Johnson,
pp. 176-178: Final Review Problems
1.
“Oswald to
a. Classify the interests:
b. Apply the Rules: There is no
Rule Against Perpetuities problem. However, the Rule in Shelley’s Case
applies. In one instrument,
c. Reclassify:
2.
“Oswald to Andres for life, then
to Boswell and his heirs, but if Andres dies without children, to Chambers and
her heirs.”
a. Classify the interests:
Andres gets a life estate. Boswell gets
a vested remainder subject to divestment (or subject to total divestment or
subject to a condition subsequent or subject to an executory limitation). Chambers gets a shifting executory interest
in fee simple absolute.
b. Apply the Rules: It doesn’t
appear that there are any problems with any of the rules.
3.
“Oswald to Annie and the heirs of her body, then to Bob and his heirs.”
a. Classify the interests:
Annie has a fee tail and Bob has a vested remainder in fee simple
absolute. (Note that a fee tail is not a vested fee simple.)
b. Apply the Rules: Does the
fee tail still exist? If not, how would
we recharacterize?
In
4.
“Oswald to Arthur for life, then to Arthur’s children for life.”
a. Classify the interests:
Arthur has a life estate and Arthur’s children have either a contingent
remainder for life (if there are no children now) or a vested remainder subject
to open for life (if there’s already at least one child). Oswald has a reversion in fee simple
absolute.
b. Apply the Rules: No
problems!
5.
“Oswald to
a. Classify the interests: Oswald
has a fee simple subject to an executory limitation, and
b. Apply the Rules: No
problems!
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). 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.
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
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
a. Classify the interests:
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:
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
e. Under
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
e. Under
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).
b. Apply the Rules: No
problems!