Destructibility of Contingent Remainders
What is the rule of destructibility of contingent remainders?
Under the Rule of Destructibility of Contingent Remainders, if a CR does not vest by the time the preceding (LE/ FT) estate terminates, the CR is destroyed. The first step to determining if a CR remainder is destroyed is to look at whether the preceding estate terminated. If the preceding estate had terminated, then we look at whether the CR vested or not. The RDCR may apply when the preceding estate either terminated naturally, terminated by merger, or terminated unnaturally and the CR did not vest. Natural terminations include LE and FT interests.
What is the rule in Shelly's case?
If a grantor conveys a life estate to A, and by the same instrument attempts to create a remainder in fee simple or fee tail in A's heirs the result is a remainder to A.
Doctrine simplified: If we have a grant to A's heirs, turns into A
Thus, in the conveyance “to A for life and upon A’s death to B for life and upon B’s death to B’s heirs,” we would cross out heirs and it will go to B.
What is the doctrine of worthier title?
Under the doctrine of worthier title, the conveyance of a remainder or executory interest to the heirs of the grantor is void.
Doctrine simplified: if we have a grant in O's heirs, turns into O
What is the rule of perpetuities?
No future interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. An interest is void from the outset if it violates this rule.
Depends on whether the conveyance is by grant (deed) or by devise (will)
Is the destructibility of contingent reminders for both contingent remainders and executory interests?
This rule applies to Contingent Remainders as well as Springing Executory Interests which can be interpreted as a Contingent Remainders under the second aspect of Purefoy.
2nd Aspect of Purefoy: If a springing executory interest could take immediately after the natural termination of the preceding estate, it will be treated as a contingent remainder for purposes of the Rule of Destructibility. Taking possession as a contingent remainder means taking possession immediately after the natural termination of the preceding estate
Does Shelly's rule apply to both "grantee's heirs" and "grantee's children"?
This only applies to grantee’s heirs, not if the conveyance is to grantee’s children or when heirs are used as a word of limitation.
What is the rule of convenience?
Class closes whenever any member of the class is entitled to demand possession of his interest.
A class may close under the rule of convenience whenever any member of the class is entitled to demand possession of his interest. This means that all prior estates are terminated and there are no conditions precedent. The rule of convenience is a rule of construction that can be rebutted if shown that it is against the grantor’s intent.
What are the steps of analysis for the RAP?
Steps for Analysis (go down the line in order of the granting string):
a. X = event(s) that will resolve the contingency
i. Check for whether, when, and who
b. Y = death of the last life in being
i. Life in being: someone who (1) is identifiable at the time of the grant, (2) relevant in some way to the interest in question, and (3) not a member of an open class
c. Is it logically possible for X to occur more than 21 years after Y?
d. If the answer is yes = void under the rule
e. If the answer is no = valid under the rule
What is the Wrap question and what interests does it apply to?
WRAP QUESTION: Is it possible for [the vesting event] to occur more than 21 years after [the death of the last life in being]?
Applies to:
Vested Remainder Subject to Open
Executory Interests
Contingent Remainders
What is the natural termination of the preceding estate? State the title for "to A for life and upon A's death to A's eldest child if he shall attain the age of 21," and A dies - natural termination of the preceding estate
Upon the natural expiration of the prior freehold estate, if a contingent remainder has not yet vested, it is destroyed. It has the same effect as the 1st aspect of Purefoy.
Question: has the contingent remainder vested before the natural termination of the preceding estate?If it hasn't contingent remainder is destroyed and reversion in o
The limitation on the rule of Shelly's case is it applies only if the life estate and remainder in A's heirs are both legal or both equitable, and doesn’t apply in a mix or match state.
Additionally, only applies to remainders, but not executory interests.
What are the 2 branches under doctrine of worthier title?
Testamentary branch: a device to the heir of the testator was void if it purported to give the beneficiary and interest of the same quality and quantity, they would have gotten by intestacies. This applies to Wills. (no longer the general law).
Inter vivos (between the living) branch: a gift between two people who are living. The conveyance of a remainder or executory interest to the heirs of the grantors void and the grantor retains a reversion. This applies to gifts. (general law)
The condition WILL SURVIVE if it is in language of duration.
EX: O to the school district so long as it is used as a school, then to Daniel.
State of the Title: FSD in School district, Shifting Ex. Int. in Daniel.
Apply the Rule: FSD in School district. Possibility of reverter in O.
The condition WILL NOT SURVIVE if it is in language of condition.
EX: O to the school district, but if not used as a school, then to Daniel.
State of the Title: FS on CS in School district. Shifting Ex. Int. in Daniel,
Apply the Rule: FSA in School District.
What is the doctrine of Infectious Invalidity?
If a gift is void under RAP, and the only purpose of the second gift was to hold the property until the voided gift could take, the second gift is void as well.
Needs strong facts to apply, but always mention in an essay if you void an interest under RAP
What is the unnatural termination of the preceding estate?
An unnatural termination occurs when a LE or FT is terminated unnaturally, like in the case of forfeiture, renunciation, or abandonment.
to A for life, then if A's daughter Jane survives A to Jane in fee tail, then to A's heirs
State of the title: life estate in A, contingent remainder in fee tail in Jane, and vested remainder in A
Process to get there:
Life estate in A, contingent remainder in fee tail in Jane, contingent remainder in A's heirs
Shelly's case: to A for life, then if A's daughter Jane survives A to Jane in fee tail, then to A
Life estate in A, contingent remainder in fee tail in Jane, and vested remainder in A
Where the life estate and the next vested interest are created simultaneously
**We treat the substitution of A for A's heirs as having been intended by the grantor from the outset, and therefore we apply the exception to the rule of destructibility by merger**
Therefore, there is no destructibility by merger
State of the title: life estate in A, contingent remainder in fee tail in Jane, and vested remainder in A
O to A for life, then to O's heirs. State the title.
Life estate in A, reversion in O
Before applying the Doctrine of Worthier Title, the state of the title is life estate in A, contingent remainder in O's heirs (because O is still alive and his heirs are therefore unascertained), and reversion in O. The inter vivos branch of the Doctrine of Worthier Title voids the contingent remainder in O's heirs. Alternatively, the inter vivos branch of the Doctrine of Worthier Title converts the contingent remainder in O's heirs into a reversion in O, which then merges with the preexisting reversion in O. Therefore, the state of the title is life estate in A, reversion in O.
Under the case of the Slothful Attorney: O devises “to such of his grandchildren who are living at the time O’s will is admitted to probate.” State the title.
○ FSA in O, SpEI in Grandchildren.
○ X = will being probated, Y = Anyone
○ Is it possible for the will to go into probate more than 21 years after the death of the last living being on earth? Yes - void under RAP.
○ If the children have pre-deceased O, the gift is valid because O’s grandchildren would be lives in being (currently cannot be lives in being if members of an open class).
Under Unborn Widow Case: O conveys to “son for life, and upon son’s death to son’s widow for life, and upon the death of the survivor to such of their issue that is then-living.” State the title.
○ LE in Son, CR in Widow, CR in Issue, R in O.
○ Widow’s CR: X = son’s death (that’s when we can ascertain the widow), Y = Son, not possible for Son to die more than 21 years after he dies, valid under RAP.
○ Issue’s CR: X = death of widow, Y = Son, is it possible for the widow to die more than 21 years after the Son? Yes, void under RAP.
○ State of the Title: LE in Son, CR in Widow, R in O.
What is the termination by merger?
Termination by merger occurs whenever a person owns more than one interest in a piece of property and those interests add up to another interest and then merge. If an intervening contingent remainder has not vested when the present and future interests merge, the contingent remainder is destroyed. HOWEVER, vested remainders cannot be destroyed.
For instance, O to A for life, then to B and his heirs if B marries C. So, LE in A, CR in B, and a reversion in O.
If O transfers his reversion to A, the CR in B is destroyed and A’s estates merge into an FSA.
An exception to the general rule is that when a LE and next vested interest are created in the same string simultaneously in the same person with a CR in between, the rule does not apply, because we assume it was the grantor’s intention was keep them separate.
Thus, if O conveys “to A for life, then to B and heirs if B marries C , then to A and his heirs,” the RDCR does not apply.
O to A for life, then if B marries C, to A's heirs. State the title.
Life estate in A, contingent remainder in A, reversion in O
Under the first holding of Purefoy, the grant to A's heirs will be construed as if it reads "if B marries C before A dies." It is therefore a contingent remainder, because if it takes, it will take immediately after the natural termination of A's life estate. Before applying the Rule in Shelley's Case, the state of the title is therefore life estate in A, contingent remainder in A's heirs, and reversion in O. Under the Rule in Shelley's case, the grant to A's heirs is converted into a grant to A. It remains contingent because there is a condition precedent before A can take. The life estate in A and contingent remainder in A do not add up to a named interest. What A has is the right to possession for life plus the right to possession until the end of time if B marries C before A dies. This kind of interest has no standard name. Therefore, the life estate in A and contingent remainder in A do not merge. Therefore, the state of the title is life estate in A, contingent remainder in A, reversion in O.
O to A for life, then to B's children who reach age 21. B is alive. A then dies. At the time of A's death, B has two children: C, age 25, and D, age 10. In addition, B is pregnant with E, who is later born alive. If the class closes under the rule of convenience, which children are in the closed class?
C, D, and E
A class closes under the rule of convenience when any member of the class is entitled to demand his or her share. At the time of A's death, C has met all conditions precedent to taking and is therefore entitled to demand his share. The class therefore closes when A dies. The class is the class of B's children, not the class of B's children who reach age 21. Therefore, D, the 10-year-old, is a member of the closed class. Children in the womb at the time a class closes are members of the closed class if they are ultimately born alive. Therefore, E is a member of the closed class.
What is the order of the Rule application?
ORDER OF RULE APPLICATION
a) Interpretive Rules
Purefoy (1) If the grant may be interpreted to create either a contingent remainder OR a springing executory interest, it will be interpreted to be a contingent remainder.
Presumption favoring FSA’s
b) Name and Classify
c) Upfront Rules (Applied at the moment of conveyance)
Rule in Shelley’s Case - If, in the same instrument, a grantor conveys a life estate in A and a remainder in fee simple in A’s heirs, we replace A’s heirs with A.
Doctrine of Worthier Title (Intervivos Branch) - A conveyance of a remainder or executory interest to the heirs of the grantor is VOID and the grantor retains a reversion.
Common Law RAP - No future interest is good unless it MUST vest, if at all, no later than 21 years after the death of all lives in being. An interest is void from the outset if it violates this rule.
Doctrine of Infectious Invalidity - If the only purpose for including an interest preceding a voided interest was to hold it for that voided interest, the preceding interest is void as well.
d) Wait and See Rules (Applied at the termination of the prior interest)
Destructibility of Contingent Remainders - Upon the natural expiration of the prior freehold estate, if a contingent remainder has not yet vested, it is destroyed. Two interests will merge if they are owned by the same person and together comprise another named interest. If there exists a contingent remainder between the two interests to be merged, the contingent remainder is destroyed. EXCEPTION - When a life estate and the next vested estate are created simultaneously in the same person with an intervening contingent remainder in another, destructibility does not apply because we assume it was the grantor’s intention was keep them separate. Upon the unnatural termination of a freehold estate via Forfeiture or Renunciation.
Purefoy (2) - A spring executory interest will be treated as a contingent remainder under the Rule of Destructibility of Contingent Remainders if the springing executory interest could take immediately after the natural termination of the preceding estate.
Wait and See RAP
What is the Wait and See RAP approach?
The interest is voided if it ultimately vests more than 21 years after lives in being at the creation of the interest (wait and see what actually happens, only void the interest if it actually vests outside the period of perpetuities).
Wait and see if the interest vets within 21 years after the deaths of the lives in being.
DO NOT void at the outset, but rather after the 21 years have lapsed.
→ Problem: There is a cloud on the title while we wait and see (uncertainty), meaning it is unsaleable.