1 Advanced Estates and Future Interests 1 Advanced Estates and Future Interests

Contact: Jeremy Sheff

1.1 More Complex Estates Problems: Strategy and Method 1.1 More Complex Estates Problems: Strategy and Method

We now turn to a more comprehensive review of the system of common law estates and future interests. We begin with a warning: estates and future interests problems do not generally reward creative thinking. They reward mechanical, tedious, careful application of logical rules according to a set procedure—an algorithmic approach. They require you to break a big problem up into lots of smaller problems, and solve each small problem one at a time, in order. Attempts to short-circuit the analysis will get you into trouble. In this chapter, we are going to adopt a routine process for breaking down future interest problems into a series of questions that will generate pieces of the answer we are trying to reach, then build the answer out of those pieces. The best way to really learn this material is with practice, and you should review the explanatory problems in the text several times before trying your hand at the questions at the end of this section.

In any problem involving estates and future interests, we must:

  1. Break the fact pattern down into chronological steps, or points in time.
  2. For each point in time:
    1. If the point in time is the making of a conveyance, construe the language of any conveyance by
      1. Parsing the interests created by the conveyance
      2. Identifying the nature and quantum of each interest
      3. Determining whether there is any residual interest in the grantor, and if so its nature and quantum.
    2. If the point in time is any other event (e.g., a birth, a death, or the satisfaction or failure of a condition) construe the effect of the event on the interests of the parties.
    3. Based on the analysis of Steps 2.a or 2.b, describe the interests of every party at each point in time: this is the state of title as of that step.
  3. Arrange the state of title for each point in time sequentially to compose a chain of title.

Once you have a chain of title, you can answer any question you might be asked about the rights of any party at any point in time. We will talk about how to go about Step 2 in more detail as we dig in to the substance of the various estates and future interests. Throughout this chapter, important rules that we will apply in Step 2 of our method will be in bold, indented type, just like the description of the method above. At the end of the exposition, we will plug all these rules we have learned into the method above to arrive at a comprehensive approach to the subject.

1.2 Step 1: Building a Chronology 1.2 Step 1: Building a Chronology

Let’s revisit a problem we encountered earlier in introducing the life estate:

Problem 1

O, owner of a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then to B for life.” (Assume that both A and B are alive at the time of the grant.) What is the state of title in Blackacre?

Let’s apply Step 1 of our method to this problem.

Note that, even though it isn’t explicit on the face of the problem, we really have two points in time here that we need to distinguish:

  1. O owns a fee simple absolute in Blackacre.
  2. O conveys Blackacre “to A for life, then to B for life.”

Again, the state of title at Point 1 is self-explanatory. Point 2 involves a conveyance, which we will have to parse in Step 2.a.i. of our method. We’ll learn how to do that shortly. First, note that Step 1 generates longer chronologies as our problem becomes more complex. For example, we could add on the complications we encountered when first considering this problem:

Problem 1A

O, owner of a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then to B for life.” (Assume that both A and B are alive at the time of the grant.) While O, A, and B are still alive, B conveys her interest to C. B then dies, survived by A, C, and O.  What is the state of title in Blackacre?

Although our chronology becomes a bit longer in this version of the problem, it begins exactly the same way:

  1. O owns a fee simple absolute in Blackacre.
  2. O conveys Blackacre “to A for life, then to B for life.”

We can then simply add the additional points in time presented by the problem:

  1. B conveys her interest to C.
  2. B dies.

We will next learn how to analyze each point in this chronology using Step 2 of our method, and then put all our analyses together to build a chain of title using Step 3 of our method. Let’s get started:

1.3 Step 2.a.i: Parsing a Conveyance 1.3 Step 2.a.i: Parsing a Conveyance

The conveyance at Point 2 of the chronology for Problem 1 reads “to A for life, then to B for life.” This is a complex grant—it creates multiple interests in multiple parties. We are going to introduce a rule for breaking up such complex grants for analysis:

Reading from left to right, the first comma, semicolon, or period following words of purchase indicates the end of one interest, and the beginning of the next interest.

“Words of purchase” is a technical term in conveyancing law. Despite the ordinary English meaning of the word “purchase,” “words of purchase” do not necessarily mean that the grantee paid a valuable consideration in exchange for the grant. They merely identify who the grantee is. So, reading the conveyance in Problem 1 from left to right, we find that the first two words of the conveyance—“to A”—are our first words of purchase. To determine what interest this grant creates in A, we must take the entire clause beginning with those words of purchase and ending with the first comma, semicolon, or period we find. Thus, the first interest under this grant will be created by the words:

“to A for life”

Continuing to read the conveyance from left to right, we find our next words of purchase: “to B.” Under our rule, the clause creating B’s interest begins at the end of the previous clause and ends at the first comma, semicolon, or period following the words “to B.” thus:

“then to B for life”

Taken together, we therefore have two clauses we will have to analyze in Step 2.a.ii of our method:

“to A for life”

“then to B for life”

You probably already have a decent idea of what interests are created by this language (or you may remember the answer from when we first encountered this problem), but let’s approach the problem methodically so we can express our conclusion more precisely, and later extend our analysis to address novel problems.

1.4 Step 2.a.ii: Identifying Legal Interests 1.4 Step 2.a.ii: Identifying Legal Interests

In order to identify the legal interest created by a particular clause in a grant, we must identify both the nature of that interest and the quantum of the interest.

1.4.1 Identifying the Quantum of an Interest 1.4.1 Identifying the Quantum of an Interest

The quantum of an estate is a measure of its “size” (if size is a meaningful concept with respect to intangible rights like estates). The common-law estates are, in decreasing order of quantum:

The Fee Simple
The Fee Tail
The Life Estate
The Leasehold Estates

Of these, we will concern ourselves here only with the fees simple and the life estate. The fee tail is relevant today only to those who wish to more fully appreciate certain works of 18th- and 19th-century English literature (and period dramas depicting the same era), in which the estate is a hackneyed plot device. [1] It was associated with hereditary aristocracy in the minds of American legislators and jurists, and accordingly it been abolished, was never recognized, or is otherwise essentially moribund in all American jurisdictions. [2] The Leasehold Estates, in contrast, are quite important to modern real estate practice, but today they are governed by the law of Landlord and Tenant, which we cover in a separate unit. Based on the hierarchy of estates, then, the key fact for you to keep in mind during our study of the estates system is that a life estate is a lesser estate than a fee simple. This will be an important point when we begin our discussion of retained interests.

Let us illustrate the process of identifying the quantum of an interest with an example. Recall the first part of the grant we parsed in Problem 1. The language “to A for life,” as we know, creates a life estate in A. But the quantum of A’s interest—a life estate—is not indicated by the words of purchase (“to A”). Instead, it is indicated by the two words following the words of purchase: “for life.” These two extra words are called words of limitation: they define or “limit” the nature or quantum of the estate that will be held by A. For example, the traditional words of limitation of a fee simple are “and his heirs.”

But what if a grant includes no words of limitation? In this case, we require an additional rule to guide our analysis:

In the absence of clearly contrary words of limitation, a conveyance is presumed to convey the grantor’s entire interest.

This rule helps explain the modern formula by which the owner of a fee simple absolute can convey a fee simple absolute to another: “to A.” Because words of purchase without any words of limitation convey the grantor’s entire interest, the owner of a fee simple absolute who conveys an interest “to A” without any further qualification conveys his entire interest—i.e., a fee simple absolute—to A.

We will see that the fee simple may be further decomposed into the fee simple absolute (with which you are already familiar) and the defeasible fees (which you haven’t seen yet). We will deal with the defeasible fees later, because identifying them is dependent on identifying the future interests that follow them. Let’s turn to the identification of future interests now.

 

[1] The fee tail was created by a grant “to A and the heirs of his/her body,” and land held in tail passed from the grantee to that grantee’s direct descendants at the death of each successive owner. Thus no owner at any point in the family line had the power to dispose of the property upon their death. Land subject to this type of arrangement was said to be “entailed.” The fee tail could be—and often was—limited even further to male heirs; hence the literary trope of the man with no sons nearing the end of his life and despairing for the future of his unwed daughters because he holds all his property in tail. See, e.g., Jane Austen, Pride & Prejudice ch.7 (“Mr. Bennett’s property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation….”).

 

[2] For a discussion of the abolition of the fee tail and a review of the vestiges of the estate in the few American jurisdictions that retain some form of it, see 2-14 Powell on Real Property (2015) (https://advance.lexis.com/api/permalink/62303585-6dc1-4faa-a3aa-e6af46e21297/?context=1000516).

1.4.2 Identifying the Nature of an Interest 1.4.2 Identifying the Nature of an Interest

We are now going to learn a large number of rules for determining the nature (or type) of an interest created by a particular grant. Those rules can be applied methodically, according to a kind of algorithm. The flow chart on the next page presents that algorithm, which will make much more sense to you after you read the ensuing sections of the text. You will want to keep this flow chart handy as we continue our study of the estates system, and particularly when we start dealing with problems of the kind you might encounter on an exam.

https://www.dropbox.com/s/jbem42bve84o3me/open_property_image1.png?dl=0

 

1.4.3 Possessory Estates vs. Future Estates 1.4.3 Possessory Estates vs. Future Estates

We now identify our rule for determining whether an interest is a possessory estate or a future interest:

An interest will be a possessory estate if:

  1. it is not preceded by any other interest; and
  2. it is not subject to any condition precedent.

An interest that is not a possessory estate is a future interest.

A condition precedent is just what it sounds like: a condition that precedes the possibility of an interest becoming possessory. That is, an interest is subject to a condition precedent if something that has not yet happened must happen in order for that interest to become possessory. For example, a conveyance “to A when A reaches her 21st birthday,” made at a time when A is 10 years old, creates a future interest in A because A’s interest is subject to a condition precedent: she must reach her 21st birthday in order to be entitled to possession, and she hasn’t done that yet. (We will learn the name of this future interest shortly.)

The question whether an interest is a possessory estate or a future interest is different from the question of the quantum of that interest. One can hold a future interest in life estate, just as one can hold a possessory life estate. To illustrate this point, let’s return to the conveyance from Problem 1. Recall that we determined that this conveyance had two operative clauses:

“to A for life”

“then to B for life”

The first clause, “to A for life” creates some interest in A. Is it a possessory estate or a future interest? First, we ask whether it is preceded by some other interest, and find that it isn’t—it’s the first interest created in the conveyance from O. Next, we ask whether it is subject to a condition precedent—does anything that hasn’t yet happened have to happen in order for A to take possession? Again, the answer is no: the grant is “to A for life” with no other condition in the text of the relevant clause. Thus, A’s interest is a possessory estate. And because the conveyance to A includes the words of limitation for a life estate (“for life”), we know that the quantum of A’s possessory estate is a life estate. Thus, we conclude that under this language, A takes a possessory life estate.

What about B? The language “then to B” creates some interest in B—is it a possessory estate or a future interest? The word “then,” following the grant to A, is a clue. When we ask the first question demanded by our rule—whether B’s interest is preceded by any other interest—the answer is clearly yes: B’s interest follows A’s possessory life estate. Therefore B’s interest must be a future interest. We also know, from the words of limitation “for life,” that the quantum of that interest will be a life estate. So we know that B will take a future interest in life estate under this clause of the conveyance. But we do not yet know what kind of future interest B takes. To answer that question, we need to learn a few more rules.

1.4.4 Reviewing Future Interests 1.4.4 Reviewing Future Interests

Recall that in our introduction to the basics of the estate system we encountered four interests: the fee simple absolute, the life estate, the remainder, and the reversion. You now understand that the fee simple absolute and the life estate are measures of the quantum of an interest—whether it be a possessory estate or future interest—while the remainder and the reversion are types of future interests. We can now formulate rules to identify the remainder and the reversion. Our rule for identifying the remainder is as follows:

If a future interest:

  1. is created in someone other than the grantor, and
  2. cannot cut short or divest a preceding possessory or vested estate, but must instead wait until the preceding estate naturally terminates in order to become possessory,

then the future interest is a remainder.

Remember: the distinguishing characteristic of the remainder is that it cannot cut short or divest a prior estate. It simply “remains,” sitting around and waiting for the natural termination of the preceding possessory estate, at which point the remainder will become possessory by operation of law.

The reversion, like the remainder, cannot cut short or divest any possessory or vested estate. Our rule for identifying it is as follows:

If a future interest:

  1. is created in, or retained by, the grantor of the interest, and
  2. cannot cut short or divest a preceding possessory or vested estate, but must instead wait until the preceding estate naturally terminates in order to become possessory,

then the future interest is a reversion.

 

We now have the tools to complete our analysis of the conveyance at Point 2 of the chronology we developed for Problem 1. We identified two operative clauses in that conveyance:

“to A for life”

“then to B for life”

And we further concluded that the first of these clauses created a possessory life estate in A, while the second created some future interest in life estate in B. We can now determine what B’s future interest is. B is not the grantor of this interest, and the interest cannot cut short A’s life estate (the word “then” indicates that B’s interest will become possessory only after A’s life estate naturally terminates at A’s death). Thus, B’s interest must be a remainder. Moreover, because we know that the quantum of B’s interest is a life estate, we can now precisely state exactly what interest B has at Point 2 of our chronology: B has a remainder in life estate. (Sometimes you will see this interest referred to as a life estate in remainder; the two formulations are equivalent.)

We have now analyzed all the language in the conveyance at Point 2 of our chronology in Problem 1. But if you refer back to our method, you will see that Step 2 of the method is not yet complete. We must undertake one more, crucially important, analysis: we must ascertain whether our grantor has retained any interest. This step is often overlooked, which can generate compounding errors at later points in the chronology of an estates problem.

1.5 Step 2.a.iii: Identifying Residual Interests 1.5 Step 2.a.iii: Identifying Residual Interests

Recall that in our introduction to the basics of the estate system we encountered four interests: the fee simple absolute, the life estate, the remainder, and the reversion. You now understand that the fee simple absolute and the life estate are measures of the quantum of an interest—whether it be a possessory estate or future interest—while the remainder and the reversion are types of future interests. We can now formulate rules to identify the remainder and the reversion. Our rule for identifying the remainder is as follows:

If a future interest:

  1. is created in someone other than the grantor, and
  2. cannot cut short or divest a preceding possessory or vested estate, but must instead wait until the preceding estate naturally terminates in order to become possessory,

then the future interest is a remainder.

Remember: the distinguishing characteristic of the remainder is that it cannot cut short or divest a prior estate. It simply “remains,” sitting around and waiting for the natural termination of the preceding possessory estate, at which point the remainder will become possessory by operation of law.

The reversion, like the remainder, cannot cut short or divest any possessory or vested estate. Our rule for identifying it is as follows:

If a future interest:

  1. is created in, or retained by, the grantor of the interest, and
  2. cannot cut short or divest a preceding possessory or vested estate, but must instead wait until the preceding estate naturally terminates in order to become possessory,

then the future interest is a reversion.

 

We now have the tools to complete our analysis of the conveyance at Point 2 of the chronology we developed for Problem 1. We identified two operative clauses in that conveyance:

“to A for life”

“then to B for life”

And we further concluded that the first of these clauses created a possessory life estate in A, while the second created some future interest in life estate in B. We can now determine what B’s future interest is. B is not the grantor of this interest, and the interest cannot cut short A’s life estate (the word “then” indicates that B’s interest will become possessory only after A’s life estate naturally terminates at A’s death). Thus, B’s interest must be a remainder. Moreover, because we know that the quantum of B’s interest is a life estate, we can now precisely state exactly what interest B has at Point 2 of our chronology: B has a remainder in life estate. (Sometimes you will see this interest referred to as a life estate in remainder; the two formulations are equivalent.)

We have now analyzed all the language in the conveyance at Point 2 of our chronology in Problem 1. But if you refer back to our method, you will see that Step 2 of the method is not yet complete. We must undertake one more, crucially important, analysis: we must ascertain whether our grantor has retained any interest. This step is often overlooked, which can generate compounding errors at later points in the chronology of an estates problem.

1.6 Step 2.b: Construing the Effects of Events on Legal Interests 1.6 Step 2.b: Construing the Effects of Events on Legal Interests

Recall the chronology we developed for Problem 1A:

  1. O owns a fee simple absolute in Blackacre.
  2. O conveys Blackacre “to A for life, then to B for life.”
  3. B conveys her interest to C.
  4. B dies.

We have completed Step 2.c for Points 1 and 2 of this chronology:

  1. O owns a fee simple absolute in Blackacre.
  2. A has a possessory life estate

B has a remainder in life estate

O has a reversion in fee simple absolute

At Point 3, however, we have no conveyance language to parse or analyze. Instead, we must determine what the effect of B conveying “her interest” to C is. Whenever faced with this type of problem, it is best to be thorough. We must determine what the effect of this event is on each and every interest we identified in the previous Point of our chronology.

With respect to A’s possessory life estate, B’s conveyance has no effect. Remember the principle of nemo dat quod non habet: one cannot give away what one does not have. B’s remainder in life estate is a different interest than A’s possessory life estate; absent A’s consent B cannot convey any part of A’s interest. So at Point 3, A’s interest remains unchanged.

What about B’s interest? The problem tells us that B has conveyed “her interest” to C. Thus, B no longer has any interest in Blackacre. C, meanwhile, has acquired an interest in Blackacre—specifically, the remainder in life estate heretofore held by B. But let us take care: when will this interest terminate? Nemo dat again provides us with the answer: C can only take what B had. In this case, that is a life estate measured by the life of B. If you recall from our introduction to estates, we call this interest a life estate pur autre vie. That is, C now has a remainder in life estate pur autre vie for the life of B.

With respect to O’s reversion, again, nemo dat tells us that B cannot convey that reversion without O’s consent. So O’s reversion remains unchanged.

Turning to Step 2.c of our method, we can now provide the state of title at Point 3 of our chronology:

  1.  A has a possessory life estate

C has a remainder in life estate pur autre vie for the life of B

O has a reversion in fee simple absolute

We can perform a similar analysis at Point 4 of our chronology, wherein B dies. Looking to A’s interest, again, there is nothing that B can do to affect A’s possessory life estate, which remains unchanged. The same is true for O’s reversion: it too remains unchanged. But B’s death terminates C’s remainder in life estate pur autre vie by operation of law: the interest simply ceases to exist. (Note that this happens even though the interest never became possessory.) Turning to Step 2.c, we can provide the state of title at Point 4 of our chronology:

  1. A has a possessory life estate

O has a reversion in fee simple absolute

1.7 Step 3: Building a Chain of Title 1.7 Step 3: Building a Chain of Title

We have now analyzed the state of title at each of the four Points in our chronology for Problem 1A; let’s put them all together into a chain of title:

  1. O owns a fee simple absolute in Blackacre.
  2. A has a possessory life estate

B has a remainder in life estate

O has a reversion in fee simple absolute

  1. A has a possessory life estate

C has a remainder in life estate pur autre vie for the life of B

O has a reversion in fee simple absolute

  1. A has a possessory life estate

O has a reversion in fee simple absolute

This chain of title provides all the information we could possibly need to answer any question about the interests of the parties in this problem at any point in time. As it turns out, the question asks for the state of title at the end of this chain of events. To answer that question, we simply look to the relevant Point in our chain of title (here, Point 4) and respond: A has a possessory life estate, O has a reversion in fee simple absolute.

1.8 Other Estates and Future Interests 1.8 Other Estates and Future Interests

1.8.1 Introduction 1.8.1 Introduction

We now have a complete method for solving estates problems, but have only scratched the surface of the types of estates and future interests we might encounter. We can now learn about the remaining estates and future interests, plugging them in to our method for additional practice.

1.8.2 Remainders, Part 2: Vested and Contingent Remainders 1.8.2 Remainders, Part 2: Vested and Contingent Remainders

The first layer of complexity we will add to the mix is the distinction between vested and contingent remainders. “Contingent” here means something similar to what it means in ordinary usage: it refers to something that might or might not come to pass. There is a straightforward rule for distinguishing between vested and contingent remainders:

A remainder is contingent if:

  1. it is created in an unascertained or unborn person; or
  2. it is subject to a condition precedent other than the natural termination of the preceding possessory estate (i.e., it requires the occurrence of some uncertain event or condition before it can become possessory).

A remainder that is not contingent is vested.

Let’s look at a problem involving one of these possibilities.

Problem 2

O, owning a fee simple absolute in Blackacre, conveys Blackacre "to A for life, then to A's first-born child," at a time when A has no children. Two years later, A's first child, B, is born. What is the state of title in Blackacre?

As always, we begin with Step 1 and break up this fact pattern to build a chronology:

  1. O owns a fee simple absolute.
  2. O conveys Blackacre “to A for life, then to A’s first-born child.” A has no children.
  3. A’s first child, B, is born.

Now we must go through each of these points in time to construe any grant or determine the legal effect of any event at each step. Point 1 is, as usual, self-explanatory. At Point 2, we have a conveyance that we have to parse under Step 2.a.i. Applying our rule, we break up the conveyance into two clauses:

“to A for life”

“then to A’s first-born child.”

Construing each of these clauses under Step 2.a.ii of our method, we see that the grant “to A for life” has no other interest preceding it, and is not subject to any other condition precedent, so it must be a presently possessory estate; the words of limitation “for life” indicate that it is a possessory life estate. The grant to A’s first-born child follows A’s life estate; it must therefore be a future interest. Because it is an interest in someone other than the grantor, and it cannot cut short A’s life estate, it must be a remainder.

But who owns the remainder? Well … nobody we can identify yet, because the only person who could own the remainder—A’s first-born child—hasn’t yet been born (indeed, may never be born). But the remainder still exists. Whether or not it will become possessory depends on whether its owner—A’s first-born child—ever comes into being. As you see, this is one of the criteria that will render a remainder contingent rather than vested.  We will say that the remainder is a contingent remainder in the first-born child of A (even though there is, as yet, no such person). And what is the quantum of that remainder? Note that the grant to A’s first-born child has no words of limitation in it. Thus we can apply our presumption to conclude that A’s first-born child’s contingent remainder is in fee simple absolute—the same estate O had prior to the grant.

Are we through with Point 2 of our chronology? Not quite. We still have to deal with Step 2.a.iii of our method—testing for a retained interest. To understand why this step is so tricky here, we have to imagine ourselves standing at Point 2, not knowing what the future holds, and contemplating every conceivable possibility, including the possibility that A will die without ever having children. (As you’ll see, future interests problems require lawyers to dream up every manner of improbable tragedy.) If A were to die without having had any children, who would have the right to take possession of Blackacre at A’s death?

You may have surmised that this is a situation similar to the situation in which a grantor conveys vested interests of a lesser quantum than his own. In Problem 1, for example, we knew that there would come a day when none of O’s grantees had a right to possession—everybody dies someday, so A’s and B’s interests would eventually terminate. In our current problem, we don’t know for sure that such a day will come, but we can see it as a very real possibility. O has conveyed a future interest in fee simple absolute (the remainder), but that interest is contingent: it is possible that this interest will never become possessory—that A will die without having had a first-born child. Therefore we need someone to be able to step in and take possession if this possibility materializes. And as before, the only person left to take possession is O. Therefore, O must have a future interest at Point 2, and because O’s interest cannot cut short or divest either A’s interest or the interest of A’s first-born child, it must be a reversion. Moreover, because O’s interest in Blackacre prior to the grant was a fee simple absolute, the reversion must also be in fee simple absolute.

Now you can better understand our rule for determining whether a grantor retains a reversion. Our rule identified the two circumstances in which the grantor will need to be in the position to retake possession in the future. In the first circumstance, the reversion was necessary because the grantor had conveyed vested interests of a lesser quantum than his own. In the second, the reversion was necessary because, although the grantor had conveyed an interest of the same quantum as his own, that interest was contingent and therefore not certain to become possessory. Both circumstances reflect the same underlying principle: if a conveyance creates some gap in rightful possession, that gap will be filled by the grantor’s original (and hence retained) right to possession.

We are now prepared to move on to Step 2.c of our method and describe the state of title as of Point 2 in our chronology:

  1. A has a life estate.

A’s (non-existent) first-born child has a contingent remainder in fee simple absolute.

O has a reversion in fee simple absolute.

Note that because a reversion is retained from O’s original possessory estate, it is always considered vested. However, that does not mean that it is certain to become possessory again. Analysis of Point 3 in our chronology will demonstrate why.

At Point 3, A has had a child, B. Under Step 2.b of our method, we need to ask: what effect does this event have on each of the interests we identified in Point 2? Let’s again consider the interests one at a time.

  • A’s life estate would seem to be unaffected; neither the remainder nor the reversion identified at Point 2 in our chronology can cut short a preceding possessory estate such as A’s.
  • Circumstances have changed with respect to the remainder. We can now point to a living person who will have the right to possession of Blackacre under the remainder: B. And there is no future event (other than the natural termination of A’s life estate) that must come to pass in order for the remainder to become possessory. As such, the remainder is no longer contingent at Point 3: it is in a known, living person and it is not subject to any condition precedent other than the termination of A’s life estate—which we know will happen someday. We may therefore say that the remainder has vested, and that B is its owner. The quantum of the remainder remains the same: it is a vested remainder in fee simple absolute.
  • What effect does the vesting of B’s remainder have on O’s reversion? Recall our test for determining whether there is a reversion: we need to know whether O’s conveyance created a vested interest of equal quantum to the interest O held prior to the grant. The last interest created by O’s grant is now a vested remainder in fee simple absolute. We therefore no longer need O to stand ready to take possession at A’s death; B is certain to have a right to possession. Thus, we say that O’s reversion is divested by the vesting of B’s remainder: the reversion simply disappears. In this circumstance—where the occurrence of some condition both vests one future interest and destroys a different future interest—we say that the two interests are alternative future interests.
  • Based on this analysis, we are finally prepared to move on to Step 2.c of our method and give the state of title at Point 3 in our chronology, which is what we’ve been after all along:

    1. A has a life estate.

    B has a vested remainder in fee simple absolute.

    Problem 2 dealt with one circumstance that could render a remainder contingent: its creation in unborn or unascertained persons. We have yet to see an example of the other circumstance that can render a remainder contingent: being subject to a condition precedent. Let us consider such an example that also expands on the alternative nature of the future interests in Problem 2.

    1.8.3 Remainders, Part 3: Alternative Contingent Remainders 1.8.3 Remainders, Part 3: Alternative Contingent Remainders

    Recall that in Problem 2, we identified two future interests as alternatives—a contingent remainder and a reversion. Either of them could become possessory, but not both. Multiple contingent remainders can also be alternatives to one another. Suppose that O, who owns Blackacre in fee simple, grants Blackacre “to A for life, and then to the first of B or C to have a child,” at a time when neither B nor C has had any children. You should be able to recognize by now that this grant creates a life estate in A, and a future interest in both B and C. Because the future interests are in someone other than the grantor and cannot cut short A’s life estate, they must be remainders. And because there are no words of limitation on the remainders, they are remainders in fee simple absolute (the same interest O had prior to the grant). Finally, because they are both subject to a condition precedent other than the natural termination of A’s life estate before they can come possessory, they are both contingent remainders. But note that logically, they can’t both become possessory. The satisfaction of the condition precedent to B’s remainder is logically equivalent to the failure of the condition precedent to C’s remainder, and vice versa. In this circumstance, we say that B and C have alternative contingent remainders. The vesting of one alternative contingent remainder necessarily means the destruction of the other.

    There are some additional complications regarding vested remainders that we will have to discuss, but we will first need to build up some additional knowledge about other future interests. Before moving on, we should reinforce one final point about future interests raised by the alternative contingent remainders described in the previous paragraph. Even though neither B nor C has yet satisfied the condition precedent on her interest becoming possessory and may never do so, their contingent remainders are still their property. That property may not be worth very much, but it exists as soon as the conveyance from O is executed. In most American jurisdictions today, B or C could sell their interest, could mortgage it, or could give it away (though traditionally at common law the contingent remainder was merely descendible, not devisable or alienable inter vivos).

    1.8.4 The Defeasible Fees 1.8.4 The Defeasible Fees

    We mentioned earlier that the fee simple could be further decomposed into the fee simple absolute and the defeasible fees.  The full taxonomy of the fee simple is as follows:

  • The Fee Simple
    • The Fee Simple Absolute
    • The Defeasible Fees
      • Fee Simple Determinable
      • Fee Simple Subject to Condition Subsequent
      • Fee Simple Subject to Executory Limitation
  • You have already encountered the fee simple absolute—the most complete interest in land that the law will recognize. Recall that it is created by the modern formula “to A”; or the ancient formula “to A and his heirs.”

    Hopefully you have noticed that the reversion and the remainder share an important characteristic: they cannot cut short or divest a preceding possessory or vested estate. The reversion is typically a leftover: it sits and waits just in case it is needed. The remainder, as we’ve said, remains: it must wait until the natural termination of the preceding possessory estate before it can become possessory. But there are future interests that are not so polite. To the contrary, they can be rather pushy. These are future interests that cut short or divest an estate that precedes them upon the occurrence of some event or the satisfaction of some condition. Because the possessory estates preceding such “pushy” future interests can be taken away—the owner can lose their “fee”—we call them defeasible fees (“de-fee”: get it?). [1]

    Based on the principle that a defeasible fee is an estate that looks like a fee simple absolute, but can be divested—that is, cut short and destroyed—by some future interest upon the occurrence of some condition, we can now formulate a rule for identifying the quantum of an estate created by a conveyance:

    If an estate can be divested or cut short by a future interest, it is a defeasible fee; if it will terminate at the death of a natural person it is a life estate; and if it has no inherent limitation it is a fee simple absolute.

    There are several different future interests that can cut short or divest a prior interest, and each of these “pushy” future interests generally goes hand-in-hand with a particular defeasible fee that precedes it; they are matched pairs. These pairings are set forth in the following table:

    Table 1: The Defeasible Fees and Their Corresponding Future Interests

    Defeasible Fee

    Corresponding Future Interest

    Fee Simple Determinable

    Possibility of Reverter

    Fee Simple Subject to Condition Subsequent

    Right of Entry

    Fee Simple Subject to Executory Limitation (in a grantor)

    Springing Executory Interest

    Fee Simple Subject to Executory Limitation (in a grantee)

    Shifting Executory Interest

    In order to determine which of the defeasible fees is created by a conveyance, we need to analyze its relationship to the future interest that follows it. There are a few rules to guide us here, having to do with the identity of the holder of each interest and the words of limitation creating the pair of interests. We begin with the first of these criteria:

    If the future interest that cuts short or divests a prior interest is created in a grantee, it will be an executory interest, making the preceding estate a fee simple subject to executory limitation.

    Executory interests are traditionally classified further depending on who holds the preceding defeasible estate:

    An executory interest that divests or cuts short an estate held by the grantor of the executory interest is a springing executory interest. An executory interest that divests or cuts short an estate of a grantee is a shifting executory interest.

    Let us explore the executory interest a bit further. As our rule indicates, if a defeasible fee is held by the grantor of the executory interest that could cut it short, the executory interest is called a “springing” executory interest. (It “springs up” to take away the grantor’s retained possessory interest.) This typically happens when an owner conveys a conditional future interest in another while retaining the possessory estate. For example: if O, owning a fee simple absolute in Blackacre, conveys Blackacre “to A when A marries,” A (assuming she is unmarried at the time) has no present right to possession. She has received only a future interest, meaning that O must still have a possessory estate. It is tempting to think of A’s interest as a contingent remainder—after all it is subject to the condition precedent that A marry before the interest can become possessory. But note that the natural termination of O’s possessory estate is irrelevant to A’s interest; O’s right to possession could be cut short or divested by A if she satisfies the condition—if she marries. A remainder can’t cut short or divest a preceding estate like that; it remains, waiting for the preceding estate to terminate naturally. The only future interest in a grantee that can cut short or divest a possessory estate is an executory interest, which is what A has. Thus, O’s retained interest can no longer be a fee simple absolute—it must be a fee simple subject to executory limitation—because it can be cut short by A’s executory interest. And because the person being divested (O) is the grantor of the future interest doing the divesting, A’s future interest is a springing executory interest.

    If, in contrast, the defeasible fee is held by a grantee under the conveyance that also created the executory interest, then the future interest is a shifting executory interest (it “shifts” the right to possession from one grantee to another). For example: if O, owning a fee simple absolute in Blackacre, conveys Blackacre “to A, but if B marries, then to B,” A now has a possessory estate while B has a future interest. Because A’s presently possessory estate can be cut short by a future interest held by another, it must be a defeasible fee. But which one? To answer that question we need to look at the future interest that could cut it short. Because that future interest is in a grantee (B) and can cut short the prior estate, it must be an executory interest, meaning that A’s estate is a fee simple subject to executory limitation. And because the defeasible fee is held by a grantee of the executory interest (A), the satisfaction of the condition (B’s marriage) will simply “shift” the right to possession from one of O’s grantees to another (i.e., from A to B). Therefore, B has a shifting executory interest.

    An executory interest is never vested, because it is necessarily limited by a condition precedent: there must be some “trigger” that allows the executory interest to cut short or divest its predecessor. If that condition comes to pass, the executory interest vests and becomes possessory at the same time, cutting short and divesting whatever possessory estate is then in existence. The fact that executory interests are not vested is important primarily because it means they are subject to the Rule Against Perpetuities, (which you may study in a trusts and estates law course).

    We now turn to our rules concerning defeasible fees followed by future interests in a grantor:

    If the future interest that cuts short the prior estate is created in (or retained by) the grantor, it will be either a possibility of reverter (which follows a fee simple determinable) or a right of entry (which follows a fee simple subject to condition subsequent).

    It is worth noting that at common law, neither the possibility of reverter nor the right of entry was transferrable inter vivos or devisable; they could only pass by inheritance to the grantor’s heirs at law. Today, many states have by statute provided for the inter vivos transferrability and devisability of both future interests—though some have also put sharp limits on them. For example, in New York the holder of the equivalent of either a possibility of reverter or a right of entry must record in the title records a detailed formal declaration of their intent to preserve their interest “not less than twenty-seven years nor more than thirty years after the … [interest] was created,” and follow up periodically with another formal declaration “after the expiration of nine years and before the expiration of ten years from the date when the [previous] declaration was recorded.” N.Y. Real Prop. L. § 345. Failure to do so results in extinguishment of the interest.

    The precise identity of the defeasible fee/future interest in the grantor pair created by a conveyance depends on subtle distinctions in the language of the conveyance itself. We begin with the fee simple determinable and its paired future interest, the possibility of reverter:

    If a defeasible fee interest is limited by words of duration, it is a fee simple determinable, and the grantor’s retained future interest following the defeasible fee is a possibility of reverter.

    The fee simple determinable is created using words of duration as the words of limitation for the defeasible fee. This could include words such as “until,” “so long as,” “while,” and so forth. The fee simple determinable is followed by a possibility of reverter. [2] The possibility of reverter is a future interest held by the grantor that will cut short the fee simple determinable and become possessory by operation of law if the condition on the continued existence of the fee simple determinable ever fails. It can be explicitly set forth in the grant, but it also may be a retained interest, created by implication where a grantor conveys a fee simple determinable and does not designate a future interest to follow it. So, for example, a conveyance “from O to A so long as Blackacre is used for residential purposes” creates a fee simple determinable in A, followed by a (retained) possibility of reverter in fee simple absolute O. In this example, if A builds a factory or an office park on Blackacre, A’s interest will terminate and O will have an immediate right to possession.

    Note how important it is to be careful about terminology here: there is no such thing as a “reverter,” or a “possibility of reversion.” You should never use such terms. It is unfortunate that the common law settled on such similar names for these two different interests, but we are stuck with them and you must be clear which future interest you are referring to by using the correct name for it.

    We can now turn to our final defeasible fee/future interest pairing:

    If a future interest in the grantor that cuts short or divests a prior estate is limited by words of condition, it is a right of entry. The defeasible fee followed by a right of entry is a fee simple subject to a condition subsequent.

    The right of entry (sometimes called a power of termination) is a future interest in the grantor that is limited by words of condition: phrases such as “but if,” “provided that,” “however if,” “on condition that,” and so forth. The key practical distinction between the possibility of reverter and the right of entry is that the right of entry does not automatically become possessory by operation of law upon the satisfaction or failure of the relevant condition. Rather, in order to be entitled to possession the owner of the right of entry must take some affirmative step to assert her rights (for example, by bringing an ejectment action). Until the owner of the power of entry exercises it, the state of title remains the same as it was before the condition triggering the right of entry was satisfied; the only change is that we would now say the right of entry “may be presently exercised.”

    The defeasible fee that can be cut short by a right of entry is called a fee simple subject to condition subsequent. Note here the difference here between a condition precedent—which is the type of condition that must be satisfied before a future interest such as a contingent remainder, executory interest, or right of entry can become possessory—and a condition subsequent—which is the type of condition that can arise after possessory estate begins and have the effect of divesting that estate. Put simply: a condition precedent must be satisfied before you can have your interest; a condition subsequent can arise after you get your interest and take it away. We will explore this distinction in more detail shortly.

    Consider an example: O, an adherent of the Church of the Flying Spaghetti Monster owning a fee simple absolute in Blackacre, conveys Blackacre “to my son A, but if A ever marries a non-Pastafarian, to O.” Under this conveyance, A has a possessory estate with no inherent limitation, but that estate is followed by a future interest that can cut short A’s estate on the occurrence of an uncertain future condition (A’s marriage outside the faith). Because this future interest is owned by the grantor (O), and because it can cut short the prior possessory estate, it must be either a possibility of reverter or a right of entry. And because there are no durational words of limitation on A’s possessory interest, but there is a condition precedent on O’s future interest, we know that O’s interest is a right of entry. This, in turn, means that A’s interest is the matching defeasible fee: the fee simple subject to condition subsequent. Now imagine that A falls in love with and marries B, an adherent of the Missionary Church of Kopimism. Upon their marriage, A’s fee simple subject to condition subsequent does not change. Rather, all that happens is that O’s right of entry—which has been there all along—becomes presently exercisable. In an ejectment or quiet title action between O and A, O would now prevail—but until such an action is brought there is nothing wrongful about A’s continued possession of Blackacre.

    If, in contrast, O’s conveyance had been “to A so long as A does not marry a non-Pastafarian,” A’s interest would have been limited by words of duration, and thus would be a fee simple determinable followed by a possibility of reverter in fee simple absolute in O. Upon A’s marriage to B, A’s estate would immediately terminate by operation of law and O would have a presently possessory fee simple absolute. A’s continued possession, in these circumstances, is wrongful against O.

     

    [1] Strictly speaking, the lesser common-law freehold estates—the fee tail and the life estate—can also be defeasible, but we will ignore that possibility in our study of the estates system because it is rare and of trivial importance. If you intend to experiment with such creatures of the common law, be aware that the future interest following a defeasible life estate is still called a remainder (if in a grantee) or a reversion (if in the grantor); the additional condition on the future interest following the life estate does not change it to a different future interest.

     

    [2] There are some authorities that hold that a determinable (i.e., durationally limited) estate can be followed by an executory interest in a grantee, and indeed the Restatement (First) of Property calls such an estate a “fee simple with an executory limitation” (distinguishing it from the fee simple “subject to” executory limitation). We will not follow those authorities here; our rule is that any fee interest that can be cut short by a (valid) future interest in a grantee is a fee simple subject to executory limitation. The disagreement among courts on this issue is useful mainly for showing how confusing the estates system is even to common law judges, and how trivial some of its distinctions can be; the Restatement notes that this distinction “is applicable to such a restricted combination of circumstances that a set of facts permitting its application seldom exists.” Restatement (First) of Property § 47, cmt. b (1936).

    1.8.5 Remainders, Part 4: Divestment of Future Interests; Types of Vested Remainders 1.8.5 Remainders, Part 4: Divestment of Future Interests; Types of Vested Remainders

    Before finishing off our catalogue of future interests there is one last issue—and one more set of future interests—that we must examine. We already know that certain “pushy” future interests (the possibility of reverter, the right of entry, and the executory interest) can cut short a possessory interest. But it turns out that they can also divest a vested future interest even before it becomes possessory. This is particularly an issue for vested remainders (though it applies to the reversion as well). Consider the following example: O, owning a fee simple in Blackacre, conveys Blackacre “to A for life, and then to B, but if A ever remarries, then to C.” Note that B’s interest is a vested remainder in fee simple absolute: nothing other than the natural termination of A’s life estate needs to happen in order for B to take possession. However, there is one thing that could happen that would take away B’s otherwise certain right to possession: A’s remarriage could trigger a shifting executory interest in fee simple absolute in C. And note that, if this happens, it will happen before B’s remainder becomes possessory—A can’t get remarried from the grave. So in this case, C’s “pushy” future interest can divest B’s future interest, but it could not cut short B’s interest once that interest becomes possessory. We call B’s interest a vested remainder subject to divestment, and we can encapsulate the rule for identifying such a future interest as follows:

    Where a vested remainder could be prevented from ever becoming possessory by a different future interest, we say that it is a vested remainder subject to divestment. [1]

    Note that there are potentially other ways that a vested remainder could be affected by events subsequent to its vesting. Consider an example: O, owning a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then to A’s children.” At the time, A has no children. By now you can quickly conclude that A has a life estate and “A’s children” have a future interest. Because the future interest is in a grantee and cannot cut short the preceding estate, it must be a remainder. There is no condition other than the natural termination of A’s life estate on the remainder becoming possessory, but there is no one yet born who has a right to the remainder, so it must be a contingent remainder in fee simple absolute (O would also have a reversion in fee simple absolute—do you see why?).

    So: what happens once A has her first child, B? Now we can identify at least one currently living individual who can take possession when the remainder becomes possessory. According to our rule for distinguishing vested from contingent remainders, B would seem to now have a vested remainder in fee simple absolute (destroying O’s reversion). But something is still up in the air: what happens if A has more children before dying? Would those children have a right to share in the remainder? The answer is yes—they would clearly be within the definition of “A’s children” in the words of purchase for the remainder. This is what we call a “class grant”—a conveyance to a group of people identified by their membership in some identified group, rather than as individuals. For such a grant, the “class” remains “open” until it logically could no longer add new members, at which point it “closes.” In this case, once A dies, the class of “A’s children” clearly can’t get any new members. Note that this means that B’s remainder, though vested, can be diluted by the addition of more members of the class entitled to take possession at the end of A’s life estate. We call such a future interest a vested remainder subject to open, and can encapsulate the rule for identifying it as follows:

    Where a vested remainder could be diluted by the addition of new members to the class of persons entitled to it, we say that it is a vested remainder subject to open. 

    Finally, we should note that it is sometimes good practice to make clear when identifying a vested remainder that it is neither subject to divestment nor subject to open. When this is the case, we say it is an indefeasibly vested remainder.

    Where a vested remainder is neither subject to divestment nor subject to open, it is an indefeasibly vested remainder.

     

    [1] Different jurisdictions may have slightly different rules for differentiating between remainders that are “contingent” and those that are “vested subject to divestment,” and the distinction has divided leading scholars over the centuries. We will confine ourselves to relatively straightforward examples in this course to avoid such disputations, but for an overview, see 3 Powell on Real Property §20.04.

    1.9 Future Interests Summary and Review 1.9 Future Interests Summary and Review

    1.9.1 Congratulations! 1.9.1 Congratulations!

    Congratulations! You’ve made your way through an introduction to all the common-law future interests. This is a lot of material to take in, and it can be difficult to keep it organized in your mind. You will likely want to refer to the following summary table, and back to the flow chart provided earlier in this chapter, to guide your thinking about how to identify a future interest when you come across it.

    1.9.2 Table 2: The Common-Law Future Interests 1.9.2 Table 2: The Common-Law Future Interests

     

    Future Interests in the Grantor

    Future Interests in a Grantee

    Cannot divest (cut short) a preceding vested or possessory estate

    Reversion

    Remainders:

     

    Contingent Remainder

    Indefeasibly Vested Remainder

    Vested Remainder Subject to Open

    Vested Remainder Subject to Divestment

    Can divest (cut short) a preceding vested or possessory estate

    Possibility of Reverter

    Executory Interests:

    Right of Entry

     

    Springing Executory Interest

    Shifting Executory Interest

    1.9.3 Problem 3 1.9.3 Problem 3

    Problem 3

    Do the following conveyances create the same legal interests?

    1. To A for life, then to B if B survives A, otherwise to A's heirs.

    2. To A for life, then to B, but if B does not survive A, then to A's heirs.

    Solution: Let’s return to our method. Step 1 is moot because we are analyzing the language of a grant rather than a sequence of events, so we move on to Step 2.a. Beginning with Step 2.a.i, and applying our punctuation rule, we can divide up each grant as follows:

    1. To A for life, | then to B if B survives A, | otherwise to A’s heirs.
    2. To A for life, | then to B, but if B does not survive A, | to A’s heirs.

    or, rewriting each grant of an individual interest on a separate line:

    1.

    (a) To A for life,

    2.

    (a) To A for life,

     

    (b) Then to B if B survives A,

     

    (b) Then to B,

     

    (c) Otherwise to A’s heirs.

     

    (c) But if B does not survive A, to A’s heirs.

    We can now move on to Step 2.a.ii and identify the interests created by each of these clauses. Let us begin with interest 1(a). It is a possessory estate, with words of limitation “for life,” meaning it is a life estate. Interest 1(b) is a future interest (we know because of the existence of A’s life estate and the introductory word “then”). Because it is an interest in a grantee (B), it must be either a remainder or an executory interest. The words of limitation “if B survives A” do not permit B’s interest to cut short A’s life estate, so it must be a remainder—it cannot become possessory until the natural termination of A’s life estate. But note that it is also subject to a condition precedent: something else (besides A’s death) must happen for B’s interest to become possessory. That condition (that B survive—or live longer than—A) means that B’s remainder must be contingent. And its quantum? It contains no inherent limitation, meaning we can apply our presumption that O conveyed a future interest in fee simple absolute—unless the next estate gives us reason to change this view. Looking at interest 1(c), we find a future interest in A’s heirs. The word “otherwise” refers to the inverse of the condition on interest 1(b) (B surviving A), meaning that A’s heirs will take if A survives B. This is yet another condition precedent, but does it allow interest 1(c) to cut short or divest any prior interest? Clearly not: it cannot become possessory during A’s life estate, and the word “otherwise” indicates that 1(b) and 1(c) are alternative future interests: if B survives A, A will not have survived B (and vice versa). So interests 1(b) and 1(c) are alternative contingent remainders, and because neither can be cut short by any later interest (there being none), they are alternative contingent remainders in fee simple absolute. Finally, recall Step 2.a.iii of our method: we need to know whether O has retained any interest. Interest 1(a) is of a lesser quantum than O’s fee simple absolute, and interests 1(b) and 1(c), while of the same quantum, are contingent, not vested. So O must have a reversion in fee simple absolute. Note that this is true even though the alternative nature of these interests would seem to guarantee that either B or A’s heirs will take a fee simple absolute on A’s death. Can you imagine any reason why we might nevertheless insist on O having a reversion?

    Having completed Step 2.a of our method, we move on to Step 2.c. Given the analysis above, the state of title under Conveyance #1 is:

  • Life estate in A
  • Alternative contingent remainders in fee simple absolute in B and A’s heirs
  • Reversion in fee simple absolute in O.
  • Repeating this process for Conveyance #2, we again begin with a life estate in A. Interest 2(b), however, is somewhat different, in that it lacks the condition precedent that was present in interest 1(b)—indeed, it lacks any words of limitation at all. Thus, it is a vested rather than a contingent remainder. But what is its quantum? Since it has no words of limitation, we can apply our presumption to conclude that it conveys a vested remainder in fee simple absolute—unless the estate could be cut short or divested by some subsequent interest. And here we come to clause 2(c), which tells us that if B dies before A, A’s heirs will take Blackacre instead of B. But this possibility does not mean that B’s remainder is contingent: based on the language of the grant creating this particular interest, it is vested. However, there is a condition subsequent (i.e., a condition precedent to the vesting of a subsequent future interest) that could divest B. We therefore call B’s interest a remainder vested subject to divestment. It is vested, but it could still be divested (i.e., taken away) if some subsequent condition is satisfied.

    Interest 2(c), because it is a future interest in a grantee that can divest the interest of another grantee (B), is a shifting executory interest. Again, applying our presumption, the quantum of interest 2(c) is a fee simple absolute. Going back now to consider the effect of Interest 2(c) on the quantum of Interest 2(b), we should note that there is nothing Interest 2(c) could do to cut short interest 2(b) after it becomes possessory: either B will survive A and defeat the condition precedent to Interest 2(c), or B will predecease A and the vested remainder will be divested and disappear before it becomes possessory. We can therefore conclude that there is no future interest that could cut short B’s possessory estate once it becomes possessory, meaning that under our presumption it is a vested remainder subject to divestment in fee simple absolute. Finally, we move to Step 2.a.iii, and note that unlike Conveyance #1, Conveyance #2 has created a vested interest of equal quantum to the grantor’s interest: Interest 2(b). Therefore, there is no reversion.

    Having completed Step 2.a of our method with respect to Conveyance #2, we move on to Step 2.c. The state of title is:

  • Life estate in A
  • Vested Remainder Subject to Divestment in Fee Simple Absolute in B
  • Shifting Executory Interest in Fee Simple Absolute in A’s Heirs.
  • As is apparent, these two conveyances, though appearing quite similar and turning on the same contingencies (the relative timing of the deaths of A and B), create quite different sets of legal interests.

    1.9.4 Future Interests: Problems 1.9.4 Future Interests: Problems

    1. O, who owns a fee simple absolute in Blackacre, conveys Blackacre “to A for life.” A subsequently conveys “all my right, title, and interest in Blackacre to B.” Several years later, B dies. A is still alive. What is the state of title in Blackacre? Support your conclusion with an analysis of the chain of title.
    2. O, who owns a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then to B or her heirs.” What interests are created by this grant? Who will own Blackacre if A survives B? If B survives A?
    3. O, who owns a fee simple absolute in Blackacre, conveys Blackacre “to A, but if A ever divorces, then to the oldest of A’s then-living children.” At the time of the conveyance, A is married to B with one child, C. Five years later, A and B have a second child, D. Three years later, B is killed in a car accident. Three years after that, A remarries, to E. Two years later, A and E have a child, F. A and E then get a divorce. Who owns Blackacre? Support your answer with an analysis of the complete chain of title.
    4. Imagine the same sequence of events as presented in Question 3, with the exception that the initial conveyance is “to A so long as A does not divorce,” and that subsequent to A’s divorce from E, A dies leaving a valid will devising all her property to her children in equal shares. Who owns Blackacre? Support your answer with an analysis of the complete chain of title.
    5. O, who owns a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then to A’s children in equal shares,” at a time when A has one child, B. A then has a second child, C. B then marries D. B then dies, leaving a valid will devising all her property to her spouse, D. A then dies. What is the state of title in Blackacre? Support your answer with an analysis of the complete chain of title.
    6. O, who owns a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then to B if B graduates from law school, but if C graduates from law school, then to C.” B and C are both living at the time of the conveyance. B then graduates from law school. A then dies. C then graduates from law school. Who owns Blackacre? Support your answer with an analysis of the complete chain of title.
    7. O dies owning a fee simple absolute in Blackacre, and leaves a valid will devising Blackacre “to A for life, then to B and his heirs, unless B fails to graduate law school before his 25th birthday,” and further devising O’s residuary estate “to C and her heirs.” B is 15 years old at the time of O’s death. Five years after O’s death, A dies. Seven years after O’s death, C dies, leaving D as her sole heir. Nine years after O’s death, D conveys “all my right, title and interest in Blackacre to E.” Ten years after O’s death, B turns 25 years old, not having graduated (or even enrolled in) law school. Assume that all future interests are freely devisable, descendible, and alienable. Provide a chain of title for Blackacre.