Property Class Notes 3/11/04

 

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 Community Hospital so long as it remains a not-for-profit hospital.”

a.      Classify the interests: Aman has a life estate, Community Hospital has a contingent remainder in fee simple determinable, and O’Neil retains the possibility of reverter.

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).  Chelsea has a shifting executory interest in fee simple absolute.

b.     Apply the Rules: No problem here, because Blake is named.  Therefore, Chelsea’s executory interest will vest no later than Blake’s death.  Her interest will be destroyed at Blake’s death if he doesn’t use the land for commercial purposes, because at that time it will become impossible for Blake to use the land that way.  [Note how it comes out differently if it just said: “If the land is used for commercial purposes…”]

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 Illinois law: There is no effect and the executory interest to Barclay still fails.

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 Saint Louis University as long as the land is used for student parking.  The residue of my estate to the Animal Protective Association and its successors.’”

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 Illinois law: There’s no difference here.

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 St. Louis to the Denise Salsich Art Museum and its successors, so long as it remains open to the public free of charge.’  Before he died in 1998, Otero deeded all of his real estate, in fee simple absolute, to the Art Institute of Chicago and its successors.”

a.      Classify the interests: The Salsich Museum has a fee simple determinable in the St. Louis property.  Otero has the possibility of reverter.  If the possibility of reverter is transferable by deed and we interpret the gift to include future interests, then the Art Institute gets the possibility of reverter as well as all of Otero’s real property outside of St. Louis in fee simple absolute.

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.

 

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