Future Interests Question Forum

[Manteca]

Having an issue with a property hypo, hoping someone can help. I'm trying to figure out what interest is created by the following deed:

O conveys to A for life, then to B's children who survive A.

Would this be a vested remainder subject to complete divestment? Contingent remainder?

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

[encore1101]

Not a property guy, but I believe the answer is contingent remainder.

From my barbri property outline:

d. Contingent remainders – Created in an unascertained person or is subject to a condition precedent, or both.
i. Unborn or unascertained persons –
1. “To A for life, then to B’s first child.” A is alive, and B has no children yet.
2. “To A for life, then to B’s heirs.” A is alive. B is alive. Live people have no heirs, so while B is alive, his heirs are unknown.
3. “To A for life, then to those of B’s children that survive A.” A is alive. Unknown which of B’s children, if any, will survive A.

Since it is unknown which of B's children, if any, would survive A until A actually dies

A vested remainder subject to total divestment is when the remainder target is ascertained, but there is a condition subsequent that can cut short the target's right to possession:
"To A for life, remainder to B, but if B dies under the age of 25, to C"

[iamgeorgebush]

O conveys to A for life, then to B's children who survive A.

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

I am no expert, but I think they both create life estates in A and contingent remainders in B's children.

The second conveyance seems a little ambiguous to me, though...does "B's surviving children" mean B's children who survive A, or B's children who survive B? I'm assuming it means the former (in which case the conveyance creates a contingent remainder), but if the latter, looks like the conveyance creates a vested remainder, indefeasibly vested, in B's surviving children.

Again, though, I'm no expert.

[ReasonableNprudent]

O conveys to A for life, then to B's children who survive A.

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

I am no expert, but I think they both create life estates in A and contingent remainders in B's children.

The second conveyance seems a little ambiguous to me, though...does "B's surviving children" mean B's children who survive A, or B's children who survive B? I'm assuming it means the former (in which case the conveyance creates a contingent remainder), but if the latter, looks like the conveyance creates a vested remainder, indefeasibly vested, in B's surviving children.

Again, though, I'm no expert.

Edit again...I'm still thinking about this.

[zombie mcavoy]

I'm already rusty so this might be totally wrong

O conveys to A for life, then to B's children who survive A.

a= life estate
o= possibility of reverter
children= contingent remainder subject to open

It can only vest at the moment of A's death; they haven't survived him until that moment.

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

It would be different; the class is not open and the remainder is vested. (as the other poster mentioned, I read this to assume that in this conveyance the children in question survived B, not A. If it were a it would be contingent for the same reason above, and the only difference would be that the class is closed)

[iamgeorgebush]

Oh yeah, forgot the possibility of reverter in O.

I don't think one says "contingent remainder subject to open," though. I get what you're saying (the class of B's children is open, since there could be more of B's children after the conveyance), but at least the way I remember learning it, you just call it a contingent remainder.

[chuckbass]

I've already forgotten all of this... Studying for the bar is gonna be fun

[BmoreOrLess]

Contingent Remainders are never labeled as subject to open (or at least that's what our prof told us).

[pancakes3]

literally just had this lecture yesterday but

Having an issue with a property hypo, hoping someone can help. I'm trying to figure out what interest is created by the following deed:

O conveys to A for life, then to B's children who survive A.

Would this be a vested remainder subject to complete divestment? Contingent remainder?

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

Just had the reading for this so I should probably wait until the lecture but...

for hypo 1 - It's a contingent remainder because you don't know which specific children will survive A.
hypo 2 - it's complete divestment. The "B is already dead" is a red herring and only matters if the language had said "B's heirs" because heirs don't show themselves until someone dies.

[koval]

literally just had this lecture yesterday but

Having an issue with a property hypo, hoping someone can help. I'm trying to figure out what interest is created by the following deed:

O conveys to A for life, then to B's children who survive A.

Would this be a vested remainder subject to complete divestment? Contingent remainder?

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

Just had the reading for this so I should probably wait until the lecture but...

for hypo 1 - It's a contingent remainder because you don't know which specific children will survive A.
hypo 2 - it's complete divestment. The "B is already dead" is a red herring and only matters if the language had said "B's heirs" because heirs don't show themselves until someone dies.

Hypo 1:

A- life estate
B's children who survive A- contingent (only vests when A dies and the class is ascertainable)
O- reversion

Hypo 2:

A- life estate
B's surviving children- vested remainder (B is dead so class is ascertainable (it's also closed))
O- reversion

I'm assuming in your hypos that B has at least one child, or else these hypos are totally different. I'm a 1L so I could be wrong, but I'm pretty sure this is how the hypos play out.

[zombie mcavoy]

literally just had this lecture yesterday but

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

hypo 2 - it's complete divestment. The "B is already dead" is a red herring and only matters if the language had said "B's heirs" because heirs don't show themselves until someone dies.

it's not a red herring. If b were alive it would be a contingent remainder; because he is dead the survivors are ascertainable and the remainder is vested. Not sure where you're getting complete divestment from but it won't apply here; there are no conditions subsequent to divest the remainder.

[zombie mcavoy]

and yeah my b on contingent remainders not being labeled "subject to open." Was unsure of that when I posted

[xMcGilicutty]

Hypo 2:

A- life estate
B's surviving children- vested remainder (B is dead so class is ascertainable (it's also closed))
O- reversion

I'm assuming in your hypos that B has at least one child, or else these hypos are totally different. I'm a 1L so I could be wrong, but I'm pretty sure this is how the hypos play out.

In Hypo 2 (assuming B has at least one child) O does not have reversion. The remainder is vested there is nothing to go back to O. (I believe so anyway).

[iamgeorgebush]

literally just had this lecture yesterday but

Having an issue with a property hypo, hoping someone can help. I'm trying to figure out what interest is created by the following deed:

O conveys to A for life, then to B's children who survive A.

Would this be a vested remainder subject to complete divestment? Contingent remainder?

Would it be different if it said "O conveys to A for life, then to B's surviving children. (B is already dead)"?

Just had the reading for this so I should probably wait until the lecture but...

for hypo 1 - It's a contingent remainder because you don't know which specific children will survive A.
hypo 2 - it's complete divestment. The "B is already dead" is a red herring and only matters if the language had said "B's heirs" because heirs don't show themselves until someone dies.

Hypo 1:

A- life estate
B's children who survive A- contingent (only vests when A dies and the class is ascertainable)
O- reversion

Hypo 2:

A- life estate
B's surviving children- vested remainder (B is dead so class is ascertainable (it's also closed))
O- reversion

I'm assuming in your hypos that B has at least one child, or else these hypos are totally different. I'm a 1L so I could be wrong, but I'm pretty sure this is how the hypos play out.

I might be wrong, but I think in Hypo 1, it's a possibility of reverter, not a reversion. At the time of the grant, we don't yet know whether the reversionary interest in O will eventually become possessory, since some of B's children might survive A. That makes it a possibility of reverter, not a reversion. I think.

And in Hypo 2, if we interpret "B's surviving children" to mean "B's children who survive B," then there's no reversionary interest in O at all, since the remainder in B's children is indefeasibly vested. No way for O to get back Blackacre if the remainder is indefeasibly vested.

Looking at Hypo 2 again, though, maybe it's supposed to mean "B's children still living at the time of the grant"? It really is ambiguous.