Johnson,
p. 175: Practice Problems
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.
5.
“‘Orville to Arvid for life, then to his
widow, and then to his children who survive her.’ Assume that Arvid
is 89 and is married to Bella, his wife of 65 years [that’s a long time!], and
that they have three children”: First off, purportedly, Arvid
has a life estate, his widow has a contingent remainder for life (because it is
unascertained just who his widow will be or whether he’ll have one, like if he
gets divorced) and then a contingent remainder in fee simple absolute to his
children who survive whatever widow he leaves behind (they may or may not be
ascertained). Here we have the “unborn
widow” problem at common law. Let’s say
Bella and all the children die, but Arvid remarries,
say to Cruella, who wasn’t born at the time of the
gift. Arvid
works as the validating life for the gift to Cruella. Arvid and Cruella (miraculously) have a kid, Donatello. Then Arvid dies
(and thus both his widow and his children are ascertained at his death). It may be more than 21 years before we know
whether Donatello will survive Cruella. Therefore, strangely enough, the gift to Cruella (or Bella or any other potential widow) will be
okay, but the gift to Arvid’s children fails and thus
Orville keeps a reversion in fee simple absolute. Note that the children in being at the time
of the gift don’t work as validating lives for anybody, either. There is no life in being that will make this
gift valid. Note that this gift would
succeed if all the recipients of the gift were named. Actually, all you would need to do is name the widow. So, in the end, Arvid
has a life estate, the children have a contingent remainder in fee simple
absolute, and Orville has a reversion.
6.
“Orville to Amanda for life, then to Amanda’s children who survive
her”: Purportedly, Amanda gets a life estate, and Amanda’s children get a
contingent remainder in fee simple absolute (because they not only might not be
unascertained, but also they need to survive her) and Orville will have a
reversion. Now this gift seems okay,
because if we use Amanda as the life in being, we will know exact which
children have survived her at the time of her death. I think both gifts are okay.
7.
“Orville to Abby for life, then to her children who reach the age of
30”: Abby purportedly has a life estate, Abby’s children have a contingent
remainder in fee simple absolute, and Orville has a reversion in fee simple
absolute. Here we have a problem with
the gift to the children. Abby could
have a kid after the date of the gift, then she could
croak. Then it would be, by definition,
more than 21 years before we would know whether that child was going to reach
the age of 30. However, if the rule of
destructibility is still in effect, the gift would be okay because we would
know at the time of Abby’s death whether the remaindermen
are ready to take. The remainder will either vest in Abby’s children if they are 30 already, or else it will be destroyed and go back to Orville
by reversion. So Abby has a life estate,
Abby’s children have a contingent remainder in fee simple absolute, and Orville
has a reversion in fee simple absolute.
8.
“Orville to Andre for life, then to Andre’s heirs”: Here’s a classic Rule in Shelley’s Case problem. Purportedly, Andre gets a life estate, and
Andre’s heirs get a contingent remainder in fee simple absolute (because they
are unascertained at the date of the gift).
Orville also has a reversion in fee simple absolute, though it may be
somewhat of a fiction. However, under
the Rule, if it is still applicable, Andre will simply get a fee simple
absolute. We have (1) one instrument,
(2) a freehold estate in the ancestor, (3) a purported contingent remainder in
the ancestor’s “heirs”, and (4) the two estates are of the same “quality” (both
legal). There is no Rule Against Perpetuities problem, though, because Andre’s heirs
would be ascertained at Andre’s death, even in the absence of the Rule in
Shelley’s Case.
9.
“Orville to Alan for life, then to Orville’s heirs”: Here’s the
Doctrine of Worthier Title problem [only
when this is an inter vivos
gift]. Purportedly, there is a life
estate in Alan, followed by a contingent remainder in fee simple absolute to
Orville’s heirs, and a reversion in Orville (again, mostly fictional, but must
be there because he gave away a vested estate of a lesser quantum than what he
had). But under the Doctrine of Worthier
Title, the remainder to Orville’s heirs becomes simply a reversion in
Orville. So the gift would be the same
as if you simply said: “Orville to Alan for life.” The contingent remainder in the heirs is
wiped out!
10. “Orville to Alain for life,
then to Orville and his heirs”: This kind of seems like a fancy way of saying
“Orville to Alain for life”, giving Alain a life estate with a reversion in fee
simple absolute that is implicitly suggested by the gift. I don’t think this runs into the Doctrine of
Worthier Title problem. Instead, I think
we just read it as “To Alain for life.”
How is this different from the previous problem? It says “to Orville and his heirs” and not
just “to Orville’s heirs”.
11. “‘Orville to Alana and her
heirs so long as the land is used for charitable
purposes.’ Subsequent to this
conveyance, Orville conveys his property ‘to Binford and his heirs’”:
Initially, and purportedly, Alana has a fee simple determinable and Orville has
the possibility of reverter. Then
Orville sells what he has to Binford. It
is quite uncertain whether the possibility of reverter can be sold or not (in
other words, whether it’s alienable). If it can’t be, then things they as they are
and no rules are violated. If it is
sold, “the name stays the same” and Binford has the possibility of reverter. Is the possibility of reverter valid? Sure, because it’s vested right from the
start and forever. The thing is, if
these two conveyances were made in the same gift, then Alana would have had a
fee simple determinable, also known as a fee simple subject to an executory
limitation, and Binford would have had an executory interest. However, that executory interest would have
been killed by the Rule Against Perpetuities, because
that interest could stay contingent way, way, way into the future and far
beyond the deaths of both Alana and Binford.
You never know how long the land will be used for charitable
purposes! It could be hundreds of years!
Practice problems revisited
using
O.R.C. § 2131.08. Statute
against perpetuities.
(C) Any interest in real or
personal property that would violate the rule against perpetuities, under
division (A) of this section, shall be reformed, within the limits of the rule,
to approximate most closely the intention of the creator of the interest. In
determining whether an interest would violate the rule and in reforming an
interest, the period of perpetuities shall be measured by actual rather than
possible events. * * *
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.”
a. Under
b. Under Ohio law: Since Ohio
law measures by actual rather than possible events, I think we will wait
and see whether the land is still being farmed 21 years after the death of the last
life in being at the time of this gift (Braunstein suggests it would be 21
years after Andy died). If it is still being farmed, I think the gift
must be reformed to destroy the contingent remainder. The remainder has to vest in someone (maybe becoming
possessory) or just end. Orville maybe wanted
to keep the land as a farm, but he’s only allowed to control the land 21 years
after Andy, Bonnie and himself are all dead. We would need more information about what Orville
really wanted.
4.
“Orville to Adam for life, then to Adam’s children for life, and then
to Adam’s grandchildren who survive their parents.”
a. Under
b. Under
5.
“‘Orville to Arvid for life, then to his
widow, and then to his children who survive her.’ Assume that Arvid
is 89 and is married to Bella, his wife of 65 years, and that they have three
children.”
a. Under
b. Under
7.
“Orville to Abby for life, then to her children who reach the age of
30.”
a. Under
b. Under