Property
Class Notes
The doctrine of severability
If
you could have divided these gifts up into several gifts to each of the children of the grandchildren, then Thomas would have worked as a life in being for
his issue because his issue would have
been identified on the date of his death.
Thomas’s remainder had been vested subject to open, but when his mother
died, his remainder would be vested.
But
the counterargument in this case is that it wasn’t separate gifts; it was all one gift, and the court must treat it
that way. Thus, the whole thing fails.
The precocious toddler
“‘To
pay the income to A for life and thereafter to pay the principal to such of A’s
grandchildren living at my death or born within five years thereafter as shall
attain the age of twenty-one.’ At
testator’s death A was a widow, sixty-five years old; she had two children
living and one grandchild”: The gift to the grandchildren violates the Rule
Against Perpetuities. How come? What could happen? Let’s kill everybody! The 65 year old widow could have a baby! Then she dies! Then the baby could have a baby at the age of
4 years, 3 months! Now that’s a
precocious toddler! Obviously, this is
ridiculous. But the law considers this
possible! This is what happens when you
value logic over making the system work in practice, according to Braunstein. Also notice that this is colossally poor
drafting!
The
court actually saved this gift by saying that the gift couldn’t vest remotely
in any lawful grandchildren because
the precocious toddler couldn’t legally marry.
If there is any example
where the remainder will vest too remotely, then it fails.
There
are a limited number of fact patterns.
If you don’t get it, you can probably memorize it. There’s the “precocious toddler”, there’s the
“fertile octogenarian”, there are “unborn widows”, and there are problems with
gifts spanning three generations.
Practice problems on the Rule
Against Perpetuities
1. “Orville to Andy and his
heirs so long as the land is farmed; but if it is not farmed to Bonnie and her
heirs”: Andy has a fee simple subject to an executory limitation [or a fee
simple determinable, or maybe even a fee simple subject to a condition
subsequent], and Bonnie has an executory interest in fee simple absolute [it
can’t be a remainder because it follows a vested fee simple]. The problem is that Andy could die and his
heirs could be on the land for hundreds of years, farming, and then stop. So it could be hundreds of years before the executory
interest would turn possessory. That
violates the Rule Against Perpetuities! So
we have to reclassify, and Andy has a fee simple determinable (it’s no longer
subject to an executory limitation…and it’s definitely not a fee simple subject
to a condition subsequent either) and Orville has a possibility of reverter. Bonnie has nothing. It would fix it to say “To Andy and his heirs
so long as Andy farms the land”.
2. “Orville to Annie and her
heirs so long as the land is farmed”: Annie has a fee simple determinable and
Orville has the possibility of reverter.
The Rule Against Perpetuities isn’t violated in this case. But what if the Orville sold the possibility
of reverter to Bonnie? That’s why possibilities
of reverter were difficult to sell. What
if the gift was: “To A and her heirs, but if the land is not farmed to B and
her heirs”? A has a fee simple subject
to a condition subsequent, B has an executory interest in fee simple absolute. But is the Rule Against Perpetuities
violated? Yes, because you could farm
forever! It could fail to vest in B in
21 years. Therefore, the gift to B and
her heirs is no good! It looks like A
just has a fee simple absolute and O has nothing! That’s why we need to distinguish between fees
simple determinable and fees simple subject to a condition subsequent. With the fee simple determinable, the farming
condition is part of A’s estate. When
you cut off the executory interest, the condition is still part of it and A has
the possibility of reverter. On the
other hand, with the fee simple subject to a condition subsequent, you have the
condition about farming being part of the executory
interest, so when that interest gets cut off, the condition does too. These are radically
different results depending merely on where you put the comma!
3. “Orville to Arthur and his
heirs so long as the land is farmed, but if it is not farmed, to Brooke for
life”: Arthur has a fee simple subject to an executory limitation, Brooke has
an executory interest for life, and Orville has possibility of reverter. Brooke’s gift doesn’t violate the Rule
Against Perpetuities because it can only vest during her lifetime. Thus, we can use Brooke as the life in being
for that gift. If Brooke dies, her
interest goes away and we’re just left with Orville’s possibility of reverter
and Arthur’s fee simple determinable.
Note that we can apply the rule before we figure out what Orville has.
4. “Orville to Adam for life,
then to Adam’s children for life, then to Adam’s grandchildren who survive
their parents”: Purportedly, Adam has a life estate, Adam’s children have a
contingent remainder for life (unless Adam already has children alive, in which
case the children alive have a vested remainder subject to open [but that’s a contingent
remainder for the purposes of the Rule Against Perpetuities]), and Adam’s
grandchildren either have a contingent remainder in fee simple absolute or a
vested remainder subject to open in fee simple absolute (this remainder is contingent
for two reasons: we don’t know who they are, and they must survive their
parents). The gift to the children is
okay, because the children will be ascertained when Adam dies. If Adam has more children after the date of
this gift, then Adam dies and any other children and grandchildren die, then we
might not know whether there will be any grandchildren that survive the “new”
child until 21 years after the death of everyone living at the time of the
gift. Thus, though the gift to Adam’s
children will be okay, the gift to the grandchildren will violate the Rule
Against Perpetuities and Orville will have a reversion instead. All in all, after the Rule, you’ll have a life
estate in Adam, a life estate in Adam’s children, and a reversion in Orville.
When
you see gifts “to heirs”, think about the Rule in Shelley’s Case and the
Doctrine of Worthier Title.
Be
suspicious of conditions that don’t relate to human life or death. They might be things that could stay contingent
way longer than any one person will live.
Notice
that once you drop off an executory interest, saying that it violates the Rule
Against Perpetuities, the preceding estate can’t be a fee simple subject to an
executory limitation anymore.
Recall
that possibilities of reverter are the least
alienable kind of future interest.
One reason is that they can potentially be a way around the Rule Against
Perpetuities.
All reversionary interests
are vested!!! The Rule Against Perpetuities can’t kill these interests!!!
When
you see a future interest, the thing that will make it into an executory
interest in general is if it follows a vested fee, or if there is necessarily a gap in seisin.