•
estate in land
2. Creation of the Fee Simple –
created by the grantor conveying land “to A and
his or her heirs”
•words of limitations-
“and his heirs”
•words of purchasers-
“to A”
•
purchasers
- referring to persons who are given an interest in land by an
instrument.
19
3.
Inheritance of the Fee Simple
•heirs-
the
persons who survive the decedent and are designed as intestate
successors under the state’s statute of descent. Includes:
(1) Issues
(lineal descendants)
(2) ancestors – (parents, grandparents)
--descendents
(3) collaterals – (brothers & sisters)
•Statutes of descends (classes of kindred)
(1) First issue-
lineal
descendants: children & grandchildren (and if
no issue)
(2) Parents (and if none)
(3) Collateral
•issue
- a.k.a. lineal descendants
•ancestors-
By statute parents usually take as heirs if the decedent leaves
no issue.
•
collaterals-
all persons related by blood to the decedent who are neither
descendants nor ancestors are collateral kin.
**strict per stirpes-
the number of
surviving children
and the number of children
who predeceased the decedent and leave issue.
means per representation…
if 3 surviving, then 1/3 each…and if one die, then they each get 1/2
** per capita
if 3 surviving children, then divided by the 3 children…but
under this theory, if one of the children dies, then it goes to the brothers and
sisters and not to the children…
American law
C. The Fee Tail-
an estate that is inheritable only by specified decedents of the original
grantee, and that endure until its current holder dies without issue.
**By bringing a collusive lawsuit known as a common recovery, the fee tenant in
possession could obtain a court decree awarding him a
fee simple,
cutting off all
rights of his issue and extinguishing any reversion or remainder.**
Every life estate must have a reversion or
a life estate
Page 214
2)
In 1800
, the prime of gender
property descends to the oldest son…but B is dead, so
it would go to the eldest son…In America
, it is per stirpes…each child gets 1/2, Wife
takes nothing b/c B did not survive…b/c B only had an expectancy…it ends up being at
1/6 each…
3)
Issues
= lineal descendents, but if none, then it could go to the spouse, parents,
brothers, sisters etc….so may not necessarily go straight to the state
4)
Only applies when governmental entity, when no heirs…she dies intestate w/o issues,
and heirs is way larger than issues… (heirs includes everybody)…A’s life estate isn’t
effective at all, until she dies, then it goes to the state
5)
This does not fit in any of the 3 categories (fee simple, fee tail, life estate)
so could
put it into a trust w/ provisions to keep it away from that side of the family…
-- we cant create new kinds of estates, but could create trusts……
●
Abolition of the
Fee Tail
owners restrict alienation by this, and attempt to
limit the beneficiaries to a potential class…
20
Common recovery
disentail the tail into a fee simple – there are 4 states
that have fee simple – DE, Maine, Rhode Island, or Massachusetts
Ex:
