Estates in Land and Future Interests

Estates in Land and Future Interests

1066 (Norman Conquest) Concept of subinfeudation The Feudal Structure The King Services The Peasants

Freehold and Nonfreehold Estates • The concept of seisen • Possession plus obligation to perform incidences of feudal tenure • Incidents of freehold estates • Homage and fealty • Aids (Ransom money) • Fines • Typically payable on conveyance by substitution, not subinfeudation • Relief • Form of feudal inheritance tax when land passed to heir • Wardship and Marriage (a real “cash cow”) • Nonfreehold estates • Ancestor of current leases

Subinfeudation vs. substitution 1290 The Statute Quia Emptores The Statute Quia Emptores Terrarum Makes land freely alienable without payment of the fine

Common law versus equitable estates

Common law estates • Holder of “present possessory estate”had seisen • Estates created as a “use” • The utility of the use • Ability to will property away and deprive King of the relief • The Statute of Uses (1536) • The Statute of Wills (1540)

Important Common Law Statutes • De donis 1285 (coverts fee simple conditional into a fee tail) • Quia Emptores-1290 (makes property alienable) • Statute of Uses 1536 (Converts equitable estates created by way of a “use” into legal estates • Statute of Wills 1540 (permits disposition of all property by will)

Durational concept-Lasting to infinity In Who? Fee simple absolute Fee simple determinable Fee simple on condition subsequent Fee simple conditional (pre-1285) Fee tail (Statute de donis) Life estate Types of Common-law Present Possessory Estates

Types of Non-freehold estates • Term of years • Periodic tenancy • Tenancy at will • Tenancy at sufferance

Recognized as common-law estates Remainders Indefeasibly vested remainder Vested remainder subject to open Vested remainder subject to complete divestment Contingent remainder Reversionary Interests Reversions Possibility of reverter Right of entry for condition broken Recognized as equitable estates Executory interests Shifting executory interest Springing executory interest Effect of Statute of Uses Future Interests

Words of purchase-describe who takes by grant, gift, inheritance or bequest Words of limitation-describe the duration of the estate taken by the transferee Words of Purchase vs. Words of Limitation

What are the words of purchase? What are the words of limitation? A and his heirs A Words of purchase and his heirs Words of limitation Infinity

A and his heirs-Critical Characteristics • What are the critical attributes of the fee simple absolute • Alienable, devisable and descendible • Lasts for a perpetuity

Exam Question Oscar, who owns Blackacre in fee simple absolute, conveys Blackacre to “Barney and his heirs.” Barney has a: (a) Fee simple absolute (b) Fee tail (c) Life estate (d) Term of years (e) Fee simple on condition subsequent This question is worth one point

What are the facts of this case? White v. Brown-The Fee Simple Absolute Decedent willed her home to Evelyn White “to live in and not to be sold Ms. White brought construction proceeding for court to declare that will left her a “fee simple absolute.” Decedent’s heirs (who are they?) claim decedent bequeathed Ms. White only a life estate.

Spouse Partner Child Issue / Descendant Child Grandchildren Stepchild Sibling Ancestor Collateral Half-brother/half-sister Words about Family

Forfeiture vs. Disabling Restraints • To A but if A purports to sell the property, then to B. • To A and the property shall never be sold

Exam Question Oscar, who owns Blackacre in fee simple absolute, conveys Blackacre to “Charlie and his heirs.” Charlie has a: (a) Fee simple absolute (b) Fee tail (c) Life estate (d) Term of years (e) Fee simple on condition subsequent This question is worth one point-The correct answer is (a)

Mahrenholz v. County Board Of School Trustees of Lawrence County • What are the facts of this case?

Mahrenholz v. County Board of School Trustees of Lawrence County • On March 17, 1941 property owned in fee simple absolute by W.E. and Jennie Hutton • On March 18, 1941 W.E. Hutton and Jennie Hutton convey to Trustees “this land to be used for school purposes only; otherwise to revert to Grantors herein.” • W.E. Hutton died intestate on July 18, 1951 with Harry Hutton as his only legal heir • Jennie Hutton died intestate on February 18, 1969 with Harry Hutton as her only legal heir • On May 30, 1973, School stopped teaching classes on property but thereafter used it to store vehicles • On May 7, 1977, Harry conveys to Mahrenholz • On September 6, 1977, Harry disclaims interest • Plaintiffs sue to quiet title Illinois Statute?

Fee Simple Determinable vs. Fee Simple on Condition Subsequent • If the limitation or condition is violated when does the cause of action begin to run if the holder of the possibility of reverter or right of entry for condition broken has to sue for possession • Conceptually • By case law

Fee Simple Determinable vs. Fee Simple on Condition Subsequent • O to A and his heirs so long as no liquor is sold on the premises (WP/WL) • O to A and his heirs provided that if liquor is sold on the premises O may re-enter and claim the property (WP/WL) • O to A and his heirs to be used for any purpose other than the sale of liquor • Rule of construction where conveyance ambiguous?

Fee Simple Determinable O deeds Whiteacre A and his heirs so long as liquor is not sold on the premises. A dies intestate. A’s spouse (S) takes possession of the area left of the black line, A’s heir (H) takes possession of the rest. S sells liquor in the shaded portion. What is the effect of this on H?

Fee simple conditional / Fee tail • How created? • Characteristics of estate • Before 1285 • After 1285 • Fee tail • Fee tail male • Fee tail female • Fee tail special “and the heirs of his body” “and the male heirs of his body” “and the female heirs of his body” “and the heirs of his body with X”

Robins Island Preservation Fund, Inc. v. Southold Development Corp. What are the facts of this case?

In 1715, Joseph Wickham, Sr. purchased Robins Island. In 1734, JWS wills to Joseph Wickham, Jr. "and to the male heirs of his body lawfully begotten or to be begotten forever." (Creating what?)In 1749, Joseph, the tenant-in-tail, died and Robins Island passed to his son, Parker Wickham. (Creating what?). In 1779 the New York State Legislature passed the Act of Attainder of 1779 declaring British loyalists as ipso facto convicted of "adherence" to the British. (Effect on Parker?)In 1782, the New York abolished the estate tail. (Effect?)In 1783, New York ceases the land declared confiscated by the 1779 Act of Attainder. Parker Wickham fled to Connecticut where he remained until his death in 1785. At the same time, his eldest son, Joseph Parker Wickham, his likely heir, left the United States for Great Britain.In 1784, the New York State Legislature passed an act for the sale of estates confiscated pursuant to the 1779 Act of Attainder. Under that Act, Robins Island was sold to Benjamin Tallmedge and Caleb Brewster in fee simple. SDC claims title to Robins Island as the successor-in-interest to these two individuals.

Current State of the Fee Tail

Death without issue O conveys to A and the heirs of his body, then to B and his heirs. State the title? O conveys to A and his heirs but if A dies without issue then to B and his heirs. State the title? At what point in time might it be determined that A dies without issue? A’s death When either at A’s death or the death of a descendant of A, there are no more living issue of A.

Life Estate How created? “for life” O to A for life. What does A have? What does O have” O to A for life. A to B. What does A have? What does B have? What does O have? B dies survived by A and O A dies survived by B and O O to A for life. A to B for life. What does A have? What does B have? What does O have? B dies survived by A and O. A dies survived by B and O

Problems • Problem 4, Page 276 • Problem 6, Page 277

Trusts vs. Legal Interests • Problem 9, page 279

Remainder Vested Vested subject to partial divestment Vested subject to complete divestment Contingent Executory interests (limitations) Shifting Springing Reversionary interests Reversion Possibility of reverter Right of entry for condition broken Future Interests-Review

Remainder-General Definition A remainder is a future interest limited in favor of a transferee which may become possessory immediately upon the termination (upon the happening of a limitation) of a prior possessory estate simultaneously created

Vested Remainder An indefeasibly vested remainder is a remainder that will, in all events, become possessory immediately upon the termination of the prior possessory estate (either in the remainderman or her successor)-- no “ifs, no “ands”, no “buts”.

Vested Remainder Subject to Open A vested remainder subject to open (also known as a vested remainder subject to partial divestment) is a vested remainder limited in favor of a class of persons collectively described (and typically related to each other though a common ancestor) of which there is at least one living member.

Contingent Remainder A contingent remainder is a remainder that is subject to a condition precedent. It also includes remainders limited in favor of unborn or unascertained persons for whom the condition precedent includes either being born or being ascertained.

Vested Remainder Subject to Complete Divestment A vested remainder subject to complete divestment is a remainder limited in favor either a born or ascertained individual or in favor of a class of persons of which there is one living member which is subject to the happening of a condition subsequent and not a condition precedent. If the condition subsequent occurs, the vested remainder could fail; if the vested remainder becomes possessory as a fee simple estate before the condition subsequent occurs, the fee simple will terminate. In both cases, another estate (known as a shifting executory interest) will either vest in interest or possession.

Shifting Executory Interest A shifting executory interest is a future interest limited in favor of a transferee which can become possessory only by divesting the present possessory freehold interest or a vested future interest limited in favor of another transferee. A divesting occurs only upon the happening of a condition. Shifting executory interests divest other grantees, not grantors. (Note: The one exception to this rule was that a shifting executory interest is the future interest in a transferee following a fee simple determinable even though a fee simple determinable ends, if it ends at all, upon the happening of a limitation rather than a condition).

Springing Executory Interest The springing executory interest is a future interest limited in favor of a transferee which can become possessory only after some period of time during which there is no other transferee entitled to a freehold estate, and which, if it becomes possessory, divests the grantor of a retained interest in the property

O conveys Blackacre to A for life, then to B and his heirs Words of purchase; words of limitation State the title A has a life estate, B has a vested remainder. O has nothing O conveys Blackacre to A for life and upon A’s death to B and his heirs if B attains the age of 21. State the title. A has a life estate, B has a contingent remainder, contingent on reaching age 21, O has a reversion. State the title if, during A’s lifetime, B reaches age 21. State the title if A dies survived by B age 25 State the Title-Part I

O conveys to A for life and, if B survives A, then to B and her heirs. State the title. A has a life estate, and B has a contingent remainder and O has a reversion Suppose three years later, A dies. State the title. Suppose A and B die under such circumstances that from all outward appearances it cannot be determined who survived whom State the Title-Part II

O conveys to A for life and upon A's death to B's heirs. State the title, and, if it depends, on what does it depend? Assume B is alive. Suppose B dies during A's life survived by X as his sole heir. At B's death, state the title. If X survives A, state the title. If X survives B but dies before A, state the title. O conveys to A for life and upon A’s death and if B marries A’s widow, then to B and his heirs. State the Title-Part III

State the Title-Part IV • O conveys to A for life and upon A's death if B survives A then to B and his heirs but if B does not survive A then to C and his heirs. • Life estate in A, alternative contingent remainders in B and C, reversion in O • O conveys to A for life and upon A's death to B and his heirs but if B dies before A then to C and his heirs. • Life estate in A, vested remainder subject to divestment in B, shifting executory interest in C, nothing in O

O conveys to A for life and upon A's death if B survives A then to B and his heirs but if B does not survive A then to C and his heirs. O conveys to A for life and upon A's death to B and his heirs but if B dies before A then to C and his heirs. Contingent Remainders v. Vested Remainders Subject to Complete Divestment

O conveys to A for life and upon A's death if B survives A then to B and his heirs but if B does not survive A then to C and his heirs. O conveys to A for life and upon A's death to B and his heirs but if B dies before A then to C and his heirs. Contingent Remainders v. Vested Remainders Subject to Complete Divestment Vested Remainder Subject to Complete Divestment followed by a shifting executory interest Alternative Contingent Remainders

O conveys Blackacre to A for life, then to B and his heirs if B survives A, but if B does not survive A, then to C and his heirs. O conveys Blackacre to A for life, then to B and his heirs but if B does not survive A, then to C and his heirs.

Intermission

Estates in Land and Future Interests