Acquisition of Property M.B.

A. INTRODUCTION

1. Property rights defined:

The ordinary person thinks of property as things while lawyers think of property as rights:
o Exclude
o Possess
o Transfer/Dispose
o Use
o Enjoy
How do property rights originate?
o Conquest;
o Social custom;
o Claims based on possession;
o Claims based on labor or investment;
o Family relations; or
o Government assignments by law and k, etc.
Ways we acquire property:
Possession is a protected property right. The first person to get possession of an unowned thing usually becomes its
owner. To satisfy the possession requirement, the possessor must exercise physical control over the object and must intend to
control it and exclude others from it.
o First possession
 Discovery
 Capture
 Creation
 o Subsequent possession
 Find
 Adverse Possession
 Gift or Bequest
If two people claim to have discovered something, who has the stronger claim?
A person simply does not become the owner of an object that already has an owner simply by taking possession of
it. The possessor is legally obligated to return the object to its owner.

B. THE RULE OF CAPTURE

1. What is the difference between ownership and possession?
The person who acquires ownership by taking possession of an object is entitled to all the same legal rights as any
other owner. A person simply does not become the owner of an object that already has an owner simply by taking possession
of it. The possessor is legally obligated to return the object to its owner.
2. Acquisition by discovery
The title of land, which has been discovered and conquered, belongs entirely to the conquering nation, subject only to the
right of those natives present to occupy the land.
o Johnson v. M’Intosh
 P claims title to land that he got from Indian chiefs in 1773 and in 1775.
 The Indian chiefs were working under the proper authority of tribes when they sold their lands to the
plaintiff.
 P sought to have the land grants recognized by the U.S government.
 The court ruled that the Europeans conquered the land from the native Indians and they were only given
occupancy right and they were never given the right to sell their land. After the revolutionary war, England
transferred their absolute rights to the United States. Therefore, the Indian chiefs did not enjoy the right to
sell the land to private individuals.
a) What is the difference between acquisition by discovery and acquisition by conquest?
o Acquisition by discovery entails the sighting or finding of unknown or unchartered territory. A landing and the
symbolic taking of possession frequently accompany it. Acts that would give rise to a title must subsequently be
perfected, within a reasonable time, by settling in and making an effective occupation.
o Conquest is the taking of possession of enemy territory through force, followed by formal annexation of the
defeated territory by the conqueror.
b) John Locke’s Labor Theory
 “… every man has a property in his own person. … The labor of his body and the
work of his hands, we may say, are properly his. Whatsoever then he removes out
of the state that nature has provided, and left in, he has mixed his labor with, and
joined to it something that is his own, and thereby makes it his property.”
In plain English, if a person works on something, it becomes his.
o Haslem v. Lockwood:

2
  P racked manure into heaps and accumulated it onto a public street intending to take it away the next
day.
 Before he could do that, the D found the heaps or manure and hauled them off in his cart.
 The manure belonged to the owners of the animals that dropped it but it had been abandoned.
 Because of this, it belonged to the P who had changed its original condition and greatly enhanced its
value by his labor.

3. Acquisition by Capture
Actual bodily seizure is not necessary. Capture is not enough. Pursuit is required. If a wild animal has been mortally
wounded or trapped so that capture is virtually certain, the animal is treated as captured. If a person does not actually possess
the animal:
o Mortal wounding of animal by one who is not abandoning his pursuit my equal possession.
o Encompassing or securing the animal with nets or toils
o Must show intent to appropriate the beast or deprive the animal of its natural liberty
 Pierson v. Post:
 ∏= Post  Pursuit = Occupancy
 ∆= Pierson  Pursuit ‡ Possession. Pursuit + _________= possession
 Mere pursuit of an animal does not give one a legal right to it.
 Based on Puffendorfs definition of occupancy of beasts. You have to have mortal damage to
animal and deprive animal of its natural ability. You have to show intent that you want the
animal in order for it to become yours. The law requires capture rather than pursuit.
a. Rationale- Policy bases
1. Competition
 This ensures the beneficial use of resources because more wild animals are captured. Society does
not reward the pursuer, only the captor promoting a more effective means of capture.
2. Ease of administration
 Rewarding capture is easier to administer than rewarding pursuit or prospect of capture, which is
difficult to determine. It promotes certainty and efficient administration.
b. Wounded or trapped animals
 If an animal has been mortally wounded or trapped so that capture is virtually certain, the animal
is treated as captured. But if the animal is only in the process of being entrapped and is definitely
not captured.
c. Interference by non-competitor
 Rule of capture allows a competitor who also seeks to capture an animal to interfere with the
others mere pursuit. However, a person who does not seek to capture an animal, but rather to
interfere with the other’s capture seeks to disrupt the efficient use of resources and must be
stopped.

3
 o Keeble v. Hickeringill:
 Landowners are considered prior possessors (first possessors) of wild animals on
their land
 Although the Plaintiff never had actual physical possession of the ducks, the
Plaintiff still had property rights in the ducks because they were on his property.
 The Defendant maliciously interfered with the Plaintiff’s livelihood.
d. Custom
 Although the general rule is that the captor must acquire physical control over the animal, in some hunting
trades, a custom, which is thought to be more effective, may dictate a different result.
o Ghen v. Rich:
 Reasonable local usage gives title to the first taker of a whale who by acts
of appropriation.
 The common law mandates that control is a necessary prerequisite to
someone being able to possess a wild animal. However, the instant case is
unique.
 First, the Plaintiff did everything in his power to possess the animal.
 Second, the widespread custom in the industry recognized this as the only
realistic form of possession.
e. Wild animals with animus revertendi (return of habit) a.k.a Domestic Animals.
o Captured wild animals that develop a habit of return continue to belong to the captor when they roam at
large. The reason behind this rule is that domesticated animals are valuable to society and this effort to
tame wild animals is rewarded.

C. ACQUISITION BY CREATION
A person can acquire property by creating. The primary purpose in recognizing property by creation is to reward labor.
I. Intellectual Property
o IP is the “catchall” label for property in ideas.
o The term includes copyrights, patents, and trademarks but may also cover property in a persona.
- To avoid monopoly and encourage competition, the law allows copying and imitation of ideas, as opposed
to their expression.
 Cheney Brothers v. Doris Silk Corp:
 The ∏ could not secure a copyright or a patent on its patterns and could not recover as a
result of the ∆’s copying.
 Since there is no common law copyright law, the ∏’s property right is limited to chattels
that embody the invention, not the design pattern that has a short life.
 Therefore, although the ∆ copied the ∏’s patterns the imitation is not actionable.

4
  The Plaintiff has no property right to prevent any imitation of it. The United States
Constitution (Constitution) confers only Congress the power to create this right, not the
court.

- There are exceptions like the right to publicity. A person may not use a celebrities name, likeness, voice or
signature for profit without the celebrities consent. The celebrity’s labor in creating a persona of value is
protected against another’s using it for profit.
 Vanna White v. Samsung Electronics America, Inc:
 It was held that, even though there is no intent to deceive, the use of an imitation (not a
likeness) of a celebrity for commercial profit infringes her right of publicity.
o Unfair competition
- Courts have sometimes protected labor and investment under the law of unfair competition.
 International News Service v. Associated Press:
 A property right can be found in an individual’s labor an investment, but that right can
only be held against a competitor, not the general public.
 There is a quasi property interest in news collected by an agency against other news
collection agencies.
 It is unfair competition when one party interferes with the normal operation of another’s
legitimate business precisely at the point where profit is to be reaped.
 Information contained in news is in the public domain and therefore cannot be subject to
private ownership.
 But when a news organization makes a substantial expenditure in obtaining the news,
they will be protected from having the information appropriated by a competitor.
II. Rights in Body Products
o Moore v. Regents of the University of California
- Supreme Court held that a man did not have a property right in his spleen following its removal from his
body by doctors who made it into a patented cell line of great commercial value.
- The Dr’s who created the cell line therefore created original ownership.
- The court held that the patient had only the right to sue the Dr’s for failure to disclose their research and
economic interest in the patient’s cells.
- Although most property is freely transferable, some property is not alienable and some property can be
given away but not sold.
Right to Exclude
o The right of property is described by William Blackstone as:
- That sole and despotic dominion which one man claims and exercises over the external things of the
world, in total exclusion to the right of any other individual in the universe.
o The right to exclude= the right to deny others from enjoying (use or possess) one’s assets. Without this right
other may simply take as they wish and the owner would be unable to stop them.

5
 - Jacques v. Steenberg Homes, Inc
 A private landowner has the right to exclude other from his land. This right however has no
practical meaning if the State will not enforce it.
- State v. Shack
 D sought to enter P’s property in order to administer medical and legal assistance to a laborer
 Owner insister that visits must be conducted in the office
 D’s reduced to leave and were charged with trespass
 Court ruled that ownership rights in property do not include the right to bar migrant laborers
working on the property from access to governmental services
 A man’s right in real property is not absolute. Necessity, private of public may justify entry upon
the lands of another
o The rights of property are not endless.
o The rights and reliance interests of others must be protected.
o Limitations to the right to exclude:
- Non-owners who have relied on a relationship with the owner that made such access possible in the
past may be granted partial or total immunity from having such access revoked when this is necessary to
achieve justice.
- Relations of mutual dependence involving joint efforts, and the relationship ends, property rights
must be redistributed among the parties to protect the legitimate interests of the more vulnerable persons.
- Property rights are redistributed to non-owners:
 To protect the interests of the more vulnerable persons in reasonably relying on the continuation of
the relationship
 To distribute resources earned by the more vulnerable party for contributions to joint efforts
 To fulfill needs of the more vulnerable persons.
Rights to Include
o Right to include is the right to let others enjoy ones assets.
D. ACQUISITION BY FIND
An owner of property does not lose title by losing the property. The owner’s rights persist even though the article has been
lost or mislaid. A finder has rights superior to everyone but the true owner.
o Armory v. Delamirie
- Chimney Sweep finds a jewel and takes it to a jeweler to have it appraised
- The jeweler refused to give the jewel back to Chimney Sweep saying that the Chimney Sweep did not
own it.
- Chimney Sweep was entitled to recover from the jeweler either the jewel or the full money value of
the jewel.

6
 - The Chimney Sweep was the prior possessor, and therefore has the superior right.
1. Prior possessor
o Possession is eleven points in the law.
o The rule that a prior possessor wins over a subsequent possessor is an important and fundamental one. It
applies to both personal property and real property.
o Just like capture, there must be physical control of the property and the intent to assume dominion over
it.
2. Finder vs. Owner of Premises
The finders rule: A finder prevails as against all but the for true owner or prior possessors.

For “possession”, a finder must show:

o An intent to control the property and
o The act of control
Categories of “found” property
o Lost property
- Property that the owner accidentally and casually parted with possession and does not know where to
find property.
 Hanna v. Peel
 Peel owned a large house requisitioned by the government to quarter soldiers
 Peel bought the house two years earlier and never moved in
 A soldier found a brooch in the house hidden on a window ledge.
 The soldier prevailed over Peel because Peel never moved into the house and took
physical possession of it.
o Mislaid property
- Property intentionally placed somewhere and then forgotten. Mislaid property goes to the owner of the
premises.
- The purpose of the classifying the property this way is to facilitate the return of the object to the
true owner: because it is assumed that the object was intentionally placed where it is found, it is likely that
the true owner will remember where she placed it and will return to the shop to claim it.
 McAvoy v. Medina:
 Someone forgot his pocket book on the table at a barbershop.

7
  P told D, the owner of the of the barbershop to hold on to it incase the owner came back
otherwise to advertise it. D agreed
 Owner didn’t come back and P sued for the pocket book
 Judge ruled that the P could not maintain his action.
 The P did not acquire the right to take the property from the shop, but it was the duty of
the D to use reasonable care for the safe keeping of the same until the owner should call
for it
 The P acquired no original right to the property, the D’s subsequent acts in receiving and
holding the property in the manner he did does not create any.
o Abandoned property
- Owner voluntarily and intentionally relinquished ownership with intent to give up both title and
possession.
o Treasure Trove
- Any money or coin, gold, silver plate or bullions hidden in the earth
E. ACQUISITION BY ADVERSE POSSESSION
o If, within the number of years specified in the state statute of limitations, the owner of land does not take legal
action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing an action in
ejectment.
o Acquiring title to property by long, uninterrupted possession.
o Running of the statute of limitation on the owner’s action in ejectment not only bars the owner’s claim to
possession, it also extinguishes the old title of the owner and creates a new title by operation of law in the adverse
possessor.
o Title acquired by adverse possession cannot be recorded because it does not arise from a recordable document
but rather from the operation of law.
o He must file a quiet title action against the former owner barred by the statute of limitations.
o Statutory period for adverse possession varies from state to state from five to twenty one years.
Requirements of Adverse Possession
Adverse possession formula
o A’Noche + Possession + Passage of Certain Amount of Time = Adverse Title
o A= Actual
- The primary purpose of the entry requirement is to trigger the cause of action, which starts the statute
of limitations running.
o N= Notorious
- His or her acts must be such that will constitute reasonable notice to the owner that she is claiming
dominion, so that the owner can defend his rights.
- The acts must be appropriate to the condition, size, and locality of the land.

8
o O= Open
- Open acts are acts that look like typical acts of an owner of property that the community observing them
would infer the actor to be claiming ownership.
- Stealthy, secret or hidden activities do not satisfy the notorious and open requirement
 Manilllo v. Gorski:
o D’s son made improvements to their house that encroached on P’s lot by
15inches. D stated that it was a mistaken belief that the property belonged to
them.
o Court ruled that a party may acquire land through adverse possession if that
party is a mistaken belief that she had title to the property.
o In order to constitute “open and notorious” possession, the true owner must have
actual knowledge of a minor encroachment along a common border.
o C= Continuous
- Continuous possession requires only the degree of occupancy and use the average owner would make of
the particular type of property.
- The purpose of the continuity requirement is to give the owner notice that the possessor is claiming
ownership, and that the entries are not just a series of trespasses.
 Howard v. Kunto:
 Use of a summer home only during the summer for the statutory period is continuous use
 Similarly, seasonal use of a property is permitted when it is consistent with the type of
property involved.
 The court stretched the definition of privity (shared rights and responsibilities that is
connected through possession of the property)
 Kunto required privity for tacking.
- Privity means that the possessor voluntarily transferred his interest or physical possession to a subsequent
possessor
- Time runs against the true owner from the time when adverse possession began.
- The clock does not stop if the true owner transfers his interest.
- Tacking permits the later possessor to add years of possession to satisfy an adverse possession statute of
limitation. The possession must be uninterrupted and voluntary.
- Tacking has two views:
 American rule- Requires privity between the possessor
 English rule- Keeps the statute running against the true owner regardless of privity between
possessors
o H= Hostile/ Adverse
- There are three approaches regarding claimant’s state of mind:

9
  Objective test:
 The adverse possessor’s subjective belief about who owns the property is irrelevant.
 IF he uses the land as a reasonable owner would use it, without permission from the true
owner, this element is satisfied.
 His conduct is deemed objectively hostile and adverse, regardless of his subjective intent.
 Good Faith Test
 The adverse possessor must believe that he owns the title to the land
 Must innocently (but mistakenly) believe that the is the true owner.
 Intentional Trespass Test
 The adverse possessor must know that he does not actually own the land and subjectively
intend to take title from the true owner.
 Effectively, this test rewards intentional wrongdoers while offering no protection to good
faith occupants.
 Valkenburg v. Lutz:
o N.Y. statutes provide that if the claimant does not enter with color of title,
adverse possession can be claimed only where the land “has been protected by a
substantial in closure” or has been “usually cultivated or improved.”
o Hence, in N.Y, a person without color of title would have to show in that a
hunting cabin is a “usual improvement” and that taking sand and gravel was a
“usual cultivation” in order to win.
 Color of title refers to a claim founded on a written instrument or a judgment or decree that is
for some reason defective and invalid

o E= Excusive
- Adverse possessor’s possession must not be shared with either the true owner or the general public.
- This doesn’t mean absolute exclusivity
- It means that the adverse possessor’s possession is as exclusive as one would characterize an owner’s
normal use of such land.
- To interrupt the adverse possessor’s exclusive possession, the owner must retake possession by
using the property in manner that suited to its condition.

ADVERSE POSSESSION OF CHATTELS

o A person can acquire title to chattels by adverse possession just as he can acquire title to land.
o Once the remedy is barred, the adverse possessor has title.

10
 o Difference between adversely possessing land and adversely possessing chattels: Adverse possession of land is open
and notorious, whereas adverse possession of chattels seldom is. There are two approaches:
 New York rule
o NY holds that the statute of limitations does not begin to run on the owner of stolen goods until the
owner knows who has the goods and makes a demand for return of the goods that is rejected.
o NY also puts the risk of buying stolen goods on purchases, who can often protect themselves by
making inquiries.
 Due diligence rule
o The statute of limitations does not begin to run on the owner of stolen goods as long as the owner
continues to use due diligence in looking for them. The conduct of the owner, not the possessor, is
controlling.
o O’Keeffe v. Snyder
 The COA accrues when the owner first knows, or reasonably should know through the
exercise of due diligence, where the stolen goods are including the identity of the possessor of
the paintings.
o The discovery rule has been adopted in most jurisdictions.
o In those jurisdictions, where it has been adopted, you must prove the elements of adverse possession
i.e. A’NOCHE
o Tacking is also applied to statutes of limitations in actions of replevin of chattels. Privity is required.
 Bona fide purchaser of stolen goods
o A bona fide purchaser of stolen goods is not protected against the claim of the owner unless the statute
of limitations has run on the owner.
o The law protects the owner over the purchaser for three reasons:
 Whether the purchaser was really bona fide, and did not know the goods were stolen, is
questionable in many cases
 The purchaser can lessen the risk of buying stolen goods by inquiries of the seller
 The owners were not protected, owners would spend more money on protective devices to
prevent theft, which is not a socially productive expenditure.

F. REMEDIES OF A POSSESSOR (at common law)

Actions to recover damages
1) Trespass
o Trespass required a showing that D intentionally or negligently acted to inflict a direct, forcible injury to the P’s
property or property.
o The basis for a trespass action is injury to possession.
o This action included trespass to chattels and trespass to land.

11
 2) Trespass on the case
 This would occur where one of the elements of a trespass action was missing e.g., indirect or consequential
injury rather than an immediate injury.
3) Trover
 A suit in trover was used to recover the value of the P’s chattel that the D had converted. Trover did not apply
to trespass to land.
G. Rights of owners
i. Right to use
ii. Right to transfer
iii. Right to Exclude subject to some restrictions e.g., zoning laws, mistaken improvement, civil rights
laws, etc.

12
PERSONAL PROPERTY M.B.

ACQUISITION BY GIFT
A gift is a voluntary transfer of property without consideration. There must be (i) intent by the donor to
make a gift (ii) delivery to the donee; and (iii) acceptance of the chattel by the donee.
Two kinds of gifts:
 Gift inter vivos
o This is a gift made during the donor’s life when there is no threat of impending death.
o It must be absolute and irrevocable to be valid.
o In order for an inter vivos to be valid, there must be intent on the part of the donor to make a
gift, delivery by the donor to the donee and acceptance of the gift by the donee.
o Acceptance by the donee will be presumed when the gift is of value to the donee.
 Gift causa mortis
o This is a gift made in contemplation of immediately approaching death.
o Requirements for a gift are strictly enforced in gifts causa mortis.
o The gift is revoked if the donor recovers from the illness that prompts the gift.
I) Intent
The donor must intend to make a present, irrevocable gift, whether of a presently possessory interest of or a
future interest. If the alleged donor only in the future, the gift is an unenforceable promise because it is not
supported by consideration. In determining whether the alleged donor had the requisite intent to make a present gift,
a court will examine the donor’s verbal and written statements and the other circumstances surrounding the gift.
 Promise compared
o A promise to give property in the future is not a gift. A gift transfers to the donee right now. A
gratuitous promise (i.e., a promise without consideration) is not enforceable as a gift or under
the law of contracts (because there was no consideration).
ii) Delivery
Delivery requires an act giving up dominion and passing control to the donee. Manual transfer usually satisfies the
requirement but it is not necessary.

Reasons for the delivery requirement

o Ritual
 Delivery of the chattel impresses the grantor with the legal significance and finality of the act.
Once she hands over the object, she realizes it belongs to another.
o Evidentiary
 Delivery of the chattel is reliable, objective evidence of the grantor’s intent to give. There is
no need to rely on oral testimony; reliance is placed on the objective act of delivery.
Moreover, the presence of the object in the grantee’s hands substantiates his claim of a gift.
 o Protective
 Requiring delivery protects the unwary or barely competent donor from making improvident
oral statements.
Alternative methods of delivery
There are several types of acts are acceptable as substitutes for “handing over”.
o Constructive delivery
 Constructive delivery is the hardening over of the means of obtaining possession and control
(e.g. key), or in some other way relinquishing dominion and control. This is permitted
when actual manual delivery is impracticable.
 Donors intent
 Constructive delivery can include any acts that the donor deems sufficient
to pass a present interest.
 Newman v. Bost
 P filed suit against the D (the administrator of the deceased’s estate)
claiming the D converted gifts the deceased had made to her by gift causia
mortis.
 The P was entitled to the furniture in the room that could be opened by the
key not the insurance policy.
 The life insurance policy was present in the room when the deceased gave
his keys to the P and the policy was capable of actual manual delivery, the
policy wasn’t part of the gift to the P.
o Symbolic delivery
 Symbolic delivery is the handing over of some object that represents the thing given (e.g.,
instrument in writing). This is permitted when actual manual delivery is impracticable.

o Delivery through third person

 If a donor makes a delivery to his agent, no gift takes place until the agent makes delivery to
the donee. However, if the donor makes delivery to a third party who is the donee’s agent or
an independent agent, the gift is effective on delivery to the third party. Most courts today
uphold a gift to be delivered by a third party (not donor’s agent) on the donor’s death.
o Revocable gifts
 Generally, no gift is made when a donor retains the right to revoke the gift.
iii) Acceptance
The donee must accept the gift, but where the gift is beneficial to the donee, acceptance is presumed.
o Gruen v. Gruen:
  P commenced an action seeking a declaration that he is the rightful owner of a painting that
his deceased father had given to him, despite the fact that he never retained possession of the
painting
 The court held that a valid intervivos gift was made as the donor never intended to make a gift
to his son, only constructive delivery was needed as actual delivery of the painting to the P
and acceptance is deemed presumed as it is a benefit to the donee.

POSSESSORY ESTATES M.B.
A. There are two types of estates:
o Freehold estates
 Present possessory estates
 Future possessory interests
o Possessory estates
Present possessory estates
The common law developed estates, each indicating the period of time for which the land might be held.
o Fee Simple
 An estate that has the potential of enduring forever.
 Resembles absolute ownership, and the holder of a fee simple is commonly called the owner of the land.
o Example: Created by O, the owner of Blackacre, granting the land “to A
and his heirs”.
o Fee tail
 A fee tail is an estate that has the potential of enduring forever, but will necessarily cease if and when the
first fee tail tenant has no lineal descendants to succeed him in possession.
o Example: Created by O granting the property “to A and the heirs of his
body”.
o Life estate
 A life estate is an estate that will end necessarily at the death of the person.
o Example: It is created by granting the property “to A for life”
o Leasehold estate
 Includes estates the endure
o For any fixed calendar period or any period of time computable by the calendar called a
“term of years” regardless of the length of the period or
o From period to period until the landlord or tenant gives notice to terminate at the end of a
period (called a “periodic tenancy”) or
o So long as both the landlord and the tenant desire (called a “tenancy at will”).

B. THE FEE SIMPLE

1. Fee Simple Absolute (FSA)
o A fee simple absolute is absolute ownership i.e. maximum rights in the land.
o It is of potentially infinite duration.
o There are no limitations on its inheritability
o It cannot be divested, nor will it end on the happening of any event.
o It includes:
 Words of purchase
o Identify the person in whom the estate is created e.g., “to A”
 Words of limitation
o Identify the type of escape created e.g., “and her heirs”.
o Creation of a fee simple
 At common law it was necessary to use words of inheritance to create a fee simple by deed
 The ancient requirements of words of inheritance in a deed have been abolished in all states. Under
modern law, a deed is presumed to pass the largest estate the grantor or testator owned.
o Example: “To A” conveys a fee simple if the grantor had a fee simple
o If the fee simple owner does not devise his land but dies without a will, the owner’s heir inherits the fee simple. If
a person dies without a will his/her heirs are:
 Spouse at common law
 Next of kin
 Issue
 Children
 Adopted children
 Nonmarital children
 Stepchildren- only blood relatives take as heirs
 Parents
 Collateral relatives
  Escheat: When a fee simple owner dies without a will and without heirs the fee simple
escheats to the state.
Defeasible fees
A fee simple can be created so that it is defeasible on the happening of some event and the owner of the fee simple them loses,
or may lose, the property. If the fee simple is defeasible, it is of course not absolute.
Defeasible fees are most commonly encountered in deeds restricting the use of land, but they may be used for other purposes
as well.
o Fee Simple Determinable (FSD)
 A fee simple estate so limited that will automatically end when some specified event happens.
o Example: O conveys Blackacre “to School Board so long as the premises are used for school
purposes” (has words of limitation)
 If the contingency occurs, the estate automatically ends. It terminates automatically and reverts back to
the grantor.
 A fee simple determinable may be transferred or inherited in the same manner as any other fee simple, as
long as the stated event has not happened. But the fee simple remains subject to the limitation no
matter who owns it.
 Because there is a possibility that the grantee’s determinable fee may come to an end on the happening
of the stated event, the grantor has a future interest called a possibility of Reverter.

o Fee Simple Subject to Condition Subsequent (FSSCS)

 A fee simple that does not automatically terminate but may be cut short (divested) at the grantors
election when a stated condition happens.
 FSSCS is a fee simple because it may endure forever. If the contingency occurs, O merely has the power
to reenter and to terminate the estate.
 FSSCS does not automatically end on the happening of the condition.
 The estate continues in the grantee until the grantor exercises her power of reentry and terminates the
estate.
 First giving the grantee an unconditional fee simple and then providing that the grantor or her heirs may
divest the fee simple if a specified condition happens create a FSSCS.
o Example: “to A, upon condition that if X event happens…” or “to A, provided, however, that
if X event happens…”
 The estate may be transferred or inherited in the same manner as any other fee simple until the transferor
is entitled to and does exercise the right of entry.
 If the grantor creates a FSSCS, the grantor retains a right of entry.
 The interest is sometimes called a “right to reenter” or a “power of termination” or a “right of
reacquisition”.

Differences between a FSD and a FSSCS

 o FSD automatically ends regardless of whether the grantor does anything, while with FSSCS, the grantor must act
to retake the property or the grantee’s estate continues.
o Restraints on marriage are sometimes struck down as violations of public policy. If the purpose of the restraint is
to penalize the marriage, the restraint may be struck down. On the other hand, if the purpose is to support until
marriage, when the new spouses obligation of support arises, the restraint is valid.

Fee Simple subject to an executory limitation (FSSEL)

A FSSEL is a fee simple that on the happening of a stated event is automatically divested in favor of a third person (not the
grantor).

C. THE FEE TAIL

1. Historical background
In feudal England, land was the basis of family power, status and wealth. One of the chief interests of landowners was to keep
land in the family. The fee tail was invented for just that purpose- to keep the land safe for succeeding generations.
a. Fee Simple Conditional
i. First attempt to tie up land in the family.
ii. Example:
1. “To A and their heirs of his body”. The judges held that A could convey a fee simple if a child
was born to A.
2. Therefore, A’s estate was thought of as a fee simple conditional upon having issue.
3. If A had issue, A could convey a fee simple and transfer the land outside the family, cutting off
the rights of A’s issue and the reversioner.
b. Statute de Donis Conditionalibus
i. Abolished fee simple conditional and permitted the creation of a new estate in land, the fee tail.
2. Nature of Estate
A fee tail has two characteristics:
i. It lasts as long as the grantee or any of his descendants survives
ii. It is inheritable only by the grantees descendants

3. Creation of Fee Tail

At common law, an instrument using words of inheritance and words confining succession to the issue of the grantee created a
fee tail.
o Example: “to A and the heirs of his body”
o The term “heirs of the body” refers to the grantee’s issue or lineal descendants. It includes not only children but also
grandchildren and more remote descendants as well. The fee tail goes to each succeeding generation in turn.
4. Characteristics
The fee tail originally had two main characteristics:
1. During tenant’s life
o The tenant in fee tail could not defeat the rights of the tenant’s lineal descendants
o The tenant only had a life estate
o On death, the land automatically goes to his descendants
2. On tenant’s death
o Only the issue of the original grantee could inherit the fee tail.
o If the blood descendants of the original grantee run out, the property is returned to the original grantor, or to any
holder of the remainder named in the grant creating the fee tail.
o The fee tail cannot be devised by a will.
5. Types of Fee Tail
A grantor could specifically tailor a fee tail
o A fee tail male limited succession to male descendants of the grantee. Similarly, a fee tail female could be
created but it was rare.
 Example: To A and the male heirs of his body
o Only the grantee’s issue by a specific spouse could inherit a fee tail special.
 Example: To A and the heir of his bodies by wife B
6. Future interests of a fee tail
To keep the land in the family on expiration of a fee tail (i.e., a descendant “died without issue”) the land would revert to the
grantor or he could direct the land to go to another, therefore making possible the future interests of reversion and remainder.
o Reversion
 O conveys Blackacre “to A and the heirs of his body”. A has a fee tail; O had a reversion in fee
simple to become possessory upon expiration of the fee tail.
o Remainder
 Example: O conveys Whiteacre “to A and the heirs of his body, and if A dies without issue, to B
and her heirs”.
  A has a fee tail
 B has a vested remainder in fee simple to become possessory on the expiration of the fee
tail
 B’s interest is called a remainder rather than a reversion because a reversion can be created
only in the grantor or testator’s heirs.
 The analogous future interest in a grantee is called a remainder.
7. Disentailing
Today, a fee tail can be converted into a fee simple absolute, cutting off all rights of the original tenant’s issue, by a deed.
8. Modern Law
o The fee tail has been abolished in England and in all but four American states (Delaware, Maine, Massachusetts and
Rhode Island.
o Where abolished, most courts construe “to A and the heirs of his body” to give A a fee simple. Some states give a fee
simple absolute. Others give a fee simple subject to conditions if A has no children.

D. THE LIFE ESTATE

A life estate endures for a period of one or more human lives.

1. Types of Life Estates

a. For life of grantee
i. The usual life estate is measured by the grantee’s life.
ii. Example:
o O conveys Blackacre “to A for life,” the grantee, A, gets an estate in the land for so long as A
lives. On A’s death, the land reverts to O, the grantor.
b. Pur autre vie
i. This is a life estate measured by the life of someone other than the owner of the life estate.
c. In a class
i. A life estate can be created in several persons.
ii. The general rule is that the remainder does not become possessory until all life tenants die.
iii. Example:
 o “to the children of A for their lives, remainder to B.”
d. Defeasible life estates
i. A life estate, like a fee simple, can be made defeasible.
ii. It can be created so as to be determinable, subject to condition subsequent, or subject to an
executory limitation.
iii. Examples:
o O conveys “to A for life so long as A remains unmarried”. A has life estate terminable upon
marriage. This is a fee simple determinable as opposed to a life estate determinable. The
restraint on marriage however, might violate the rule against restraints on alienation.
o O conveys “to A for life, but if A does not use the land for agricultural purposes, O retains the
right to reenter.” A has a life estate subject to a condition subsequent.
o O conveys “to A for life, but if B marries during A’s lifetime, to B.” A has a life estate subject
to an executory limitation.
e. Construction problems
i. Interpretation of ambiguous language as to what estate is created depends on the facts of each case
and the grantors probable intent.
2. Alienability of Life Estate
A life tenant can transfer whatever estate she has.
3. Limited Utility of Legal Life Estate
Such an estate is limited because of its inflexibility, which creates obstacles to various transactions e.g. bank loans, lease of
land, etc. This problem is alleviated by creation of an equitable life estate.

E. THE RULE AGAINST RESTRAINTS ON ALIENATION

There are three types of direct restraints:
o Forfeiture restraint: Provides that if the grantee attempts to transfer his interest, if is forfeited to another person.
o Disabling restraint: A disabling restraint withholds from the grantee the power of transferring her interest
o Promissory restraint: A promissory restraint provides that the grantee promises not to transfer his interest.

PRESENT POSSESSORY ESTATES

CORRELATIVE CORRELATIVE
PRESENT FUTURE FUTURE
EXAMPLES DURATION
ESTATE INTEREST IN INTEREST IN
GRANTOR THIRD PARTY

FEE SIMPLE "To A & his heirs" Forever None None

ABSOLUTE
"To A & his heirs so As long as condition is (See Fee Simple
FEE SIMPLE long as ____" met, then Subject to an
Possibility of Reverter
DETERMINABLE "until _____" automatically to Executory Interest,
"while ______" grantor. below)
"To A & his heirs, but
FEE SIMPLE if____" (See Fee Simple
Until happening of
SUBJECT TO "Upon condition that Subject to an
named event and Right of Entry
CONDITION _____" Executory Interest,
reentry by grantor
SUBSEQUENT "Provided that ____" below)
"However _____"
"To A & his heirs for
As long as condition is (See Fee Simple
FEE SIMPLE so long a _____and if
met, then to third party. Determinable, above)
SUBJECT TO AN not___ to B”
Executory interest
EXECUTORY (See Fee Simple
“To A & his heirs but Until happening of
INTEREST Subject to Condition
if ____ to B” event.
Subsequent, above)
"To A & the heirs of Until A and his line die None (but remainder
FEE TAIL Reversion
his body” out is possible)
"To A for life" or "To
Reversion None (but see below)
A for the life of B" Until the end of the
"To A for life, then to measuring life
LIFE ESTATE None Remainder
B"
(MAY BE
Until the end of the
DEFEASIBLE)
"To A for life, but if measuring life or the
Reversion Executory interest
______, to B" happening of the
named event.
FUTURE INTERESTS
A. INTRODUCTION
1. A future interest is a present, non-possessory interest capable of becoming possessory in the future.
o Example:
 O conveys Blackacre “to A for life, and on A’s death to B”
 A has a possessory life estate
 B has a future interest called a remainder
 It will become possessory on A’s death. Before A’s death. The remainder exists as a property
interest in Blackacre.
  As with other property interest, B can transfer the remainder to C, and B’s creditors can reach the
remainder
 It is an existing property interest which will become possessory in the future
2. There are five kinds of future interests:
1. Reversion
2. Possibility of Reverter
3. Right of entry
4. Remainder; and
5. Executory interest
3. Future Interest in the Grantor
Future interests are divided into to basic groups:
i. Future interests retained by the grantor
ii. Future interests created in a grantee
If the grantor retains the future interest, the future interest must be either a reversion, possibility of Reverter or
right of entry.
a. Reversion
o A reversion is a future interest left in the grantor after the grantor conveys a vested estate of a
lesser quantum than he has.
o Example:
 O, owning Blackacre in fee simple, conveys Blackacre “to A for life”.
 Because O did not convey a fee simple to anyone but only a life estate, which is a
lesser estate than a fee simple- O has a reversion.
 When A dies, Blackacre will revert to O. If O had conveyed a fee simple to A, O
would not have a reversion.
b. Possibility of Reverter
o A Possibility of Reverter arises when a grantor carves out of her estate a determinable estate
of the same quantum. In almost all cases it follows a determinable fee.

o Example:
 O conveys Blackacre “to the Board of Education so long as Blackacre is used to school
purposes.”
  The Board of Education has a determinable fee
 O has a Possibility of Reverter
 O’s interest is not a reversion because O, owning a fee simple has conveyed a fee
simple determinable to the Board.
 All fees simple (Absolute, determinable, subject to condition subsequent or executory
limitation) are of the same quantum.
c. Right of entry
o A right of entry is retained when the grantor creates an estate subject to condition subsequent
and retains the power to cut short the estate.
o Example:
 O conveys Blackacre “to the Board of Education, but if the Board ceases to use
Blackacre for school purposes, O retains a “right to reenter.”
 The Board has a fee simple subject to condition subsequent; O has a right of entry.
d. Correlative estate
o Possessory estates have correlative future interests in the grantor
 Life estate- Reversion
 Fee simple determinable- possibility of Reverter
 Fee simple on condition subsequent- right of entry
4. Future Interests in Grantees
If a future interest is created in a grantee, it must be either a remainder or an executory interest.
a. Remainder
o A remainder is a future interest in a grantee that:
i. Has the capacity of becoming possessory at the expiration of the prior estates
ii. Cannot divest the prior estates
o Example:
o O conveys Blackacre “to A for life, and on A’s death, to B and her heirs.”
o A has a possessory life estate; B has a remainder in fee simple.
o B’s interest is a remainder because it can become possessory on A’s death,
and it will not divest A’s life estate prior to A’s death.
 b. Executory interest
o An executory interest is a future interest in a grantee that, in order to become possessory, must
divest or cut short the prior estate, or spring out of the grantor at a future date.
o The basic difference between a remainder and an executory interest is that a remainder never
divests the prior estate, whereas an executory interest almost always does.
o Example- Shifting executory interest:
o O conveys Blackacre “to A and his heirs, but if B graduates from law school,
to B and her heirs.”
o A has a fee simple subject to executory limitation
o B has a shifting executory interest. B’s interest can become possessory only
by divesting A of the fee simple.
o A shifting interest is a useful device to shift title upon the happening of come
uncertain event.
o Example- Springing executory interest:
o O conveys Blackacre “to my daughter A when she marries B.” O retains the
fee simple and creates an executory interest in A to spring out of O in the
future when A marries B.
o A springing interest was, in early days, a useful device to give the groom
assurances that the bride would come to the altar endowed with property.

B. REVERSION
A reversion is a future interest left in the grantor after she conveys a lesser estate than she has.
The interest may be expressly retained or may arise by operation of law.
o Example 1:
 O conveys Blackacre “to A for life, then to revert to O.”
 Where it is not expressly retained, a reversion will arise by operation of law where no other
disposition is made of the property after expiration of the lesser estates.
o Example 2:
 O conveys Whiteacre “to A for life.”
 O has a reversion in fee simple by operation of law
Reversions are vested interests
All reversion are vested interests even though not all reversions will necessarily become
Possessory.
Some reversions will certainly become possessory:
o Example:
 O conveys “to A for life, reversion to O.”
Other reversions may or may not become possessory:
o Example:
 O conveys Blackacre “to A for life, remainder to B if B survives A.”
 O has a reversion because, if B dies before A, Blackacre will return to O at A’s death.
 If A dies before B, Blackacre will go to B at A’s death.
 Note that O does not have a contingent reversion.
 By common law dogma, all reversions are vested.
 So O has a vested reversion, which can be divested by B’s interest becoming possessory to
A’s death.
1. Significance
o The significance of a reversion being vested is that it is alienable, accelerates into possession upon
the termination of the preceding estate, and is not subject to the Rule against perpetuities.
2. Alienability
o A reversion has always been regarded as fully transferable both inter vivos and by way of testate or
interstate succession.
o The transferee, of course, gets only what the transferor had- an interest that cannot become
possessory until the preceding estate terminates.
3. Distinguish- Possibility of Reverter
o A possibility of Reverter arises where the grantor carves out of his estate a determinable estate of
the same quantum.
o Most often it arises where the grantor conveys a fee simple determinable.
o A reversion arises where the grantor conveys a lesser estate than he has and does not in the same
conveyance create a vested remainder in fee simple.
o There is no such interest as a “possibility of reversion”.
C. POSSIBILITY OF REVERTER
A possibility of Reverter is a future interest remaining in the grantor when a fee simple
Determinable is created.
o Example:
 O conveys Blackacre “to A and his heirs so long as liquor is not sold on the premises.”
A has a determinable fee; O has a possibility of reverter.
A possibility of reverter cannot be created in a grantee. The analogous future interest created in a grantee is called
an executory interest.
1. Alienability
At common law:
o A possibility of reverter was not viewed as an existing interest, but rather as a mere possibility of
becoming an interest.
o On the death of the owner of a possibility of reverter the possibility of reverter was treated as a
thing; it descended to the owners heirs.
At modern law:
o A possibility of reverter is freely alienable, both during life and by will.
Rationale: The possibility of reverter is now viewed as a property interest, and
alienability is an inherent characteristic of any property interest.

D. RIGHT OF ENTRY
When a grantor creates an estate subject to condition subsequent and retains the power to cut short terminate the estate, the
grantor has a right of entry. Like a possibility of reverter, a right of entry cannot be created in a grantee. The right of entry is
sometimes called “a power of termination”.
o Example:
 O conveys Blackacre “to A and his heirs, but if intoxicating liquor is ever sold on the premises,
O has a right to reenter and retake Blackacre.”
 A has a fee simple subject to condition subsequent; O has a right of entry for breach of the
condition subsequent.
1. Alienability
At common law:
o The right of entry was inalienable inter vivos because it was treated as a chose in action, and choses were
inalienable.
 o It was not thought of as a property interest, but rather as a special right in the grantor to forfeit the
grantee’s estate if he wished.
o A right of entry could be released, however, to the owner of the fee simple, and it was inheritable by the
heirs of the grantor.
At modern law:
o In some states, the right of entry is now alienable; in others, the common law is followed.
o In a few states, the mere attempt to transfer a right of entry destroys it.
o Example:
 O conveys Blackacre “to Railroad company, but if it fails to maintain an overpass, O has
the right to reenter and retake Blackacre.”
 Subsequently, O conveys the right of entry to his son.
 In the harsher states, this attempt to convey the right destroys it, and the railroad has a fee
simple absolute.
2. Termination
At common law:
o A right of entry or a possibility of reverter could endure indefinitely, and because it was inheritable, the
grantor’s heirs could exercise the right of entry or enforce the possibility of reverter hundreds of years after
the grantor’s death.
o These interests are not subject to the Rule against perpetuities, which generally prevented the creation of
future interests to become possessory far in the future.
At modern law:
o This remains the law in the large majority of states.
o In some states, however, statutes have been enacted expressly limiting the period during which a possibility
of reverter or right of entry can exist.
o The typical statute limits them to 30 years, after which the preceding fee simple becomes absolute
o Some states have made the termination statute retroactive, applying it to existing possibilities of reverter and
rights of entry.
o But courts are divided on whether retroactive application is unconstitutional as a taking of property without
compensation.
 FUTURE INTEREST IN GRANTOR
CORRELATIVE
FUTURE PRESENT RIGHTS OF
INTEREST INTEREST EXAMPLE GRANTOR ALIENABILITY
Estate
automatically
reverts to grantor Transferable,
on life tenants descendible and
REVERSION Life Estate "To A for life" death devisable.
Estate
automatically
"To A so long as reverts to grantor
alcohol is not upon the Transferable,
POSSIBILITY Fee Simple used on the occurrence of the descendible and
OF REVERTER Determinable premises" stated event devisable.

"To A on Estate does not Descendible and

Fee Simple Subject condition that if revert devisable, but some
RIGHT OF to Condition alcohol is used automatically; courts hold hot
ENTRY Subsequent on the premises, grantor must transferable inter
 O shall have the
right to reenter
an retake the exercise his
premises." right of entry. vivos
E. REMAINDER
1. Definition
o A remainder is a future interest created in a grantee that is capable of becoming a present possessory estate on
the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
o It is called a remainder because on the expiration of the preceding estate, the land “remains away” instead of
reverting to the grantor.
o A remainder never divests pr cuts short the preceding estate; instead it always waits patiently for the preceding
estate to expire.
o Example:
 O conveys Blackacre “to A for life, then to B if B is then living.”
 B has a remainder because B’s interest is capable of becoming possessory upon the termination of the
life estate.
2. Essential Characteristics
The essential characteristics of every remainder are:
1. Must have preceding estate
o A remainder can be created only by express grant in the same instrument in which the preceding possessory estate
is created.
o Unlike a reversion, it cannot arise by operation of law.
o Example:
 O conveys “to A is A marries B.” O has created no preceding estate in anyone; therefore, A does not
have a remainder.
 A has a Springing Executory Interest
2. Must follow a fee tail, life estate or term of years
o The estate preceding a remainder can be a fee tail, a life estate, or a term of years.
o A remainder cannot follow a fee simple.
o Example- Fee tail:
 O conveys “to A and the heirs of his body, and if A dies without issue, to B and his heirs.”
 If the fee tail has not been abolished, A has a fee tail, and B has a remainder in fee simple.
o Example- term of years:
 O conveys “to A for 10 years, then to B and his heirs.”
 A has a term of years.
  B has a vested remainder in fee simple.
 At common law, B’s interest was not called a remainder. It was said that B had the fee simple subject to
A’s term of years.
 Today, lawyers call B’s interest a remainder.

3. Must be capable of becoming possessory on natural termination of preceding estate.

o A remainder cannot divest a preceding estate prior to its normal expiration.
o A divesting interest in a transferee in an executory interest, not a remainder.
o Example:
 O conveys “to A for life, then to B.”
 B has a remainder, because B takes when the preceding estate (A’s life estate) expires.
o Compare:
 O conveys “to A for life, but if B returns from Rome during the life of A, to B in fee simple.”
 B does not have a remainder; rather, B’s taking divests A’s estate and thus B has a shifting executory
interest.

There can be no remainder after a fee simple. Any interest divesting or following a fee simple must be
an executory interest, not a remainder. This applies to all types of fee simple including fee simple
determinable.
3. Estates in Remainder
An estate in remainder may be a fee simple, a life estate, a term of years, or, in those jurisdictions
where such an estate is permitted, a fee tail.
o Example:
 O conveys “to A for life, then to B for 10years, then to C for life, then to D.”
 B has a remainder for a term of years, C has a remainder for life, and D has a remainder in fee
simple
4. Classification of Remainders
 o Remainders are classified either as “vested” or “contingent”.
o A vested remainder is a remainder that is both created in an ascertained person and is not subject to any condition
precedent.
o A contingent remainder is a remainder that is either created in an unascertained person or subject to a condition
precedent.
Always classify the interests in order:
o Example:
 O conveys “to A for life, then to B and his heirs if B survives each interest in sequence.”
 A gets a life estate
 B has a remainder (because it is capable of becoming possessory on termination of the life
estate and will not cut the life estate short) It is a remainder in fee simple.
 It is a contingent remainder because it is subject to the express condition precedent, if B
survives A.
 “If B does not survive A, to B’s children and their heirs”- the interest is a remainder because it
is capable of becoming possessory on termination of the life estate and cannot cut the life estate
short. It is a remainder to a class, B’s children, in fee simple. It is a contingent remainder
because it is subject to the express condition precedent, “ and if B does not survive A.”
a. Sub classification of vested remainders
A remainder created in an ascertained person and not subject to a condition precedent.
Example: “To A for life, then to B in fee simple” creates a vested remainder in B.
1. Indefeasibly vested remainder
The holder of this interest is certain to acquire possession in the future and will be entitled to
permanently retain the estate.
o Example:
 O conveys “to A for life, then to B and her heirs”
 B takes possession on A’s death
 If B dies before A, B’s heirs or devisees are entitled to possession
 Therefore, B’s remainder is indefeasibly vested.
 If B dies intestate and without heirs during A’s life, B’s remainder escheats to the state. At A’s
death, the state takes the property.
2. Vested remainder subject to open
The remainder is vested in a class of persons, at least one of whom is qualified to take possession, but
the class members’ shares are not yet fixed because more persons can subsequently become members
of the class. (A class is closed if others can no longer enter the class).
o Example:
 O conveys “to A for life then to A’s children.”
 If A has no children, the remainder is contingent because no person qualifies as a child.
 If A has a child, B, the remainder is vested in B subject to “open up” and let in other children.
 B’s remainder is sometimes called “vested subject to partial divestment”.
 Once the remainder has vested in B, the interests of the unborn children are called executory interest
because they may partially divest B.
o Class Gifts: A gift to a group of persons described as a class, e.g., “children of A”, “brothers and sisters of A”
or “heirs of A”.
o A class is either open or closed.
 It is open if it is possible for other persons to enter the class.
 It is closed if it is not possible for others to enter the class.
3. Vested subject to divestment
This is a remainder that can be completely divested by a condition subsequent or by an inherent
limitation of the remainder estate. A remainder can be both vested subject to open and vested subject
to complete divestment (e.g., “to A for life, then to the children of A, but if no child survives A, to B.”)
4. Alienability
A vested remainder is alienable inter vivos and devisable by will. It descends to heirs if not otherwise
disposed of. However, it can be limited so as to be divested at death.

b. Contingent remainders
A remainder is contingent if given to an unascertained person or subject to a condition precedent.
1) Remainders in unascertained persons
A remainder in an “unascertained” person means the person is not yet born or cannot be determined until the happening of an
event. Such a remainder is contingent.
 o Example- unborn children:
 O conveys “to A for life, then to A’s children.”
 A has no children.
 The remainder is contingent because the takers are not ascertained at the time of the conveyance.
 If a child is born, the remainder vests in that child subject to open and let in other children born
later.
o Example- Heirs:
 O conveys “to A for life, then to B’s heirs.”
 B is alive.
 “Heirs” are persons who succeed to B’s property if B dies intestate.
 Because no one is an heir of the living (but only an heir apparent), the takers are not ascertained;
therefore, the remainder is contingent.
 B’s heirs will be ascertained only at his death.
 If B dies during A’s life, the remainder will vest in B’s heirs at B’s death.
o Reversion
 In each of the two examples, there is a reversion to O.
 Whenever O creates a contingent remainder in fee simple, there is a reversion in O.
 Whenever O creates a vested remainder in fee simple, there is never a reversion in fee simple in O.
2) Remainders subject to condition precedent
A remainder subject to a condition precedent is a contingent remainder. A condition precedent is an
express condition set forth in the instrument, which must occur before the remainder becomes
possessory.
 What is a condition precedent?
o A condition precedent is a condition expressly stated in the instrument.
o Example:
 O conveys “to A for life, then to B if B marries C.”
  B has a subject remainder subject to an express condition precedent.
 The condition precedent is marrying C.
 It B marries C during A’s life, the remainder vests indefeasibly in B.
 What isn’t a condition precedent?
o The termination of a condition preceding is not a condition precedent.
o The language that merely refers to the termination of the preceding estate is surplusage and does not
create a condition precedent.
o Example:
 O conveys “to A for life, and on A’s death, to B”
 The words “on A’s death” merely refers to the natural termination of the life estate and do not
state a condition precedent
o A remainder subject to condition precedent other than survivorship is not also subject to an implied
condition precedent of survivorship.
o Example:
 O conveys “to A for life, then to A’s issue, and if A dies without issue, to B”
 B’s remainder is contingent on A’s dying without issue.
 It is not contingent on B’s surviving A.
 Thus, if B dies before A, B’s remainder passes to B’s heirs or devisees, and if A subsequently
dies without issue, B’s heirs or devisees take the property.

REMAINDERS: CONTINGENT VS. VESTED

CONTINGENT REMAINDER VESTED REMAINDERS

Created in an unascertainable person

(not yet born or cannot be determined) Created in an ascertained person
OR AND
Subject to a condition precedent Not subject to a condition
expressed in the instrument precedent.
3. Distinguish- conditions subsequent
Whether a condition is precedent or subsequent depends on the words of the instrument. The words
must be read in sequence and the interests classified in sequence.
o Example:
 O conveys “to A for life, then to B, but if B does not survive A, to C.”
 B has a vested remainder subject to divestment by C’s executory interest.
 The words “then to B” give B a vested remainder; the clause following is a divesting clause, giving
the property to C if B dies before A.
o Example:
 O conveys “to A for life, then to B if B survives A, but if B does not survive A, to C.”
 B and C have alternative contingent remainders
 A condition precedent has been expressly attached to B’s remainder
 O intended exactly the same thing as in the preceding example but her intention was phrased
differently.
 Here, O stated the condition of survivorship twice, once in connection with each remainder.
a) Reversion in O with alternative contingent remainders
A common law, life estate could terminate prior to the life tenants death by forfeiture or merger. If this happened,
both B and C would be ready to take on the termination of the life estate, and the property would revert to O.

F. EXECUTORY INTERESTS
o Springing executory interest
 A springing executory interest is a future interest in a grantee that springs out of the grantor at a date
subsequent to the granting of the interest, divesting the grantor.
 Example:
 O conveys “to A and her heirs if A quits smoking.”
 A has a springing executory interest
 It will divest the fee simple of O, the transferor if it becomes possessory
 Example:
 O conveys “to A for 100 years if A so long live, then to A’s heirs.”
 The attempted contingent future freehold in A’s heirs was void at law prior to the statute of
uses because it was impossible to transfer seisin either to A or to A’s heirs (unascertained).
  After the statute, the limitation to A’s heirs was given effect as a springing interest.

o Shifting executory interest

 A shifting executory interest is a future interest in a grantee that divests a preceding estate in another
grantee prior to its natural termination.
 The shifting interest, like the springing interest, divests a prior interest.
 The difference between them is that a shifting interest divests a grantee, whereas a springing
interest divests the grantor.
 Example:
 O conveys “to A and his heirs, but if B returns from Rome, to B and his heirs.”
 A has a fee simple subject to an executory interest.
 B has shifting executory interest.
 B’s interest cannot be a remainder, because it is a divesting interest, and remainders never
divest.

A springing executory interest springing out of the grantor (e.g., there is no preceding estate), and a
shifting executory interest shifts the estate from one grantee to another.

An executory interest is always either springing or shifting interest- except in the case of a future interest
in a grantee following a fee simple determinable. This executory interest is neither springing nor shifting
because the fee simple determinable ends by its own special limitation. The executory interest does not
divest it but rather succeeds it.

FUTURE INTERESTS IN GRANTEES

REVERSION IN
FUTURE
EXAMPLE GRANTOR FOLLOWING TRANSFERABLE?
INTEREST
FUTURE INTEREST?

INDEFEASIBLY

VESTED No; remainder certai to Yes; B's remainder transferable

REMAINDER "To A for life, then to B" become possessory during life and at death

VESTED "To A for life, then to A's children."

REMAINDER A has a child, B. B has a vested No; A's children are certain Yes; B's remainder transferable

SUBJECT TO OPEN remainder subject to open. of possession during life at death

VESTED "To A for life, then to B, but if B

REMAINDER dies before A, to C." B has a vested B's remainder transferable

SUBJECT TO remainder subject to divestment by No; no possibility of property during life but not transferable at

DIVESTMENT C. reverting to grantor B's death if B pre-deceases A.

 " To A for life, then to A's
Yes
children." A has no children. No; no 33 child is alive

B's contingent remainder is

"To A for life, then to A's children transferable during life, but is
Yes
who survive A." A has a child, B. not transferable to B's death if B

predeceases A.

B's remainder is transferable

"To A for life, then to B if B reaches
CONTINGENT Yes during life, but remainder fails if
21." B is 17.
REMAINDER B dies under 21

"To A for life, then to B's heirs." B No; no one is heir of B until B
Yes
is alive. dies

B's remainder is transferable

"To A for life, then to B if B during life, but fails if b

survives A, and if B does not Yes predeceases A; C's remainder is

survive A, to C" transferable during life and at

C's death if A is then alive.

"To A, but if B returns from Rome,

No Yes
to B"

C's executory interest is

EXECUTORY "To A for life, then to B, but if b No transferable during life and C's

INTEREST does not survive A, to C." death of A is then alive.

No reversion, but grantor has

possessory fee until A's Yes; B's remainder transferable

"To A upon her marriage." marriage during life at death

NOTE: In a few states, contingent remainders and executory interest are not transferable during life except in certain

circumstances.
G. RULES RESTRICTING CONTINGENT REMAINDERS (MOSTLY ABOLISHED)
There are three rules restricting remainders:
i. The destructibility rule
ii. The Rule in Shelley’s case
iii. The doctrine of Worthier Title
1) Destructibility of Contingent Remainders
This common law rule, still in effect in a few states, states that a contingent remainder in land is
destroyed if it does not vest before or at the time the preceding freehold estate ends. Thus, in a
conveyance “to A for life, remainder to A’s children which reach 21,” the remainder is destroyed if no child
of A has reached 21 at A’s death. The preceding estate can be a fee tail or a life estate.

2) Termination of life estate

The life estate can terminate either on the death of the life tenant or before the life tenants death. It is this later proposition that
makes the rule more difficult than it appears.
a) Natural termination of life estate
A contingent remainder that does not vest on the natural termination of the life estate (i.e., at the life
tenants death) is destroyed.
o Example:
 O conveys “to A for life, remainder to the heirs of B.”
 B is alive
 This conveyance creates a life estate in A, contingent remainder in the heirs of B, and a
reversion in O.
 Subsequently, A dies, survived by B.
 At A’s death, B has no heirs, because no one can be an heir of the living.
 The contingent remainder in the heirs of B is destroyed, the O owns the land.
b) Artificial termination of life estate
A contingent remainder that does not vest on the artificial termination of the life estate of the life
estate is destroyed. “Artificial termination” refers to the following methods of termination:
iv. Forfeiture
o At common law, a person forfeited his property by a tortuous conveyance (i.e., a conveyance by
which a life tenant or a tenant in tail purported to convey a fee simple).
o This is wholly obsolete in the U.S.
v. Merger
o If the life estate and a vested remainder or reversion in fee simple come into the hands of the
same person, any intermediate contingent remainders are destroyed.
o The lesser estate is merged into the larger (fee simple) and ceases to exist as a separate estate.
o A life tenant and reversioner can therefore conspire to destroy contingent remainders.
 o Example:
 O conveys “to A for life, remainder to B if B survives A.”
 While B is alive, A conveys her life estate to O.
 The life estate merges into the reversion, and Bo’s contingent remainder is destroyed.
 O has a fee simple absolute.
 Exception- fee tail
 Life estates merge into a fee simple, but fees tail do not.
 Example:
o A conveyance “to A and the heirs of his body, and if A dies without issue, to
B and her heirs if B is then living.”
o A conveys his fee tail to O, the reversioner.
o B’s remainder is not destroyed.
o However, A can destroy B’s remainder by disentailing.
 Exception- simultaneous creation
 If a life estate and the next vested estate are created simultaneously, they do not merge
at that time to destroy intervening contingent remainders.
 Example:
o T devises Blackacre “to A for life, remainder to A’s children who survive A.”
o A is also T’a heir and inherit the reversion.
o The life estate and reversion do not merge at that time; otherwise the intent
of T in creating the remainder would be frustrated.
o But if A subsequently conveys the life estate and reversion to B, the estates
then merge, destroying the contingent remainder.
C) Interests not affected by destructibility rule
The destructibility rule does not apply to the following interests in property.
1) Vested remainders and executory interests
Vested remainders and executory interests cannot be destroyed by a gap in seisin. The
destructibility rule applies only to contingent remainders.
 Example- Vested remainder:
o O conveys “to A for life, then to B for life, then to A’s children who survive A.”
o A conveys his life estate to O
o The life estate cannot merge into the reversion because the vested remainder in B
blocks it.
o O takes a life estate for A’s life.
 Example- Executory interest:
o O conveys “to A for 100 years if A so long lives, then to A’s children who survive
A.”
o A has a term of years determinable.
 o The children have an executory interest.
o It is not a remainder because there is no preceding freehold.
o There can be no contingent remainder after a term of years.
o A conveys his term to O.
o Therefore, the children’s executory interest is not affected/
o O now has a fee simple subject to A’s children’s executory interest but no longer
subject to A’s term of years.
 Example- Executory interest:
o O conveys “to A, but if A dies leaving children, to A’s children who survive A,
and if A dies without children, title shall return to O.”
o A has a fee simple, subject to divestment by an executory interest in A’s children
who survive A, the subject also to a possibility of reverter in O.
o Later O conveys his interest to A, the fee simple owner.
o This cannot affect the executory interest in A’s children.
o They take the land on A’s death.
D) Avoidance of rule
The destructibility rule can easily avoided by a competent lawyer. The two most common ways of avoiding
the rule are as follows.
1. Term of years
o If a drafter creates a term of years rather than a life estate, the destructibility rule can
be avoided.
2. Trustees
o The destructibility rule can be avoided by creating trustees to preserve contingent
remainders.
3. Rule in Shelley’s case
This rule has been abolished in most states except Arkansas, Delaware, Indiana and possibly a few other
states.
If one instrument creates a freehold in land in A and purports to create a remainder in A’s heirs (of in the
heirs of A’s body) and the estates are both equitable, then the remainder becomes a remainder in fee
simple (of a fee tail in A).
It makes land alienable one generation earlier.
o Example- Remainder to A’s heirs:
 O conveys “to A for life, then to A’s heirs”. The Rule in Shelley’s case converts the
remainder limited to A’s heirs into a remainder in fee simple in A.
 Then the doctrine of merger steps in, and A’s life estate and vested remainder merge,
giving A a fee simple in possession.
o Example- Remainder to heirs of A’s body:
 O conveys “to A for life, then to the heirs of A’s body.”
  The rule in Shelley’s case converts the remainder limited to “the heirs of A’s body”
into a remainder in fee tail in A.
 The fee tail is then changed into whatever estate is substituted for a fee tail under state
law, probably a fee simple.
 Then the remainder in A merges with A’s life estate.
o Doctrine of merger
o The doctrine of merger is an entirely separate doctrine from the Rule in Shelley’s case.
 The doctrine of merger is that a life estate in A and a remainder in A will merge
unless:
 There is an intervening estate or
 The remainder in A is subject to a condition precedent to which his life estate
is not subject.
 The doctrine of merger may or may not apply after the rule in Shelley’s case
has operated on the instrument.

a) Life estate determinable

The life estate can be determinable or subject to condition subsequent
 Example:
o T devises farm “to my wife W during her widowhood, and upon W’s death or remarriage,
remainder to W’s heirs.”
o The rule in Shelley’s case applies, giving W the remainder.
o The remainder merges with W’s life estate, giving W a fee simple.
b) Life estate in remainder
The freehold can be a life estate in possession or a life estate in remainder.
The rule in Shelley’s case applies to a conveyance “to A for life, then to B for life, remainder to B’s heirs.”
B has a remainder in fee simple.
1) Subject to condition precedent
If the life estate in A is subject to a condition precedent that is not also applicable to the
remainder to A’s heirs, the Rule in Shelley’s case does not apply.
 Example:
o O conveys, “To A for life, then, if B marries C, to B for life, remainder to the heirs of B
(whether or not B marries C).”
o The life estate is subject to a condition precedent that does not apply to the remainder.
o The rule in Shelley’s case does not apply.
o But note: If B marries C during A’s life, the Rule in Shelley’s case then applies.
 Remainder subject to same condition precedent
 If the remainder is subject to the same condition precedent as the life estate,
then the Rule in Shelley’s Case applies.
  Therefore, if the language in example A has been omitted and the condition
precedent of B marrying C were construed to be a condition precedent on the
remainder as well as on B’s life estate, the rule in Shelley’s Case would have
applied. B would have taken a remainder in fee simple subject to the
condition precedent of marrying C.
2) “And purports to create a remainder”
The rule applies to a remainder to the heirs of A, the life tenant, even though there is an intervening estate
between the life estate and remainder.
 Contingent remainder
o The remainder may be a remainder contingent on the happening of some condition
precedent.
o Therefore, the rule in Shelley’s case applies to a conveyance “to A for life, then A’s heirs if
A survives B.”
o A has a life estate and a contingent remainder, contingent on A’s surviving B. The life
estate and contingent remainder do not merge
 Executory interest
o The rule in Shelley’s Case applies only where a remainder, not an executory interest, has
been created.
3) “In A’s heirs (or the heirs of A’s body)”
The remainder must be given to A’s heirs or heirs of the body indefinite line of succession rather than a specific
class of takers.
4. Doctrine of Worthier Title
The Doctrine of Worthier Title has an inter vivos branch and a restamentary branch.
At common law, the doctrine was a rule of law applicable to land only.
In modern law, the doctrine applies to both personal property as well as land.
 Inter vivos branch of doctrine
o When an inter vivos conveyance purports to create a future interest in the heirs of the grantor,
the future interest is void and the grantor has a reversion.
o The rule is sometimes known as a rule against a remainder in grantor’s heirs
o Example:
 O conveys “to A for life, then to O’s heirs.”
 The remainder to O’s heirs is void, and O has a reversion.
 Testamentary branch of Doctrine
o If a person devises land to his heirs, the devise is void and the heirs take by descent.
 TECHNICAL RULES OF THE COMMON LAW
DESTRUCTION OF
RULE IN SHELLEY'S DOCTRINE OF
CONTINGENT
CASE WORTHIER TITLE
  REMAINDERS

Contingent remainders If an instrument creates a Inter vivos conveyance

are destroyed if not freehold estate in A and a attempting to create a future

RULE vested at time of remainder in A's heirs, the interst in the grantors heirs is

termination of remainder in fee simple in ineffective, so grantor has a

preceding estate. A. reversion.

"To A for life,

"To A for life, then to A's
EXAMPLE remainder to A's To A for life, then to my
heirs."
children who reach 21." heirs at law."

If A has no children

who are at least 21 at

A has a life estate; the
RESULT the time of her death, A has a fee simple
grantor has a reversion
property reverts to

grantor.
 Generally treated as rule of

construction (i.e., raises a

MODERN Abolished in most Abolished in most rebuttable presumption);

STATUS jurisdictions jurisdictions. does not apply in this

country to testamentary

grants.

Property reverts to

grantor; A's children A has a life estate and A's Grantor's heirs have a future
MODERN
have indestructible heirs have a contingent interest given to them under
RESULT
contingent remainder or remainder the instrument.

an executory interest
H. THE RULE AGAINST PERPETUITIES
 The rule against perpetuities was developed to destroy all contingent future interests, including executory interests
(which are indestructible).
 No 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.
 Reason for period:
o A parent could realistically and perharps wisely assess the capabilities of living members of the members of
the family.
 Interests subject to the rule
o The rule applies to contingent remainders and executory interests.
o It does not apply to vested interests (vested remainder, reversion, possibility of reverter, and right of entry)
o Example:
 O conveys “to A for life, then to A’s children for their lives, then to B and his heirs.”
 A has no children.
 The conveyance is entirely valid.
 The remainder for life given to A’s children will best if at all, at A’s death.
 The remainder in fee simple in B is a vested remainder when created.
 What might happen test:
o If there is any possibility that a contingent interest will vest too remotely, the interest is void. Courts do not
wait to see what actually happens, but look at the interest at the time of creation.
o Example:
 O conveys “to the first child of A who becomes a lawyer”
 A has a daughter D in law school.
 The gift is void.
 It is possible for the first child of A who becomes a lawyer to be a child not alive at the time of the
conveyance.
 Reason it doesn’t work:
 D may die before becoming a lawyer.
 Then A, bereft at D’s death and desiring a lawyer in the family, procreates another child-
Hope- born two years later.
 The following year, A dies.
 Some 25years later, Hope becomes a lawyer and claims the gift- but this is more than 21
years after the deaths of A and D (the only relevant lives). Therefore, the gift is void.

 Lives in being
o Any person who can affect the vesting of the interest and who is alive at the creation of the interest can be
a validating life, provided the claimant can prove the interest will vest or fail within 21years of the persons
death.
o When lives in being is determined
 Generally, the validating life must be a person alive at the creation of the contingent interest.
 A child in womb
 When the interest is created is treated as a life in being if the child is later born alive. Any
gestation periods are included within the permissible perpetuities period.
 Validating life
 Example 1:
o “To A when A marries” or “to A’s children,”
o The validating life is A because the contingency (marries or birth of child) must
happen, if at all, within A’s life.
 Example 2:
o “To A’s children who reach 21”
o A is the validating life. Every child of A must necessarily reach 21 within 21 years
of A’s death plus a period of gestation. Therefore, the gift will vest, if at all,
within 21 years after A’s death.
 No validating life (void gift)
 Example:
o T conveys “To A for life, then to A’s children who reach 25.” A has no children at
T’s death.
o The remainder is void because you cannot prove it will necessarily vest or fail
within 21 years of A’s death.
 Validating lives
 Example:
o Professor Jones gives $1,000 to be divided among all members of her property
class who has admitted to the bar.
o The gift is good.
o The members of the property class are the validating life..
o The gift must vest or fail within the lives of the members of the property class.
o It will be known by the last survivor or maybe sooner- which members of the
class are admitted to the bar.
o Meaning of “vest”:
 The rule does not apply to vested interests.
 Class gifts
  Do not vest in any member of the class until the interests of all members have vested.
Therefore, if the gift to one member of the class might vest too remotely, the whole class
gift is void (all-or-nothing rule).
 Executory interest
 An executory interest following a fee simple determinable or divesting a fee simple cannot
vest in interest before it vests in possession.
 An executory interest following a determinable fee or divesting a fee simple only when the
condition happens and it becomes a possessory estate.
o Remote possibilities
 An interest is void under the Rule Against Perpetuities if by any possibility- however remote- the
interest might vest beyond the perpetuities period.
 If a situation can be imagined in which the interest might not vest or fail within the relevant lives in
being plus 21 years, the interest is void.
 The fertile octogenarian
o The law conclusively presumes that a person can have children as long as the
person is alive.
o Evidence that a person is 80 years of age or have had a hysterectomy or
vasectomy is irrelevant.
 The unborn widow
o The law assumes that a persons surviving spouse might turn out to be a person not
now alive.
o Example:
 A mans present wide may die or be divorced, and the man may in the
future marry a woman not now alive. This leads to the assumption leads
to the unborn widow case.
 Application to Defeasible Fees
o The rule against perpetuities does not apply to possibilities of reverter and rights of entry, which are regarded
as vested interests, but it does not apply to executory interests,
 Fee Simple Determinable
 A possibility of reverter is exempt from the rule.
 An executory interest is subject to it.
 Any executory interest following a fee simple determinable that violates the rule against
perpetuities is struck out, as with a blue pencil, leaving the fee simple determinable
standing.
 Example:
o O conveys Blackacre “to the School Board so long as used for school purposes,
and if the land shall cease to be used for school purposes, to A and his heirs.”
 o A’s executory interest, if valid, would be transmissible to A’s heirs, and their
heirs, and so on through time.
o It might not become possessory for centuries. Therefore, A’s executory interest is
void.
o Board has a fee simple determinable, which will automatically end when the land
ceases to be used for school purposes; O has a possibility of reverter.
 Fee Simple Subject to an Executory Limitation
 Example:
o O conveys Blackacre “to the School Board, but if Blackacre shall cease to be used
for school purposes, to A and his heirs.”
o The executory interest in A is void under the RAP for the same reason A’s
executory interest in the preceding example is void.
 Fee Simple Determinable Created by Will
 A possibility of reverter is an interest retained by the grantor if the fee simple determinable
is created by a deed; the testator’s heirs retain it if the fee simple determinable is created by
a will.
 A possibility of reverter cannot be created in a grantee- nor in a devisee.
 If the testator creates a fee simple determinable by will, followed by a void executory
interest in a devisee, the testator’s heirs have a possibility of reverter.
 Example:
o T devises Blackacre “to a Baptist Church so long as used for church purposes,
then to A. All the rest and remainder of my property I devise to B.”
o A’s executory interest violates the RAP and is struck out, leaving a determinable
fee in the church.
o T’s heirs- and not B- have a possibility of reverter.
o If B, the residuary devisee, were given the future interest after the determinable
fee, B’s interest as a residuary devisee would be an executory interest, and B’s
interest would be void.

INTERESTS UNDER THE RULE AGAINST PERPETUITIES

EXAMPLE VALIDITY EXPLANATION
"To A for life, then to A's children for life then
to B" Valid B's remainder is vested on creation

"To A for life, then to A's children for life, then Invalid A may have a child after the interest is created
 and so may have grandchildren beyond the
to A's grandchildren." perpetuities period.
" To School Board so long as it is used for a
school, then to the Red Cross." Valid This falls within the charity-to-charity exception
The interest may vest in A's heirs or devisees
"To school Board so long as it is used for a hundreds of years from now. (A's interest is
school, then to A" Invalid stricken.)
"To B for life, remainder to those of B's siblings
who reach age 21." Valid B's parents can be used as measuring lives
B may have a child born after the disposition
"To B for life, then to such of B's children who who becomes a lawyer more than 21 years after
become lawyers" Invalid B's death.
"To A for life, then to his wife W, for life, then No unborn widow problems because the gift is to
to A's surviving children." Valid W, life in being,"
"To A for life, then to his widow for life, then to
A's surviving descendants." Invalid Unborn widow problem.
"To X for life, then to Y, but if at her death Y is
not survived by children, then to Z." Valid Y is the measuring life.
"To M for life, then to M's children for their
lives, then to M's grandchildren." M is 80 years
old and has had a hysterectomy. Invalid Fertile octogenarian problem.
"Trust income to Polo Club. At the death of A,
B, C, D and E (all born today at Obie Hospital),
the corpus to Z and his heirs." Valid A, B, C, D, and E are measuring lives.
The residue of my estate to my descendants who Administrative contingency- the slothful
are living when my estate is distributed." Invalid executor problem.

SUMMARY OF FUTURE INTERESTS

SUBJECT TO
CORRELATIVE
FUTURE INTEREST EXAMPLE RULE AGAINST
PRESENT INTEREST
  PERPETUITIES

Fee tail, Life estate,

IN

REVERSION
"To A for life." term of years No
GRANTOR POSSIBILITY OF "To A so long as liquor is not Fee Simple
REVERTER sold on the premises." Determinable No
"To A, but if liquor is sold on the
RIGHT OF
premises, O has a right to Fee Simple Subject to
ENTRY
reenter." Condition Subsequent No
INDEFEASIBLY
VESTED Fee tail, Life estate,
REMAINDER "To A for life, then to B" term of years No
VESTED
REMAINDER Yes- As long
SUBJECT TO "To A for life, then to A's Fee tail, Life estate, as the class
OPEN children." A has a child X. term of years remains open.
VESTED "To A for life, then to B, but if B
IN GRANTEE

REMAINDER pre-deceases A, to C." (B has a

SUBJECT TO vested remainder subject to Fee tail, Life Estate,
DIVESTMENT divestment.) Term of Years. No

CONTINGENT
"To A for life, then to A's Fee tail, Life Estate,
REMAINDER
surviving children." Term of Years. Yes
SPRINGING Fee Simple, Fee tail,
EXECUTORY "To A when she passes the bar Life Estate, Term of
INTEREST exam." Years. Yes
SHIFTING "To A for life, then to B, but if N Fee Simple, Fee tail,
EXECUTORY predeceases A, to C." (C has a Life Estate, Term of
INTEREST shifting executory interest) Years. Yes.