Property – Helmholz: Fall-Winter 2008-2009
PERSONAL PROPERTY
WILD ANIMALS:
1. Pierson v. Post:
a. FACTS: Man hunting fox, after an hour another kills and takes the fox. Man sues for
return of fox.
b. ELEMENTS regarding possession of wild animals:
i. Must deprive the animal of its natural liberty. DONE BY:
1. Must mortally wound the fox.
2. AND
3. Must not abandon pursuit.
c. DISSENT – This dissuades fox hunting, which is a noble goal – eliminate the menace that
is foxes.
2. BLACKSTONE’S OTHER TYPES:
a. Ferae naturae, per industriam hominis:
i. Wild animal captured and tamed by man.
ii. Considered property, but if at any time they regain their natural liberty,
property rights instantly cease.
b. Animum revertendi
i. Animals that can leave and return by their usual custom.
1. Lose property interest if they stray and do not return by their usual
way.
2. Markings (collars, etc.) cause property right to be retained.
3. Buster v. Newkirk
a. Trover: Compelling a forced sale…so if Defendant took something, he would be forced
to pay the plaintiff for that thing.
b. FACTS: Newkirk mortally wounds deer, goes home, it runs to Defendant’s house who
kills it and skins it.
c. Follows Pierson v. Post:
i. Must mortally would fox – DONE!
ii. AND
iii. Must not abandon pursuit – HE ABANDONED PURSUIT!
4. Keeble v. Hickeringill
a. FACTS: Man shoots a shotgun near a duck pond, scaring the ducks away for four
months.
b. Not liable for property loss, since you cannot quantify the property that was lost.
c. ELEMENTS: Defendant liable for lost duck hunting business:
i. Malicious
1. Intent to HARM plaintiff!
ii. AND
iii. Unlawful Act.
Property – Helmholz: Fall-Winter 2008-2009
1. Shotgun blast was unlawful.
2. Not liable if he built another duck pond across the road.
iv. Hindered Trade.
1. Missing ducks.
5. Dapson v. Daly
a. FACTS: P shot at deer and hit it. D shot later, hit it, and took possession of it. P sues for
replevin.
b. Replevin – Actual return of a chattel.
c. ELEMENTS OF THIS CASE:
i. Plaintiff must have corporeal possession.
ii. If no possession, must show title in another way.
1. By lack of hunting license, P shows that he has no right to title and
therefore loses the case.
6. State of Ohio v. Shaw
a. Criminal case!
b. FACTS: Guys steal fish out of a net. Found liable.
c. ELEMENTS: Determination of Possession:
i. Must bring animals under power and control.
1. Fish were deprived of natural liberty by the net.
2. They could have been taken at any time by the owner.
ii. So maintain his control to show that he does intend to abandon them again.
1. NET was obvious.
7. Ghen v. Rich
a. FACTS: BOMB LANCE AND FLOATING WHALE BODIES!
b. ELEMENTS OF POSSESSION:
i. When a whale has been killed, and is anchored and left with marks of
appropriation, it is the property of the captors.
ii. Why different from others?
1. Practical difficulties in hunting whales – practice limited to THIS
industry
2. To encourage the industry, by preventing economically prohibitive
hunting means.
3. Pervasiveness in the industry:
a. The rule has worked, because the industry has grown around
it.
4. If fisherman does all that it is possible to do to reclaim the fish, then
he should have possession.
ABANDONED PROPERTY
1) ELEMENTS: How is a property abandoned?
a. Owner voluntarily
Property – Helmholz: Fall-Winter 2008-2009
b.
c.
d.
e.
f.
AND
intentionally
relinquishes ownership
WITH
Intent to give up both title and possession.
i. Eads v. Brazleton - Boat was abandoned because it was left for 20+ years w/o
anyone attempting to recover it, also let silt and mineral build-up cover it in an
island.
ii. Haslem v. Lockwood – Manure on a road is abandoned because it is not wanted
on the road, and if owner had wanted it he would have picked it up.
2) What happens to finder?
a. Finder obtains both possession and title if he:
b. exercises control over the property
c. WITH
d. Intent to assert ownership.
i. Eads v. Brazleton –Shipowner did not EXERCISE CONTROL over the property, he
merely INTENDED TO exercise control over it at a later date.
ii. HAslem v. Lockwood - You can lay claim to abandoned property by changing its
nature and enhancing its value, which also gives you a reasonable period in
which to remove the property.
3) What if something becomes embedded in the soil?
a. It belongs to the landowner. Because of embedding.
FINDERS’ RIGHTS:
ELEMENTS:
1) Owner does not lose title.
2) WHAT IS A FINDER?
a. Someone who takes physical control over something.
b. With intent to assume dominion over it.
3) Finder has rights superior to everyone but the true owner.
a. Armory v. Delamirie:
i. FACTS: Chimney boy finds jewel in the course of business, brings it to jeweler
who will not give it back.
ii. Court finds for boy based on element listed above.
b. If thief steals jewel and gives it to B and B refuses to return it, he is liable to thief.
4) Prior Possessor wins possession rights over a subsequent possessor (applies both to personal
property and real property)
a. Clark v. Maloney:
i. FACTS: P ties logs together, they get loose and are recovered by the D. P sues
for their return (replevin)
Property – Helmholz: Fall-Winter 2008-2009
ii. Court finds for P, since he physically possessed them and made special
property of them (Through binding), which rested in him the rights against all
the world but the true owner.
EXCEPTIONS:
1) Constructive Possession
a. The law treats someone as if he is in possession even if he is unaware of it.
b. South Staffordshire v. Sharman
i. FACTS: P hired D to clean a dirty pool. At the bottom, in the mud was found a
few gold rings that the D took. P sued for their return.
ii. RESULT: A landowner is in constructive possession of the objects located under
the surgace of her land even if she if unaware of their possession…
iii. THEREFORE, Ring owner is primary possessor, owner of pool is secondary
possessor (finder) and the pool boy is the subsequent possessor.
c. HOWEVER: If owner has never TAKEN POSSESSION OF THE HOME or DID NOT MAKE IT
“PERSONAL SPACE” then the owner DOES NOT take constructive possession.
i. Hannah v. Peel
1. FACTS: Peel owns large home requisitioned for army purposes. He
never moved into it. Soldier finds a brooch on the premises.
2. RESULT: Soldier prevails b/c owner never took possession of home.
2) Objects found in public places:
a. Lost property – Goes to the finder.
b. Mislaid property – goes to the owner of the premises
i. Since person might return, as mislaid says that there is an intent to put it there
and person might come back for it.
Here are the four categories:
3) a. Lost – The true owner has been unintentionally dispossessed of the
property. The finder has better title to lost stuff than anyone except the
true owner.
4) b. Mislaid – The true owner intentionally left the stuff sitting around,
intending to pick it up, but forgot. In this case, the owner of the property
where the stuff is found has better title to the stuff than anyone except
the true owner.
5) c. Abandoned – The previous owner intentionally gave up the property
and left it lying around so that someone else could acquire it. For
example, if you leave furniture on the curb to be picked up by the
garbage truck, it could be understood to be abandoned property. The
finder of such property has an unqualified right to it.
Property – Helmholz: Fall-Winter 2008-2009
6) d. Treasure trove – This one is like pirate booty! If you find hidden
treasure that has been hidden for so long that it would be impossible to
find the true owner, then the treasure is awarded to the finder as long as
they weren’t trespassing.
WRONGFUL TAKING OF POSSESSION:
Jus tertii – Defense that neither P nor D but third party is true opwner, and only he can bring the
lawsuit.
1) Defense not allowed in actions to recover possession (replevin).
a. Anderson v. Gouldberg – “Plaintiff’s possession must have been lawful…as against the
person who deprived him of it; and possession is good title against all the world
except those having a better title.”
i. FACTS: Plaintiff trespasses and cuts down logs. Defendants are hired by
someone else to steal the logs, and does so.
ii. Used by Easterbrook in 2006 where one thief can bring action against another
thief who stole the ill-gotten good.
2) Defense IS allowed in cases involving DAMAGES (trover)
a. Russell v. Hill
i. On the other hand, in this case with analogous fact pattern, the court decided
the other way.
ii. Afraid of double liability through the landowner as well.
BAILMENTS:
1) DEFINITION: When one person gives temporary possession of her property to another wherein
bailee has possession of another’s goods.
2) CREATION: Alleged bailee must
a. Assume physical control with
b. Intent to possess.
c. And has possession.
3) ELEMENTS:
a. Delivery by bailor to bailee
b. Acceptance by bailee
c. Taking of possession.
4) INTENT:
a. Mistake as to Contents:
i. Often does not create possession of the object.
b. Value Undisclosed to Bailee:
Property – Helmholz: Fall-Winter 2008-2009
5)
6)
7)
8)
i. If bailor does not disclose exceptional value of bailed item, bailment is still
created.
ii. Risk of care on bailee when he accepts possession of the item.
1. Peet v. Roth Hotel  P gives ring to hotel, not telling them it is
valuable, and cashier negligently loses the ring. Held for P.
STANDARD OF CARE:
a. Bailment for Sole benefit of bailee:
i. Bailee is required to use extraordinary care.
ii. Bailee liable for even slight neglect that results in loss of goods.
b. Bailment for mutual benefit of bailor and bailee:
i. Bailee must exercise ordinary care and is liable for ordinary negligence.
1. Peet v. Roth Hotel – Mutual benefit exists where bailee charges for
service. Usual service for guests in keeping property, therefore mutual
benefit.(good will?).
c. Bailment for Sole Benefit of Bailor:
i. “Gratuitous bailment”
ii. Bailee must use only slight care and is liable only for gross negligence.
d. Involuntary Bailee:
i. No consent for the bailee’s possession.
ii. Bailee does not need to take affirmative steps to protect property.
iii. Only slight care.
1. Cowen v. Pressprich – where bond was thrust upon Pressprich’s agent,
and he tried to give it up on immediately finding it to be the wrong
bond.
DUTY TO REDELIVER:
a. Strict liability for all bailments if not redelivered except:
b. Involuntary bailments
i. Only if bailee was negligent in deliving the goods to the wrong person.
ii. Cowen v. Pressprich – No negligence in redelivering the bond to a wrong agent.
1. Honest belief he was handing it back to the right messenger.
2. Therefore, no liability.
PARKING LOT CASES:
a. Allen v. Hyatt Regency:
i. B/c hotel parking garage had sole control over the car.
ii. D created expectation in P that Hotel had accepted a duty of reasonable care.
1. There were attendants and security cameras, etc.
b. NOT LIABLE FOR OBJECTS WITHIN CARS.
i. Swarth v. Barney’s Clothes – P cannot recover for a wallet stolen out of a car
parked in a parking garage.
ii. “Acceptance is absent when the property is not such as is usually and
customarily left with custodian.”
Contractual Limitations:
Property – Helmholz: Fall-Winter 2008-2009
a. Liability given up only with consent of bailor.
b. Must be shown that bailor was, or should have been, aware of sign limiting liability.
i. Allen v. Hyatt Regency – No assent by bailor in regards to the thing on the back
of the ticket.
GIFTS:
1) ELEMENTS: Three requirements for a gift of chattel
a. Donor must intend to make a gift.
b. Donor must deliver the chattel to donee.
c. Donee must accept the chattel.
2) GIFTS INTER VIVOS:
a. Once made is irrevocable.
b. INTENT:
i. Must intend to pass title presently, not merely transfer possession.
c. DELIVERY:
i. WHY?
1. Ritual – impresses grantor with legal significance and finality of act.
2. Evidentiary – Objective evidence of the grantor’s intent to give.
3. Protective – Protects unwary donor from making idiot statements.
ii. Oral Promises not allowed…
1. Irons v. SMallpiece – Father’s verbal promise to give colts to son is not
held to be a valid gift since no present transfer of possession.
iii. Alternative Methods:
1. Constructive – Where manual delivery is impracticable.
a. Transfer of the MEANS of obtaining possession of something.
b. Transfer of key to a locked receptacle.
2. Symbolic – Where manual delivery is impracticable.
a. Transfer something symbolic of thing given.
b. Draw a picture of something and hand it over.
3. Letters:
a. Gruen v. Gruen – What was gifted was the remainder interest in
the painting after the death of Gruen.
i. Title with no right to possession.
b. Illogical for delivery of painting itself when intent is to keep
possession and only transfer title, which is what letters are for.
4. Via Third-party
a. Donor can deliver chattel to a 3rd party as agent to hold for the
donee.
b. If agent of donor, no gift takes place until donee receives
physical possession of the chattel.
Property – Helmholz: Fall-Winter 2008-2009
d. ACCEPTANCE:
i. Gruen v. Gruen – When something is of value to donee, law will presume
acceptance on his part.
3) Gifts Causa Mortis
a. Gift made in contemplation of immediately approaching death.
b. Revoked if the donor recovers from illness that prompted gift. Intent as such as well!
i. “If something happens to me, this book is yours.”  Revocable!
SALES AND BONA FIDE PURCHASES
GENERAL RULE: No person may sell or transfer a better
title to a chattel than she has.
1) EXCEPTIONS TO THE GENERAL RULE:
a. Voidable Title:
i. U.S.C. section 2-403(1): “A person with voidable title has power to transfer a
good title to a good faith purchaser for value.”
1. PURCHASER ELEMENTS:
a. Good faith purchaser - good faith belief that seller has title.
b. Pays valuable consideration.
c. IF NEITHER, NOT PROTECTED BY LAW!
ii. Owner intends to pass title, but can void the transaction b/c of fraud,
misrepresentation or duress.
1. Midway Auto Sales – Originally owner INTENDED to transfer title to
other, even though the check was bad, so he could have voided the title
upon learning that fact.
2. If intention was for title to be transferred at the point where the check
was cashed, then it can be argued that the buyer could not pass any
more title than he had!
iii. RATIONALE: Where one of two innocent persons must suffer by the fraud of
another, the one who could have prevented the harm to the other should suffer
the loss.
b. Estoppel:
i. Owner of goods
1. Expressly OR impliedly represents
2. That possessor is the owner or is authorized to pass title.
3. AND induces reliance by the purchaser.
4. Owner is estopped to deny the truth of the representation.
c. Entrusting Goods to Merchants:
Property – Helmholz: Fall-Winter 2008-2009
i. Common Law - Mere delivery of goods to merchants not enough; owner must
do more such as stand by while goods are displayed; or clothe merchant with
apparent authority.
ii. UCC: Power to transfer goods given when chattel is given to merchant:
1. Chattel entrusted to merchant.
2. Who deals in goods of that kind.
3. Sells it in ordinary course of business.
a. Porter v. Wertz:
i. P able to recover bc seller was a deli employee serving
at the beck and call of Von Maker:
1. Seller was not that entrusted by plaintiff.
2. Seller was not an art merchant.
3. The sale was not in the “ordinary course of
seller’s business.”
ACCESSION, SPECIATION AND CONFUSION
1) “When the goods of two different owners are incorporated together, the title to the resulting
product goes to the owner of the principal goods.” – Bancorp Leasing v. Stadeli Pump.
2) Limited doctrines; only grant title and do not protect wrong-doer from litigation.
3) Accession/speciation:
a. ELEMENTS:
i. Good faith purchaser.
ii. Creates value through labor.
iii. Great disparity of value between original article and new product resulting.
1. Ballard v. Wetzel:
2. FACTS: Man buys hull of corvette, rebuilds the car, and the original
owner sues him for return of it.
a. Good faith purchaser – Got it from sale and paid valuable
consideration.
b. Disparity in value of hull and value of restored car.
4) Confusion:
a. NO LABOR ADDED.
b. ELEMENTS:
i. Intermingling
ii. Of Fungible Goods
iii. That can no longer be separately identified.
c. Each owner receives his proportionate share.
Property – Helmholz: Fall-Winter 2008-2009
ADVERSE POSSESSION
1) THEORY: If, within the number of years specified in the state’s statute of limitations, owner of
land does not take legal action to eject a possessor who claims adversely to the owner, the
owner is thereafter barred from brining an action in ejectment and adverse possessor gets good
title to the land.
2) No record title is given! A quiet title suit is needed for that.
3) ELEMENTS:
a. POSSESSION MUST BE ACTUAL
i. If in possession of part, adverse possessor in CONSTRUCTIVE POSSESSION OF
THE REST.
ii. Ordinary use to which the land is capable.
b. CONTINOUS FOR THE STATUTORY PERIOD.
i. Anderson v. Cold Spring Tungsten – Seasonal occupancy is okay.
ii. MUST BE CONSISTENT WITH THE TYPE OF PROPERTY OWNED!
1. Summer home  only the summer!
2. Apartment living  Maybe not allowed if only lived there in the
summer.
iii. An adverse possessor can tack on any previous adverse possessors by
predesessors in interest.
1. Provided there is privity of estate. (sale or will/descent)
c. EXCLUSIVE
i. Not sharing with owner nor with public generally.
ii. Anderson v. Cold Spring Tungsten – Kicking picnickers off of land is enough.
d. HOSTILE
i. Arises from the intention of AP to claim exclusive ownership of property
occupied.
ii. Without the owner’s consent.
iii. Anderson v. Cold Spring Tungsten – Thought that they owned the property was
enough to be considered hostile.
iv. TESTS:
1. Objective – does not take into account mental state of adverse
possessor.
2. Subjective – Only if possessor has good faith belief that he has title.
v.
e. OPEN AND NOTORIOUS
i. Occupying must be in a visible manner.
ii. Acts must constitute reasonable notice to owners that possessor is claiming
dominion.
iii. Grace v. Koch – Only became adversely possessed when land-users attempted
to pour gravel over the land in question and actual landowner tried to stop him.
Property – Helmholz: Fall-Winter 2008-2009
1. That is when landowner was given reasonable notice of defendant’s
intention!
4) STATUTORY ATTEMPTS TO END THIS DOCTRINE:
a. Require the payment of taxes on the land being adversely possessed.
i. Meyer v. Law:
ii. FACTS: Guy has fenced enclosure that goes onto another’s land, does he get title
of that portion of the enclosure?
iii. NO – Thing giving colour of title must be recorded with the government, and
that was not done here.
b. Requires that the person claiming by adverse possession have a good faith belief that
he is the owner and that this belief is reasonable.
LATERAL AND SUBJACENT SUPPORT:
1) Lateral Support:
a. Landowner is STRICTLY LIABLE (NO DUE CARE DEFENSE) if
i. She changes her land.
ii. As to withdraw lateral support from neighbor.
iii. Cause neighbor’s land to slip or fall in.
b. NATURAL LAND:
i. Duty to maintain retaining walls if you come into possession through sale or will.
1. Noone v. Price – Strictly liable for any natural land damaged through
lack of maintenance to the land.
c. SUPPORT OF BUILDINGS ON LAND:
i. If neighboring land slips because of WEIGHT OF BUILDINGS, then excavotr not
liable unless NEGLIGENT.
1. So only if it was the weight of the building that caused the fall of the
land when support was removed would NEGLIGENCE apply.
2. Noone v. Price – if weight of buildings was proximate cause of collapse,
then no liability sans negligence.
2) Subjacent Support:
a. Surface occupant has a right of subjacent support against mineral owner when those
mineral estates are severed from the surface.
i. Mineral owner is strictly liable for buildings.
ii. Mineral owner is liable for negligently damaging springs and wells, under rule
that adjacent owner has absolute ownership of the percolating water under her
land.
AIR AND LIGHT
1) AIR
Property – Helmholz: Fall-Winter 2008-2009
2) FOUNDATIONS:
a. Cujus est solum, ejus est usque ad coelum et ad infernos – “To whomsoever the soil
belongs, he owns also to the sky and to the depths.”
i. Murphy v. Bolger:
1. FACTS: Neighbor builds a barn which has a roof extending over
plaintiff’s land.
2. Finds for plaintiff and allows ejectment, since otherwise would be to
submit the plaintiff to the invasion constantly.
3. If merely “infringed on enjoyment” then
b. Modern – Airplanes
i. Airspace immediately above the landowner’s is his, but above that, it is public
domain.
1. Allegheny Airlines – Airspace does not belong to plaintiff unless
he/she/they can use it.
ii. HOWEVER , “any use of such air or space by others which is injurious to his land,
or which constitutes an actual interference with his possession or his beneficial
use thereof, would be a trespass for which he would have a remedy.” –
Allegheny Airlines
1. So MUST SHOW ACTUAL IMPAIRMENT OF THE ENJOYMENT OF THE
LAND!
3) SOLAR ENJOYMENT:
a. Sundowner v. King – Spite fences (with no beneficial uses) are unlawful.
b. Does landowner have a cause of action in NUISANCE for neighbor’s blocking of sunlight?
c. UNRESOLVED:
i. Fontainebleau – NO LEGAL RIGHT TO PASSAGE OF LIGHT.
1. Easement sof light can be created through express grant!
ii. Prah v. Maretti – Recovery when sunlight is blocked.
1. WHY DIFFERENT?  Solar panels in this case: perhaps the court, in
balancing utility against the harm, will give more protection to solar
collectors than to sunlight for gardens of swimming pools.
INTELLECTUAL PROPERTY:
1) Misappropriation of Information:
a. The law protects labor and investment under the law of unfair competition.
b. International News Service v. Associated Press  A news agency has QUASI-PROPERTY
interest in news it has gathered and can prohibit competitors from disseminating the
news until its commercial value as news has passed away.
i. Property rights held ONLY IN RELATION TO BUSINESS COMPETITORS.
c. ELEMENTS:
i. Plaintiff has put time and money into what he produces.
ii. Defendant has appropriated this product.
Property – Helmholz: Fall-Winter 2008-2009
iii. Plaintiff has been injured by the process.
iv. Must not be a subject/material/information that copyright law applies to.
d. Board of Trade of Chicago v. Dow Jones, & Co.
i. The court ruled that the defendant has a proprietary interest in its indexes
and averages and that the indexes and averages may not be used without
consent. The court decided that the plaintiff and others may still market
stock index futures contracts, and that the ruling may encourage new
indexes specifically designed for hedging against systematic risk. The
court did note that an adverse decision would have been unlikely to
materially affect the defendant’s revenues.
ii. So in opposition to INS, misappropriation with lack of competition.
iii. Because of future interests held by Dow Jones.
2) COPYRIGHTS:
a. “Congress shall have…the power to promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.”
b. NOT IDEAS – MUST BE MADE INTO A TANGIBLE FORM!
i. Rockford Map Publishers v. Directory Serv. Co.
1. Protect work, not amount of effort expended.
2. Rockford maps made a contribution.
3. Compilation of facts copyrightable in the form given to it by the author,
not the facts themselves.
ELEMENTS OF COPYRIGHTABLE MATERIAL:
3) Item has to be reduced to a tangible medium of expression.
a. Baseball game does not count, but broadcast of it does!
b. Feist passes this test – White pages entry, so it is tangible!
c. RECORDABLE! DISTRIBUTIVE!
4) It must be a “work.” It must be a thing!
a. This excludes ideas!
b. If you let one person control an idea, you will interfere with the marketplace of ideas
which we want to protect.
c. Feist qualifies, because it is a WORK, in that it is a codified image with symbols, etc.
d. HYPO: What about Superman…can Superman be copyrighted? Or is he an idea?
i. Came up in a case with greatest American Hero:
1. Is Superman an idea or a work?
2. Merger Doctrine – If there is no other way to express an idea other
than the way that this product does (like, the plot of a story), then it is
still just an idea. If on the otherhand, if this idea can be expressed in a
variety of ways, then copyright is available.
a. So in this idea, the court made a distinguishment between the
IDEA of Superman and Superman himself.
e. FACTS are not copyrightable (like ideas).
Property – Helmholz: Fall-Winter 2008-2009
i. As in INS, where the content of the news stories are not copyrightable.
ii. Feist – Facts in case was the information contained within the White Pages. By
putting the items down in the format, then it was open to copyright!
5) Originality!
a. “work of authorship”  Implies originality of some sense.
b. Thus, there is a requirement that the person getting copyright is the AUTHOR, which
requires that they add something/originality.
c. Churches by denominations  Like Feist, there is no creative spark involved in that!
i. There could be a lot of work involved  It doesn’t make a bit of difference!
1. It’s not the work that is protected, but the DIRECTION THAT MATTERS!
d. HYPO: Plaintiff produces a reference manual on how to wash dishes in restaurants. Five
steps 1) scrape, 2) wash 3) rinse 4) sanitize 5) let stand…Defendant produced a chart
called a wash-rinse-sanitize chart that contained the same five steps, except the fifth is
dubbed Air Dry. They both had the same comic image of a pot cleaning itself! How do
the elements fit in?
i. 1 – plaintiff produced material thing.
ii. The author created it!
iii. Yes.
iv. Was there sufficient originality? The court held that this was not so! Not
enough originality.
e. What about recipes in a cookbook?
i. If you can prove that one author in a cookbook stole a recipe.
ii. Court rules that it is just a series of facts.
1. No matter the work and creativity in creating the recipe, no matter the
expense of producing the cookbook  What was copied was the
collection of facts rather than the book itself.
f. Mid America Title Co. v. Kirk – Lawyer makes a title commitment compilation similar to
those of plaintiff.
i. Not enough originality.
ii. No original arrangement, instead these are merely facts that NEED TO BE
ADDRESSED IN ANY TITLE COMITTMENT.
6) FEIST TEST:
a. P must prove:
i. Ownership of a valid copyright.
ii. Copying of constituent elements of the work that are original.
1. Mid America Title co. – “selecting which facts to include…was not a
matter of discretion…but it was a matter of convention and strict
industry standard.”
2. Therefore, selection of facts by attorney failed to show “creative
spark”/originality.
7) Random House v. Rosetta
a. FACTS: P seeks preliminary injunction against D for publishing e-books of its titles.
Property – Helmholz: Fall-Winter 2008-2009
b. Suit fails since balance of harms would hurt the D more than the P.
MORAL RIGHTS OF ARTISTS:
Two universally accepted ones:
1) Attribution:
a. The right of an artist to be recognized by name as the author of a work.
b. The right to publish anonymously
c. The right to prevent an author’s work from being attributed to someone else.
d. To prevent the author’s name from being used on works of others.
2) Integrity:
a. The right of the author to prevent any deforming or mutilating changes to his work,
even after title in the work has been transferred.
i. Sometimes protects an art work from destruction!
b. Recognized in the US under VARA.
i. “The author of a work of visual art shall have the right to prevent any
destruction of a work or recognized stature, and any intentional or grossly
negligent destruction of that work is a violation of that right.”
1. STATURE:
a. Visual art in question is viewed as meritorious and
b. Stature is so recognized by art experts, other members of the
artistic community, or by some cross section of society.
i. Martni v. City of Indianapolis:
ii. Newspaper articles are evidence of stature.
iii. VIOLATION OF RIGHTS MUST BE WILFUL.
2. DOES NOT APPLY TO WORK MADE FOR HIRE – Carter v. Helmsley-Spear
Inc.
3. ARTIST CAN WAIVE HIS VARA RIGHTS.
c. State Statutes:
i. Moakley v. EAstwick: FACTS – Man designed sculpture on premises of a Church
that was sold to another denomination and was subsequently torn down.
1. Held that act was PROSPECTIVE and not RETROSPECTIVE, and therefore
plaintiff could not collect.
RIGHT TO PUBLICITY:
1) Allows famous persons to control and benefit from the commercial use and value of their
identities, including:
a. Names
b. Likenesses
c. Images
d. Voices
Property – Helmholz: Fall-Winter 2008-2009
2) Recognized as property rights in HAelan Laboratories v. Topps Chewing Gum
a. FACTS: Both chewing gum manufacturers. Contract made by one with ball-player to use
his photo in connection with sales. He agreed not to grant any other gum manufacturer
similar right. D, a rival, induced the ballplayer to use his photo in connection with their
product.
b. HELD for P:
c. PROPERTY RIGHT IN THAT:
i. Ball-player can grant exclusive right to the use of his image.
3) Martin Luther King Jr. Center for Social Change v. American Heritage Products
a. FACTS: Defendant made plastic bust of MLK that came with a copy of his speech. The
Center for Social change sued.
b. PUBLICITY FOR PUBLIC FIGURES: YES.
c. CAN THE RIGHT BE PASSED ONTO FUTURE PARTIES: YES – why?
i. Diminishes economic value of right to publicity during life, since there is no
incentive to keep it when the celebrity might die untimely.
ii. Those who would profit from it after death have failed to show that they would
be beneficieries.
iii. Trend in common law is to recognize survivability.
d. D must be exploiting image for economic gain.
e. Must the owner have commercially exploited the right before it can survive his death?
i. “In our view, a person who avoids exploitation during life is entitled to have his
image protected against exploitation after death just as much if not more than a
person who exploited his image during life.”
4) Stephano v. News Group Publications
a. NY Statute roots right of publicity in private.
i. P needs to be alive.
ii. Alleged use needs to be for advertising or trade purposes.
5) Wendt v. Host International:
a. Kozinski argues that this extension of the right of publicity goes too far and is in direct
opposition to the established federal copyright laws.
i. Paramount owns the characters of Norm and Cliff and has the right to make
derivative works out of these characters.
ii. Transfer of rights!
iii. Pits the actor against the copyright holder, so you’re giving someone the right to
publicity and another the right to copyright.
iv. Is this convincing?
1. Are they mutually exclusive?  You can still make derivative works
based on the characters; but the portrayal issue here is a problem.
TRADEMARKS:
1) Word, phrase or image used to distinguish a business, goods, or services in the marketplace.
2) Not something applied for; comes naturally when meaning is attributed to logo/word/etc.
Property – Helmholz: Fall-Winter 2008-2009
a. First user must show existence of secondary meaning of trademark at time of
secondary user’s subsequent use.
3) TEST OF INFRINGEMENT IS CONFUSION:
a. ELEMENTS:
b. P must show validity:
i. Public recognizes and uses it both to identify P’s business and to distinguish P’s
from anothers.
ii. Can be shown to be inherently distinctive.
iii. Can be shown to have acquired a secondary meaning.
c. P must show D’s actions will cause confusion among consumers.
i. Mattel v. MCA Records:
1. FACTS: Sue makers of Barbie Girl song.
2. NOT TRADEMARK INFRINGEMENT:
a. The word “Barbie” has taken on a whole popular meaning in the
culture and thus no confusion in the viewer that the song came
from Mattel.
4) DILUTION:
a. Elements:
i. Mark must be famous.
ii. Must be distinctive – not acquired value through system of secondary
meaning.
iii. Junior usage must be COMMERCIAL. (fair use exemption, and news reporting)
iv. It has to actually cause dilution.
1. Elements are more stringent than those required for TM violation.
2. So if something falls into these provisions, then it is actionable.
Property – Helmholz: Fall-Winter 2008-2009
REAL PROPERTY:
The Fee Simple:
1) Fee Simple Absolute
a. DEFINITION: Absolute ownership. Potentially infinite duration. No limitations on its
inheritability. Cannot be divested.
b. CREATION:
i. Through words of limitation: O A and A’s heirs.
1. Johnson v. Whiton – “Heirs on father’s side” grant a fee simple…and
Massachusetts does not accept a new kind of inheritance, so therefore
the language of “on father’s side” is forgotten and she is given fee
simple.
ii. HEIRS HAVE NO PRESENT INTEREST.
iii. “A bequest or devise in terms sufficient to unequivocally give property
absolutely or in fee will not be deemed cut down by subsequent language which
is less clear and distinct than that of original gift.” – Epting v. Mayer
1. Language bestowing, at the outset of a will, a fee simple estate will be
treated as controlling.
2. Repugnancy: O A and A’s heirs, then to B and B’s heirs.
a. Repugnant, so A just gets fee simple.
2) Fee Simple determinable
a. Limited so that it will automatically end when some specified event happens.
i. Hall v. Hall: O Wife so long as she lives my widow, and if she remarries, then
described property shall fall to my children.
1. Alienation – Mrs. Hall can sell only what she has; fee simple
determinable on whether or not she remarries or not.
2. Fee simple remains subject to the limitation no matter who holds it.
b. Automatically reverts to grantor on occurrence of event.
c. CREATED:
i. When the language connotes that the grantor is giving a fee simple only until a
stated event happens.
1. EX: “to A so long as…” “ to A until…” “to A while…”
2. Peters v. East Penn Township School District – Holds that the words “so
long as” and “as long as” are technical words that limit a fee.
d. FUTURE INTEREST:
i. Possibility of reverter.
ii. Does not need to be stated in devise.
iii. O retains this by law. And he can alienate it as will!
3) Fee Simple Subject to Condition Subsequent:
Property – Helmholz: Fall-Winter 2008-2009
a. Fee simple that does not automatically terminate but may be cut short at grantor’s
election when a stated condition happens.
b. CREATION:
i. First giving the grantee an unconditional fee simple and then providing that the
simple may be divested by grantor or heirs if a specified condition happens.
c. May be transferred or inherited in the same manner as any other fee simple UNTIL
TRANSFERROR EXERCISES RIGHT OR REENTRY.
d. FUTURE INTEREST:
i. Right of entry – this is alienable.
e. Courts prefer THIS TYPE OF FEE TO DETERMINABLE FEE
i. If language of devise could go both ways, the courts will often choose to
recognize that it is a fee simple subject to condition subsequent.
4) RESTRAINTS ON ALIENATION:
a. Disabling
i. Most likely to be disallowed and the most problematic.
ii. Bank of Powhattan v. Rooney – “but shall not sell to an outsider until 3 years
after my death.”
1. Absolute prohibition against it.
2. “A provision in a will that property may not be alienated except to a
particular class of people is VOID.”
iii. Land sticks with grantee, it cannot be alienated at all!
b. Promisory:
i. In which promisee promises not to alienate, and if he does, he becomes subject
to a contracts claim for damages to the grantor.
c. Forfeiture
i. If the grantee attempts to alienate, the property will pass to somebody else.
ii. He FORFEITS his interest in the estate!
d. Spendthrift Trust:
i. Creates interests in real and personal property that are not alienable or
reachable by creditors of the person holding the beneficial interest.
ii. Estate of Elizabeth Beck – Creditors could only reach money once it was given by
trustee to Elizabeth Beck (when she took full legal title as opposed to equitable
title).
iii. Trustee still has the ability to alienate…for example in instances where they are
asked to look out for the best interests of the legatee, and such include selling
the property in trust.
The Fee Tail:
1) Created via Statute de Donis Conditionalibus (1285)
2) CREATION:
a. Created by an instrument using
Property – Helmholz: Fall-Winter 2008-2009
i. words of inheritance
ii. AND
iii. Words confining succession to the issue of the grantee.
1. Words of procreation.
b. “To A and the Heirs of A’s body.”
3) NOT ALIENABLE – in essence, it creates a life estate in the grantee, which goes to a life estate to
his issue, which goes to a life estate to their issue….ad infinitum.
4) BARRED IN MOST STATES: So what happens? Multiple options:
a. A has a life estate, with fee simple in A’s issue.
i. Long v. Long.
b. A simply has a fee simple.
i. Armstrong v. Smith:
ii. Language created fee tail  converted to fee simple.
c. A has a fee simple conditional.
i. If A has kid  A can convey fee simple.
ii. If not  A’s estate ends at A’s death.
Blackstone hates them:
1) Does a fee tail make children disobedient?
a. Kids KNOW they are entitled to the inheritance, so why not sass them?
2) Leasants are ousted
a. Person leases property, and then when the landlord dies…it goes not to the lease but
instead the tenancy in tail passes by law to the offspring of the landlord in tail.
b. Why does the leasee not ask questions?
c. Often in olden times, leasee thought that tenant-in-tail had a fee simple…so they would
have a harsh surprise!
3) Creditors defrauded.
4) Land purchasers are disappointed.
5) Treason encouraged
a. Would dissident commit treason because he knows that his estate will be secure when
he is executed in the barbarous way dealt to traitors.
TYPES OF TENANCIES:
1) Term of Years – Tenancy for a set period of time.
a. No matter how long the set period of time is. Can be years, weeks, months, etc. as long
as there is a definite period of time.
b. What would terminate the estate?
i. Term expiring – and it happens automatically.
2) Tenancy at will
a. O  A for as long as O desires.
i. This seems to trap A, in that A would have to live there, SO THE LAW states that
if one party has the power to terminate, so does the other party.
Property – Helmholz: Fall-Winter 2008-2009
b. So why is O A as long as A desires different- -- Leasee has a different relationship,
i. Restriction on right.
3) Tenancy at Sufferance
a. If you hold over after the expiration of term, then this is what you have!
b. Legal consequences:
i. Cannot adversely possess!  Negative the “hostility” requirement required for
adverse possession.
1. So tenant at sufferance cannot claim title by adverse possession.
c. Can you eject a tenant at sufferance by force?
i. Not sure! Helmholz wants to do whether this is legally acceptable!
4) Periodic Tenancy:
a. Like what I have now!
b. No definite time agreed upon, but the rent is fixed at so much per year or month, as the
case may be, and is terminable by leasor or leasee, at the expiration of any period for
which rent has been paid.
LIFE ESTATES:
1) Lasts the duration of a person’s life.
2) CREATION:
a. Can be created by devising “O A for life.” (would give remainder to O).
b. Thompson v. Baxter – “where a grant is made, subject to be defeated by a particular
event, and there is no limitation in point of time, it will be ab initio a grant of an estate
for life, as much as if no such event had been contemplated.”
i. “while he shall choose to live in Albert Lea” = life estate.
c. Smith v. Smith – “to daughter to be used by her as a home as long as she wishes.” = life
estate.
3) WASTE:
a. Waste is conduct by the life tenant that permanently impairs the value of the land or
the interest in the person holding subsequent interest in the land.
b. Common law action against the life tenant for such damage.
c. TYPES OF WASTE:
i. Affirmative (voluntary) waste
1. Life tenant ACTIVELY CAUSES permanent injury.
ii. Permissive Waste:
1. When land is allowed to fall into disrepair.
2. Tenant fails to take reasonable measures to protect land from the
elements.
a. Smith v. Smith – Fails to make ordinary repairs as are necessary
to protect the building from the effects of wind and rain.
iii. Ameliorating Waste:
Property – Helmholz: Fall-Winter 2008-2009
1. When principal use of land is substantially changed but the change
increases the value of the land.
2. ACTIONABLE IF:
a. Grantor intended to pass the land with the specific buildings
already on it to the holder of the remainder.
i. Brokaw v. Fairchild – Grantor intended to pass “my
residence” onto the remaindermen.
b. The building can reasonably be used for the purposes built.
i. Brokaw v. Fairchild – House located amongst many
other houses, therefore can reasonably be used as such.
ii. Pabst case – neighborhood turned mostly industrial, so
house could not reasonably be used for purposes built.
3. New York O. &W.R. Co. v. Livingston –
a. If company has a good faith belief that it holds title in fee and
improves upon the land, then no action for waste.
b. Did not have to pay price of improvements, but instead only the
price of the land w/o said improvements.
REMEDIES FOR WASTE (all equitable):
1) Damages are available where waste has damaged freehold.
2) Injunction; enjoin some action which constitutes waste.
3) Forfeiture  You lose the life estate when extent of waste and damage is so
great to forfeit the life estate.
a. Extreme remedy.
4) Partition  NOT THE LAW EXCEPT IN ARKANSAS!
a. Division of the property into the separate hands of those who have
separate interests in it.
CONCURRANT ESTATES:
1) Tenancy in Common
a. WHAT IS IT? Each tenant in common has the right to possess and enjoy the ENTIRE
PROPERTY, subject to the same right in each co-tenant.
b. NO RIGHT OF SURVIVORSHIP.
i. Interest passes to her devisees or heirs.
c. NO EQUAL SHARE REQUIREMENT
i. A can take ¾ while B can take ¼
d. THEY CAN HAVE DIFFERENT ESTATES
i. A can have a life estate while B has fee.
e. ALIENABILITY:
i. Can sell, give, devise or otherwise dispose of her undivided share in the same
manner as if she were sole owner.
Property – Helmholz: Fall-Winter 2008-2009
f.
PRESUMPTION OF TENANCY IN COMMON
i. Camp v. Camp:
1. “as tenants in common with the right of survivorship as at common
law.”
1. Repugnancy  First term is deemed controlling, therefore
tenancy in common.
2) Joint Tenancy
a. WHAT IS IT?
i. Each co-tenant owns an undivided share of the property.
b. RIGHT OF SURVIVORSHIP!
i. Surviving co-tenant gets the whole of the estate!
ii. Interest of dying co-tenant just vanishes.
c. FOUR UNITIES REQUIREMENT:
i. Must take their interests at the same time.
ii. Must take their interests by the same deed, will or adverse possession.
1. H cannot convey to “H and W as joint tenants.”
2. STRAWPERSON: H conveys to P, who conveys to “H and W as joint
tenants.”
iii. Must take identical interests.
iv. Must take equal rights to possess.
d. CREATION:
i. Only created by express words.
1. “To A and B as joint tenants with a right of survivorship.”
2. “To A and B jointly.”
3. “To A and B as joint tenants and to the survivor and his heirs.”
e. SEVERANCE:
i. CONVEYANCE:
1. Each joint tenant can convey her interest; severing the shared
connection of the joint tenancy.
ii. CONTRACT TO CONVEY:
1. Equitable conversion :
2. A rule that says that where two parties have entered into a
binding contract to purchase land in equity, even before the
contract is completed, the buyer will be treated in equity as
the owner of the land!
i. In equity, the title held by the seller is converted to the
seller in equity!
ii. Requires an enforceable contract!
iii. Therefore, a specific performance will be ordered!
2. Allison v. Powell – A man attempts to enter a contract conveying his
land.
1. One can even back away from a deal after commencing with it.
Property – Helmholz: Fall-Winter 2008-2009
2. Also, contract was void by the statute of frauds.
3. Allison had simply not divested himself of the estate at the time
of his death.
iii. LEASES BY JOINT TENANT:
1. Common law
1. Lease severs joint tenancy.
2. Modern law
1. Does NOT sever joint tenancy.
iv. DIVORCE:
1. Does NOT SEVER joint tenancy.
2. Post-divorce property settlement can, though.
v. CONVEYANCE TO SELF!
1. At Common Law, you used to have to convey to a straw person who
would convey it back to you as a tenant in commona.
1. One person had to convey to another.
2. Riddle v. Harmon – Permitted a joint tenant to unilaterally sever the
tenancy by conveying her interest to herself without using an
intermediary.
3) TENANCY IN THE ENTIRETY:
a. Created only between husband and wife holding AS ONE PERSON.
b. Requires four unities, plus a fifth which is marriage.
c. Husband and wife are presumed to take a tenancy in the entirety in America.
MARITAL ESTATES:
1) THE COMMON LAW:
a. Husband had right to exclusive possession and all the rents and profits while tenancy
endured.
i. Could convey this right to a third party – completely excluding wife from
possession.
b. Surviving spouse was given life estate in the land of the other upon death of the other.
2) MARITAL RIGHTS AT DEATH:
a. DOWER:
i. ELEMENTS: Wife has dower in
1. Freehold land.
2. Of which her husband is seised during marriage.
a. Therefore, only attaches to real estate; not equitable interest.
b. Melenky v. Melen – Wife does not get dower rights to land,
because right of reconveyence is not “seizing continuously
retained.”
Property – Helmholz: Fall-Winter 2008-2009
i. Instead it is a “chose in action” As opposed to a
freehold estate! He was not seised of the LAND, only
the right of reconveyance.
3. Which is inheritable by issue born of the marriage.
4. She therefore gets life estate in 1/3 of each parcel of land.
ii. Inchoate – Wife has an interest that is not yet, but may become possessory.
1. Wife prevails over any subsequent purchasers of property and over any
attaching creditors of the husband.
2. They take property being sold by husband subject to her dower.
3. Therefore, a purchaser from a married man MUST have the wife
RELEASE HER DOWER RIGHTS!
b. CURTESY:
i. Surviving husband had curtesy only if issue born out of marriage.
ii. Received life estate in ALL of wife’s lands, not just 1/3 of them.
c. MODERN STATUTORY CHANGES TO DOWER AND CURTESY:
i. Surviving spouse now can elect to:
1. Take forced share;
2. OR
3. Take what was left by will.
ii. Making the surviving spouse an heir upon intestacy…dower lets you take against
the will! Heirs, rather, do not have that right…
1. Until the statute of wills in 1540, land could not be devised in England, it
passed in the system of primogeniture; so father had no ability to devise
it by will…as to chattels (under the control of ecclesiastical courts), that
was different…then the statute of wills gave freehold owner the right to
devise property  THAT MEANT THAT THE PROPERTY UNDER A STRICT
SYSTEM OF PRIMOGENITURE PASSED TO THE ELDEST SON…AND HE
COULD NOT DEVISE TO BOB!
2. But the wife could not be an heir, and in a case of intestacy, she had NO
RIGHT TO THE LAND.
iii. Widening coverage to include both personal and real property:
1. Before this, dower rights only extended to REAL property.
2. But nowadays, most of the wealth is comprised of stocks and bonds.
3. To protect the surviving interest of the spouse, we must extend this
right beyond the freehold!
iv. Equalizing the rights of husband and wife.
1. Not fair to wife to give her a 1/3 of the estate when husband got a
WHOLE lLIFE ESTATE in her property if he is left a widower.
v. Restricting the property subject to them to that held at death;
1. Gets rid of the abdication necessity!
vi. Changing the estate taken from a life estate to a fee simple interest in a
percentage of the decedent’s estate:
Property – Helmholz: Fall-Winter 2008-2009
1. Part of the fee! So she gets 1/3 fee simple!
2. Protect the surviving spouse…don’t clog up the title to the land or
create an elaborate trust.
a. Gives an outright share of the estate and then calling it quits!
vii. Surviving spouse has a right to the forced share/percentage share of the
decedent’s estate or he/she can take a share under the will.
3) COMMUNITY PROPERTY:
a. Property acquired by either husband and wife during marriage belongs to marital
community of which each is half owner.
b. EXCEPTED  property owned prior to marriage; or acquired by inhereitance, devise, or
gift…remain separate property.
c. Upon death of either, spouse may dispose of half of the community property by will, but
other half belongs by right to survivor. No need for forced share system.
d. RETAINS CHARACTER WHEN THEY MOVE TO A COMMON LAW STATE.
FUTURE INTERESTS:
1) EXEMPT FROM THE RULE AGAINST PERPETUITIES.
2) REVERSION
a. Future interest left in the grantor after a grantor conveys a vested estate of a lesser
quantum than his.
b. O  A for life.
i. O has the reversion; the future interest once A dies.
c. VESTED INTEREST
i. Therefore, alienable.
ii. Long v. Long- “we hold that such reversions are vested estates fully descendible,
devisable and alienable inter vivos.”
3) POSSIBILITY OF REVERTER:
a. Follows a FEE SIMPLE DETERMINABLE.
b. When estate ends naturally, it goes to the party.
i. O  A so long as the property is not used for a bar.
ii. If used as a bar, POSSESSION IMMEDIATELY REVERTS BACK TO O.
4) RIGHT OF ENTRY:
a. Created with a fee subject to condition subsequent.
b. O A, but if the property is used for school purposes.
c. Village of Peoria Heights v. Keithley:
i. If there is breach “such breach shall work a forfeiture of the saif lots and the
title to same shall revert to the grantors.”
1. No language stating immediate possessionary transfer.
Property – Helmholz: Fall-Winter 2008-2009
2. STATES THAT RIGHT OR RE-ENTRY IS NOT ALIENABLE.
a. Bc it is too uncertain.
ii. Trustees of Calvary Presbyterian Church v. Putnam:
a. HOWEVER, you can alienate it to the person holding title to the
fee simple with condition subsequent.
b. Limited exception to promote free alienability of land.
REMAINDER INTEREST:
1) Future interest created in a grantee that is capable of becoming a present possessory estate on
the expiration of a prior possessory estate.
2) Where conditioned upon an illegal act, the condition is disregarded and remainder held
absolute.
3) Can follow a fee tail, life estate or term of years.
4) Must become possessory at natural termination of preceding estate.
5) COMMON FEATURES OF REMAINDERS:
a. Created simultaneously in the same document as a prior possessory interest.
b. Prior interest must be IMMEDIATELY prior to the remainder and there may be no gap in
seisin.
i. If there is, it may take effect as an executory interest (see statute of uses)
ii. Danz v. Danz – Wife takes life estate by will, but turns it down in favor of
statutory share (50%), therefore does the remainder fail b/c she is not dead?
1. Court rules that no, b/c vested remainder in children which comes to
pass at natural termination of life estate; the natural termination is
determined to be when the wife can provide for herself as opposed to
death (therefore no postponement of remainder).
c. Prior estate must end naturally; not to be cut short by divesting event.
d. MUST be held by someone OTHER THAN THE GRANTOR.
6) VESTED REMAINDERS:
a. ELEMENTS:
i. In an ascertained person.
ii. Not subject to a condition precedent.
1. EX: “To B if B reaches thirty.” “to B if B survives A.”
iii. Postponement of estate is not for reasons personal to them.
b. TYPES:
i. Indefeasibly vested remainder.
1. Remaindermen is CERTAIN TO ACQUIRE it to RETAIN PERMANENTLY.
ii. Vested Remainder Subject to Open
1. Vested in a class of persons, at least one of whom is qualified to take
possession.
a. O A for life, then to A’s children.
b. If A has no children, it = contingent.
Property – Helmholz: Fall-Winter 2008-2009
c. If he does, it is a vested remainder subject to open. Children
may yet be born!
iii. Vested remainder subject to divestment
1. Vested subject tot divestment.
a. “To A for life, then to B, but if B does not survive A, to C.”
i. THE COMMA MAKES ALL THE DIFFERENCE!
b. O A for life, then to B for life, then to C and his heirs.
i. If B does not survive A, then it is subject to divestment
by C and his heirs.
c. ALIENABLE INTER VIVOS AND DEVISABLE BY WILL.
i. Unless divesting event is the death of the conveyancer.
d. WHEN VESTED?
i. Early vesting rule
ii. Coleman v. Coleman – Life estate in daughter, remainder in said daughter and
others.
1. Court held that vesting occurs at the DEATH OF THE TESTATOR.
2. It is not about ability to take possession, but having the PRESENT RIGHT
TO BE ABLE TO TAKE.
iii. CHANGED RECENTLY!
iv. Browning v. Sacrison:
1. Partial overturning of early vesting rule.
2. Based on intention of grantor!  “what is needed is a more
discriminating evaluation rather than outright rejection of the rule.”
a. Therefore, based on case-by-case analysis of devisor’s intent!
7) CONTINGENT REMAINDERS:
a. ELEMENTS:
i. Unascertained person.
1. “To A for life, then to B’s heirs” if B is alive.
ii. Subject to a condition precedent.
1. Something that must occur before remainder becomes possessory.
2. This is semantic: “To A for life, then to B if B marries C.” = Contingent,
because part of same clause.
b. THERE IS A REVERSION IN GRANTOR IF CONTINGENCY COMES TO PASS!
c. Subject to destruction:
i. Early judges declared that it is destroyed if it does not vestr at or before the
termination of the preceding estate.
1. Ryan v. Monaghan  Where life estate ends, and the remainder (to
James P’s heirs; he is still alive) does not vest, therefore contingent
remainder “falls to the ground” and goes to James P via being grantor’s
heir.
ii. AVOIDING DESTRUCTION:
1. Term of years rather than life estate.
Property – Helmholz: Fall-Winter 2008-2009
2. Trustees to Preserve Contingent Remainder
a. O A for life, then to X, Y, Z as trustees for the life of A and to
preserve contingent remainders, remainder to A’s children who
survive A.
i. Trustees have vested remainder; so they take it if the
life estate is terminated while A is still alive.
b. O  A in life, then to T in trust for( B’s children/The Red
Cross/etc.) for the life of B, then to heirs of B and their heirs.
i. So if A dies before B, vested remainder in trustee will
hold it until B dies, thus leaving heirs!
ii. This is a technique used to deal with the interval
between death of life tenant and taking of the final
remainder by B’s heirs!
iii. DESTRUCTABILITY OFTEN DONE AWAY WITH IN MODERN TIMES!
d. ALIENABILITY
i. Generally not alienable inter vivos at common law.
ii. Black v. Todd - What the court offers is a distinction b/w contingent remainders
that CAN be alienated and those that cannot. It depends on the NATURE of the
contingency. It can’t be alienated when contingent as to person, but can be
alienated as to when contingency refers to an event.
1. O A for life, then to A’s children who survive him.
a. Uncertain as to WHO A’s children will be, therefore there IS
NOBODY TO CONVEY IT!
iii.
8) RULE IN SHELLEY’S CASE:
a. Where a deed or a will gives a prior freehold estate to a person and a remainder in that
person’s heirs, that remainder will be created into a remainder in that person him or
herself rather than a remainder in that person’s heirs.
i. O A for life, remainder to A’s heirs…therefore merged into a remainder in
himself, and the merger creates a fee simple.
b. RULE DOES NOT CREATE A FEE SIMPLE: Converts remainder in A’s heirs to A himself.
i. The process of merger is what creates a fee simple! To say that A has a life
estate and a remainder, and therefore they are merged into a fee simple.
ii. O  A for life, then B for life, then A’s heirs. Therefore, B is not squeezed out
Shelley’s Rule.
1. A can alienate his future interest that takes effect upon the death of B.
c. To defeat rule – change the nature of the estate!
i. A Term of Years is not a freehold estate.
ii. O  A for 99 years if he should live so long, and if not, then to B.
1. Effectively same as a life estate, but technically different, so you can
avoid the rule.
d. Does not apply where one estate is legal and the other equitable!
Property – Helmholz: Fall-Winter 2008-2009
e. HEIRS MUST BE USED IN THE TECHNICAL SENSE OF THE WORD (AS WORDS OF
LIMITATION).
i. McRorie v. Creswell – “To my wife and daufhter. Provided she has no heirs.” 
does it create heirs by implication? NO…court analyzes intent to hold that
“heirs” in this case was not used in the technical sense, and instead mean
children.
f. Intent-destroying – why abandoned today?
9) DOCTRINE OF WORTHIER TITLE:
a. When an inter vivos conveyance creatres a future interest in the heirs of the grantor,
the future interest is void and grantor has a reversion.
i. O A for life, then to O’s heirs = O A for life (with reversion in O).
b. Exists today as a rule of construction: raises presumption that no remainder has been
created, but can be rebutted by evidence of grantor’s contrary intent.
i. Stewart v. Merchants National Bank of Aurora
1. Did trust created result in his heirs being additional beneficiaries, thus
not allowing plaintiff to destroy trust?
2. Use the Doctrine of Worthier title to analyze the case and came to the
conclusion that plaintiff meant to keep the corpus unto himself and not
vest interest in future heirs.
c. Intent-effectuating – why it’s still around?
STATUTE OF USES AND EXECUTORY INTERESTS:
1) Statute of uses
a. IF any person be seised of land to the use of another, the person having the person
having the use shall henceforth be deemed in lawful seisin and possession of the same
lands in such like estate as he had in use.”
i. O X and his heirs to the use of A and his heirs…turning A’s use into a legal fee
where X gets nothing.
b. Created EXECUTORY INTERESTS!
2) SPRINGING INTERESTS:
a. Future interest that springs out of grantor.
b. No preceding estate.
c. O A and A’s heirs if A quits smoking.
i. A takes fee from O.
3) SHIFTING INTEREST:
a. Future interest that divests a preceding estate.
b. O A and A’s heirs, but if B returns from Rome, to B and his heirs  because this is a
DIVESTING EVENT!
c. Blackman v. Fysh
Property – Helmholz: Fall-Winter 2008-2009
i. Since the will states that if son goes bankrupt, then it goes to son’s children at
21 years old. Since the will has been defeated by a divesting event, children
take as an EXECUTORY INTERES TAS OPPOSED TO CONTINGENT REMAINDER!
ii. Executory interests do not need to vest.
1. Every child, once (s)he reaches 21 will get part of the estate.
iii. They have both a contingent remainder AND an executory interest – what
they take depends on how the life estate terminates.
4) EXECUTORY INTERESTS OFTEN COME AFTER VESTED REMAINDERS SUBJECT TO DIVESTMENT!
POWERS OF APPOINTMENT:
1) Power given by donor to another person to appoint the taker of the property.
a. O A for life, then to B and B’s heirs subject to the power to appoint in A.
1) TERMINOLOGY:
a. DONOR = O; person who dones.
b. DONEE = A, who is given power of appointment.
c. APPOINTEE = The person being appointed, who we do not know.
d. TAKER IN DEFAULT = B; the person who takes the estate if donee fails to exercise his
power of appointment.
2) TYPES:
a. GENERAL POWER = Allows A to appoint to whomever he wants.
b. SPECIAL POWER = Restricts A’s rights in exercising his power to a certain class.
i. “subject to power in A to appoint among A’s children.”
c. PRESENTLY EXECUTABLE POWER = A can appoint through any type of conveyance; he
can exercise this power inter vivos or via will.
d. TESTAMENTARY POWER = A can appoint by will.
e. MANDATORY = A MUST exercise his power of appointment.
i. In Re Rowlands’ estate – language “please give generously to Maria Discombe”
taken to mean that donee’s MUST give to her.
f. DISCRETIONARY = ALWAYS discretionary unless specified to be mandatory.
i. In Re Rowlands’ Estate – However, “all things not mentioned in my Will I leave it
up to Mr. and Mrs. Hugh Cuthbert to distribute to any of my close friends”
means that they have discretion, and could thus give it all to themselves.
Gilman v. Bell
1) Merely having power of appointment is not an asset that the creditors can reach.
2) Even though this is a valuable right, this is not an ASSET until exercised.
3) This is not an alienable right:
a. B/c it is not reached by creditors, also inalienable.
4) Until he exercises his power, he cannot be seized.
5) Think of it this way:
Property – Helmholz: Fall-Winter 2008-2009
a. RHH is a famous opera singer. Creditors cannot force him to go sing at the Lyric Opera
and give them the money. BUT if he does act and sing at the Lyric Opera, they can take
the money that he earns.
6) HOWEVER. Bank of Dallas v. Republic National Bank of Dallas
a. The event which must trigger availability of funds to creditors is when the person has
essentially full ownership of something that he or she has actually created.
b. Where A has given himself the right to take the whole thing, then the creditors can
reach that.
i. But where A has only a testamentary appointment, A doesn’t have full
ownership rights as opposed to a presently exercisable power of appointment.
c. RESTATEMENT OF TRUSTS:
i. “Reservation of general power to appoint principal. If the settler reserves for
his own benefit not only a life interest, but also a general power to appoint the
remainder by deed or will, his creditors can reach the principal of the trust as
well as the income.”
THE RULE AGAINST PERPETUITIES:
1) Created to, again, promote free alienability of property in Duke of Norfolk’s Case
2) Formulated by John Chipman Gray:
a. “No interest is good unless it must vest, if at all, not later than 21 years after some life in
being at the creation of the interest.”
3) Applies to CONTINGENT REMAINDERS and EXECUTORY INTERESTS
a. Not vester remainders, reversions, possibilities of reverter and right of entry.
4) If there is ANY possibility that the interest will not vest in time, then that part of the
conveyance/devise is considered VOID.
a. MUST VEST OR FAIL IN TIME!
b. “An agreement in violation of the rule against perpetuities is void ab ignition”  United
Virginia Bank/Citizens and Marine v. Union Oil Co.
5) Lives in Being:
a. WHO?
i. Alive at creation of contingent interest.
1. Will  validating life must be alive at testator’s death.
2. Irrevocable inter vivos transfer  Person alive at date of the transfer.
3. Revocable trust  Alive when power of revocation ceases.
4. CHILD IN WOMB IS ACCEPTABLE!
ii. WHO CAN AFFECT THE VESTING OF THE INTEREST!
1. “To be divided amongst members of property class who are admitted to
the bar.”  The members of the class are validating lives…and will be
known by the death of the last survivor!
b. VESTING?
i. Must be vested in time.
Property – Helmholz: Fall-Winter 2008-2009
ii. EXCEPTION  Class gift:
1. A gift to a class is not vested in any member of the class until the
interests of all the members have vested.
2. Until all class members are identified and all conditions precedent
satisfied for every member of class.
a. Vested remainder subject to open is not vested under the Rule
Against Perpetuities.
b. WHY?  Again, marketability!
c. Laughlin v. Elliott  To grandchildren not valid under rule
against perpetuities since the class might open up.
i. “…it must be held that the class would include all future
born grandchildren, regardless of what may have been
the actual though unexpressed intention of the
grantors.”
iii. Executory Interests  Cannot vest b/f issuance, so vest only when the
conditions happens and they become a possessory estate!
6) NOTABLE REMOTE POSSIBILITIES
a. FERTILE OCTOGENIARIAN (Jee. V. Audley)
i. Law conclusively presumes that a person can have children so long as that
person is living.
b. UNBORN WIDOW:
i. Law assumes that a person’s surviving spouse might turn out to be a person not
alive at time of creation of interest.
c. SLOTHFUL EXECUTORY:
i. “When my estate is settled,” “when my executor appointed”  because the
named event might happen 21 years after death!
7) APPLICATION TO DEFEASIBLE FEES:
a. Executory interest following fee simple determinable is subject to rule against
perpetuities.
b. EXCEPTION  Gift from ONE CHARITY TO ANOTHER is exempt!
c. Fee simple with condition subsequent  same if executory interest would be void!
8) LIMITING DOCTRINES:
a. Wait-And-See Doctrine
i. Wait and see for the perpetuities period…wait out common law perpetuities
period before declaring contingent interest void.
ii. Wait and See for ninety years!
iii. CRITICIZED  not knowing whether an interest is valid or void may prove
inconvenient, and results in the extension of the dead hand and of more wealth
being tied up.
b. Cy Pres  An invalid interest is reformed, within the limits of rhe Tule, to approximate
the most closely the intention of the creator of the interest.
i. United Virginia Bank/Citizens & Marine v. Union Oil Co.
Property – Helmholz: Fall-Winter 2008-2009
1. Does not work when the intent cannot be effectuated because the
contingency relates to something that must be done by third parties.
2. Virginia law  cy pres cannot be used in cases as a vehicle for altering
an agreement so as to evade rule against perpetuities.