Property
Class Notes
Final review problems continued
6.
“Oswald to Aloysius and his heirs as long as he remains unmarried, then
to Bill and his heirs.” [Is the
condition valid? Is it offensive? Is it against public policy? Should parents have this much control over
their children? What would we do if we found
the condition offensive? How would we
reform it? What about: “to A if he
outlives his wife”?]
a. Classify the interests:
Aloysius has a fee simple determinable (AKA a fee simple subject to an
executory limitation) and Bill has a shifting executory interest.
b. Apply the Rules: Bill’s executory
interest will vest at the latest upon Aloysius’s death, so there is no Rule
Against Perpetuities problem.
7.
“Oswald to Agatha for life, then to Barbara and her heirs if Agatha
dies unmarried.”
a. Classify the interests:
Agatha has a life estate. Barbara has a contingent
remainder in fee simple absolute. Oswald
has a reversion in fee simple absolute.
b. Apply the Rules: We will
know whether Agatha has died unmarried by the time of her death, so there is no
Rule Against Perpetuities problem here.
8.
“O’Neil to Aman for life, then to
a. Classify the interests: Aman
has a life estate,
b. Apply the Rules: Under the common
law Rule Against Perpetuities, there is actually no problem when the gift is
phrased this way. The remainder in the
hospital will become possessory at Aman’s death. Also, the Rule Against Perpetuities doesn’t
destroy reversionary interests like O’Neil’s possibility of reverter.
9.
“Oswald to Anthony for life, then to Blake and his heirs, but if Blake
uses the land for commercial purposes, to Chelsea and her heirs.”
a. Classify the interests: Anthony
has a life estate. Blake has a fee
simple subject to a condition subsequent (AKA fee simple subject to an
executory limitation).
b. Apply the Rules: No problem
here, because Blake is named. Therefore,
10. “Oswald to Agnes and her
heirs so long as liquor is not served, then to Brad for life.”
a. Classify the interests: Agnes
has a fee simple determinable (AKA fee simple subject to an executory
limitation), Brad has a shifting executory interest for life, and Oswald has a reversion
in fee simple absolute and the possibility
of reverter (or maybe just the latter).
b. Apply the Rules: Though it
may be hundreds of years before liquor is served on the premises, Brad’s executory
interest will either vest or fail upon his death, so there is no Rule Against
Perpetuities problem.
11. “Oswald to Alana and her
heirs so long as liquor is not served, then to Barclay and his heirs.”
a. Classify the interests: Alana
has a fee simple determinable (AKA fee simple subject to an executory
limitation), and Barclay has a shifting executory interest in fee simple
absolute.
b. Apply the Rules: Now here we
have a problem. Liquor could be not served for hundreds of years on the
property then suddenly start being served.
It may well be more than 21 years after the death of Alana and Barclay
before we know whether Barclay’s executory interest will vest or not. Therefore, the executory interest to Barclay
fails. [There is no “outside limit” like
there were in the previous problems.
Liquor being served has nothing to do with anybody’s life.]
c. Reclassify the interests:
Alana has a fee simple determinable and Oswald has the possibility of reverter.
d. Under
12. “Otero to Annunzio and his
heirs, but if Annunzio fails to graduate from law school, to Boaz and her
heirs.”
a. Classify the interests: Annunzio
has a fee simple subject to a condition subsequent (AKA fee simple subject to
an executory limitation) and Boaz has a shifting executory interest in fee
simple absolute.
b. Apply the Rules: There is no
Rule Against Perpetuities problem because the executory interest will vest or
fail by Annunzio’s death.
13. “Otero to Aleisha and her
heirs upon Aleisha’s reaching the age of 21.
Aleisha is now two.”
a. Classify the interests: Otero
has a fee simple subject to an executory limitation (AKA fee simple subject to
a springing executory interest) and Aleisha has a springing executory interest
in fee simple absolute.
b. Apply the Rules: There is no
Rule Against Perpetuities problem here because Aleisha will either die or turn
21 within 21 years.
14. “Otero, in his will, ‘to my
widow for life, then to my children alive at the time of her death and their
heirs.’”
a. Classify the interests: Otero’s
widow has a life estate. Otero’s
children alive at the time of his widow’s death have a contingent remainder in fee
simple absolute. Otero’s heirs have a reversion
in fee simple absolute.
b. Apply the Rules: We do not
have the “unborn widow” problem here because Otero’s widow and his children
will be ascertained at his death. If
this was an inter vivos gift, there
would be a Rule Against Perpetuities problem.
[The widow is in being at Otero’s death.]
15. “Otero, in his will, ‘to my
son Arturo for life, then to
a. Classify the interests: Arturo
has a life estate, SLU has a vested remainder subject to total divestment (AKA
vested remainder in fee simple determinable), and the APA has either the possibility
of reverter if it is devisable, or nothing if it isn’t. Otero’s heirs get the possibility of reverter
if it can’t be devised.
b. Apply the Rules: The gift to
SLU is fine because it will vest at Arturo’s death. Otero retained the possibility of reverter in
the first sentence and then gave it to APA in the second sentence and he’s
allowed to do so, then the possibility of reverter will survive because the Rule
Against Perpetuities doesn’t kill reversionary interests.
c. Reclassify the interests: If
the executory interest fails, Arturo has a life estate, SLU has a vested
remainder subject to divestment, and Otero has the possibility of reverter.
d. Under
16. “Otero to Abner, then to
Abner’s children and their heirs. Abner
takes possession of the land and later dies childless and testate; his will
devises all of his property to his wife.”
a. Classify the interests: Abner
has (presumably) a life estate [not a fee simple because a “contrary intent
appears”, namely, the gift over to the children], Abner’s children have a contingent
remainder in fee simple absolute [or vested remainder subject to open if there
were children at one time], and Otero has a reversion in fee simple absolute. Upon Abner’s death, he has nothing because
the life estate ends and the contingent remainder fails. So the land goes back to Otero in fee simple
absolute. [What if there had been a
child and the child died? Then the child’s
interest would have been a vested remainder subject to open. That interest is vested and devisable! The child doesn’t have to survive the
parents!]
b. Apply the Rules: This isn’t
quite a Rule in Shelley’s Case situation.
Abner’s heirs are not named as remaindermen. Abner’s children
are so named. So we can’t collapse the
two gifts into a fee simple absolute for Abner.
17. “Otero, by deed in 1997: ‘My
real property in
a. Classify the interests: The
Salsich Museum has a fee simple determinable in the
b. Apply the Rules: A possibility
of reverter never fails under the Rule Against Perpetuities. There are no contingent interests in this
example.
18. “Ochs, in her will, gave her
entire estate ‘to my son Antonio so long as he lives, then to his wife if she
survives him, and then to his children and their heirs.’”
a. Classify the interests: It sounds like Antonio has a life estate
even though the language is that of a fee simple determinable to some
degree. But we’ll call it a life estate. Then his wife has a contingent remainder for
life. Finally, the children have either
a contingent remainder or a vested remainder subject to open in fee simple
absolute (depending on if there are any children around now).
b. Apply the Rules: Antonio and
his wife will be ascertained upon Ochs’s death.
Antonio’s children will be ascertained upon Antontio’s death. Therefore, there is no problem with any of
the gifts.