Holy future interests! Try this one

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chicoalto0649
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Holy future interests! Try this one

Postby chicoalto0649 » Thu Dec 02, 2010 3:07 pm

20 min time limit. Exam question from a previous year.

X comes into your office. She would like you to draft a provision in her will to dispose of her house. X would like her children to use the house, but also for it to be there for her grandchildren after the children die. X has three children, A, B, & C., and one granddaughter, D. B lives with X and X wants B to be able to stay in the house. Nonetheless, she knows B has a penchant for hatching crazy business schemes that inevitably fail. Consequentially, she would like to keep B from using the house for business endeavors. She worries about C’s profligate spending habits, so would rather not pass any of her estate to him. She would like to include C’s daughter D (currently 10 years old) and any subsequent children. However, X also does not want any interest to pass to a child under 21. Additionally, she does not want her estate to retain any interest in the house.

If none of her heirs would like to live on the property, she wants the house to go to the town of Kent for use as a park. She does not want the land to pass to any other third-party non-family members. The rule against perpetuities does not apply in Kent.

As X’s attorney, what language would you propose and why? What interests would that create for each of the mentioned party? What estates would that create, both now and when the estates became possessory? Be as specific as possible. Would X be able to create a deed that satisfies all of her wishes?

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Kilpatrick
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Re: Holy future interests! Try this one

Postby Kilpatrick » Thu Dec 02, 2010 7:18 pm

Tried to hash this out with a friend today, here's what we came up with. (both 1ls so others feel free to correct anything)

"X to A and B jointly for life, but if B uses the property for business, his interest to A for life. (EDIT: and if B survives A and then violates the condition, to X's grandkids) At the conclusion of the life estate, to X's grandchildren who have reached the age of 21, so long as an heir of X lives in the house. If an heir of X no longer lives in the house, to the city of Kent for use as a park."

The language of the question is a little vague as to what X wants for C. Does she want him to be able to live in the house but not have any interest in the estate? Or did she want him completely excluded? It says she wants her children to live in the house, but she doesn't want C to have any interest in the estate. Depending on what her intent was you might have to have some clause that C can live in the house. I don't know what the language for that would be.

Here are the interests:

A has a life estate in joint tenancy
B has a life estate in joint tenancy subject to complete divestment by an executory interest
D has a contingent remainder and if she turns 21 she will have a vested remainder subject to open
If D gets the estate she will have a fee simple subject to executory limitation

Now as for the city, I don't think X can get everything she wants. If she gives the city a fee simple determinable, she will have a possibility of reverter which she has said she doesn't want. But if she gives the city a fee simple subject to executory limitation, who would she name as the third party? In this case it would be easier if Kent recognized Rule Against Perpetuities because then we could just say that whole conveyance to the city is void. I think a court would either just strike out the 'for use as a park' and give the city a fee simple absolute, OR X would have to keep the reversion.
Last edited by Kilpatrick on Thu Dec 02, 2010 8:49 pm, edited 1 time in total.

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jdubb990
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Re: Holy future interests! Try this one

Postby jdubb990 » Thu Dec 02, 2010 8:40 pm

I'm trying to work through this right now, simply because I have my property exam tomorrow and am paranoid I would get something like this. I don't think you would want a tenancy in common as the above poster said though, because with the right of survivorship, A or B's interest ceases the day they die. I don't believe each tenant's share is inheritable or devisable in a JTROS.

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Merr
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Re: Holy future interests! Try this one

Postby Merr » Thu Dec 02, 2010 8:43 pm

Kilpatrick wrote:Tried to hash this out with a friend today, here's what we came up with. (both 1ls so others feel free to correct anything)

"X to A and B jointly for life, but if B uses the property for business, his interest to A for life. At the conclusion of the life estate, to X's grandchildren who have reached the age of 21, so long as an heir of X lives in the house. If an heir of X no longer lives in the house, to the city of Kent for use as a park."

The language of the question is a little vague as to what X wants for C. Does she want him to be able to live in the house but not have any interest in the estate? Or did she want him completely excluded? It says she wants her children to live in the house, but she doesn't want C to have any interest in the estate. Depending on what her intent was you might have to have some clause that C can live in the house. I don't know what the language for that would be.

Here are the interests:

A has a life estate in joint tenancy
B has a life estate in joint tenancy subject to complete divestment by an executory interest
D has a contingent remainder and if she turns 21 she will have a vested remainder subject to open
If D gets the estate she will have a fee simple subject to executory limitation

Now as for the city, I don't think X can get everything she wants. If she gives the city a fee simple determinable, she will have a possibility of reverter which she has said she doesn't want. But if she gives the city a fee simple subject to executory limitation, who would she name as the third party? In this case it would be easier if Kent recognized Rule Against Perpetuities because then we could just say that whole conveyance to the city is void. I think a court would either just strike out the 'for use as a park' and give the city a fee simple absolute, OR X would have to keep the reversion.


Looks pretty good. The only problem I can see atm, and I could be wrong, is that you seem to end on a contingency. If A+B die before D, or any other other grandchildren/future grandchildren, turn 21, or A+B die before C which would leave the class open, I think there would be a reverter back to the estate in FSSEL. This is assuming no destructibility rule, which if there were one would result in the estate getting a reverter in FSA (I think).

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Kilpatrick
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Re: Holy future interests! Try this one

Postby Kilpatrick » Thu Dec 02, 2010 8:50 pm

Merr wrote:
Kilpatrick wrote:Tried to hash this out with a friend today, here's what we came up with. (both 1ls so others feel free to correct anything)

"X to A and B jointly for life, but if B uses the property for business, his interest to A for life. At the conclusion of the life estate, to X's grandchildren who have reached the age of 21, so long as an heir of X lives in the house. If an heir of X no longer lives in the house, to the city of Kent for use as a park."

The language of the question is a little vague as to what X wants for C. Does she want him to be able to live in the house but not have any interest in the estate? Or did she want him completely excluded? It says she wants her children to live in the house, but she doesn't want C to have any interest in the estate. Depending on what her intent was you might have to have some clause that C can live in the house. I don't know what the language for that would be.

Here are the interests:

A has a life estate in joint tenancy
B has a life estate in joint tenancy subject to complete divestment by an executory interest
D has a contingent remainder and if she turns 21 she will have a vested remainder subject to open
If D gets the estate she will have a fee simple subject to executory limitation

Now as for the city, I don't think X can get everything she wants. If she gives the city a fee simple determinable, she will have a possibility of reverter which she has said she doesn't want. But if she gives the city a fee simple subject to executory limitation, who would she name as the third party? In this case it would be easier if Kent recognized Rule Against Perpetuities because then we could just say that whole conveyance to the city is void. I think a court would either just strike out the 'for use as a park' and give the city a fee simple absolute, OR X would have to keep the reversion.


Looks pretty good. The only problem I can see atm, and I could be wrong, is that you seem to end on a contingency. If A+B die before D, or any other other grandchildren/future grandchildren, turn 21, or A+B die before C which would leave the class open, I think there would be a reverter back to the estate in FSSEL. This is assuming no destructibility rule, which if there were one would result in the estate getting a reverter in FSA (I think).


Yeah good point, I think you are right. I don't think X can't get out of having possibility of reverter in that case

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blurbz
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Re: Holy future interests! Try this one

Postby blurbz » Thu Dec 02, 2010 8:57 pm

jdubb990 wrote:I'm trying to work through this right now, simply because I have my property exam tomorrow and am paranoid I would get something like this. I don't think you would want a tenancy in common as the above poster said though, because with the right of survivorship, A or B's interest ceases the day they die. I don't believe each tenant's share is inheritable or devisable in a JTROS.



He proposed a joint tenancy, not a tenancy in common. In that joint tenancy, A and B each have a 50% interest in a life estate. When one dies, the decedent's interest is transferred to the survivor. Then the survivor has a a complete life estate that will act just like a regular life estate would.

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Re: Holy future interests! Try this one

Postby 09042014 » Thu Dec 02, 2010 9:53 pm

Kilpatrick wrote:Tried to hash this out with a friend today, here's what we came up with. (both 1ls so others feel free to correct anything)

"X to A and B jointly for life, but if B uses the property for business, his interest to A for life. (EDIT: and if B survives A and then violates the condition, to X's grandkids) At the conclusion of the life estate, to X's grandchildren who have reached the age of 21, so long as an heir of X lives in the house. If an heir of X no longer lives in the house, to the city of Kent for use as a park."

The language of the question is a little vague as to what X wants for C. Does she want him to be able to live in the house but not have any interest in the estate? Or did she want him completely excluded? It says she wants her children to live in the house, but she doesn't want C to have any interest in the estate. Depending on what her intent was you might have to have some clause that C can live in the house. I don't know what the language for that would be.

Here are the interests:

A has a life estate in joint tenancy
B has a life estate in joint tenancy subject to complete divestment by an executory interest
D has a contingent remainder and if she turns 21 she will have a vested remainder subject to open
If D gets the estate she will have a fee simple subject to executory limitation

Now as for the city, I don't think X can get everything she wants. If she gives the city a fee simple determinable, she will have a possibility of reverter which she has said she doesn't want. But if she gives the city a fee simple subject to executory limitation, who would she name as the third party? In this case it would be easier if Kent recognized Rule Against Perpetuities because then we could just say that whole conveyance to the city is void. I think a court would either just strike out the 'for use as a park' and give the city a fee simple absolute, OR X would have to keep the reversion.


Why the life estates? Doesn't X want D to have an interest immediately upon turning 21?

X to A and B and the Children of C, as long as they are 21, in common, but if B uses the property for business his interest to A and the Children of C, as long as they are 21. If an heir of X no longer lives in the house, to the city of Kent for use as a park.

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Kilpatrick
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Re: Holy future interests! Try this one

Postby Kilpatrick » Thu Dec 02, 2010 9:55 pm

Desert Fox wrote:
Kilpatrick wrote:Tried to hash this out with a friend today, here's what we came up with. (both 1ls so others feel free to correct anything)

"X to A and B jointly for life, but if B uses the property for business, his interest to A for life. (EDIT: and if B survives A and then violates the condition, to X's grandkids) At the conclusion of the life estate, to X's grandchildren who have reached the age of 21, so long as an heir of X lives in the house. If an heir of X no longer lives in the house, to the city of Kent for use as a park."

The language of the question is a little vague as to what X wants for C. Does she want him to be able to live in the house but not have any interest in the estate? Or did she want him completely excluded? It says she wants her children to live in the house, but she doesn't want C to have any interest in the estate. Depending on what her intent was you might have to have some clause that C can live in the house. I don't know what the language for that would be.

Here are the interests:

A has a life estate in joint tenancy
B has a life estate in joint tenancy subject to complete divestment by an executory interest
D has a contingent remainder and if she turns 21 she will have a vested remainder subject to open
If D gets the estate she will have a fee simple subject to executory limitation

Now as for the city, I don't think X can get everything she wants. If she gives the city a fee simple determinable, she will have a possibility of reverter which she has said she doesn't want. But if she gives the city a fee simple subject to executory limitation, who would she name as the third party? In this case it would be easier if Kent recognized Rule Against Perpetuities because then we could just say that whole conveyance to the city is void. I think a court would either just strike out the 'for use as a park' and give the city a fee simple absolute, OR X would have to keep the reversion.


Why the life estates? Doesn't X want D to have an interest immediately upon turning 21?

X to A and B and the Children of C, as long as they are 21, in common, but if B uses the property for business his interest to A and the Children of C, as long as they are 21. If an heir of X no longer lives in the house, to the city of Kent for use as a park.


I think there need to be life estates because X says she wants the house to be there for her grandchildren "after her children die."

Also it's not just children of C it's any of her grandchildren

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Re: Holy future interests! Try this one

Postby 09042014 » Thu Dec 02, 2010 9:59 pm

Kilpatrick wrote:
Desert Fox wrote:
Kilpatrick wrote:Tried to hash this out with a friend today, here's what we came up with. (both 1ls so others feel free to correct anything)

"X to A and B jointly for life, but if B uses the property for business, his interest to A for life. (EDIT: and if B survives A and then violates the condition, to X's grandkids) At the conclusion of the life estate, to X's grandchildren who have reached the age of 21, so long as an heir of X lives in the house. If an heir of X no longer lives in the house, to the city of Kent for use as a park."

The language of the question is a little vague as to what X wants for C. Does she want him to be able to live in the house but not have any interest in the estate? Or did she want him completely excluded? It says she wants her children to live in the house, but she doesn't want C to have any interest in the estate. Depending on what her intent was you might have to have some clause that C can live in the house. I don't know what the language for that would be.

Here are the interests:

A has a life estate in joint tenancy
B has a life estate in joint tenancy subject to complete divestment by an executory interest
D has a contingent remainder and if she turns 21 she will have a vested remainder subject to open
If D gets the estate she will have a fee simple subject to executory limitation

Now as for the city, I don't think X can get everything she wants. If she gives the city a fee simple determinable, she will have a possibility of reverter which she has said she doesn't want. But if she gives the city a fee simple subject to executory limitation, who would she name as the third party? In this case it would be easier if Kent recognized Rule Against Perpetuities because then we could just say that whole conveyance to the city is void. I think a court would either just strike out the 'for use as a park' and give the city a fee simple absolute, OR X would have to keep the reversion.


Why the life estates? Doesn't X want D to have an interest immediately upon turning 21?

X to A and B and the Children of C, as long as they are 21, in common, but if B uses the property for business his interest to A and the Children of C, as long as they are 21. If an heir of X no longer lives in the house, to the city of Kent for use as a park.


I think there need to be life estates because X says she wants the house to be there for her grandchildren "after her children die."

Also it's not just children of C it's any of her grandchildren


Good catch.

Then I get the same thing you do.

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Merr
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Re: Holy future interests! Try this one

Postby Merr » Thu Dec 02, 2010 10:11 pm

Kilpatrick wrote:
Desert Fox wrote:

Why the life estates? Doesn't X want D to have an interest immediately upon turning 21?

X to A and B and the Children of C, as long as they are 21, in common, but if B uses the property for business his interest to A and the Children of C, as long as they are 21. If an heir of X no longer lives in the house, to the city of Kent for use as a park.


I think there need to be life estates because X says she wants the house to be there for her grandchildren "after her children die."

Also it's not just children of C it's any of her grandchildren



There is also the question of who does it revert back to if the city of Kent decides for whatever reason it is not going to maintain the property as a park. X does not want any reversion interests to the estate.
Last edited by Merr on Thu Dec 02, 2010 10:13 pm, edited 1 time in total.

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Re: Holy future interests! Try this one

Postby 09042014 » Thu Dec 02, 2010 10:13 pm

Merr wrote:
Kilpatrick wrote:
Desert Fox wrote:

Why the life estates? Doesn't X want D to have an interest immediately upon turning 21?

X to A and B and the Children of C, as long as they are 21, in common, but if B uses the property for business his interest to A and the Children of C, as long as they are 21. If an heir of X no longer lives in the house, to the city of Kent for use as a park.


I think there need to be life estates because X says she wants the house to be there for her grandchildren "after her children die."

Also it's not just children of C it's any of her grandchildren



There is also the question of who does it revert back to if the city of Kent decides for whatever reason it is not going to maintain the property as a park. X does not want any reversions to the estate.


"To use as a park" might not be interpreted as a condition. Wood v Board of Country Commissioner had that happen.

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Merr
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Re: Holy future interests! Try this one

Postby Merr » Thu Dec 02, 2010 10:18 pm

Desert Fox wrote:
Merr wrote:
Kilpatrick wrote:
Desert Fox wrote:

Why the life estates? Doesn't X want D to have an interest immediately upon turning 21?

X to A and B and the Children of C, as long as they are 21, in common, but if B uses the property for business his interest to A and the Children of C, as long as they are 21. If an heir of X no longer lives in the house, to the city of Kent for use as a park.


I think there need to be life estates because X says she wants the house to be there for her grandchildren "after her children die."

Also it's not just children of C it's any of her grandchildren



There is also the question of who does it revert back to if the city of Kent decides for whatever reason it is not going to maintain the property as a park. X does not want any reversions to the estate.


"To use as a park" might not be interpreted as a condition. Wood v Board of Country Commissioner had that happen.


That is true, but you have to try and get at X's intent, it is unclear whether X would necessarily want to will the land to Kent if it might not be maintained as a park. (I don't think the grantors in Wood intended that result)

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Kilpatrick
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Re: Holy future interests! Try this one

Postby Kilpatrick » Thu Dec 02, 2010 10:18 pm

Yeah, that's why I think ultimately X cannot get everything she wants. If the city doesn't use it as a park then either A) a court will say the condition is invalid and the city just has a fee simple absolute (probably more likely) or B) X will have a reversion that she doesn't want.

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Merr
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Re: Holy future interests! Try this one

Postby Merr » Thu Dec 02, 2010 10:24 pm

Kilpatrick wrote:Yeah, that's why I think ultimately X cannot get everything she wants. If the city doesn't use it as a park then either A) a court will say the condition is invalid and the city just has a fee simple absolute (probably more likely) or B) X will have a reversion that she doesn't want.


I agree. I think at some point you have to either give it to a third party/the city, or let it revert back to the grantor's estate.

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jdubb990
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Re: Holy future interests! Try this one

Postby jdubb990 » Thu Dec 02, 2010 10:38 pm

I also believe that it can't be a joint tenancy because a lack of unity of possession. They can't exert dominion or control over the property equally because of the contingency that B can't run a business on the property. A can run any business he wants on the property.

furthermore, I don't think it is possible to ensure that the property goes directly to X's grandchildren on the condition that they are 21 after A & B die. If A & B die in a year and X didn't want to retain any interest, but wanted the estate to next to go to her grandchildren, those who were born would need the interest to be vested in a guardian ad lidum until the child reached the age of 21. However, I do not know if a guardian ad lidum would be considered a 3rd party or not. Technically the guardian would be the representative of the child. Because otherwise, when A & B die and none of the children are yet 21, the title would revert to the grantor.
Last edited by jdubb990 on Thu Dec 02, 2010 10:44 pm, edited 1 time in total.

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Re: Holy future interests! Try this one

Postby 09042014 » Thu Dec 02, 2010 10:41 pm

jdubb990 wrote:I also believe that it can't be a joint tenancy because a lack of unity of possession. They can't exert dominion or control over the property equally because of the contingency that B can't run a business on the property. A can run any business he wants on the property.


Great point.

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blurbz
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Re: Holy future interests! Try this one

Postby blurbz » Thu Dec 02, 2010 10:49 pm

I disagree: They each have 50% interests in the life estate. Each of their interests is equally subject to the condition that B can't run a business. I think we can separate their possessory interest from the condition. Just because it is an affirmative act by B that triggers the condition, the possessory interests of B and A are the same. Perhaps better drafting of that portion would be: "to A and B jointly for life, but if B uses the property for business, to A for life."

Edit: Just checked my notes. I have Possession: Equal rights. I'm now not sure I disagree with you anymore!

I guess it could be made a Tenancy in Common, with the understanding that if one of A or B dies and leaves their interest to someone else or sells their interest, it still goes to the grandkids (or the city or whatever) once the survivor of A and B dies, thereby extinguishing the life estate that was granted in tenancy in common.

Additionally--If it's made a JT and that fails, the courts would likely find a TinC anyway!
Last edited by blurbz on Thu Dec 02, 2010 10:59 pm, edited 2 times in total.

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jdubb990
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Re: Holy future interests! Try this one

Postby jdubb990 » Thu Dec 02, 2010 10:55 pm

blurbz wrote:I disagree: They each have 50% interests in the life estate. Each of their interests is equally subject to the condition that B can't run a business. I think we can separate their possessory interest from the condition. Just because it is an affirmative act by B that triggers the condition, the possessory interests of B and A are the same. Perhaps better drafting of that portion would be: "to A and B jointly for life, but if B uses the property for business, to A for life."


Be careful, the unity of possession and the unity of interest are two separate things. The unity of interest is the percentage or fraction of the share that they are seised by. They are seised by the share and by the whole in a JTROS. The unity of interest concerns the equality of their freedom to exert dominion and control over all of the parcel as they so choose. A can exert dominion in control in a manner that B cannot by running a business.

It seems illogical to say that the possession is equal because A's possession doesn't allow for B to run a business, and B's possession doesn't allow B to run a business. Their possessory rights are different because B has less dominion and control over the property than A, thus no unity.

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Re: Holy future interests! Try this one

Postby 09042014 » Thu Dec 02, 2010 10:57 pm

You can construct a JT like interest by using TIC and some conditions.

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jdubb990
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Re: Holy future interests! Try this one

Postby jdubb990 » Thu Dec 02, 2010 11:02 pm

So what about the problem of where the interest goes if both tenants die without the grandchild having yet turned 21? X retains a reversion it seems.

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blurbz
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Re: Holy future interests! Try this one

Postby blurbz » Thu Dec 02, 2010 11:08 pm

jdubb990 wrote:So what about the problem of where the interest goes if both tenants die without the grandchild having yet turned 21? X retains a reversion it seems.
Kilpatrick wrote:
Merr wrote:
Kilpatrick wrote:Tried to hash this out with a friend today, here's what we came up with. (both 1ls so others feel free to correct anything)

"X to A and B jointly for life, but if B uses the property for business, his interest to A for life. At the conclusion of the life estate, to X's grandchildren who have reached the age of 21, so long as an heir of X lives in the house. If an heir of X no longer lives in the house, to the city of Kent for use as a park."

The language of the question is a little vague as to what X wants for C. Does she want him to be able to live in the house but not have any interest in the estate? Or did she want him completely excluded? It says she wants her children to live in the house, but she doesn't want C to have any interest in the estate. Depending on what her intent was you might have to have some clause that C can live in the house. I don't know what the language for that would be.

Here are the interests:

A has a life estate in joint tenancy
B has a life estate in joint tenancy subject to complete divestment by an executory interest
D has a contingent remainder and if she turns 21 she will have a vested remainder subject to open
If D gets the estate she will have a fee simple subject to executory limitation

Now as for the city, I don't think X can get everything she wants. If she gives the city a fee simple determinable, she will have a possibility of reverter which she has said she doesn't want. But if she gives the city a fee simple subject to executory limitation, who would she name as the third party? In this case it would be easier if Kent recognized Rule Against Perpetuities because then we could just say that whole conveyance to the city is void. I think a court would either just strike out the 'for use as a park' and give the city a fee simple absolute, OR X would have to keep the reversion.


Looks pretty good. The only problem I can see atm, and I could be wrong, is that you seem to end on a contingency. If A+B die before D, or any other other grandchildren/future grandchildren, turn 21, or A+B die before C which would leave the class open, I think there would be a reverter back to the estate in FSSEL. This is assuming no destructibility rule, which if there were one would result in the estate getting a reverter in FSA (I think).


Yeah good point, I think you are right. I don't think X can't get out of having possibility of reverter in that case


Right. X can't get everything she wants.




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