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JCougar wrote:It is a vested remainder if the children already exist. If the children don't exist, then I don't know.

if the children don't exist, there's no way it can be vested

Helmholtz wrote:

JCougar wrote:It is a vested remainder if the children already exist. If the children don't exist, then I don't know.

if the children don't exist, there's no way it can be vested

I think we have to assume there are children, otherwise there are no right answers

What happens if he leaves no surviving children? Back to grantor or to Burt's heirs? The language of the conveyance is confusing to me. Are we assuming that Burt's interest terminates on his death?

Helmholtz wrote:What happens if he leaves no surviving children? Back to grantor or to Burt's heirs? The language of the conveyance is confusing to me. Are we assuming that Burt's interest terminates on his death?

yeah that's the typical thing to do with vested remainders subject to open

it's a vested remainder because it will vest in either the estate of the grantor or in at least one the children (the reason why it's not included in the RAP)

Ok, one more crack at it. I remembered this notion in the back of my head that, in feudal times, if it didn't specify between a fee simple absolute and a life estate, deference would be given to the life estate, and the land would go back to the owner. But in modern times, this has reversed, and if it doesn't specify, it is assumed to be a fee simple.

Does anybody remember this, or am I just making things up?

So "to Burt" would mean that this is a fee simple. And then it's a contingent remainder because there is a condition precedent -- that the children survive Burt...and we don't know which children will survive Burt, if any at all. That's confusing, though, because it's a given that you have to survive in order to get a remainder.

JCougar wrote:Ok, one more crack at it. I remembered this notion in the back of my head that, in feudal times, if it didn't specify between a fee simple absolute and a life estate, deference would be given to the life estate, and the land would go back to the owner. But in modern times, this has reversed, and if it doesn't specify, it is assumed to be a fee simple.

Does anybody remember this, or am I just making things up?

I believe you are correct.

But the courts also favor vested remainders over contingent ones.

Borhas wrote:

Helmholtz wrote:What happens if he leaves no surviving children? Back to grantor or to Burt's heirs? The language of the conveyance is confusing to me. Are we assuming that Burt's interest terminates on his death?

yeah that's the typical thing to do with vested remainders subject to open

it's a vested remainder because it will vest in either the estate of the grantor or in at least one the children (the reason why it's not included in the RAP)

Yeah, again, if we're taking the liberty of writing the fact of an existing child into the question. In that case, this is a really shitty question to make us assume such imperative facts.

If there are no children, then it's a contingent fee, and then it seems like the grantor would have a possibility of reverter.

JCougar wrote:That's confusing, though, because it's a given that you have to survive in order to get a remainder.

Do you? I thought that if it was "O to A for life, then to A's children," and A has child B, B has a vested remainder subject to open and the grantor retains no rights. So if B died and then A died without any other children, wouldn't it pass on to B's heirs?

could be true>can't be true

I think I should have said that it's a given that you have to survive to get a remainder that is not a fee simple itself.

Borhas wrote:could be true>can't be true

What if you read it as creating a fee simple determinable with any children divesting the grantee's heirs on the condition that they are living at the time of grantee's death, i.e. could it be read as "To Burt in fee simple, then to his heirs, but if Burt's children survive Burt, to them"?

I'm sort of just throwing stuff out now.

Helmholtz wrote:

Borhas wrote:could be true>can't be true

What if you read it as creating a fee simple determinable with any children divesting the grantee's heirs on the condition that they are living at the time of grantee's death, i.e. could it be read as "To Burt in fee simple, then to his heirs, but if Burt's children survive Burt, to them"?

I'm sort of just throwing stuff out now.

there is no "Remainder" in your example

Borhas wrote:

Helmholtz wrote:

Borhas wrote:could be true>can't be true

What if you read it as creating a fee simple determinable with any children divesting the grantee's heirs on the condition that they are living at the time of grantee's death, i.e. could it be read as "To Burt in fee simple, then to his heirs, but if Burt's children survive Burt, to them"?

I'm sort of just throwing stuff out now.

there is no "Remainder" in your example

Maybe I should have written it, "to Burt and his heirs in fee simple, unless Burt has children that are alive at the time of his death, then to them"

Burt has fee simple subject to condition subsequent and the children have a contingent remainder subject to condition precedent, i.e. surviving Burt?

to have a remainder you need a life estate, otherwise they are executory interests

Borhas wrote:to have a remainder you need a life estate, otherwise they are executory interests

Notwithstanding things like term of years, yeah, you're right. I just have a strong gut reaction to any exam question that would make you assume any imperative fact. I was much more in favor of assuming nonexistence of children than to write in their existence, but it doesn't look like it's possible to solve the question this way.

for C it has to be "A to B for life then to C" but for D it has to be "A to be B for Life then to C if C alive" it's logical but it seems so stupid to have to say "if C alive"

I don't think there's much more to be said

it's just Assumption v. Weird Interpretation

but the weird usage of the words seems to best meet intent so ultimately I'll go with D but at the end of the day: Fuck This Question

Borhas wrote:Fuck This Question

credited

Borhas wrote: but at the end of the day: Fuck This Question

Salud.

Helmholtz wrote:

Borhas wrote:to have a remainder you need a life estate, otherwise they are executory interests

Notwithstanding things like term of years, yeah, you're right. I just have a strong gut reaction to any exam question that would make you assume any imperative fact. I was much more in favor of assuming nonexistence of children than to write in their existence, but it doesn't look like it's possible to solve the question this way.

You two are doing a good job of showing why C and D are wrong.

The answer is B. Words of Purchase are words that express who the grantees of a will or deed will be. In this case, all of the explicit words are words of purchase; there are implicit words of limitation that the estate will go to Burt "in life estate," then to his children who survive him "in fee simple." (The quoted words are words of limitation.) The class of children may make up a contingent or vested remainder subject to open given the state of knowledge in the question, meaning that C can't be correct. Furthermore, a plain fee simple can never be followed by any other interest, so D is wrong.

GeePee wrote:

Helmholtz wrote:

Borhas wrote:to have a remainder you need a life estate, otherwise they are executory interests

Notwithstanding things like term of years, yeah, you're right. I just have a strong gut reaction to any exam question that would make you assume any imperative fact. I was much more in favor of assuming nonexistence of children than to write in their existence, but it doesn't look like it's possible to solve the question this way.

You two are doing a good job of showing why C and D are wrong.

The answer is B. Words of Purchase are words that express who the grantees of a will or deed will be. In this case, all of the explicit words are words of purchase; there are implicit words of limitation that the estate will go to Burt "in life estate," then to his children who survive him "in fee simple." (The quoted words are words of limitation.) The class of children may make up a contingent or vested remainder subject to open given the state of knowledge in the question, meaning that C can't be correct. Furthermore, a plain fee simple can never be followed by any other interest, so D is wrong.

I guess you could say that if you argue that the implied "and his heirs" after "to Bert" don't count.

GeePee wrote:

Helmholtz wrote:

Borhas wrote:to have a remainder you need a life estate, otherwise they are executory interests

Notwithstanding things like term of years, yeah, you're right. I just have a strong gut reaction to any exam question that would make you assume any imperative fact. I was much more in favor of assuming nonexistence of children than to write in their existence, but it doesn't look like it's possible to solve the question this way.

You two are doing a good job of showing why C and D are wrong.

The answer is B. Words of Purchase are words that express who the grantees of a will or deed will be. In this case, all of the explicit words are words of purchase; there are implicit words of limitation that the estate will go to Burt "in life estate," then to his children who survive him "in fee simple." (The quoted words are words of limitation.) The class of children may make up a contingent or vested remainder subject to open given the state of knowledge in the question, meaning that C can't be correct. Furthermore, a plain fee simple can never be followed by any other interest, so D is wrong.

Maybe I'm confused because we spent roughly ten seconds of class time going over words of limitation and words of purchase, but why isn't a phrase like "who survive him" not a phrase of limitation? I'm guessing because it's just in there to designate the class? But it's not words designating their interest? It also specifically does not say "then" - it says "and." This might be another source of my confusion.

Helmholtz wrote:

GeePee wrote:

Helmholtz wrote:

Borhas wrote:to have a remainder you need a life estate, otherwise they are executory interests

Notwithstanding things like term of years, yeah, you're right. I just have a strong gut reaction to any exam question that would make you assume any imperative fact. I was much more in favor of assuming nonexistence of children than to write in their existence, but it doesn't look like it's possible to solve the question this way.

You two are doing a good job of showing why C and D are wrong.

The answer is B. Words of Purchase are words that express who the grantees of a will or deed will be. In this case, all of the explicit words are words of purchase; there are implicit words of limitation that the estate will go to Burt "in life estate," then to his children who survive him "in fee simple." (The quoted words are words of limitation.) The class of children may make up a contingent or vested remainder subject to open given the state of knowledge in the question, meaning that C can't be correct. Furthermore, a plain fee simple can never be followed by any other interest, so D is wrong.

Maybe I'm confused because we spent roughly ten seconds of class time going over words of limitation and words of purchase, but why isn't a phrase like "who survive him" not a phrase of limitation? I'm guessing because it's just in there to designate the class? But it's not words designating their interest? It also specifically does not say "then" - it says "and." This might be another source of my confusion.

Oh, "and" is even clearer because it does not even closely imply the transferring event (Burt's death). "Who survive him" is not a word of limitation because it does not describe the event which causes a transfer of property rights (which is what words of limitation do), it describes the class of eligible individuals to receive the transfer (the children, but only the ones that survive Burt).

The easiest way to think about it is that words of limitation describe the events impacting the type of future interest a party maintains, or the current interest that party receives, while words of purchase describe the person or class receiving that interest.

GeePee wrote:

Helmholtz wrote:

Borhas wrote:to have a remainder you need a life estate, otherwise they are executory interests

Notwithstanding things like term of years, yeah, you're right. I just have a strong gut reaction to any exam question that would make you assume any imperative fact. I was much more in favor of assuming nonexistence of children than to write in their existence, but it doesn't look like it's possible to solve the question this way.

You two are doing a good job of showing why C and D are wrong.

The answer is B. Words of Purchase are words that express who the grantees of a will or deed will be. In this case, all of the explicit words are words of purchase; there are implicit words of limitation that the estate will go to Burt "in life estate," then to his children who survive him "in fee simple." (The quoted words are words of limitation.) The class of children may make up a contingent or vested remainder subject to open given the state of knowledge in the question, meaning that C can't be correct. Furthermore, a plain fee simple can never be followed by any other interest, so D is wrong.

Thanks for all the responses. Someone asked the professor about this question, and he said almost the exact same thing, and that it was important that the words used in the question were "and such children," meaning there can't be a remainder.

sweetdee wrote:

GeePee wrote:

Helmholtz wrote:

Borhas wrote:to have a remainder you need a life estate, otherwise they are executory interests

Notwithstanding things like term of years, yeah, you're right. I just have a strong gut reaction to any exam question that would make you assume any imperative fact. I was much more in favor of assuming nonexistence of children than to write in their existence, but it doesn't look like it's possible to solve the question this way.

You two are doing a good job of showing why C and D are wrong.

The answer is B. Words of Purchase are words that express who the grantees of a will or deed will be. In this case, all of the explicit words are words of purchase; there are implicit words of limitation that the estate will go to Burt "in life estate," then to his children who survive him "in fee simple." (The quoted words are words of limitation.) The class of children may make up a contingent or vested remainder subject to open given the state of knowledge in the question, meaning that C can't be correct. Furthermore, a plain fee simple can never be followed by any other interest, so D is wrong.

Thanks for all the responses. Someone asked the professor about this question, and he said almost the exact same thing, and that it was important that the words used in the question were "and such children," meaning there can't be a remainder.

I see why B is what he wanted you to get, but he phrased it horribly.

worst class evar