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Remainder MUST satisfy all 3 or it is a contingent remainder.
#1 Born and AscertainableGranteenot bornnot ascertainable HOWEVER, one can be BORN but not ascertainable.Example:O To A for ten years, then to whomever is President of the United States of America.State the Title: Finite Estate (term of 10 years) [if the term was not calculable the default estate is a life estate]Holds Future Interest: whomever is President of the United States of America at the end of the 10 yearsWhat Future Interest: Remainder-What kind of remainder? Contingent-Why? Although whomever will be president is already born that person is not ascertained and thus fails the second prong of the first part of the Test.#2 No Express Condition PrecedentCondition precedent- a condition that applies to an interestbefore it becomes possessoryCondition MUSTbe satisfied before remainderman has the right to claim actual possessionIn other word, Express condition applies before the time when interest is to become possessory.Example:O To A for ten years, then to B and his heirs if he gets married.State the Title: Finite Estate (term of 10 years) [A holds a term of years]B holds a retainer in fee simpleHolds Future Interest: B at the end of the 10 yearsWhat Future Interest: Remainder-What kind of remainder? Contingent-Why? B only gets possessory rights IFhe gets married. The condition must occur beforeB’s right can become possessory.SO WHAT DOES A VESTED REMAINDER LOOK LIKE? See the test above. Example is shown below.O To A for life, then to B for life.A holds a life estateB holds a vested remainder in life estateThe condition precedent is an implicit condition in the nature of the estate.***if the conveyance was written as:O To A for life, then to B and his heirs if B survives A.The condition precedent is an express condition in the estate and then would be contingent remainder.
Destructibility of Contingent RemaindersContingent remainder must vest prior to or at the moment the preceding finite estate ends or the contingent remainder is destroyed by operation of law.Example:O To A for life, then to B and her heirs if B graduates law school.A holds a life estateB holds future interest as a 3rdparty (so is a remainder)O has a reversion if fee simpleContingent remainder in fee simple as there is an express condition precedent introduced by the word “if”Destructibility:A dies before B graduates from law school, B’s interest is destroyed the moment A dies.There MUST be a party to take the property when a contingent remainder fails to vest. DEFAULT TAKER is the original grantor.***note if interest is vested and B takes possession of property then O’s reversion is extinguished and B then has a FSA in a life estate***Vested Remainder subject to DivestmentExample:O To A for life, then to B and her heirs, but if A stops farming the land then to C and her heirsA holds a life estateB holds vested remainder in fee simple subject to divestmentC holds an executory interest in shifting fee simpleDestructibility:A stops farming the land, B’s interest is destroyed the moment A stops farming the land