The following questions go through the classes that we had on future interests quite systematically. Some of my answers are embedded in the questions in diamond brackets <>. Most of them are numbered like the questions and follow the questions. I begin, out of order, with an exchange of emails that I had with a student who was having some trouble with the distinction between precedent and subsequent conditions. I put the questions at the top because I suspect that the student was not alone in having this difficulty.
Question 1. Hope you're having a good night so far. I wanted to ask you a question about "remainder in fee simple"? I was looking at Krier and he said remainder in fee simple exists for the following example and I was really confused because I checked my class notes and I couldn't find this term so not sure if we discussed it or if it was a point that you disagreed with Krier on.
The problem is below:
O conveys "to A for life, then to B and his heirs if B survives A, and if B does not survive A, to B's children and their heirs."
· A: has a life estate
· B: remainder, then it says remainder in fee simple ("B and his heirs"), as well as contingent remainder ("if B survives A")
· "and if B does not survive A, to B's children and their heirs."
o B's children and their heirs: remainder b/c do not divest the preceding life estate.
§ remainder to a class in fee simple?
§ contingent remainder b/c subject to express condition precedent "and if B does not survive A"
What is the definition of a remainder in fee simple? Should we assume that this applies if the term is "B and his heirs"? I was confused because I thought O was conveying a life estate to A, so I thought if B had the remainder then the remainder would also be the life estate? Or am I misreading the problem and it means that A has the life estate and then B and his heirs get the fee simple if they survive A? The language seems kind of ambiguous to me?
Answer 1. The remainder in B and his heirs is a remainder in fee simple. The use of the phrase “and his heirs” tells you that. The remainder in B’s children and their heirs is also a remainder in fee simple. Once more the use of the phrase “and their heirs” tells you that. Both remainders are contingent. B gets it if he survives A. His children get it if he does not. We called these alternative contingent remainders in class. (The children’s remainder is also contingent on there being at least one person who meets the class definition.)
There’s nothing about what Krier says about this with which I disagree.
Question 2 (follow-up). For the Future Interests, I know that there are three "rules of thumb":
1. Vested remainder -> executory interest
an executory interest always follows a remainder because executory interests divest vested remainders and the vested remainder in fee can be indefinite, so in this case it is prematurely cut off.
2. alternative contingent remainder -> alternative contingent remainder
I'm a little confused about why the second has to be an alternative contingent remainders and could not be an executory interest? Because doesn't technically the 2nd interest "cut off" the first one? I'm thinking of the below example:
O conveys "to A for life, then to B if B survives A, but if B does not survive A, to C." Is it because C does not have to take any action to "cut off" B's interest? So condition of survival does not count as "taking action to cut off" the interest? You just have to wait to see if B survives A?
3. LE -> vested remainder (fee) -> executory interest.
My notes from yesterday says vested rdr has a condition subsequent. For the vested remainder (fee) portion of this, does this rule apply to all types of vested remainders, not just remainders with condition subsequent?
As a follow up question on this, for one of the objective questions, it states that
"O conveys “to A for life, remainder to such of A's children as survive her, but if none of A's children survive her, remainder to B and her heirs.” A has two children X and Y.
· A has a LE.
· O has a possibility of reverter?
· A's children X and Y: I originally thought this was a vested remainder subject to condition subsequent, but is this a contingent remainder because it's "remainder to such of A's children as survive her" is a condition precedent, and we don't consider the "but if none of A's children survive her" as a condition subsequent?
· B: this is an alternative remainder because it follows A's children if they have a vested remainder, but again, I'm confused about how to consider the condition of survival here. Is it because B and his heirs have to wait to see if A's children survive and their interest doesn't count as prematurely cutting off A's children's rights because they don't take action, they are just waiting to see if A's children fulfill the condition?
Answer 2 (follow-up). I wouldn’t state the three ‘rules of thumb’ in quite the way that you did.
1. An executory interest always follows a vested remainder in fee for the reason that you state. It is not accurate to say that an executory interest always follows any remainder. One can, for example, have a remainder following a vested remainder for life.
2. ‘Cut off’ is metaphorical language. In the example that you give, however, the second remainder does not ‘cut off’ the first because the first disappears by its own terms when B fails to survive A. A precedent condition to B taking is that s/he survive A. If s/he does not, there’s nothing there to be cut off.
3. This is the same precedent/subsequent problem. X and Y have a contingent remainder. In order to have a vested remainder they would have to fulfill two precedent conditions to their taking: (1) they have to be children of A (they qualify), and (2) they have to survive A. They haven’t done that yet. Hence, the interest in B is also a contingent remainder. While we’re at it, O does not have a possibility of reverter. S/he has a reversion. There’s always a reversion if there are alternative contingent remainders in fee because of the possibility of forfeiture.
Question 3 (follow up). I have a quick follow up question to your earlier statement:
· You said that a remainder can follow a vested remainder for life. I'm assuming that there is also a risk of forfeiture for vested remainders subject to open, vested remainders subject to divestment and contingent remainders? Essentially, the only time we could say that an executory interest for sure follows a remainder is when the vested remainder is in fee?
· If O conveys a life estate to A, rdr to B, do we just look to the conveyance of the life estate to determine what type of interest that O has?
o And, in this case, as LE has a risk of forfeiture, O has a reversion
· O conveys “to A for life, remainder to such of A's children as survive her, but if none of A's children survive her, remainder to B and her heirs.” A has two children X and Y.
o Alternative contingent remainders always follow other contingent remainders?
o In this case, if A did not have any children, then the remainder would be vested remainder subject to open, and B would still have an alternative contingent remainder because they have to wait to see if A will have any children and if those children will survive her?
Answer 3. (follow up) Any interest, vested or contingent, can be forfeited, but the risk of forfeiture results in a reversion only if the interest that follows the forfeited interest is contingent. In the first example that you give O–>l.e. A–>rdr B, there’s no reversion because if A forfeits, B stands ready to take. On the other hand, O–>l.e. A–>rdr B if B survives A, otherwise –>C, there is a reversion because if A forfeits (s/he is still alive) we can’t give it either to B or to C because neither of them has fulfilled the contingency of surviving A. Hence, we have to have a reversion in O.
In your second example, we have alternative contingent remainders, so long as A is alive (and a reversion in O). As a general matter (and certainly in this case) if the first of pair of remainders is contingent, the second will be contingent as well. Your second statement (beginning “In this case”), however, is not right. If A did not have any children, then the remainder in the unborn children would not be a vested remainder subject to open, it would be a contingent remainder, doubly contingent: contingent on A having one or more children and then contingent on one or more of those children surviving A.
Question 4. I notice that in your answers and in the text, you refer to “common law” in the past tense. To clarify, when you say “common law,” you mean the common law of England, or Anglo-American common law prior to codification? I guess I’m wondering how to determine what in common law is still good law (i.e. that wouldn’t be referenced in the past tense), because I would imagine that not all American property law has been codified.
Answer 4. There’s a special usage of ‘common law’ when we are talking about estates and future interests: the common law before the modern reforms, i.e., the Anglo-American common law circa 1800. Some of these reforms were ‘common-law reforms’ in the sense that they were devised by courts without the aid of legislation; some of them were statutory reforms. You are quite right that very few states have a ‘codified’ property law, but codification and piecemeal statutory reform are two different things.
Question 5. What is the relationship between alienability, devisability, and descendibility? I’m under the impression that devisability is a subset of alienability, but is descendibility as well?
Answer 5. You’ve latched onto what can be an ambiguity. As a general matter you are right, ‘devisability’ is subset of ‘alienability’. That is obviously not the case in the phrase ‘alienable, devisable, and descendible’, where ‘alienable’ is a short-hand for ‘alienable inter vivos’.
Question 6. These are some basic clarification questions. What is the usual definition of “issues”? Does the term include surviving brothers, sisters, and cousins? How do you define “heirs”? Are they determined by law, or can one designate specific people as heirs?
Answer 6. ‘Issue’ (note that it’s normally in the singular) is normally interpreted to mean the same thing as ‘descendants’ (children, grandchildren, etc.). There have been courts which have interpreted it to include collateral relatives (siblings, cousins, etc.), usually with particularly badly drafted wills. A well-drafted will that uses the term will also define it. ‘Heirs’ practically always means those who would succeed in intestacy under the relevant statute of distribution and descent. You can change the meaning by definition in a will, but it is a bad idea to do so. You cannot create a scheme of descent other than the one given by law, that is to say, you can define the heirs of a particular person differently from what the statute says but you cannot say who the heirs of those heirs will be.
Reversionary Interests [Class Outline]
Question 7. Between Storke and Browning, there are five principles of interpreting ambiguous conveyances: (1) a common law preference for early vestment, (2) a preference for fee simple on condition subsequents to fee simple determinables, (3) a right of entry needs to explicit; (4) a willingness to look at external evidence to locate the devisor’s intent, and (5) a presumption that remainders do not vest until the life tenant has died. Is there a hierarchy to those goals, or do courts look at them simultaneously? Are these presumptions strong enough to drive an answer in the objective test? And, aside from goals of fairness and equity, are there any other presumptions/interpretive rules of thumb we should be aware of?
Answer 7. I wouldn’t combine the interpretive rules of Storke and Browning. The former is specific to rights of entry and possibilities of reverter, the latter is more general about interpretation of wills and instruments of conveyance. Of the two that you derive from Storke I would say that not every court would prefer a fscs to a fsd in the way that the Storke court did, and so that’s a bad one to ask an objective question about unless I told you something about the state of the law. As to the requirement that rights of entry need to be specifically retained, I would say that that is pretty close to a rule of law in most jurisdictions, so I think it would be fair to pose an objective question that assumed that rule. The preference for early vesting is quite common both in wills and inter vivos conveyances. The Browning court did not apply it in the situation with which it was faced. There are other courts that have not applied it in the situation where there is a life tenant, even in some cases implying a condition of survivorship where none is mentioned. These courts are a minority, but the cases exist. In that state of the law, one would have trouble devising an objective question that tested for it, though one might devise an objective that tested to see if you knew what the issue was. How willing a court might be to look at external evidence to determine the devisor’s intent is an issue that is normally treated in wills and trusts courses. What the court did in Browning did not go very far down the road in admitting extrinsic evidence. All it did was mention the age of the boys at the time that Kate Webb wrote her will.
Question 8. I couldn’t find a reference to a formal statute of limitations in Storke. Did the court just decide that it was too late for the Storke’s to recover the land based on principles of fairness? Do statutes of limitation ever play a role in cutting short rights of entry?