2/25/2016
Executor’s Deed
• “to Methodist Camps, Inc., and unto its heirs .... If described land herein ceases to be used by Methodist Camps, Inc. for church purposes, then, and in that event, the title to this land is to revert to the City of El Dorado Springs, MO, who through their Chamber of Commerce donated the purchase price of this land....
• Land is no longer being used for church purposes; City has contract to sell. Does City have valid title?
Applying the RAP: Problem 6
• O → “to A for life, then to A’s children if they reach 21 years of age.” [At time of O’s deed, A has no children.] State of title?
– A = present life estate
– A’s children = contingent remainder in fee simple absolute (none are yet ascertainable, and any child born must survive to age 21 (condition precedent))
– O = reversion in fee simple absolute
• State of title:
– Methodist Camps, Inc. = fee simple subject to executory interest
– City of El Dorado Springs = executory interest in fee simple absolute (if valid)
• Can’t be a possibility of reverter (not being retained by the grantor)
• City’s executory interest is void
– Restriction is not time‐limited or tied to the life of a “life in being” (living individual); thus, that interest could have vested too remotely
• All of the interests satisfy RAP and are valid
– A = present life estate (vested at time of creation)
– A’s children = contingent remainder in FSA; valid b/c A is the measuring (validating) life:
• The class of A’s children will close at A’s death, identifying all members of the class
• A is a “life in being,” and
• Any child of A must reach 21 years old (or die trying) within 21 years of A’s death
– O = reversion in FSA (vested at time of creation)
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Applying the RAP: Problem 7
• O → “to A for life, then to A’s children who reach age 30.” • Remainder in A’s children who reach 30 is VOID – A’s death will close the class of A’s children, but it will not cause their interest to vest (they must reach 30)
– After O’s deed, A could have another child (not a “life in being”)
– At A’s death, that child could be 2 years old, and that child’s interest would remain contingent for 28 additional years
– Neither A, nor anyone else, is a sufficient measuring life to validate this interest
– O = reversion in FSA following A’s life estate
Abrams v. Templeton
• Mary Ramage owned 160 acre farm; on her death in 1915, her will devised it as follows:
– Life estate to Frank Ramage (husband/widower)
– Remainder for life to her son Albert, then
– Remainder for life to Albert’s children, then,
– Remainder in fee simple absolute in Albert’s grandchildren
• Remainder in Albert’s grandchildren is VOID
• Remainder for life in Albert is valid (vested at time will took effect)
• Remainder for life in Albert’s children is valid
– Albert is the measuring life (interest of his kids cannot remain contingent after his death)
– At Albert’s death, the class of his children closes
• He had kids at the time of Mary’s will, and those kids had a vested remainder for life (open class)
• If he had more kids thereafter, their interests would vest at birth
• After he dies, he can have no more kids
– For the interest of all of Albert’s grandkids to vest, all of Albert’s kids must be dead (until then, the class of Albert’s grandkids is OPEN)
– But Albert is still alive and the class of Albert’s kids is still open, so the class of Albert’s grandkids COULD include the children of an as‐
yet unborn child of Albert
• What might happen: (1) Albert has another child, Ella; (2) Albert dies; (3) all of Albert’s other living children and grandchildren die; (3) Ella lives 40 years before having a child (Albert’s grandchild in whom the interest would vest)
– Thus, remote vesting is possible
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• If RAP serves an important public policy, then why not strike down gift to Albert’s grandkids?
If Common Law RAP Is Applied
• Frank (Husband) = life estate
• Albert (Son) = vested remainder for life
• Albert’s kids = vested remainder for life, subject to open
• Albert’s grandchildren = remainder in fee simple absolute
• Mary’s estate = reversion in fee simple absolute (inherited by all of her heirs)
What Mary Probably Meant
• “To my husband Frank Ramage during the term of his natural life and at his death … to my son Albert Ramage [for life] and at his death to his children [who are alive at the time of my death] to hold and enjoy during the term of their natural life and at their death to be divided among their children”
– When Mary died in 1915, her son Albert was old (she wouldn’t have expected him to have more kids; she viewed that class as closed, likely)
– Thus, she likely meant for the remainder in FSA to go to the children of Albert’s already‐living kids
– If the will had said that, the remainder in Albert’s grandchildren wouldn’t have violated RAP, b/c Albert’s already‐living kids would’ve been measuring lives
• The “fertile octagenarian” scenario was not in her mind (but the will was drafted that way)
• Plus, if the court strikes down the remainder here, it would create a doubtful distribution of Mary’s property
– The Templetons (descendants of Mary’s deceased daughter) already got a 130‐acre parcel devised to them by the will
– Then, b/c they are also Mary’s “heirs,” they would get their intestate share of the estate’s remainder in the 160‐acre parcel, giving them a disproportionate share of Mary’s property (which she probably wouldn’t have intended)
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“Infectious Invalidity”
• In this situation, some courts would conclude that if a will was “infected” by such a major RAP violation, the court would strike down the entire will (not just the gift that violated the RAP)
– This would result in a more equitable distribution among the testator’s heirs (all property would pass by intestacy)
– But it would also negate any otherwise valid devise that the testator might have made to non‐family members!
RAP Reform: “Wait and See”
• Only a few states continue to apply the pure common law RAP in all cases
– The most common reform is “wait and see” [or USRAP 90 year “wait and see”]
– Rationale: if we’re willing to tolerate future interests that could remain contingent for a life in being + 21 years, why not “wait and see” if they actually vest too remotely before invalidating them?
RAP Reform: “Cy Pres”
• Legislatures in SC (Abrams), MO, and over a dozen other states have enacted “cy pres” statutes
– Such a statute allows a judge to reform the deed/will to carry out grantor/testator’s intent, but without violating RAP (such as here, treating Albert’s kids as a closed class, even though Albert is still alive)
– Another common example: reducing an age contingency from 25 or 30 years to only 21 years
The “Wait and See” Rule, Applied
• How would a court apply the “wait and see” rule in the context of the will in Abrams v. Templeton?
Strom Thurmond
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Wait and See Applied
• How would “wait and see” work in the Abrams v. Templeton case?
– We would “wait” until Albert dies
– If Albert died without ever having another child, then the will is valid (Albert’s existing kids, all of whom were “lives in being,” are now valid measuring lives)
– But if Albert goes “Strom Thurmond” and has a child born after Mary’s death, then remote vesting is likely and the interest in the great‐grandkids is invalid
USRAP (≈ 23 states, but not MO)
• Any interest valid under common law RAP is also valid under USRAP
• Interests invalid under common law RAP can be saved by
– Cy pres modification provision, or
– “90‐year wait and see” rule; contingent future interest is struck down if it fails to vest within 90 years from its creation (90 years being a more precise version of “life in being + 21 years”)
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