PROPERTY D SLIDES 3-3-14 Monday March 3 Music: Vivaldi, Four Seasons (1723) Monday March 3 Music: Vivaldi, Four Seasons (1723) Itzhak Perlman, Violin

PROPERTY D SLIDES3-3-14

Monday March 3 Monday March 3 Music: Vivaldi, Four Seasons Music: Vivaldi, Four Seasons

(1723)(1723)

Itzhak Perlman, ViolinLondon Philharmonic Orchestra(Recording 1977; Remastered 1987)

1978 Grammy Award for Best Classical

Performance (Soloist with Orchestra)

PROPERTY D: 3/3

GOVERNOR SWAPHave you ever wondered whether the grass is greener in a different state? Two governors, one from a red state and one from a blue state, discover that it often isn't when they hand over the keys to their offices and literally switch administrations for two weeks.

DANCE MOMS of the

SERENGETISERENGETIFollow young tribal dancers’ early steps on the road to stardom with Follow young tribal dancers’ early steps on the road to stardom with

their doting mothers in tow for every rehearsal, performance and bow … their doting mothers in tow for every rehearsal, performance and bow … allall while dodging crocodiles and hippos at the while dodging crocodiles and hippos at the

water hole next to their studio.water hole next to their studio.

BUSH DYNASTYBUSH DYNASTY

The Story of the Family that (Sometimes) Runs The Story of the Family that (Sometimes) Runs the USAthe USA

This Week: Can Jeb Still Get the Cool Job in Washington This Week: Can Jeb Still Get the Cool Job in Washington After His Kid Brother Got There First?After His Kid Brother Got There First?

Survivor Chef AntarcticaSurvivor Chef AntarcticaContestants prepare gourmet dishes with Contestants prepare gourmet dishes with

penguins, seals, and killer whales they have penguins, seals, and killer whales they have to catch themselves. to catch themselves.

Featuring Padma Lakshmi & Shaun WhiteFeaturing Padma Lakshmi & Shaun White

Top Model Under the Guns

From Caracas to Kabul to Kiev, Our Aspiring Models Bring Fashion to the

World’s War Zones

Who Will Be Eliminated Tonight?“Take Cover, Girl!!!”

Tyra Banks Anderson Cooper

Previously in Property DPreviously in Property DChapter 3 Continued: Wills

•Review of Formalities in Rev Probs 3A & 3B•Substantial Compliance Doctrine as an Alternative to Strict Adherence to Formalities • Langbein on Purposes of Formalities• Arguments For & Against Substantial Compliance• Application of NJ/UPC Test to Weiss & Rev Prob 3B

•Capacity (Traditional Test & Strittmater & Rev Prob 3C)•Undue Influence (Webb; FL & OK Tests; Rev Probs 3B & 3F)

Previously in Property DPreviously in Property DIntro to Chapter 4

•Overview: Study Hints & Policy Concerns•Present Possessory Estates• Fee Simple Absolute• Finite Estates• Term of Years• Life Estate• Fee Tail

•Quick Intro to Future Interests that Follow Finite Estates• Reversion• Remainder

Review Problem 3F (S76) (Continued)

Part of Lawyering Question•Dentist Shelly Asks re Great Aunt’s Abbigail’s Will•A (76) died of brain tumor; A’s personal trainer, Matt (37) left his job to care for A when she became ill.•Under Will (must assume proper formalities)–M gets “most” of A’s “sizable estate”

–S gets A’s house, which includes space for medical/dental practice


Last Time: Research Regarding …•Effect of Invalidity of Will•Undue Influence• Legal Research

• Some Factual Research


Undue Influence: Factual ResearchUndue Influence: Factual Research

•Last Time: • How much of estate goes to M (total amount and % of estate) • A’s Relationship w Deceased Husband (re strength of character)• S’s relationship with A, including evidence re A’s intent to leave property to S before she met M or got sick.• Info on M (history, finances, behavior, involvement with will-drafting)

•Other Factual Research?Other Factual Research?


Undue Influence: Other Factual Research Undue Influence: Other Factual Research Includes:Includes:

•Evidence Going to Likelihood of Loss of Free Will• A’s Character & Behavior/Any Changes?• Nature of A/M relationship; evidence of large gifts• A’s relationship w other friends/relatives & their treatment before and after M

arrives

•Evidence Going to A’s Strength/Weakness of Mind (Overlap w Capacity)• Possible effects of A’s medical condition, treatment and meds• Evidence of A’s actual behavior/condition around time will executed


CapacityCapacity

Leave for YouLeave for You

WHITE v.

BROWN

WhiteWhite v. Brown (S87-91)Interprets Jessie Lide’s Will

I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.

Issue: What Interest in the Home Does This Language Create?

REDWOOD: DQ 4.01-4.04

REDWOODS & FERNS

WhiteWhite v. BrownDQ4.01

White majority says “the free alienation of property [is] one of the most

significant incidents of fee ownership.”

Why is it significant?Why is it significant?

WhiteWhite v. BrownDQ4.01

White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.”

Significance Includes:Significance Includes:1.Allows land to move to owner who can make most valuable use of it2.Means land is relatively liquid asset (can sell or mortgage for $). Related Rosendorf idea: maximizing owner’s control & freedom.

WhiteWhite v. BrownRedwood: DQ4.02

I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold.

The White majority complains that “the words chosen by the testatrix are not specific enough to clearly state her

intent."



What do you think Jessie Lide’s intent is?

Why must house not be sold?



Why does the majority have problems discerning Jessie Lide’s intent?

WhiteWhite v. Brown: Possible Characterizations

I wish Evelyn White to have my home to I wish Evelyn White to have my home to live in and live in and notnot to be to be soldsold. .

•Fee Simple •Life Estate

•Conditional Fee• So long as not sold• So long as E lives there

•Conditional Life Estate


WHAT ARE THE MAJORITY’S ARGUMENTSTHAT MS. LIDE INTENDED TO CREATE A FEE

SIMPLE?


MAJORITY ARGUMENTS (FEE SIMPLE)•Presumption: Grant Conveys Whole Estate• JL had FSA, so presume she gave FSA to EW• Same idea as “default estate today is fee simple”

•No Gift Over (Will describes no interest in home after EW’s death)

•Partial Intestacy Disfavored (Try to read will to address all of JL’s property)


WHAT ARE THE DISSENT’S ARGUMENTSTHAT MS. LIDE INTENDED TO CREATE A LIFE

ESTATE?


DISSENT ARGUMENTS (LIFE ESTATE)•Presumption: All Language Used Has Meaning (same idea re statutes, contracts, etc.)

• Language Here Consistent with Life Estate:• Says: “to live in”• Says: “not to be sold”

•Contrast Language in Gift to Niece: No Limits


I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold.

Whose Arguments Seem Stronger?

WhiteWhite v. BrownHolds Interest is Fee Simple Absolute

• Could you Read Grant as Fee Simple Conditioned on Land Not Being Sold?• No. Restraints on Alienation are Inconsistent

with Fee Simple.

• Even if Condition Explicit, Court Would Pencil It Out as Against Public Policy.

THUS…

WhiteWhite v. BrownHolds Interest is Fee Simple Absolute

Result:The Property Can Be

Sold!!!


Imagination Exercise: Possible Relevant Facts Not in Opinion •Legal Relevance Here:• Both Sides Rely on “Presumptions” • Means Can Use Other Facts to Overcome/Rebut

•Important Exam Skill• Big Part of Lawyering Q• Can Use for Short Problems/Issue-Spotter• If Consistent with Rest of Facts • If Relevant to Issues Raised


Imagination Exercise: Possible Relevant Facts Not in Opinion

•To Add Weight to Majority Position (Fee Simple)?

•To Add Weight to Dissent Position (Life Estate)?

WhiteWhite v. BrownWhat Actually Happened?

1. EW had stroke, moved in w daughter2. Probably wants to sell house b/c rental income not much3. Significance of case:• If life estate, most of value goes to nieces/nephews• If fee simple (as court held), EW gets money for medical & living

expenses

WhiteWhite v. BrownGrantor’s Intent v. “Channeling”

Function1. Recurring problem with estates/future interests: laypeople

don’t know relevant categories.2. Thus, they don’t know how to signal what they wish to

future court.3. Important roles that lawyers play in helping with wills:

a. Ask Qs to discern client wishes (“What if Evelyn gets sick?”)b. Channel client desires into language that gives legal effect to

those wishes.

WhiteWhite v. Brown

Test Note #1Test Note #1: : Test Will Include At Least One Grant (Yielding Multiple Test Will Include At Least One Grant (Yielding Multiple

Questions) That Could Be Either Fee Simple or Life Estate, So Questions) That Could Be Either Fee Simple or Life Estate, So You Need to Know Arguments Distinguishing the TwoYou Need to Know Arguments Distinguishing the Two

QUESTIONS?

Vested v.Vested v.ContingentContingentRemaindersRemainders

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

REMAINDERREMAINDER

Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

VESTED REMAINDER

1. Grantee is living ascertainable person (can presume this if granted to a named individual.)

VESTED REMAINDER1. Grantee is living ascertainable person AND

2. Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate.

VESTED REMAINDER

1. Grantee is living ascertainable person AND

2. Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate

Example: To Aaron for life, then to Oona and her heirs.

CONTINGENT REMAINDER•Grantee is presently unborn or unascertainable *OR*•Clause creating the remainder contains a condition on

grantee taking the property

REMAINDERS: EXAMPLES

“To Fred for life, then to Fred’s firstborn child.”•Fred has Life Estate•Interest in Child • Follows Life Estate, so it’s a Remainder• If Fred presently has no children, grantee is unborn, so

Remainder is Contingent .

Suppose Fred has a child, Pebbles…


“To Fred for life, then to Fred’s firstborn child.”•Fred has Life Estate•Interest in Child • Follows Life Estate, so it’s a Remainder• Once Fred fathers his first child, grantee is born and

ascertainable, so Remainder is now Vested. • Thus, we say that, at the birth of Pebbles, the Contingent

Remainder “Vests”


“To Fred for life, then to Fred’s oldest child living at Fred’s death.”•Fred has Life Estate•Interest in Child • Follows Life Estate, so it’s a Remainder• Even if F has living children now, can’t know which of the

children will be alive at F’s death, so grantee is unascertainable, so Remainder is Contingent .


“To Fred for life, then to Wilma and her heirs if Dino survives Fred.”•Fred has Life Estate•Interest in Wilma• Follows Life Estate, so it’s a Remainder• Condition must be met before Wilma can take, so Remainder is

Contingent.

Contingent v. Vested Remainders:Memory/Comprehension AidsMemory/Comprehension Aids

•Meaning/Derivation of Vested Right• Clearly Established Right that’s Hard to Undo• E.g., “Vested” Employee Benefits

• Derivation: Putting on Robes of Office (Investvestment)

•Analogy:• Vested Remainder Theater Ticket• Contingent Remainder Lottery Ticket

Life Estate + Vested Remainder

To Fred for Life, then to Wilma and her heirs.

Life Estate + Contingent Remainder

Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.”

I’ll Show Contingency by Drawing Dotted Line, Off of the Primary Time Line, that Begins at the End of the Finite Estate



What happens to property when Fred dies if Dino doesn’t survive Fred? Someone must get it!



What happens to property when Fred dies if Dino doesn’t survive Fred? If grant doesn’t distribute some of the available rights, then those rights are retained by the grantor.


REMAINDERS “IN …” :

• “To Fred for life, then to Wilma for life.”

Wilma has a vested remainder in life estate

• “To Fred for life, then to Wilma and her heirs if Dino survives Fred.

Wilma has a contingent remainder in fee simple absolute

TERMINOLOGY: ME v. WORKBOOK

•Workbook: Describes all present possessory estates (Fee Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”


•Workbook: Describes all present possessory estates (Fee Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”•My Test Questions: Will not use the italicized phrase.


•Workbook: Describes all present possessory estates (Fee Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”•Maybe there to help you remember important rule: You can

have only one present possessory estate at any given time with respect to a particular parcel of land.


•Workbook: Adds language to define nature of future interests in grantor. E.g., • Reversion in Fee Simple Absolute• Possibility of Reverter in Fee Simple Absolute


•Workbook: Adds language to define nature of future interests in grantor. E.g., • Reversion in Fee Simple Absolute• Poss. Of Reverter in Fee Simple Absolute

•My Test Questions: Only will add this sort of language for remainders

SHENANDOAH (Problems 4A-4E)

APPALACHIAN TRAIL

Shenandoah: (4A) O conveys Baconacre "to Mayer and her heirs”

Mayer's only child, Armour, runs up large bills. Can Armour's creditors reach any interest of

Armour in Baconacre?

Shenandoah: (4A) O conveys B-Acre "to Mayer and her heirs”

Point of 4A is meaning of “and her heirs”• Clarifies that M has a Fee Simple• Creates no interest in anyone else• Presumptive heirs have a “mere expectancy”

Shenandoah: (4A) O conveys Baconacre "to Mayer and her heirs”

Mayer wishes to sell Baconacre and use the proceeds to take a trip around the world.

Can Armour prevent Mayer from doing this?

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (Common Law)

•Ernie?

http://en.wikipedia.org/wiki/Image:Tv_sesame_street_ernie.jpg


•Ernie: Life Estate

•Burt: ?


•Ernie: Life Estate•Burt: Vested Remainder• Remainder b/c Follows Life Estate• Vested b/c Burt is Named (so Living & Ascertainable

Muppet) and No Condition Precedent• Vested Remainder in …?


•Ernie: Life Estate•Burt: Vested Remainder in Life Estate

At Common Law • To Create Fee Simple Interest, need “and his Heirs.”•Without language indicating fee simple, default estate is Life

Estate.


• Ernie: Life Estate• Burt: Vested Remainder in Life Estate

•Who Owns the Rest (rights to property after both Ernie & Burt are dead)?


• Ernie: Life Estate• Burt: Vested Remainder in Life Estate

•Kermit: Reversion (in Frog Green!)• Follows finite interest if not explicitly granted to someone else

State of the Title When Ernie Dies?


•Burt: Life Estate•Kermit: (retains) Reversion

•When Burt Dies?


•Kermit (or Kermit’s Successors) have Fee Simple Absolute


• Ernie: Life Estate•Burt: Vested Remainder in Life Estate•Kermit: Reversion

Shenandoah: (4B) Kermit “to Ernie for to Ernie for lifelife, then to Burt foreverthen to Burt forever.” (TODAY)

•Ernie: Life Estate

•Burt: ?


•Ernie: Life Estate•Burt: Vested Remainder in Fee Simple

- Default Estate Today is Fee Simple•Kermit?

http://en.wikipedia.org/wiki/Image:Kermit_the_Frog.jpg


• Ernie: Life Estate•Burt: Vested Remainder in Fee Simple•Kermit: Nothing (not easy being green)

State of the Title When Ernie Dies?


•Burt: Fee Simple AbsoluteWhen Burt Dies?


•Burt: Fee Simple AbsoluteWhen Burt Dies?

Property passes by Burt’s will or through intestacy to Burt’s heirs.

Shenandoah: (4C) Elmer “to Sylvester to Sylvester for lifefor life, then to Bugs and his heirsthen to Bugs and his heirs.”

•Sylvester: ?

http://en.wikipedia.org/wiki/Image:Sylvester_J_Pussycat.png


•Sylvester: Life Estate•Bugs:?

http://en.wikipedia.org/wiki/Image:Bugsbunny_rabbit_transit.jpg


• Sylvester: Life Estate•Bugs: Vested Remainder in Fee Simple [Absolute]

Bugs dies intestate without heirs. What Effect?


• Sylvester: Life Estate

•Bugs: Vested Remainder in Fee Simple • Bugs dies intestate without heirs. • Vested Remainder passes to State by Escheat (like rest of

Bugs’s property)Sylvester Dies: What Effect?


•When Bugs died intestate without heirs, Vested Remainder passed to State by Escheat.•When Sylvester dies, Vested Remainder becomes Fee Simple. •So: State has Fee Simple Absolute

Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.”

•Minnie?

http://en.wikipedia.org/wiki/Image:Minniemouse.gif

Shenandoah: (4D) Mickey “to Minnie for to Minnie for lifelife, then to Pluto for 99 years.”

•Minnie: Life Estate•Pluto?

http://en.wikipedia.org/wiki/Image:Plutodog.gif

Shenandoah: (4D) Mickey “to Minnie for life, then to Pluto for 99 years.” then to Pluto for 99 years.”

•Minnie: Life Estate•Pluto: Vested Remainder in Term of Years.•Anything Else?


•Minnie: Life Estate•Pluto: Vested Remainder in Term of Years.•Mickey: Reversion


• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.

•Mickey: Reversion (eventually to his successors)• Somebody has to own the rights to the property after the

first two finite interests are completed. Because Mickey did not give away those rights, he must still have them at the time of the grant.


• Minnie: Life Estate• Pluto: Vested Remainder in Term of Years.

•Mickey: Reversion (eventually to his successors)•Note we say that Mickey has a Reversion even though we

are pretty certain he won’t be alive when it becomes possessory (after all, he’s a mouse). When Pluto’s interest ends, Mickey’s successors will take possession.

Documents

PROPERTY D SLIDES 3-3-14 Monday March 3 Music: Vivaldi, Four Seasons (1723) Monday March 3 Music: Vivaldi, Four Seasons (1723) Itzhak Perlman, Violin