Guchster wrote: FeelTheHeat wrote:
ilovesf wrote:I have changed my mind and I think it is an executory interest.
It's a contingent remainder. I don't have my property notes on me, but I'll come back and edit the post with my authority.
This is what I figured.
When a remainder is subject to a condition precedent on eligibility to take, it is always a contingent remainder. But what confused me, is that techincally, after A dies (
) B could still marry C, which would then cause seisin to spring from the grantor (and hence an executory interest). But, I believe most places would say that once a contingent is destroyed, it is gone forever and void. So if B marries C after A dies the property has already reverted to the grantor, and nothing comes of Bs marriage because its too late.
Would it be possible in some jurisdictions for the condition precedent to survive (i.e., B marries C and gets the fee simple after A dies)? In that case, B's interest would become an executory one, right--cuz it's interrupting O's fee simple absolute?
Our casebook (Merrill and Smith) notes that only Florida has retained the destructibility of contingent remainders as a rule of law. In the majority of JDXs that have abandoned the destructibility of contingent remainders doctrine, it would be a contingent remainder, UNLESS A dies before B marries C, in which case courts would treat it as an executory interest. So in that sense, it can be either depending on the facts at the point in time that the court considers it. Think of it as quantum law.
I know that's weird, but under the majority rule, the contingent remainder/executory interest distinction is largely meaningless. Both are subject to the rule against perpetuities, and the only difference would be for an analysis of whether the adverse possession period has run against the future interest. By default contingent remainders are legal interests, and executory interests are equitable interests, so while you'd reference a statute of limitations for AP against a contingent remainder, you'd reference laches for AP against an executory interest. (this default can be altered though if the conveyance is accomplished through an equitable trust, which would render a contingent remainder an equitable interest.) However, the laches period is nearly always viewed in reference to the statutory period anyway, so it is usually a distinction in vocabulary and not substantive results.
This has been said often, but this all depends on your professor's approach-if what he or she is saying doesn't jive with the above then I'd say forget all about it. For example, the trust point is an awfully fine one, and depends a lot on how much your prof has gone into trusts and estates. My prof is as minimally formalist as Property permits, and basically told us to learn about trusts and estates in Trusts and Estates if we were interested, so I won't be worrying about it on our exam.