Question/Answer for February 25, 2008

Most of the questions have focused on various of the estates and future interests classification problems in the book. So what follows is a long memo that provides an explanation of each of the problems in the problem sets on pages 309-10, 312-13, 328, and 337-38.

Note 7(a), page 309. The devise (a transfer by will) creates a life estate in Cheever, a contingent remainder in fee simple absolute in Bryan (a remainder because it is created in a grantee and would follow at the natural conclusion of the preceding life estate, and contingent because it is subject to an express condition precedent that Bryan must survive Cheever), and an alternative contingent remainder in fee simple absolute in Nice. Nice's interest is a remainder because it would take effect at the natural end of Cheever's life estate if Bryan's contingent remainder fails (i.e., if Bryan dies before Cheever), and it is contingent because it is subject to the condition precedent that Bryan’s remainder must fail. Henning would have a reversion in fee simple absolute, based upon the possibility that both contingent remainders might fail — although as a practical matter, this is extremely unlikely.

If Cheever later dies, survived by Bryan, Bryan’s interest will vest and he will hold the land in fee simple absolute. Nice’s contingent remainder would then fail and Henning’s reversion would expire.

Note 7(b), page 310. The first conveyance creates a life estate in Cheever, and Henning retains a reversion in fee simple absolute (as the deed does not dispose of any interest in the property beyond Cheever’s life estate). In the second conveyance, Cheever conveys the land “to Bryan for the life of Cheever so long as a restaurant is operated on the premises.” Under the derivative title principle, Cheever can convey no more than he has (his life estate). Bryan receives Cheever’s life estate, but subject to divestment — the estate will terminate automatically if there is not a restaurant operated on the land. Thus, Bryan has a life estate determinable pur autre vie (that is, measured by Cheever’s life). Cheever has a possibility of reverter for life — the land would revert to him pursuant to this interest if Bryan ceased using the land as a restaurant during Cheever’s life. Henning still has a reversion in fee simple absolute that will become possessory upon Cheever’s death.

If Cheever later dies before Bryan, his life estate is over, and Henning will own the land in fee simple absolute.

If Bryan dies before Cheever, the life estate pur autre vie (measured by Cheever’s life) is not over, and would pass under the terms of Bryan’s will (or to Bryan's heirs if Bryan died intestate). Cheever would continue to hold a possibility of reverter for life, and Henning would hold a reversion in fee simple absolute that would become possessory upon Cheever’s death.

Note 7(c), page 310. The first conveyance creates a life estate in Cheever, and Henning retains a reversion in fee simple absolute (as the deed does not dispose of any interest in the property beyond Cheever’s life estate). In the second conveyance, Cheever conveys the land “to Bryan for her life.” Under the derivative title principle, Cheever can convey no more than he has (his life estate). In effect, Bryan has an estate for the life of Cheever (life estate pur autre vie), as long as she is also alive (consistent with a determinable estate).

As a result, the most accurate way to characterize Bryan’s estate is a life estate determinable pur autre vie. Cheever has a possibility of reverter for life — the land would revert to him for his life, pursuant to this interest, if Bryan predeceased him. Henning would have a reversion in fee simple absolute that would take effect at Cheever’s death (even if Bryan is still alive at that point, her estate would terminate as it is measured by Cheever’s life).

Note 7(d), page 310. The first conveyance creates a life estate in Cheever, and Henning retains a reversion in fee simple absolute (as the deed does not dispose of any interest in the property beyond Cheever’s life estate). In the second conveyance, Henning conveys “the residue of my title” to Blueacre via quitclaim deed to Nice. This deed has the effect of passing Henning’s interest — his reversion in fee simple absolute — to Nice under the derivative title principle. Thus, after the second conveyance, Cheever has a life estate and Nice holds a reversion in fee simple absolute. [Nice’s interest is not a remainder, but a reversion, according to the classification scheme of the law of estates. Because it was a reversion in the hands of Henning, it remains a reversion when transferred to Nice. The distinction has no significance in this case, however, in terms of whether and when Nice’s interest will become possessory.]

Note 7(e), page 310. Henning has conveyed the land “to Nice while she lives on the land.” At first blush, one might argue that Nice would take an estate in fee simple under the rule of construction that the grantor passes his entire interest unless there is an express limitation on that interest (or unless a limitation must necessarily be implied). This is an example of a case where a court would almost certainly imply that the grant limits Nice to a life estate. Henning has specified that Nice’s estate can last only as long as Nice herself lives on the land. This is not possible following Nice’s death. Thus, Nice would have a life estate determinable (an estate that in any event would end on her death, and sooner if she ceased living on the land). Henning would have both a possibility of reverter in fee simple absolute (that would become possessory if Nice stopped living on the land while still alive) and a reversion in fee simple absolute (that would become possessory upon her death).

By contrast, you might distinguish a conveyance where the grantor conveys “to Nice while the land is used as a residence,” where the land could still be used consistently with the restriction even after Nice’s death. In that case, the restriction would not appear to require us to imply that the grantor intended to limit Nice to a life estate. In that case, Nice would have a fee simple determinable estate and Henning a possibility of reverter in fee simple absolute.

Note 7(f), page 310. Cheever has a life estate. If, at the time of the deed, Cheever has living children that have already graduated from college, those children would have a vested remainder in fee simple absolute (subject to open, if Cheever still has other living children who might also graduate from college and satisfy the condition). If the interest has already vested in any child of Cheever’s, then Nice has no interest in the land whatsoever — because the vested remainder in Cheever’s already-graduated child or children is not defeasible and cannot be divested. [If they predeceased Cheever, their interest would pass under their wills or to their heirs if they died intestate].

If, at the time of the deed, Cheever has children but those children have not graduated from college yet, then the class — “Cheever’s children who graduate from college” — has a contingent remainder in fee simple absolute (contingent because they haven’t satisfied the stated condition precedent — graduating from college). In this situation, Nice would have an alternate contingent remainder in fee simple absolute (contingent because it is subject to the express condition precedent that the remainder in Cheever’s children must fail). Henning would have a reversion in fee simple absolute, based upon the possibility that both contingent remainders might fail — although as a practical matter, this is extremely unlikely.

The problem sets up the remainder as being in Cheever’s “living” children in order to avoid a RAP violation. If the conveyance was merely to Cheever’s children who graduate from college, then that interest could vest too remotely in an after-born child of Cheever.

Note 7(g), page 310. Following the devise, Cheever has a life estate. Nice’s children have a contingent remainder in fee simple absolute, as Nice has no children at the time the will took effect (so that no members of the class are as yet ascertainable). If another part of Henning’s will left the residue of his property to a particular person, that person would take an alternate contingent remainder in fee simple (contingent because it is subject to a condition precedent that the remainder in Nice’s children must fail). If Henning’s will did not dispose of ownership of Blueacre in the event that the interest in Nice’s children fails — either directly or by way of a residuary clause — Henning’s estate has a reversion in fee simple absolute that will be inherited by Henning’s heirs.

If Nice has a child one year later, the remainder interest will vest in that child (now that the child is ascertainable). That child will have a vested remainder in fee simple absolute, subject to open. Because that interest cannot be completely divested, Henning’s heirs would no longer have any interest in the land. Even if that child died two years later, that child would have a vested remainder interest which would pass to the child’s heirs.

Note 7(h), page 310. Following the conveyance, Cheever has a life estate. Bryan has a vested remainder for life. Bryan is ascertainable and Bryan's interest is not subject to any condition precedent, and the law does not imply Bryan’s survival as a condition precedent. [Of course, if Bryan dies before Cheever, Bryan's life estate will terminate of its own accord, and Bryan will never take possession of the land.] Nice has a vested remainder in fee simple absolute. Having conveyed away his entire interest, Henning retains no interest in Blueacre.

Note 7(i), page 310. Henning has attempted to convey the land “to Wells and her heirs until Sam finishes medical school.” Wells has a fee simple interest that will terminate automatically when and if Sam finishes medical school, but which will continue perpetually if Sam does not finish medical school. Thus, Wells holds a fee simple subject to an executory interest. Pushaw has an executory interest in fee simple absolute (that interest will be vested and become possessory if and when Sam finishes medical school).

Note 7(j), page 310. Henning has attempted to convey the land “to Key for life, but if Key gets married, Henning shall have the right to reenter and recover the estate.” Following the conveyance, Key has a life estate subject to condition subsequent; if she gets married, Henning may exercise his optional right to forfeit Key’s life estate. [This answer assumes that this is not an invalid restraint on Key’s ability to marry. Key might argue that the restraint should not be given effect, and some courts might be sympathetic to that argument. See note 2(e), page 289. If so, then Key would have a life estate, and Henning a reversion in fee simple absolute.] Henning has a right of entry for life. Henning also has a reversion in fee simple absolute, because the original conveyance did not dispose of ownership of the land following Key’s death.

Note 2(a), page 312. Following the conveyance, Chambers has a life estate. Laughrey has a vested remainder for life (Laughrey is identifiable and the remainder is not subject to an express condition precedent — Laughrey’s survival of Chambers is not implied as a condition precedent). Thomas Lawless has a vested remainder in fee simple subject to open, as he is identifiable and the remainder in Lawless’s children is not subject to any condition precedent. Because the class is open, the remainder is still contingent as to future (unascertainable) children of Lawless. Because the remainder in fee simple is indefeasibly vested in Thomas, Henning retains no interest in Blueacre.

Note 2(b), page 312. Henning has attempted to convey the land “to Chambers’s children.” Does it matter whether Chambers had children at the time of the conveyance? Yes. If Chambers had no children on the date of the conveyance, then Henning is attempting to create a springing executory interest in Chambers’s children. As a result, Henning will have a fee simple estate, and the deed will convey an executory interest in fee simple absolute in Chambers’s children (which will, in the future, divest Henning’s estate, unless Chambers dies without ever having had children).

If, at the time of the conveyance, Chambers already had children, the deed would vest fee simple absolute title in them immediately. If, at the time of the conveyance, Chambers had one child, that child would have a vested fee simple title and the right to demand immediate possession. Because the conveyance was to Chambers’s children (plural), however, a court might not apply the rule of convenience to immediately close the class of Chambers’s children. If the court did not apply the rule of convenience, Chambers’s existing child would have a fee simple subject to open (and any future-born children of Chambers would also take a vested interest in fee simple upon their birth).

Note 2(c), page 312. Following the conveyance, Chambers has a life estate, Thomas and Becca have a contingent remainder in fee simple absolute, and Henning has a reversion in fee simple absolute. The remainder is contingent because neither of Lawless’s existing children have satisfied the contingency of reaching age 21.

Note 2(d), page 312. When Thomas reached 21, he became a vested member of the class (he was born, ascertainable, and had satisfied the condition precedent), but the class was still open because Lawless was still alive and able to produce children who could become members of the class. When Thomas died, he died holding a vested remainder, which is unquestionably alienable, devisable, and inheritable. Thus, after Thomas’s death, Chambers still has a life estate and Thomas’s estate holds a vested remainder subject to open. This will pass to his heirs if Thomas died intestate, and to his devisees if he left a valid will.

Note 2(e), page 312. Rachel’s birth does not change the status of the future interest. Like Becca, she is a member of the class, but their interests have not yet vested because they have not yet satisfied the age contingency.

Note 2(f), page 312. With Chambers’s death, the class gift can close under the Rule of Convenience because there is at least one member of the class (Thomas’s estate) who is vested and eligible to demand possession. Therefore, the vested remainder becomes a present possessory estate. At the same time, however, there are two members of the class — Becca and Rachel — who have not yet satisfied the age contingency. Therefore, Thomas’s estate takes a fee simple estate but must share with his siblings if and when they reach 21. Accordingly, Thomas’s estate has a fee simple subject to executory limitation. Becca and Rachel have executory interests in fee simple absolute.

Note 2(g), page 312. Becca’s premature death at age 20 means that her interest fails because she did not satisfy the age contingency. Thus, Thomas’s estate still has a fee simple subject to executory limitation, but only Rachel holds an executory interest in fee simple absolute.

Note 2(h), page 313. Debbie’s birth does not change the status of title. The class was closed under the Rule of Convenience at Chambers’s death, so Debbie cannot become a member of the class.

Note 2(i), page 313. When Rachel turns 21, she satisfies the age contingency and, therefore, gets a share of the possessory estate with Thomas’s estate. Because all members of the class have now either satisfied the age contingency or have died (causing their interest to fail), Becca and Thomas’s estate hold the property in fee simple absolute.

Note 2(j), page 313. Debbie’s 21st birthday has no effect on the status of title. As explained in note 2(h), Debbie was never a member of the class because the class closed before she was born. Therefore, she has no legal rights to the property under Henning’s conveyance.

Note 1(a), page 328. Henning’s conveyance attempts to create a present life estate in Fisch, with Fisch’s 26-year-old child holding a vested remainder subject to open (vested as the child is identifiable and has satisfied the 25-year age contingency), with unascertained class members (future children of Fisch) and existing children of Fisch below 25 (who have not satisfied the age contingency) holding contingent interests. To satisfy the RAP, however, the interest must vest in every member of the class within the perpetuities period. Here, the interest could vest too remotely in an afterborn child of Fisch. Fisch could have a child, Hope, one year after the conveyance. Thereafter, Fisch and all of his other children might die — at which point the interest could still vest in Hope, but not for more than 21 years. As a result, the interest in Fisch’s children is invalid. Henning retains a reversion in fee simple absolute that will take effect upon Fisch’s death.

At first blush, you might think the Rule of Convenience will save the interest by closing the class at Fisch’s death, making Fisch a measuring life to validate the interests of the 26-year-old and any other children who have reached 25 by the time of Fisch’s death. The problem with this argument is that the gift is to the children of Fisch, not those who have reached 25 by the time of his death. [One might argue that the court should adopt the latter construction to avoid a perpetuities violation, but this construction would run afoul of the traditional “what might happen” approach.] Thus, it is possible that at the time of Fisch’s death, he could be survived by a child aged four or less — in whom the interest might remain contingent for more than 21 years.

Note 1(b), page 328. Henning’s conveyance attempts to create a present life estate in Fisch (vested as of its creation and thus valid), a remainder in Fisch’s children for their lives, and a remainder in fee simple absolute in Pushaw’s children. The remainder in Fisch’s children cannot vest in any child of Fisch at a point later than Fisch’s death (at which point the class of his children closes), and thus Fisch is a measuring life for the interest of his children. Likewise, the remainder in Pushaw’s children must vest or fail at or prior to his death (at which point the class of his children closes), and thus Pushaw is a measuring life for the interest of his children. Both remainder interests thus satisfy the RAP. If at the time of the conveyance Pushaw had no children at all, then Henning would retain a vested reversion in fee simple (that would take effect in possession only if Pushaw died without ever having had children).

Note 1(c), page 328. Henning’s conveyance attempts to create a present life estate in Fisch (vested as of its creation and thus valid), a remainder in Fisch’s children for their lives, and a remainder in fee simple absolute in Pushaw’s then-living (i.e., at the end of the life estate of Fisch’s children) children. The remainder in Fisch’s children cannot vest in any child of Fisch at a point later than Fisch’s death (at which point the class of his children closes), and thus Fisch is a measuring life for the interest of his children. This remainder satisfies the RAP. In contrast, the remainder interest in Pushaw’s children could vest too remotely, violates the RAP, and is invalid.

What might happen? The problem is that the remainder interest in Pushaw’s children is not just contingent because Pushaw is alive and the class is thus open; it is also contingent because the interest will vest only in those members of the class who survive until the moment that the interest becomes possessory (when all of Fisch’s children are dead). Thus, Pushaw cannot be a measuring life, because his death will not cause the interest to vest or fail. The interest could also vest more than 21 years after his death, if Fisch's kids outlive Pushaw by more than 21 years.

After the conveyance, Fisch and Pushaw could each have another child, neither of whom was a “life in being” at the time of the conveyance. All of the other children of Fisch and Pushaw might then die. Fisch’s afterborn child might then live for 90 years before the interest in Pushaw’s afterborn child would vest. As a result, the interest in Pushaw’s children may vest too remotely and is invalid. Henning retains a vested reversion in fee simple absolute that will take effect in possession at the end of the life estate of Fisch’s children.

Note 1(d), page 328. Barnes has attempted to create a present life estate in Smith and a contingent remainder in fee simple absolute to Smith’s first son to reach 25 (with a reversion in fee simple in Barnes in the event that no child of Smith’s ever reaches 25). The contingent remainder is invalid under the “what might happen” test. One year after the conveyance, Smith could have another son, Fred. Then, one week later, Smith and Smith’s three teenaged children could die, and yet it could be 25 more years before we would know definitively whether Fred’s interest would vest (until he reaches 25). Thus, it is possible that the interest could vest in an afterborn child of Smith at a point in time beyond the perpetuities period. Thus, the deed created a present life estate in Smith and Barnes reserved a reversion in fee simple absolute.

It would matter if the jurisdiction retained the Destructibility Rule and applied it as a matter of law. In that case, when Smith dies, the interest will either have vested (if one of Smith’s children has reached 25) or it will fail (because the Destructibility Rule will destroy the still-contingent interest upon Smith’s death). On this view, Smith would be a measuring life that proves that the interest cannot vest later than the moment of his death. But if the jurisdiction does not follow the Destructibility Rule, the remainder interest in the first son of Smith to reach 25 is void for violation of RAP.

Note 1(e), page 328. Barnes has attempted to create a present life estate in Bryan, a vested remainder for life (subject to open) in Bryan’s children, and a contingent remainder in fee simple absolute in Bryan’s grandchildren (not yet identifiable), with Barnes reserving a reversion in fee simple (if the remainder in Bryan’s grandchildren should fail). The life estate in Bryan is presently vested and satisfies the RAP. The remainder in Bryan’s children satisfies the RAP; even though it is not vested as to all possible class members (because the class remains open), it cannot vest in any class member after the death of Bryan (which will close the class), and thus Bryan is the measuring life for the remainder interest in Bryan's children.

The contingent remainder in fee simple absolute in Bryan’s grandchildren violates the RAP, as it could vest too remotely. It is possible that Bryan could have a child after the conveyance; in turn, this child could have a son or daughter 50 years later that would be a grandchild of Bryan. If Bryan and all of her other children had died in the interim, the remainder in the grandson/granddaughter would then vest more than any life in being at the time of the conveyance + 21 years. Thus, the interest in Bryan’s grandchildren is void.

The problem here is that for the interest in Bryan's grandchildren to vest, all of Bryan's children have to be dead. But because Bryan is alive at the time of the conveyance, the class of Bryan's children is open — and thus the "last child of Bryan to die" (the person whose death would cause the interest in the grandkids to vest) might be a later-born child of Bryan (that is, someone born after the conveyance took effect, and thus wasn't a "life in being."

Thus, Barnes would retain a reversion in fee simple absolute that would become possessory at the end of the life estate of Bryan’s children. [Barnes’s reversion is vested from the moment it arose, and thus satisfies the RAP.]

Note 1(f), page 328. Winokur has attempted to convey a defeasible fee (a fee simple subject to an executory interest) to Temple Beth-El, and an executory interest in fee simple absolute in Tiffany. The defeasible fee estate is presently vested and thus satisfies the RAP, but the executory interest in Tiffany violates the RAP and is void. At the time the interest is created, it might be 1000 years before Temple ceases using the land as a synagogue — far in excess of any life in being at the time of the conveyance + 21 years. Thus, the attempted executory interest in Tiffany is void. Barnes holds a possibility of reverter in fee simple absolute, that will become possessory when Temple ceases using the land as a synagogue. Barnes’s interest is vested from the moment of the conveyance and thus satisfies the RAP.

This example demonstrates the practical absurdity of treating reversionary future interests as vested interests unaffected by the RAP. Barnes’s valid possibility of reverter renders the land just as inalienable as the would-be executory interest in Tiffany — and thus treating reversionary future interests as vested seems counterintuitive given the RAP’s role in promoting the alienability of land titles. [This explains why states have enacted statutes placing time limits upon defeasance restrictions, as pointed out in note 7, page 276.]

Tiffany cannot be a measuring life for the validity of the executory interest. Tiffany’s living or dying has no effect upon whether Tiffany’s interest vests or fails. If Tiffany dies at a time when Temple is still using the land as a synagogue, then Tiffany’s interest passes to devisees under Tiffany’s will, or to Tiffany’s heirs in default of a valid will. [Tiffany’s interest is not made expressly contingent upon Tiffany’s survival to the time when the land is no longer used as a synagogue.] Thus, the interest could vest years after Tiffany’s death.

In contrast, if the conveyance had been “to Temple …, then to Tiffany if Tiffany is then alive,” Tiffany would be a valid measuring life, and Tiffany’s interest would be valid. In that case, Tiffany’s death would be relevant. Tiffany’s interest will have vested during Tiffany’s life, if the Temple ceased using the land as a synagogue; if the land is still a synagogue when Tiffany dies, then Tiffany’s interest will fail at that moment. Thus, the interest could not remain contingent beyond the moment of Tiffany’s death.

Note 1(g), page 328. Winokur has attempted to convey to Temple a fee simple subject to executory interest, and an executory interest in fee simple absolute to Tiffany. For the reasons discussed in (c), Tiffany’s executory interest is void. In this case, however, because Winokur did not place an express durational limitation upon Temple’s estate (e.g., “so long as,” “until,” etc.). To the contrary, the granting clause of the conveyance gave Temple an unconditional gift, but appended a condition subsequent in a subsequent clause. Because the condition subsequent was invalidated under the RAP, the offending clause is red-penciled from the conveyance, leaving just the unconditional gift in the granting clause. Accordingly, Temple has a fee simple absolute estate.

Note 1(h), page 328. Winokur has attempted to convey to Pushaw a life estate, and a contingent remainder in fee simple absolute in Chambers. The contingent remainder is valid because Chambers is the measuring life for his own interest — he will reach age 50 (or fail to do so) by the time of his death. Thus, the interest definitely will vest or fail within the lifetime of a life in being.

Note 8(a), page 337. The will attempted to create the following estates: (1) a life estate in Dauer; (2) a contingent remainder for life in his widow (subject to a condition precedent — she can’t be his "widow" unless she first survives him); (3) a contingent remainder in fee simple absolute in Dauer’s children then alive; and (4) it also reserves a reversion in fee simple absolute, which would pass under the residuary clause in the will or to Barnes’s heirs (if the other provisions of the will do not dispose of it).

The contingent remainder in the widow satisfies the RAP, because it will vest or fail at Dauer’s death (either his wife will survive him or not). Dauer is the measuring life for this interest.

The contingent remainder in Dauer’s children is void, however. This interest must vest at the death of Dauer’s widow — but Dauer’s widow could be a person who is not currently alive (the “unborn widow”). How could this be? After the will takes effect, Dauer’s wife and all his current children could die. Then, 30 years later, Dauer could get remarried to a 20-year-old woman, Lindsey, who was not a life in being when the will of Barnes took effect. They could have a child, and then Dauer could die. At that point, Lindsey would be entitled to the land for her life (she could live 50 more years), and the child’s interest could not vest until after her death — more than any life in being at the time of Barnes’s death + 21 years.

Note 8(b), page 337. Barnes’s deed purports to create the following estates: (1) an executory interest in fee simple in Corrada that will take effect at the moment Barnes’s will is probated, if Corrada is then alive; and (2) an executory interest in fee simple in Bryan that will take effect at the moment Barnes’s will is probated, if Corrada is not then alive. Since neither of these executory interests is a present estate, Barnes would continue to hold fee simple title, subject to these executory interests (if they are valid).

Bryan’s interest is invalid; the problem is that at the time Barnes’s deed takes effect, we have no way to know when, if ever, the probate court will enter a final order probating Barnes’s will. It could be one week after Barnes’s death, or 5000 years after Barnes’s death, or it may never happen — there’s simply no way to know for sure when that would happen, or any guarantee that it will ever happen.

The executory interest in Corrada is still valid, however, because it will fail if Corrada dies before the final order is entered. In other words, if Corrada’s interest has not vested by the time of his death, it will fail — thus, Corrada is the measuring life for his own interest, which satisfies the RAP. The executory interest in Bryan is void, however, because it could vest too remotely. It cannot vest until the final order is entered, and that could be 5000 years or more.

Barnes thus continues to hold a fee simple subject to an executory interest, with Corrada holding an executory interest in fee simple absolute.

Note 8(c), page 338. Barnes’s will attempts to create an executory interest in his youngest child alive 25 years after his widow’s death. This interest is valid. How?

The key is that this transfer occurs by devise (by will), meaning that Barnes is now dead. Thus, the class of his children is closed at the time the will takes effect. Any living child of Barnes is a “life in being.” The interest will vest in one of the children during their life (if they satisfy the contingency), or it will fail (if none of them are alive 25 years following the death of his widow).

Because the will did not dispose of the rest of Barnes's interest in Blueacre, Barnes’s heirs hold a fee simple estate, but subject to a valid executory interest in fee simple absolute in the youngest child of Barnes alive 25 years after the death of Barnes’s widow.

Note 8(d), page 338. This note illustrates the difference in result if the conveyance is made by deed, rather than by will. Barnes’s deed attempts to create an executory interest in his youngest child alive 25 years after his widow’s death. This interest violates the RAP and is void. Barnes is still alive, and is capable of having more children. Thus, it is possible for the interest to vest in a child who is not alive at the time of the conveyance. If Barnes has another child, Jake, and then he, his wife and all his children other than Jake die before Jake reaches age 1, Jake’s interest would not vest for 24 more years — too remotely. Barnes holds a fee simple absolute.

Note 8(e), page 338. Nice’s deed attempts to create the following estates: (1) a life estate in Bryan; (2) a contingent remainder in fee simple in Bryan’s children (contingent both upon surviving Bryan and reaching age 25); (3) a contingent remainder in Chen (contingent upon Bryan leaving no surviving children); and (4) a reversion in fee simple absolute in Nice (in case both contingent remainders failed). If Bryan is alive at the time of the conveyance, then the contingent remainder in Bryan’s children is void, as it is possible it could vest too remotely. After the conveyance takes effect, Bryan could have a child. Then, the next day, Nice, Bryan, Chen, and all other lives in being could die, and it would take 25 years before the afterborn child’s interest could vest.

Chen’s remainder interest is valid, however; it will vest if none of Bryan’s children survive her, which will be ascertained at the moment of her death. Chen’s interest will either vest (if Bryan leaves no surviving children) or fail (if she does) at the time of Bryan’s death; thus, Bryan is the measuring life for Chen’s interest.

Accordingly, Bryan has a life estate, Chen has a contingent remainder in fee simple (that will take effect if Bryan dies with no surviving children), and Nice has a reversion in fee simple (that will take effect if Bryan dies with surviving children).

Note 8(f), page 338. Nice’s deed attempts to create an executory interest in the heirs of Bryan’s first child. This interest would not vest until the death of Bryan’s first child, who is not yet alive. Thus, this interest can vest too remotely. Bryan could have a child one year after the conveyance. Bryan, Nice, and all other lives in being could then die. Bryan’s child could then live for 100 years before dying, at which point the executory interest in that child’s heirs would vest. As a result, Nice’s deed created no valid interests and is void. Nice has a fee simple absolute, which then passes to Sam two years later when she deeds her interest to him.

Note 8(g), page 338. Chen’s will attempts to create an executory interest in fee simple in his grandchildren. This interest is valid — it cannot vest too remotely. The measuring lives are Chen’s children, all of whom are “lives in being” at the time Chen’s will takes effect (as Chen is dead, he can have no more children). When Chen’s children die, they will have either had children (who would be grandkids of Chen, and who would then have vested interests), or they will die without children (and the interest of the grandkids will then fail). The interest cannot remain contingent after the death of Chen’s children. Chen’s children are thus “measuring lives” that prove that the interest in the grandchildren cannot vest too remotely.

Note 8(h), page 338. Chen’s deed attempts to create an executory interest in fee simple in his grandchildren. This interest is invalid — it could vest too remotely. As long as Chen is alive, he can have more children. Thus, what could happen? After the conveyance, all of Chen’s children could die (including Mark). Then, Chen could have another child, Marie. Chen and his wife, and all other persons alive at the time of the conveyance could die. Marie might then live 50 years before having a child — Chen’s grandchild — in whom the interest would vest. Thus, Chen’s deed creates no valid interest in the grandchildren. As a result, Chen continues to hold a fee simple absolute estate, which then passes two months later to Nice (by way of Chen’s deed to Nice).