Johnson, pp. 152-153: Review Problems
“Oglethorpe to Alice and her heirs”: Oglethorpe grants
2. “Oglethorpe to Alexia and the heirs of her body”: Oglethorpe grants Alexia a fee tail (at common law). Oglethorpe retains a reversion in fee simple absolute. In a minority of states, the language that creates a fee tail is construed to create a fee simple absolute.
3. “Oglethorpe to Able and his heirs so long as the property is used for residential purposes”: Oglethorpe grants Able a fee simple determinable. Oglethorpe retains the possibility of reverter. The fact that there is no language expressing a retained right of entry will tend to make a fee simple determinable more likely on average. The thing that distinguishes the fee simple subject to a condition subsequent from the fee simple determinable is that the fee simple determinable ends automatically and the fee simple subject to a condition subsequent doesn’t. The fee simple determinable is sort of like a lease.
4. “Oglethorpe to Anne and her heirs, but if the property is not used for residential purposes, to Beardsley and his heirs”: Oglethorpe grants Anne a fee simple subject to an executory limitation. Oglethorpe grants Beardsley an executory interest in fee simple absolute.
5. “Oglethorpe to Albert to life”: Oglethorpe grants Albert a life estate. Oglethorpe retains a reversion in fee simple absolute.
6. “Oglethorpe to Annalee for life, then to Boone and his heirs”: Oglethorpe grants Annalee a life estate. Boone gets a vested remainder in fee simple absolute. Oglethorpe has nothing because he’s given away a vested estate and remainder in the same amount of that which he had.
7. “Oglethorpe to Axl Rose for life, then to Brandy and her heirs if Brandy survives Axl Rose”: Oglethorpe grants Axl Rose a life estate. Brandy gets a contingent remainder in fee simple absolute. Oglethorpe retains a reversion in fee simple absolute. “If Brandy survives Axl Rose” is a condition precedent.
8. “Oglethorpe to Alec and his heirs provided the land is used for residential purposes”: Oglethorpe grants Alec a fee simple subject to a condition subsequent. Oglethorpe retains the right of entry.
9. “Oglethorpe to Adele and her heirs. Adele promises that the land will be used for residential purposes”: This language is ambiguous. We could interpret it generously as a fee simple determinable or fee simple subject to a condition subsequent. Or we could interpret it as a gift of an estate in fee simple absolute followed by a promise without consideration. Or we could interpret it as the two sides of a contract. [Braunstein says that Adele has a fee simple absolute, but Oglethorpe may have some contract rights. Adele would also have contract obligations. But there’s some question whether the contract is enforceable.]
10. “Oglethorpe to
11. “Oglethorpe to Ariel for life, then to Brant and his heirs. Brant dies before Ariel. His will devises all of his property to your law school. Ariel then dies”: Oglethorpe grants Ariel a life estate. Brant gets a vested remainder in fee simple absolute. When Brant dies, OSU gets the vested remainder in fee simple absolute. Ariel retains the life estate. When Ariel dies, OSU’s future interest matures into a possessory estate in fee simple absolute. [Oglethorpe retains nothing.]
12. “Oglethorpe to Ava for life. Before either he for Ava dies, Oglethorpe conveys all of his property to Happy Hearts Lifecare Center”: Oglethorpe grants a life estate to Ava and retains a reversion in fee simple absolute. Then Oglethorpe gives the reversion to the Center [and Oglethorpe has nothing left]. Upon Ava’s death, the Center will have a possessory estate in fee simple absolute.
13. “Oglethorpe to Alonzo for life. Alonzo dies with a will leaving all of his property to his wife”: Oglethorpe grants Alonzo a life estate. Oglethorpe retains a reversion in fee simple absolute. Upon Alonzo’s death, Oglethorpe regains possession in fee simple absolute. The wife gets nothing.
14. “Oglethorpe to Antonio so
long as he remains in Missouri”: This is highly ambiguous and problematic. The simplest thing for a judge to do at
common law might be to ignore the condition and say that this grants Antonio a
life estate because it doesn’t say “to Antonio and his heirs”. Oglethorpe would then have a reversion. On the other hand, the words “so long as”
generally indicate a fee simple determinable.
If Antonio was granted a fee simple determinable, then Oglethorpe would
retain the possibility of reverter. But
the problem is just how to interpret the condition. Does it mean that Antonio must never set foot
outside of Missouri? Does it mean
Antonio can never establish a residence or domicile outside of Missouri? If Antonio dies, does he “remain” in
Missouri? What if he’s buried in
Missouri? What if his body doesn’t
leave, but Missouri ceases to be Missouri?
Anyway, I don’t think there’s any such thing as a delifeable life
estate. [Do we presume it’s a fee simple
unless a contrary intention appears?
Braunstein says that Oglethorpe’s estate could become possessory under
two different conditions: either Antonio leaves
15. “Oglethorpe to Antonio and
his heirs so long as he remains in
16. “Oglethorpe to Abner for
life, then to Belinda, then to Charlotte and her heirs”: Clearly, Oglethorpe
grants Abner a life estate. Then, even
though it’s not explicit like it is with the first life estate, it must be the
case that Oglethorpe grants Belinda a vested remainder for life (if that’s the
right way to say it [it is]). “To
Belinda” can’t be interpreted as a vested remainder in fee simple absolute given
what follows. Finally,
17. “Oglethorpe to Anya for life, then to Booker and his heirs if Booker survives Anya, but if Booker does not survive Anya, then to Oglethorpe”: Oglethorpe grants Anya a life estate. Booker gets a contingent remainder in fee simple absolute. Oglethorpe gets a reversion in fee simple absolute. [Notice that the words “but if Booker does not survive Anya” don’t seem to have any independent force. If those words were not there, you’d get the same result. But usually when we interpret text, we assume that everything means something. But there really isn’t any better way to interpret this.]
18. “Oglethorpe to Antoinette
and her heirs so long as the land is farmed.
After this conveyance, Oglethorpe transfers all of his property to his
son Bob. Oglethorpe then dies leaving a
will that transfers all of his property to the Humane Society. Oglethorpe is survived by his son Bob and his
wife Corabeth. Antoinette reads of
Oglethorpe’s death in the newspaper and stops farming. A week later, a troop of Girl Scouts camping
on the land suffers severe but nonfatal injuries due to a landslide. They want to know who owns the land so that
they can file suit”: Oglethorpe grants Antoinette a fee simple
determinable. Oglethorpe retains the
possibility of reverter. Oglethorpe then
transfers the possibility of reverter to Bob.
Bob still has the possibility of reverter at the time of Oglethorpe’s
death. When Antoinette stops farming,
the property automatically reverts to Bob.
Therefore, Bob owns the land at the time of the landslide. [There’s an issue here! It depends on whether the possibility of
reverter is alienable or not! Before
1960, the possibility of reverter was not alienable inter vivos in