BarBri - NY Exam - July 2014 Forum

[Guchster]

I have a wills question (the course wasn't offered at my law school and I find it really confusing).

I know DRR has never been adopted by NY CoA, and thus generally inapplicable unless faced head on with it.

But, based on reading up on it, it seems like EF's will lecture gives a somewhat limited/imprecise and lazy rule statement for DRR. She writes, "DRR permits a revocation of a later Will to be disregarded. The effect would be to permit probate of the later Will."

While this is true, it doesn't necessarily have to be a "later" will, right? An earlier will that was revoked can be reinstated too by DRR if applicable. For instance, if you tore up your old with with the intent to destroy it and then executed a "later" that ended up being defective, DRR could theoretically be used to revive the first will as long as the testator acted on a mistaken belief of law (i.e., he thought the later will would be valid, otherwise he never would've tore up the original will in the first place) and the old will comes close to approximating his intent (i.e., he'd prefer Will #1 than intestacy).

Or is EF's statement right in that DRR only will "unrevoke" a later will?

[jets098]

I have a wills question (the course wasn't offered at my law school and I find it really confusing).

I know DRR has never been adopted by NY CoA, and thus generally inapplicable unless faced head on with it.

But, based on reading up on it, it seems like EF's will lecture gives a somewhat limited/imprecise and lazy rule statement for DRR. She writes, "DRR permits a revocation of a later Will to be disregarded. The effect would be to permit probate of the later Will."

While this is true, it doesn't necessarily have to be a "later" will, right? An earlier will that was revoked can be reinstated too by DRR if applicable. For instance, if you tore up your old with with the intent to destroy it and then executed a "later" that ended up being defective, DRR could theoretically be used to revive the first will as long as the testator acted on a mistaken belief of law (i.e., he thought the later will would be valid, otherwise he never would've tore up the original will in the first place) and the old will comes close to approximating his intent (i.e., he'd prefer Will #1 than intestacy).

Or is EF's statement right in that DRR only will "unrevoke" a later will?

Somebody else can chime in here with a more thorough answer, but the way you just described it is the way I was taught DRR in my Wills class and the way I know it for the bar exam.

[thetashster]

Another evidence question

If Witness says "this guy said he saw him run through the red light."
And then Witness 2 says "this guy said he didn't actually see it."

Is this admissible as a prior inconsistent statement (even though declarant is unavailable)? Or is this some hearsay exception? Or hearsay not in any exception?

[sarahh]

I have a wills question (the course wasn't offered at my law school and I find it really confusing).

I know DRR has never been adopted by NY CoA, and thus generally inapplicable unless faced head on with it.

But, based on reading up on it, it seems like EF's will lecture gives a somewhat limited/imprecise and lazy rule statement for DRR. She writes, "DRR permits a revocation of a later Will to be disregarded. The effect would be to permit probate of the later Will."

While this is true, it doesn't necessarily have to be a "later" will, right? An earlier will that was revoked can be reinstated too by DRR if applicable. For instance, if you tore up your old with with the intent to destroy it and then executed a "later" that ended up being defective, DRR could theoretically be used to revive the first will as long as the testator acted on a mistaken belief of law (i.e., he thought the later will would be valid, otherwise he never would've tore up the original will in the first place) and the old will comes close to approximating his intent (i.e., he'd prefer Will #1 than intestacy).

Or is EF's statement right in that DRR only will "unrevoke" a later will?

Somebody else can chime in here with a more thorough answer, but the way you just described it is the way I was taught DRR in my Wills class and the way I know it for the bar exam.

Obviously, she was not a clear lecturer, so who knows, but my notes say specifically that reviving an earlier will is not possible in NY. That would be the best option, but since it is not allowed, DRR is used to revive the last will. That is why it is called the "second best solution" doctrine. Hopefully it will not come up since it does not seem to be accepted in NY

[peanut123]

I have a wills question (the course wasn't offered at my law school and I find it really confusing).

I know DRR has never been adopted by NY CoA, and thus generally inapplicable unless faced head on with it.

But, based on reading up on it, it seems like EF's will lecture gives a somewhat limited/imprecise and lazy rule statement for DRR. She writes, "DRR permits a revocation of a later Will to be disregarded. The effect would be to permit probate of the later Will."

While this is true, it doesn't necessarily have to be a "later" will, right? An earlier will that was revoked can be reinstated too by DRR if applicable. For instance, if you tore up your old with with the intent to destroy it and then executed a "later" that ended up being defective, DRR could theoretically be used to revive the first will as long as the testator acted on a mistaken belief of law (i.e., he thought the later will would be valid, otherwise he never would've tore up the original will in the first place) and the old will comes close to approximating his intent (i.e., he'd prefer Will #1 than intestacy).

Or is EF's statement right in that DRR only will "unrevoke" a later will?

Somebody else can chime in here with a more thorough answer, but the way you just described it is the way I was taught DRR in my Wills class and the way I know it for the bar exam.

The CMR statement is consistent with your interpretation that it doesn't have to be a later will being revoked. "The doctrine of DRR permits a court to disregard a [note absence of any qualifier here] revocation if it determines that revocation was premised on a mistake of law or fact and that the revocation would not have been made but for the mistaken belief that another [note: not "earlier"] disposition of the testator's property was valid."

[sarahh]

Another evidence question

If Witness says "this guy said he saw him run through the red light."
And then Witness 2 says "this guy said he didn't actually see it."

Is this admissible as a prior inconsistent statement (even though declarant is unavailable)? Or is this some hearsay exception? Or hearsay not in any exception?

You need to provide info. When did the person say this to each witness? Are you assuming the first statement is an excited utterance? If the guy made the statements to his buddies at a later date, it would not be admissible.

A prior inconsistent statement can only be used as substantive evidence if it was under oath (on the MBE; can't be used as substantive evidence in NY). If it was not under oath it can only be used for impeachment. A hearsay statement that is admissible can be impeached just like the statement of a witness.

[Guchster]

Another evidence question

If Witness says "this guy said he saw him run through the red light."
And then Witness 2 says "this guy said he didn't actually see it."

Is this admissible as a prior inconsistent statement (even though declarant is unavailable)? Or is this some hearsay exception? Or hearsay not in any exception?

So if the declarant is unavailable you have a few problems.

1. Is the inconsistent statement admissible substantively?
-It's not going to come in under the non-hearsay FRE 801(d)(1) rule, because the declarant needs to be available for cross-examination and needs to be under oath.
-I can't figure out whether any hearsay exceptions are applicable without more information/details about the circumstances in which the statements were made.

2. Is it admissible as impeachment evidence?
Ordinarily a witness' testimony as extrinsic evidence is only permitted to impeach if the declarant is given the opportunity to explain or deny at trial (remember in NY, witness must be confront with the statement while on the stand--can't do it later).

However, if the first statement was admissible hearsay (under some exception), per FRE 806, the (absent) declarant may be impeached by his inconsistent statement regardless of whether he had the opportunity to explain or deny it.

[Guchster]

Obviously, she was not a clear lecturer, so who knows, but my notes say specifically that reviving an earlier will is not possible in NY. That would be the best option, but since it is not allowed, DRR is used to revive the last will. That is why it is called the "second best solution" doctrine. Hopefully it will not come up since it does not seem to be accepted in NY

Thanks for your input sarah. My notes say something similar but I don't think she' right based on what I've been reading/the CMR/ the NY comprehensive outline/ and based on people's responses on here (they sound right).

Note, reviving the first will is not necessarily always the best option, though. Like I pointed out in my hypo, the first will could technically suck but be better than nothing--the best solution might be to let the later (and better) will in probate. But if the later will is legally invalid (no witness, etc.), you can't get the "best" option. If the first will is closer to the testator's intentions than intestacy, it sounds like DRR will revive the first will.

[sarahh]

Obviously, she was not a clear lecturer, so who knows, but my notes say specifically that reviving an earlier will is not possible in NY. That would be the best option, but since it is not allowed, DRR is used to revive the last will. That is why it is called the "second best solution" doctrine. Hopefully it will not come up since it does not seem to be accepted in NY

Thanks for your input sarah. My notes say something similar but I don't think she' right based on what I've been reading/the CMR/ the NY comprehensive outline/ and based on people's responses on here (they sound right).

Note, reviving the first will is not necessarily always the best option, though. Like I pointed out in my hypo, the first will could technically suck but be better than nothing--the best solution might be to let the later (and better) will in probate. But if the later will is legally invalid (no witness, etc.), you can't get the "best" option. If the first will is closer to the testator's intentions than intestacy, it sounds like DRR will revive the first will.

Yeah, I decided to look at the more at the detailed NY book, since I was confused, and on p35 of the wills section, it says, "Nearly all of the cases invoking the doctrine have involved a revocation by physical act, although a few cases have applied DRR to revocations by a subsequent writing." Then it gives an example.

ETA: Looking at the example more closely on p35, I just want to note that he tore up the first will after he thought he revoked it by creating the invalid second will. I am not sure if the order matters. If you destroy the first will, then later do a second invalid will, I am not sure if DRR revives the first one, even if it closely matches the decedent's intent.

[Sgtpeppernyc]

Alright sports fans. Let's see who can explain this to me:

For termination of an easement by merger, the CMR says "The unity must be complete (the duration of the servient tenament must be equal to or longer than the duration of the dominant tenament with which it is combined)"

Umm ... what? What does this mean?

[Stringer6]

Alright sports fans. Let's see who can explain this to me:

For termination of an easement by merger, the CMR says "The unity must be complete (the duration of the servient tenament must be equal to or longer than the duration of the dominant tenament with which it is combined)"

Umm ... what? What does this mean?

exactly why i don't read the CMR

[pizzasodafries]

Alright sports fans. Let's see who can explain this to me:

For termination of an easement by merger, the CMR says "The unity must be complete (the duration of the servient tenament must be equal to or longer than the duration of the dominant tenament with which it is combined)"

Umm ... what? What does this mean?

If A has an easement in B's land, and A buys B's land or B buys A's land, the easement is distinguished by the merger of the dominant and servient tenaments estates

[pizzasodafries]

Simple K question that I'm not clear on.

In a firm offer situation, rejection of the offer by the offeree never revokes the firm offer and he could always accept the offer up until the time the offer lapses?

In an option K, does a rejection allow for the offer to be revoked before the three months or whatever time is left on option k?

[turquoiseturtle]

Alright sports fans. Let's see who can explain this to me:

For termination of an easement by merger, the CMR says "The unity must be complete (the duration of the servient tenament must be equal to or longer than the duration of the dominant tenament with which it is combined)"

Umm ... what? What does this mean?

If A has an easement in B's land, and A buys B's land or B buys A's land, the easement is distinguished by the merger of the dominant and servient tenaments estates

But, for example, if the servient land is leased for a year to the owner of the dominant land, this doesn't terminate the easement right? Because there is no merger?

[Guchster]

Alright sports fans. Let's see who can explain this to me:

For termination of an easement by merger, the CMR says "The unity must be complete (the duration of the servient tenament must be equal to or longer than the duration of the dominant tenament with which it is combined)"

Umm ... what? What does this mean?

This shit is really fucking hard to explain (but feels intuitive once you get it) but here is my best shot:

This is getting at the rare exception where the parties likely did not intend for a conveyance of an interest in land to actually end the easement.

For example:
1. Let's say A and B own property in fee simple absolute. A is the servient estate and gives B an easement over it (therefore B is the dominant estate).

Let's unify them now: Let's say A gives B a lease for the property for 1 year (but obvi wants it back afterward). B, in his greedy paws, now technically holds 2 properties:

1. B has the servient estate in one paw (but only for 1 year)
2. B keeps his dominant estate.

NORMALLY, you'd have a merger right? Two parcels unifying (where one has an easement). B shouldn't need the easement any more--he has possession of A's property right? But the servient estate as conveyed to D is shorter than the dominant estate so the easement does not merge. It reappears after B's possession of the servient estate terminates.

This is the logical result. The servient tenement given to B was not meant to last that long so it doesn't make sense to destroy the easement. One day the conveyed servient interest will end and the easement should be allowed to re-surface.


COMPARE:
Same scenario, this time A gives B his entire property. What does B have?

1. B owns fee simple of the servient estate
2. B owns fee simple of his dominant estate.

Because the servient estate = dominant, the merger is extinguished. No1curr about the easement because no matter what happens after this, B will own the servient estate for as long as he will own his own estate. A, nor anyone, should have expected to get it back and the property is now one under B.

[AP-375]

Chiming in with another perplexed question about test site policy: NY day - watches ok. MBE day - no watches?
The recent email says there most likely won't be a clock in the testing rooms. 3 hour test. No way to track time. Is that right? Why would they do that to us?

[PennBull]

Fwiw examsoft has a timer, so you won't need a watch

As far as day 2...dont be slow? Haha

[Guchster]

Simple K question that I'm not clear on.

In a firm offer situation, rejection of the offer by the offeree never revokes the firm offer and he could always accept the offer up until the time the offer lapses?

In an option K, does a rejection allow for the offer to be revoked before the three months or whatever time is left on option k?

1. An option contract doesn't need to just be for three months. It can't last as long as the parties contract for. Because an option is a contract to keep an offer open, a rejection of or a counteroffer to an option does not constitute a termination of the offer. The offeree is still free to accept the original offer within the option period unless the offeror has detrimentally relied on the offeree’s rejection. (See §37 of Res. 2. K)

2. Firm offers have the three month limitation on them. To my knowledge, I have no idea whether or not a rejection ends the firm offer.

[Sgtpeppernyc]

Alright sports fans. Let's see who can explain this to me:

For termination of an easement by merger, the CMR says "The unity must be complete (the duration of the servient tenament must be equal to or longer than the duration of the dominant tenament with which it is combined)"

Umm ... what? What does this mean?

This shit is really fucking hard to explain (but feels intuitive once you get it) but here is my best shot:

This is getting at the rare exception where the parties likely did not intend for a conveyance of an interest in land to actually end the easement.

For example:
1. Let's say A and B own property in fee simple absolute. A is the servient estate and gives B an easement over it (therefore B is the dominant estate).

Let's unify them now: Let's say A gives B a lease for the property for 1 year (but obvi wants it back afterward). B, in his greedy paws, now technically holds 2 properties:

1. B has the servient estate in one paw (but only for 1 year)
2. B keeps his dominant estate.

NORMALLY, you'd have a merger right? Two parcels unifying (where one has an easement). B shouldn't need the easement any more--he has possession of A's property right? But the servient estate as conveyed to D is shorter than the dominant estate so the easement does not merge. It reappears after B's possession of the servient estate terminates.

This is the logical result. The servient tenement given to B was not meant to last that long so it doesn't make sense to destroy the easement. One day the conveyed servient interest will end and the easement should be allowed to re-surface.


COMPARE:
Same scenario, this time A gives B his entire property. What does B have?

1. B owns fee simple of the servient estate
2. B owns fee simple of his dominant estate.

Because the servient estate = dominant, the merger is extinguished. No1curr about the easement because no matter what happens after this, B will own the servient estate for as long as he will own his own estate. A, nor anyone, should have expected to get it back and the property is now one under B.

Whoa, thank you! Finally makes sense.

[PennBull]

Simple K question that I'm not clear on.

In a firm offer situation, rejection of the offer by the offeree never revokes the firm offer and he could always accept the offer up until the time the offer lapses?

In an option K, does a rejection allow for the offer to be revoked before the three months or whatever time is left on option k?

1. An option contract doesn't need to just be for three months. It can't last as long as the parties contract for. Because an option is a contract to keep an offer open, a rejection of or a counteroffer to an option does not constitute a termination of the offer. The offeree is still free to accept the original offer within the option period unless the offeror has detrimentally relied on the offeree’s rejection. (See §37 of Res. 2. K)

2. Firm offers have the three month limitation on them. To my knowledge, I have no idea whether or not a rejection ends the firm offer.

A firm offer operates like a regular offer in terms of standard offer/acceptance rule, only difference is how long it has to stay open before it can be revoked (reasonable time) and the maximum time (3 months, but I'm pretty sure that's just UCC)

[sarahh]

Fwiw examsoft has a timer, so you won't need a watch

As far as day 2...dont be slow? Haha

The security policy says we can have a non-programmable watch. So I would think it was ok both days. Can't have pens the second day though.

[AP-375]

Fwiw examsoft has a timer, so you won't need a watch

As far as day 2...dont be slow? Haha

The security policy says we can have a non-programmable watch. So I would think it was ok both days. Can't have pens the second day though.

Yeah, I looked at it again. The MBE main site says no watches, but then the NY site says watches are okay, and is specific about the stuff that is allowed on Day 1, but not on Day 2, and watches don't have that indication, so looks like I'm getting all anxious over nothing. #barstudy

[AJS30]

I called BOLE today to ask if I can put a sandwich in my bag for lunch, since the security notice says a "quiet snack", the woman said yes just as long as its in a clear packaging. I also asked about wearing a zip up hoodie, she said yes but that I can't put the hood on.

I thought the answers to both would be yes, but just wanted to make sure so no surprises next week.

[PennBull]

Can we wear hats? I plan on wearing a John Stockton jersey and a 97 Finals hat

[thetashster]

Can we wear hats? I plan on wearing a John Stockton jersey and a 97 Finals hat

considering they interrupted a muslim girl wearing her head covering DURING the essay portion and told her to take it off (in MA), probs not