Property Multiple Choice Question Forum

[sweetdee]

This is from a final exam for my property instructor...
"James conveys Blackacre 'to Burt and such of his children who survive him.' The quoted words are best described as:
(a) Words of limitation
(b) Words of purchase
(c) Words creating a life estate and a vested remainder
(d) Words creating a fee simple in Burt followed by a contingent remainder."

I've asked several people, and we can't come up with a consensus.
I'm pretty sure it's (b), but a solid answer would be great.

[MBZags]

It seems like it would be B, simply because it doesn't look like there's actually a remainder.

[JCougar]

That's really just "Burt and his heirs" paraphrased. So to me, it looks like a fee simple absolute, so you can rule out C and D. "To Burt" are definitely words of purchase...the only thing I'm not totally sure of is the "and his heirs" paraphrase. My initial thought was that those are words of limitation, but that would make it impossible to answer the multiple choice question...so I'd guess B.

I have yet to outline estates...I'll be getting to that tonight.

[Helmholtz]

On first glance, it seems to be D. I have no idea how it could be B. Am I completely missing something here?

[Helmholtz]

That's really just "Burt and his heirs" paraphrased.

Children and heirs are completely differently concepts though.

[BCLS]

On first glance, it seems to be D. I have no idea how it could be B. Am I completely missing something here?

Helm I'm with you on D. Maybe I'm missing it too?

[JCougar]

That's really just "Burt and his heirs" paraphrased.

Children and heirs are completely differently concepts though.

Yeah, you're right.

[JCougar]

Actually, now I'm leaning C. That sounds like a life estate to Burt, and a vested remainder to any of his children who may or may not survive him.

[Kilpatrick]

None of them look right. It's definitely not A or B. If that was supposed to be a paraphrase of 'and his heirs' the drafter should be shot. Surviving children and heirs are not even close to the same thing.

It's not D because there is no remainder if there is a fee simple absolute

C is probably the best even though there's not really a way to know if the children are vested or not. But that sounds the closest. So if Burt has children that are ascertained, they would have vested remainders subject to open.

[BCLS]

Ahh that makes sense!

[JCougar]

Yeah, it can't be D because it's not a fee simple if there is a remainder, right?

[Helmholtz]

Actually, now I'm leaning C. That sounds like a life estate to Burt, and a vested remainder to any of his children who may or may not survive him.

I don't think it's vested subject to open because any children's interests are subject to a condition precedent.

[JCougar]

This question is driving me crazy.

I think it's time for me to get back to my outline. I'm in no condition to answer estate questions at the moment.

[SeymourShowz]

It can't be D because you can't give someone an FSA and then specify who it goes to afterwards (other than just plain ol' heirs)

It can't be C because you can't have a vested remainder if he doesn't have children, and if he did have any children it would be a vested remainder subject to open.

I think the correct answer is A, through process of elimination. The only other choice is B, but I think words of purchase are strictly defined as "O to A" or "O to B" or whatever.

[Helmholtz]

Yeah, it can't be D because it's not a fee simple if there is a remainder, right?

No, things like executory interests can cut off fee simples.

[Borhas]

it's c

It can't be C because you can't have a vested remainder if he doesn't have children, and if he did have an children it would be a vested remainder subject to open.

a vested remainder subject to open is a type of vested remainder though

[Helmholtz]

it's c

Are we just assuming that he has present children (thereby creating a vested remainder subject to open)?

[Kilpatrick]

Actually, now I'm leaning C. That sounds like a life estate to Burt, and a vested remainder to any of his children who may or may not survive him.

I don't think it's vested subject to open because any children's interests are subject to a condition precedent.

I don't think that's right. The "condition" for the children is only that they outlive the father. That's just the natural termination of the life estate.

[Helmholtz]

Actually, now I'm leaning C. That sounds like a life estate to Burt, and a vested remainder to any of his children who may or may not survive him.

I don't think it's vested subject to open because any children's interests are subject to a condition precedent.

I don't think that's right. The "condition" for the children is only that they outlive the father. That's just the natural termination of the life estate.

According to Gilberts (which was written by my property prof): "To A, then to A's surviving children" creates a contingent remainder in the children if none are alive.

[Borhas]

it's c

Are we just assuming that he has present children (thereby creating a vested remainder subject to open)?

yes kind of but I thought the "As such of" means they already exist


seems kind of weird to use the word "survive" as part of the interpretation for the life estate and the condition right?

[Helmholtz]

Actually, now I'm leaning C. That sounds like a life estate to Burt, and a vested remainder to any of his children who may or may not survive him.

I don't think it's vested subject to open because any children's interests are subject to a condition precedent.

I don't think that's right. The "condition" for the children is only that they outlive the father. That's just the natural termination of the life estate.

It's not just the natural termination of the life estate. If it was that, it seems like it would be "O to A for life, then to B." B has an indefeasibly vested remainder following the natural termination and is not subject to any condition precedent (i.e. survival).

[SeymourShowz]

According to Gilberts (which was written by my property prof): "To A, then to A's surviving children" creates a contingent remainder in the children if none are alive.

that's correct, but if he had kids it would be vested remainder subject to open.

so there's no way C is correct

[JCougar]

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

[Kilpatrick]

Actually, now I'm leaning C. That sounds like a life estate to Burt, and a vested remainder to any of his children who may or may not survive him.

I don't think it's vested subject to open because any children's interests are subject to a condition precedent.

I don't think that's right. The "condition" for the children is only that they outlive the father. That's just the natural termination of the life estate.

It's not just the natural termination of the life estate. If it was that, it seems like it would be "O to A for life, then to B." B has an indefeasibly vested remainder following the natural termination and is not subject to any condition precedent (i.e. survival).

Ok, I think you are right. I was thinking of a problem that went "to A for life and in the event of A's death to B and her heirs" which my prof. gave as an example of a trap.

So it's definitely C

[Helmholtz]

According to Gilberts (which was written by my property prof): "To A, then to A's surviving children" creates a contingent remainder in the children if none are alive.

that's correct, but if he had kids it would be vested remainder subject to open.

so there's no way C is correct

No, I know. I wasn't arguing for C for the main reason that presence of existing children were not mentioned.

Also, isn't James keeping a possibility of reverter here?

I'm still missing how it could be A or B.

"to Burt" sounds like the words of purchase and "and such of his children who survive him" sound like the words of limitation.