RAP problem Forum

[Bankhead]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

[General Tso]

what does "heirs of their bodies" mean?

[Bankhead]

what does "heirs of their bodies" mean?

Signifies fee tail. Mostly abolished today.

[General Tso]

what does "heirs of their bodies" mean?

Signifies fee tail. Mostly abolished today.

Ah, gotcha....just had my property final today. Our prof skipped fee tail altogether. I think only 4 states still recognize it.

[270910]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

I think it might actually be valid. The fact that A and B have life estates insulates things pretty well, because you won't ever have a rap problem until both A and B are dead, and once that happens I don't think there are going to be any interests left to vest? The condition of playing peewee hockey looks like kind of a red hearing. B might have child Y, but I still don't think the grant to children who play hockey will keep the class subject to open once B is already dead. Like, it will look for hockey playing children, give out property, and then be done, so the usual scenario where some new person could trigger the condition later on isn't present.

I may be doing this entirely incorrectly.

[Renzo]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

I think it might actually be valid. The fact that A and B have life estates insulates things pretty well, because you won't ever have a rap problem until both A and B are dead, and once that happens I don't think there are going to be any interests left to vest? The condition of playing peewee hockey looks like kind of a red hearing. B might have child Y, but I still don't think the grant to children who play hockey will keep the class subject to open once B is already dead. Like, it will look for hockey playing children, give out property, and then be done, so the usual scenario where some new person could trigger the condition later on isn't present.

I may be doing this entirely incorrectly.

No, that looks right to me, provided it is definitionally impossible for someone older than 21 to play peewee hockey. The interest is vested subject to open when it is created, as X is a member of the class. Since the class will close once all children of B are too old to play peewee hockey (less than 21 years), the class will close during the RAP period.

[nleefer]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

I have CivPro tomorrow, so I haven't finished all my property studying, but here's my guess. I think it depends a lot on who the measuring life is. Maybe I'm over thinking that point too much, but it doesn't seem clear to me from the words of the grant.

Assuming the grant creates a defeasible (determinable it looks like) life estate in A, then B has both a contingent remainder (with a condition precedent) and a shifting executory interest, depending on how A's estate ends. Both of these interests are subject to the rule against perpetuities. The question then is who is the measuring life and when will B's interests vest. If A is the measuring life then no problem, because B would either have learned to play the piano by the time of A's death or the interest would fail (of if A stopped using the property for residential purposes during his life and B hadn't learned the piano the interest would fail during the measuring life). If B is the measuring life, again no problem, because any interest he has would have to vest or fail before his death. However, if his child is the measuring life, then A could keep living long after his child, and B could not learn to play the piano until many years later, so the interest would violate the rule.

B's children on the other hand, has a contingent remainder subject to open (they have to outlive A and B, and there might be other members of the class by the time we get there). This type of future interest is also subject to the rule against perpetuities, so the question is, could the interest not vest or fail within 21 years after the end of the measuring life. If B is the measuring life could any of this children play peewee hockey more than 21 years after his death? Unlikely, but I don't know the age limits on peewee hockey, maybe you can play as a 22 year old. If B's child is the measuring life, then it is certainly possible that B would have another child in peewee hockey more than 21 years after his first child dies. Thus that interest would be invalid under the rule against perpetuities. Likewise if A is the measuring life, then B could have another child who doesn't get into peewee until long after A's death.

[Bankhead]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

I have CivPro tomorrow, so I haven't finished all my property studying, but here's my guess. I think it depends a lot on who the measuring life is. Maybe I'm over thinking that point too much, but it doesn't seem clear to me from the words of the grant.

Assuming the grant creates a defeasible (determinable it looks like) life estate in A, then B has both a contingent remainder (with a condition precedent) and a shifting executory interest, depending on how A's estate ends. Both of these interests are subject to the rule against perpetuities. The question then is who is the measuring life and when will B's interests vest. If A is the measuring life then no problem, because B would either have learned to play the piano by the time of A's death or the interest would fail (of if A stopped using the property for residential purposes during his life and B hadn't learned the piano the interest would fail during the measuring life). If B is the measuring life, again no problem, because any interest he has would have to vest or fail before his death. However, if his child is the measuring life, then A could keep living long after his child, and B could not learn to play the piano until many years later, so the interest would violate the rule.

B's children on the other hand, has a contingent remainder subject to open (they have to outlive A and B, and there might be other members of the class by the time we get there). This type of future interest is also subject to the rule against perpetuities, so the question is, could the interest not vest or fail within 21 years after the end of the measuring life. If B is the measuring life could any of this children play peewee hockey more than 21 years after his death? Unlikely, but I don't know the age limits on peewee hockey, maybe you can play as a 22 year old. If B's child is the measuring life, then it is certainly possible that B would have another child in peewee hockey more than 21 years after his first child dies. Thus that interest would be invalid under the rule against perpetuities. Likewise if A is the measuring life, then B could have another child who doesn't get into peewee until long after A's death.

I flinch a bit when you say that B's children have contingent remainders because they have to outlive A and B. if this were the rule in deciding whether a remainder is vested or contingent, then nearly every remainder would be contingent. No?

I would say that X has a vested remainder subject to open in fee tail (subject to partial divestment by other children). And then the other children have executory interests in fee tail (since they would be interrupting X's complete divestment).

I also think that PeeWee hockey playing children would be good under the perpetuities period, because you can only play Peewee hockey as a minor (though I do wonder about whether this is an octogenarian-type scenario where RAP just doesn't care even though 99.999999 of PeeWee hockey players are under 18). B could serve as validating life (at B's death he will have no more children) and then children would either play hockey or not within 21 years after B's death, satisfying RAP.

My teacher is a bit bizarre though when it comes to this stuff though. He likes us to use a somewhat alternative way of naming the interests and applying RAP, so what I say may be "wrong".

[Renzo]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

I have CivPro tomorrow, so I haven't finished all my property studying, but here's my guess. I think it depends a lot on who the measuring life is. Maybe I'm over thinking that point too much, but it doesn't seem clear to me from the words of the grant.

Assuming the grant creates a defeasible (determinable it looks like) life estate in A, then B has both a contingent remainder (with a condition precedent) and a shifting executory interest, depending on how A's estate ends. Both of these interests are subject to the rule against perpetuities. The question then is who is the measuring life and when will B's interests vest. If A is the measuring life then no problem, because B would either have learned to play the piano by the time of A's death or the interest would fail (of if A stopped using the property for residential purposes during his life and B hadn't learned the piano the interest would fail during the measuring life). If B is the measuring life, again no problem, because any interest he has would have to vest or fail before his death. However, if his child is the measuring life, then A could keep living long after his child, and B could not learn to play the piano until many years later, so the interest would violate the rule.

B's children on the other hand, has a contingent remainder subject to open (they have to outlive A and B, and there might be other members of the class by the time we get there). This type of future interest is also subject to the rule against perpetuities, so the question is, could the interest not vest or fail within 21 years after the end of the measuring life. If B is the measuring life could any of this children play peewee hockey more than 21 years after his death? Unlikely, but I don't know the age limits on peewee hockey, maybe you can play as a 22 year old. If B's child is the measuring life, then it is certainly possible that B would have another child in peewee hockey more than 21 years after his first child dies. Thus that interest would be invalid under the rule against perpetuities. Likewise if A is the measuring life, then B could have another child who doesn't get into peewee until long after A's death.

I flinch a bit when you say that B's children have contingent remainders because they have to outlive A and B. if this were the rule in deciding whether a remainder is vested or contingent, then nearly every remainder would be contingent. No?

I would say that X has a vested remainder subject to open in fee tail (subject to partial divestment by other children). And then the other children have executory interests in fee tail (since they would be interrupting X's complete divestment).

I also think that PeeWee hockey playing children would be good under the perpetuities period, because you can only play Peewee hockey as a minor (though I do wonder about whether this is an octogenarian-type scenario where RAP just doesn't care even though 99.999999 of PeeWee hockey players are under 18). B could serve as validating life and then children would either play hockey or not within 21 years after B's death, satisfying RAP.

My teacher is a bit bizarre though when it comes to this stuff though. He likes us to use a somewhat alternative way of naming the interests and applying RAP, so what I say may be "wrong".

I think you are correct in your analysis.

[nleefer]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

I have CivPro tomorrow, so I haven't finished all my property studying, but here's my guess. I think it depends a lot on who the measuring life is. Maybe I'm over thinking that point too much, but it doesn't seem clear to me from the words of the grant.

Assuming the grant creates a defeasible (determinable it looks like) life estate in A, then B has both a contingent remainder (with a condition precedent) and a shifting executory interest, depending on how A's estate ends. Both of these interests are subject to the rule against perpetuities. The question then is who is the measuring life and when will B's interests vest. If A is the measuring life then no problem, because B would either have learned to play the piano by the time of A's death or the interest would fail (of if A stopped using the property for residential purposes during his life and B hadn't learned the piano the interest would fail during the measuring life). If B is the measuring life, again no problem, because any interest he has would have to vest or fail before his death. However, if his child is the measuring life, then A could keep living long after his child, and B could not learn to play the piano until many years later, so the interest would violate the rule.

B's children on the other hand, has a contingent remainder subject to open (they have to outlive A and B, and there might be other members of the class by the time we get there). This type of future interest is also subject to the rule against perpetuities, so the question is, could the interest not vest or fail within 21 years after the end of the measuring life. If B is the measuring life could any of this children play peewee hockey more than 21 years after his death? Unlikely, but I don't know the age limits on peewee hockey, maybe you can play as a 22 year old. If B's child is the measuring life, then it is certainly possible that B would have another child in peewee hockey more than 21 years after his first child dies. Thus that interest would be invalid under the rule against perpetuities. Likewise if A is the measuring life, then B could have another child who doesn't get into peewee until long after A's death.

I flinch a bit when you say that B's children have contingent remainders because they have to outlive A and B. if this were the rule in deciding whether a remainder is vested or contingent, then nearly every remainder would be contingent. No?

I would say that X has a vested remainder subject to open in fee tail (subject to partial divestment by other children). And then the other children have executory interests in fee tail (since they would be interrupting X's complete divestment).

I also think that PeeWee hockey playing children would be good under the perpetuities period, because you can only play Peewee hockey as a minor (though I do wonder about whether this is an octogenarian-type scenario where RAP just doesn't care even though 99.999999 of PeeWee hockey players are under 18). B could serve as validating life and then children would either play hockey or not within 21 years after B's death, satisfying RAP.

My teacher is a bit bizarre though when it comes to this stuff though. He likes us to use a somewhat alternative way of naming the interests and applying RAP, so what I say may be "wrong".

You're right, I got a little carried away with the contingent business. To be contingent a remainder has to have a condition precedent OTHER than the termination of the preceding estate. Good catch!

[Bankhead]

The main reason I posted was to hear thoughts on whether or not the PeeWee hockey would be guaranteed to vest within the perp. period since only kids play PeeWee. If the grant just mentioned hockey it would fail RAP. I'm just wondering whether a remorseless application RAP would take the fact that PeeWee is a children's activity into consideration.

[nleefer]

The main reason I posted was to hear thoughts on whether or not the PeeWee hockey would be guaranteed to vest within the perp. period since only kids play PeeWee. If the grant just mentioned hockey it would fail RAP. I'm just wondering whether a remorseless application RAP would take the fact that PeeWee is a children's activity into consideration.

So you made me waste all that analysis for nothing? Oh well, it was probably good for me anyway.

In answer to your question, I think that in reality courts would be inclined to see peewee as exclusively the activity of minors, and so not a problem for RAP as long as the measuring life is a parent's and the holders of the future interest are his or her children, as in your problem. However, on a property final exam, I would be inclined to think the professor picked that particular condition for a reason, and I would spend a sentence or two talking about it.

[solidsnake]

O grants to A for life as long as she continues to use the property for residential purposes, then to B for life if he learns to play the piano, then to the children of B who play PeeWee Hockey and the heirs of their bodies. At the time of the grant, B has one child, X, who has already played on a PeeWee Hockey team.

???

A has a life estate determinable, B has contingent RM in life (if B doesn't learn to play the piano by the two points in time in which A's life estate could naturally terminate -- 1) her death or 2) her failure to use the property for residential purposes -- B's interest gets converted to a springing executory interest in an indestructible jx/destroyed altogether in a destructible jx) , X have a vested RM in fee tail subject to partial divestment by any more of B's children who play peewee hockey. B is a validating life for the class gift to B's children and when B dies THE CLASS CLOSES PHYSIOLOGICALLY, so no worries about potential afterborn child(ren) playing hockey 21 years after B,A,X, and any other lives in being die, i.e., no interest in this grant fails RAP. And finally because O hasn't transferred all of his interest, he retains a reversion.

[270910]

OK, question:

If B dies and has children X and Y, and only X plays pee wee hockey but Y plays 1 year later, what happens? Maybe I'm just unnecessarily trying to insert some flawed form of 'common sense' into the problem, but I'm struggling between two alternatives:

1) "then to the children of B who okay PeeWee Hockey and the heirs of their body" means that when B dies, any children who play PeeWee Hockey get property. Then a year later when Y starts playing hockey, nothing happens - the grant of property has already ocurred to X.

(This makes sense to me on some intuitive level)

2) "then to the children of B who okay PeeWee Hockey and the heirs of their body" means that when B days, any children who ever play PeeWee Hocket will get property. When Y plays one year later, Y.... takes some property from X?

(This seems to be what people in the thread suggest will occur, and it doesn't make sense to me)

Now, just because it doesn't make sense doesn't mean that it's wrong. But I don't see the class gift REMAINING OPEN after B is dead, and thus I don't see any issue with whether somebody over 21 can play peewee hockey.

Here's an example of a class gift that I have no problem seeing a RAP violation:

To B so long as the property is used for piano recitals, then to any of C's children who play the violin.

In that case, B could die, the property would pass to b's heirs, C could have a child, and 22 years later C could learn to play they violin, and 2 years after that the property could stop being used to play the violin.

That, if I'm thinking through it correctly, is how the 'subject to open' language usually goes about violating the RAP.

It just seems like a stretch to construe "then to the children of B who play PeeWee Hockey" to mean "then the property will pass to any of B's children who ever play PeeWee Hockey, divesting a portion of the property from any of B's children who have prior played PeeWee Hockey, ever"

[samiseaborn]

This whole thread scares me. Any suggestions for how to learn future interests/RAP in two days? I'll freely admit to saving this until the last minute because it gave me a headache.

[Renzo]

It just seems like a stretch to construe "then to the children of B who play PeeWee Hockey" to mean "then the property will pass to any of B's children who ever play PeeWee Hockey, divesting a portion of the property from any of B's children who have prior played PeeWee Hockey, ever"

But this is the case. X is vested and will get something, but we don't know how much because his siblings might partially divest him.

The gift is to all B's children who ever play peewee hockey, not to those who have already played by some point in time (like B's death). If the gift were to "B's children who play hockey" it would fail, because the class would remain open until all B's children either did or did not play hockey in their lives. I think the peewee part saves it, because you can only play peewee hockey as a child, so even though the class is open at B's death (he could have a deathbed child who might or might not someday play hockey), it will close at the point where all kids are too old to play)

[spondee]

Question: I get Renzo/Bankhead's interpretation EXCEPT I don't understand why the RAP trusts that only a minor can play PeeWee Hockey. If centenarians can give birth according to the RAP, then why can't 22 year olds play PeeWee Hockey?

[270910]

Question: I get Renzo/Bankhead's interpretation EXCEPT I don't understand why the RAP trusts that only a minor can play PeeWee Hockey. If centenarians can give birth according to the RAP, then why can't 22 year olds play PeeWee Hockey?

Defering to Renzo and correcting my memory on class gifts / grants remaining open, I think the analysis plays out like this:

Argument: PeeWee hockey can only be played by PeeWees, clause valid.

Counter-argument: STFU. What if he becomes a PeeWee hockey coach to honor his siblings at 34 and plays against them? What if he plays in a game where they are short one player and it only counts as a scrimmage? What if the PeeWee league mandates that the combined age of the players be under X, but that any combination can be used to get there, an a 23 year old plays on a team with a bunch of 6 year olds? What if PeeWee hockey goes for 21 years, and your 21st birthday is the last day you can play? The RAP is applied rididly, f off. Clause invalid.

Counter-counter-argument: The RAP is applied rigidly in casebooks. In the real world, most PeeWee leagues will ban play long before the perpetuity period will expire. It's so unlikely that we're not talking about fertile octogenarians, a judicial construction of a 21 year old participating in ANY form of hockey would not construe it 'peewee' as comported with the class gift. Intent is clearly with respect to a childhood activity, not a technicality.

Essay answer: what I wrote above

MC answer: It's only one question, pick one and move on. but 'peewee hockey' strikes me as an effort get you to think about fertile octogenarians and the like in a new context, not test you on rigid black letter.

[Renzo]

Question: I get Renzo/Bankhead's interpretation EXCEPT I don't understand why the RAP trusts that only a minor can play PeeWee Hockey. If centenarians can give birth according to the RAP, then why can't 22 year olds play PeeWee Hockey?

I would answer the question hedged on the definition of peewee hockey.

Since it is the term for hockey played by 12yos (if memory serves me), then by age thirteen, you know if anyone will ever play peewee hockey. It's not that it's physically impossible (like the fertile octogenarian), it's logically/definitionally impossible because if a 13 yo plays hockey it's bantam, not peewee.

[270910]

Question: I get Renzo/Bankhead's interpretation EXCEPT I don't understand why the RAP trusts that only a minor can play PeeWee Hockey. If centenarians can give birth according to the RAP, then why can't 22 year olds play PeeWee Hockey?

I would answer the question hedged on the definition of peewee hockey.

Since it is the term for hockey played by 12yos (if memory serves me), then by age thirteen, you know if anyone will ever play peewee hockey. It's not that it's physically impossible (like the fertile octogenarian), it's logically/definitionally impossible because if a 13 yo plays hockey it's bantam, not peewee.

Important to remember a real live judge has to make the call. If you interpret the clause to mean "who plays in a youth hockey league sometime before turning 18" then it's fine, and at least some judges apply a "beat the rap" cannon of interpretation.

[Renzo]

Question: I get Renzo/Bankhead's interpretation EXCEPT I don't understand why the RAP trusts that only a minor can play PeeWee Hockey. If centenarians can give birth according to the RAP, then why can't 22 year olds play PeeWee Hockey?

I would answer the question hedged on the definition of peewee hockey.

Since it is the term for hockey played by 12yos (if memory serves me), then by age thirteen, you know if anyone will ever play peewee hockey. It's not that it's physically impossible (like the fertile octogenarian), it's logically/definitionally impossible because if a 13 yo plays hockey it's bantam, not peewee.

Important to remember a real live judge has to make the call. If you interpret the clause to mean "who plays in a youth hockey league sometime before turning 18" then it's fine, and at least some judges apply a "beat the rap" cannon of interpretation.

Right. That's what I mean by hedging based on the definition. I would say "if peewee hockey means only hockey played by 12yos, than.... but, otherwise....

[orangeswarm]

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[Bankhead]

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TL;DR