Property Question

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candidlatke
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Property Question

Postby candidlatke » Thu May 04, 2017 12:34 am

Does the phrase, "to X and his heirs" preclude any ability of X to designate someone else as his heir?

For ex. if Albert conveys blackacre to Becky for the remainder of her life (life estate), and upon her death to Charlie and his heirs.

If Charlie has a son, Ethan, but leaves behind a will saying, "I leave all of my property to my dear birdlady Dee."

Am I correct to assume that Ethan now owns Blackacre in f/s, despite Ethan's conveyance of all of his property to Dee?
Would it matter if Ethan now said, "I designate Dee as my sole heir."?

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cdotson2
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Re: Property Question

Postby cdotson2 » Thu May 04, 2017 1:27 am

My prop. Professor said "and his heirs" has no meaning anymore. To x and his heirs means that x has a fee simple absolute. Therefore, x could leave his property to a third party regardless of if he has his own children. It also depends on what the grantor had because they can't give more than what they had.

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lymenheimer
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Re: Property Question

Postby lymenheimer » Thu May 04, 2017 8:28 am

"And his heirs" is not indicative of future interest in other parties. It just indicates that the interest of Charlie if he gets the property as a fee simple absolute, designatable to anyone whom he chooses. Upon his death, it follows the normal chain. If he has a will, it will be executed as desired.

(Just confirming what cdot said). That is, unless your professor taught something contrary, of course.

B90
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Re: Property Question

Postby B90 » Thu May 04, 2017 11:50 am

lymenheimer wrote:"And his heirs" is not indicative of future interest in other parties. It just indicates that the interest of Charlie if he gets the property as a fee simple absolute, designatable to anyone whom he chooses. Upon his death, it follows the normal chain. If he has a will, it will be executed as desired.

(Just confirming what cdot said). That is, unless your professor taught something contrary, of course.


Heirs cannot be established until the testator dies. A living person has no heirs. This is why, for example, princes and princesses are described as "heir apparent."
It is true that the phrase "and his heirs" is rarely used currently, because it is superfluous.
It's basically just an indicator of the pretentiousness of the attorney who drafted the will and possibly which law school s/he attended.




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