the spouse for life, and then to the children and their heirs.”


“To A for life and then to B and her heirs”…this is a life estate to A and a future interest to B in a fee simple absolute.


Creation of the life estate


Originally, at common law, there was a presumption in favor of the life estate because that kept the property in the grantor’s family.  So if you say: “To A for life”, the property goes back to the grantor and his heirs upon A’s death.  “To A forever” would also create a life estate.  “To A in fee simple absolute” would create a life estate at old, old common law because you failed to use the magic words.


But now, statutes presume that the grantor conveys everything the grantor has.  In other words, if O has a fee simple absolute, then “To A” will create a fee simple absolute in A unless there is evidence otherwise.  If you want to create a life estate in A, one way to do it, at least in Missouri, is to say: “To A and then to B and his heirs.”


Next up, we’ll do the defeasible fees!


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