Becomes a indefeasibly vested remainder or a remainder subject to total

Becomes a indefeasibly vested remainder or a

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2. Becomes a indefeasibly vested remainder or a remainder subject to total divestment (i.e.: “To A for life, then to B; but if at B’s death she is not survived by children, then in that event to C—A has a present possessory life estate; B has a vested remainder subject to total divestment in fee simple; C has a shifting executory interest in fee simple. C’s interest is valid under the rule, and B is the life in being that can be used to show that C’s interest will vest or not w/in the perpetuities period) C. Lives in being -Must somehow be connected with the vesting interest; don’t have to be beneficiaries in the vesting; they don’t need to be expressly referred to in the document (i.e.: T devises “to such of my nephews and nieces as attain 21” At time of T’s death, T has 2 brothers and 6 nieces and nephews, all of whom are under 21. Whether gift is valid depends on ether T’s parents are living. Relevant measuring lives are T’s brothers and sisters, b/c all of T’s nieces/nephews will attain 21 if at all w/in 21 years after their parent’s deaths. If T’s parents are dead, her 2 brothers are all the siblings she will have; and T’s nephews/nieces will be the children of her brothers, thus it’s valid. BUT, if T’s parents were alive, they might have another child, and then T would have another sibling who may r may not have a child of his own, who may or may not reach 21, but that would be more than 21 years after any life in being, thus, it’s invalid) D. Interests exempt from the Rule -Gifts to charity are exempt from the rule b/c a charitable trust can last forever E. The Rule in Operation 1. Executory interests following defeasible fee violates the RAP - An executory interest that follows a defeasible fee w/ no time limit on the time w/in which it must vest, violates the RAP (i.e.: G conveys “to A for so long as no marijuana is smoked on the premises; and if marijuana is smoked on the premises, then to B”—A has a fee simple subject to an executory interest, and B has an executory interest in fee simple that violates the RAP b/c all may be ok for 21 years or for 100 years. Since this might happen, the executory interest is stricken, and A has a fee simple determinable, and G has a possibility of reverter) 2. Age Contingency Beyond 21 in Open Class - A gift to an open class conditioned upon the members surviving to an age beyond 21 violates the RAP (i.e.: “To A for life, then to such of A’s children that reach 25” A has 2 kids X-12, and Y-9; A has a life estate, and there is a contingent remainder in the kids who live to be 25, and a reversion in the transferor b/c none may ever be 25. The remainder violated the RAP b/c A could have another child, and he may or may not reach 25) 16
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3. Fertile Octogenarian - Woman is presumed to be capable of bearing children regardless of her age or medical condition 4. Unborn Widow or Widower - You don’t know who a person’s widow is until he dies and you can determine to whom he was married at his death (i.e.: “To A for life, then to his widow for life; and on the death of A’s widow
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  • Fall '08
  • lew
  • Possession, Real property law, Future interest

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