Property Class Notes 3/12/04

 

More final review problems

 

19.      “Ochs to Anna for life, then to the first daughter of Anna who reaches 21 and her heirs.  At the time of the deed, Anna has two daughters, Bette, who is 20; and Clara, who is 18.”

a.      Classify the interests: Anna has a life estate, the first daughter of Anna who reaches 21 has a contingent remainder in fee simple absolute, and Ochs has a reversion in fee simple absolute.

1.     If Anna dies before any daughter reaches 21, then Ochs regains possession in fee simple determinable.  The first daughter who reaches 21 will have an executory interest in fee simple absolute.

2.     If a daughter reaches 21 before Anna dies, that daughter will have a vested remainder in fee simple absolute.

b.     Apply the Rules: I think it’s okay because the “worst” that could happen for Rule Against Perpetuities purposes is that both daughters could die and then Anna could have another daughter and die as soon as she is born.  Then it would be precisely 21 years before we would know for sure whether the contingent remainder would vest or fail.

20.      “Ochs to Alicia for life, then to Bonnie and her heirs, but if Bonnie does not survive Alicia, then to Claire and her heirs.  An extra task: After you have identified the interests created by this document, draft two conveyances with the identical condition but using different future interests.”

a.      Classify the interests: Alicia has a life estate, Bonnie has a vested remainder subject to divestment in fee simple absolute, Claire has a shifting executory interest in fee simple absolute.  Ochs has nothing.

b.     Apply the Rules: No problem here.

c.     Extra task: [To show that there’s no substantive difference between these things!]

1.     “To Alicia for life, then to Bonnie and her heirs if Bonnie survives Alicia, but if Bonnie does not survive Alicia, then to Claire and her heirs.”  Bonnie and Claire have alternative contingent remainders in this case.

2.     “To Alicia for life, then to Claire and her heirs, but if Bonnie survives Alicia, then to Bonnie and her heirs.”  Claire has a vested remainder subject to an executory limitation and Bonnie has an executory interest.  Does this make sense?

21.      “Oona to Alexia for life, then to her children and their heirs.  Alexia wants to tear down the sing-family residence that is one the deeded land and build a multi-unit condominium for well-to-do law students.  Her son opposes her plan and will try to stop her.”

a.      Classify the interests: Alexia has a life estate and her children have a vested remainder subject to open in fee simple absolute.

b.     Apply the Rules: No problems.

c.     The son could try to sue Alexia for waste.  [Recall Woodrick v. Wood, where the Ohio court rejected the idea of ameliorative waste.  But even if there isn’t waste, the mother might still owe damages to the complaining children…but does that make much sense?]  He could argue that by tearing down the house to build condos she is permanently impairing the value of the land.  The remedy if the son can prove waste would be possibly forfeiture of the life estate or some money damages.

22.      “Would your answer be different in the previous problem if the deed said, ‘to Alexia for life, then to her heirs and their heirs’?”  This would seem to cause the Rule in Shelley’s Case to kick in.  But first [even if the Rule in Shelley’s Case doesn’t apply], we could note that the son doesn’t have a case because Alexia’s heirs are unascertained.  But this probably would just be converted to a gift “to Alexia and her heirs” and Alexia would have a fee simple absolute.  What we would do is appoint a guardian to represent the interests of the heirs.

a.      Classify the interests: Alexia has a life estate.  Alexia’s heirs have a contingent remainder in fee simple absolute.

b.     Apply the Rules: The Rule in Shelley’s Case applies.

c.     Reclassify the interests: Alexia has a fee simple absolute.

23.      “Onassis by deed, ‘to Alpheus for life, then to the heirs of Onassis and their heirs.’ After the deed is delivered, Onassis dies testate; his will leaves all of his property to the United Way of St. Louis.”

a.      Classify the interests: Alpheus has a life estate, and the heirs of Onassis have a contingent remainder in fee simple absolute.

b.     Apply the Rules: The Doctrine of Worthier Title kicks in!  Here we have a purported future interest in “the heirs of Onassis”.  But this simply becomes a reversion in fee simple absolute in Onassis.

c.     Reclassify the interests: Alpheus has a life estate and Onassis has a reversion in fee simple absolute.  The reversion is devisable to the United Way, so upon Onassis’s death (if Alpheus is still alive), the United Way has a reversion in fee simple absolute.  Then, upon Alpheus’s death, the United Way has a fee simple absolute.

24.      “O’Brien to Avia for life, then to the children of Avia who reach 30 and their heirs.  Avia has one child at the effective date of this instrument.  Then, two years later, she has a second child, who dies at the age of six.  Then, four years after the death of the second child, she has a third child.  The first and third children reach the age of 30.”

a.      Classify the interests: Avia has a life estate, the children of Avia who reach the age of 30 have a contingent remainder in fee simple absolute, and O’Brien has a reversion in fee simple absolute.

b.     Apply the Rules: Here’s a bad Rule Against Perpetuities problem!  Say Avia dies in childbirth of an afterborn child.  It will be more than 21 years before we know whether that child reaches the age of 30.

c.     Reclassify the interests (under the common law): Avia has a life estate and O’Brien has a reversion in fee simple absolute.

d.     Under Illinois law: We reform the instrument to read “21” instead of “30”, and then there’s no problem.

e.      Under Ohio law: We “wait and see” (and watch the first child, for example) and then apply cy pres if we find an actual (rather than potential) Rule Against Perpetuities violation [you might just reduce the age if that helps].

25.      “O’Brien, in his will, ‘to Atticus for life, then to the children of Atticus who have reached the age of 30 by the time of Atticus’s death and their heirs.’”

a.      Classify the interests: Atticus has a life estate.  The children of Atticus who have reached the age of 30 by the time of Atticus’s death have a contingent remainder in fee simple absolute.  If a child turns 30 while Atticus is still alive, their interest becomes a vested remainder subject to open in fee simple absolute.  O’Brien has a reversion in fee simple absolute.

b.     Apply the Rules: No problems here.  Atticus is a life in being, and his children will be ascertained at the time of his death.  [The remainder will vest or fail as soon as Atticus dies!  “By the time of Atticus’s death” are the magic words here.]

26.      “O’Brien, by deed, ‘to Abigail for life, then to the grandchildren of Abigail who reach the age of 21 and their heirs.’”

a.      Classify the interests: Abigail has a life estate.  The grandchildren of Abigail purportedly have a contingent remainder in fee simple absolute.  O’Brien has a reversion in fee simple absolute.  [Don’t forget the reversion!!!]

b.     Apply the Rules:  There is a Rule Against Perpetuities problem.  There can be afterborn children who subsequently have afterborn grandchildren, and we’ve seen the problem with this before.

c.     Reclassify the interests: Abigail still has a life estate.  O’Brien has a reversion in fee simple absolute.

d.     Under Illinois law: It probably still fails unless Abigail is over 65 or otherwise can’t have more children.

e.      Under Ohio law: We wait and see whether the afterborn grandchildren reach 21 within 21 years after the death of the last life in being.  How would we reform it?  Not sure.

27.      “O’Neal to Alfalfa for life, then to Braswell and his heirs if Braswell survives Alfalfa. Subsequently, Braswell loses all of his property to Craig in a poker game.”

a.      Classify the interests: Alfalfa has a life estate.  Braswell has a contingent remainder in fee simple absolute.  O’Neal has a reversion in fee simple absolute.  After Braswell loses his property to Craig [assuming poker debts are enforceable at law], Craig has a contingent remainder pur autre vie in fee simple absolute (Braswell still has to survive Alfalfa in order for Craig’s interest to become possessory).  If Braswell doesn’t survive Alfalfa, then Craig’s remainder becomes worthless.

b.     Apply the Rules: No problem!

28.      “Odell to Ari for life. Ari sells all of his property to Colleen.”

a.      Classify the interests: Ari has a life estate.  Odell has a reversion in fee simple absolute.  Upon the sale of Ari’s property, Colleen has a life estate pur autre vie (measured by the life of Ari).

 

Back to Class Notes