CHAPTER 4 TEST LOGISTICS
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CHAPTER 4 TEST LOGISTICS
TEST IS ESSENTIALLY DONE
• A couple of completely new problems
• Mostly questions from posted Bank or Tests, some
altered a bit, all with new names
• Contains names of all students from Acadia, Denali,
Everglades & Glacier (except Matts and Erins)
• Apologies to those of you I had to kill off.
CORRECTION TO WORKBOOK (5-28)
O to A for life, then to B, on condition
that B has passed the bar.
CORRECTION TO WORKBOOK (5-28)
O to A for life, then to B, on condition
that B has passed the bar.
• A has Life Estate
• B has a Remainder (follows life estate)
– At First Looks Vested
• Living Ascertainable Person
• No Condition in Clause Creating the Interest (Walk to
the Punctuation & Turn Around …
–BUT …
CORRECTION TO WORKBOOK (5-28)
O to A for life, then to B, on condition that
B has passed the bar.
• A has Life Estate
• B has a Remainder (follows life estate)
– At First Looks Vested
– BUT Condition that follows it does not
create an interest in anybody else, so
must attach to B’s remainder
– Comma after B unneeded & confusing.
CORRECTION TO WORKBOOK (5-28)
O to A for life, then to B[,] on condition
that B has passed the bar.
• A has Life Estate
• B has a Contingent Remainder
– Condition is a “Condition Precedent”
– See 5-29, which strongly suggests that interest
in 5-28 is a contingent remainder
QUESTIONS?
COMPARE
O to A for life, then to B[,] on condition that B
has passed the bar.
• A has Life Estate
• B has a Contingent Remainder
O to A for life, then to B, on condition that if B
ever fails the bar, then to C.
• A has Life Estate
• B has a Vested Remainder Subject to Divestment
• C has a Shifting Executory Interest
Vested Remainder Subject to Divestment (1) v.
Vested Remainder in F.S. subj. to Exec. Lim. (2)
(1) To A for life, then to B & her heirs, but if B dies
before turning 21, then to C & his heirs.
• Condition might occur before B takes possession.
(2) To A for life, then to B & her heirs, but if B
ever uses the land for commercial purposes, to
C & his heirs.
• Condition cannot occur before B takes possession.
TERMINOLOGY: ME v. WORKBOOK
To A for life, then to B & her heirs, but if B dies before
turning 21, then to C & his heirs.
• Condition might occur before B takes possession,
but also might occur after.
• WORKBOOK: Vested Remainder Subject to
Divestment in Fee Simple on Executory Limitation
• ME: Vested Remainder Subject to Divestment (as
long as it might occur before)
CORRECTION TO WORKBOOK (9-11)
O to A for life, then to B, but if B ever allows
A to be moved into a nursing home, to C
• Condition must occur, if at all, while A is alive, thus
before B gets possession.
• B will eventually get either nothing or a fee simple
absolute (assuming “today”)
• B has a vested remainder subject to divestment
– (in Fee Simple Absolute)
– NOT in Fee Simple on Executory Limitation
CORRECTION TO WORKBOOK (9-11)
O to A for life, then to B, but if B ever allows A to
be moved into a nursing home, to C
• Condition must occur, if at all, while A is alive, thus
before B gets possession.
• B will eventually get either nothing or a fee simple
absolute (assuming “today”)
• B has a vested remainder subject to divestment
– (in Fee Simple Absolute)
– NOT in Fee Simple on Executory Limitation
QUESTIONS?
Shapira v. Union National Bank
GLACIER: DQ71-73
Glacier Mountain Lion
GLACIER: DQ71
 SHAPIRA: DISTINCTIONS 
We’ll Explore Shapira Reasoning by
Looking at Five Key Distinctions Drawn
by the Opinion
GLACIER: DQ71
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of
beneficiary 
v.
Gift conditioned upon marriage to person of
particular faith 
Why Relevant?
GLACIER: DQ71
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary 
v. Gift conditioned upon marriage to person of
particular faith 
• Coercing Belief  v. Conduct 
• Administrability
GLACIER: DQ71
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary 
v. Gift conditioned upon marriage to person of
particular faith 
• Coercing Belief  v. Conduct 
– Note View of Marriage in 1977
– Can Use to Support Conditions Requiring
Conduct Affecting Religious Concerns but not
Coercing Belief
• Administrability
GLACIER: DQ71
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary  v.
Gift conditioned upon marriage to person of particular faith 
Administrability: Compare:
• To Pigpen, so long as the kitchens and
bathrooms are always kept very clean.
• To Schroeder, so long as he never plays any work
by Beethoven on the piano.
GLACIER: DQ71
 SHAPIRA: DISTINCTION #1 
Gift conditioned upon religious faith of beneficiary  v.
Gift conditioned upon marriage to person of particular faith 
Administrability: Compare:
•  To Lucy so long as she remains a member of the
Society of Friends.
•  To Linus, so long as he remains a good Catholic.
QUESTIONS?
GLACIER: DQ71
 SHAPIRA: DISTINCTION #2 
Gift conditioned upon divorce 
v.
Gift conditioned upon marriage to person of
particular faith (maybe )
Why Relevant?
GLACIER: DQ71
 SHAPIRA: DISTINCTION #2 
Gift conditioned upon divorce  v.
Gift conditioned upon marriage to person of
particular faith (maybe )
• Court: Latter not sufficient to encourage fake
marriage & divorce
• Grantee can’t avoid condition by saying “I will
act in bad faith” (issue often occurs in law)
GLACIER: DQ71
 SHAPIRA: DISTINCTION #3 
Conditional gift with “gift over” to third party
v.
Conditional gift without “gift over”
Why Relevant?
GLACIER: DQ71
 SHAPIRA: DISTINCTION #3 
Conditional gift with “gift over” to third party
v. Conditional gift without “gift over”
Comprehensive Plan (likely)
v. “In Terrorem” Condition (maybe)
GLACIER: DQ71
 SHAPIRA: DISTINCTION #4 
Forcing a marriage as a condition of a
completed gift 
v.
Withholding gift until marriage made 
Why Relevant?
GLACIER: DQ71
 SHAPIRA: DISTINCTION #4 
Forcing a marriage as a condition of a
completed gift 
v.
Withholding gift until marriage made 
Why Relevant?
 SHAPIRA: DISTINCTIONS
 Forcing a marriage as condition of completed gift
v. Withholding gift until marriage made 
• Remedy: Injunction v. Forfeiting Gift
• Like case involving divorce settlement requirement
that child be raised in partic. faith: Won’t impose
contempt/crim sanctions for not following religion
GLACIER: DQ71
 SHAPIRA: DISTINCTION #5 
Quaker Men (Maddox) 
v.
 Jewish Women (Shapira)
Why Relevant?
Richard Nixon
(per Resnick)
GLACIER: DQ71
 SHAPIRA: DISTINCTION #5 
Quaker Men (Maddox)
v.


Jewish Women (Shapira)
• Quakers = Too Few Available Partners 
• E.g., you must marry one of the Bronte
Sisters 
Shapira v. Union National Bank
GLACIER: DQ72
• Maddox held that these kinds of conditions
(partially restricting marriage) are unacceptable
where there is a sufficiently “small number of
eligible” partners.
• How few partners must there be to meet the
test?
Shapira v. Union National Bank
GLACIER: DQ72
• Maddox held that these kinds of conditions
(partially restricting marriage) are unacceptable
where there is a sufficiently “small number of
eligible” partners.
• If you were living in a state with that test,
how could you prove whether it was met?
Shapira v. Union National Bank
GLACIER: DQ72
• Maddox held that these kinds of conditions
(partially restricting marriage) are unacceptable
where there is a sufficiently “small number of
eligible” partners.
• Assuming that some partial restraints on
marriage are allowed, is the Maddox rule a
good result?
Shapira v. Union National Bank
GLACIER: DQ72
Maddox held that these kinds of conditions (partially
restricting marriage) are unacceptable where there is a
sufficiently “small number of eligible” partners.
Good result?
• Too much restriction on grantee v.
• Grantor’s Rights (can always argue that grantors
should be able to dispose of their own property as
they wish).
Shapira v. Union National Bank
GLACIER: DQ73
Should a court enforce conditions
that limit or mandate religious
behavior for the grantee?
ALL: DQ70 = Big Underlying Q
Why should we allow grantors to have
any control at all of what happens to
land after they have died?
• Might say can choose who gets, but only can
give fee simple absolute
• Maybe allow life estates & vested remainders
but no conditions on use
Problems 4P-4S (Review)
• We’ll Go Through Today in Time We Have
– Identify & Discuss Key Ambiguities/Questions
– Do Some Possible Iterations
• Slides Posted for Today Will Include All on These
Problems (Even Those We Don’t Get Through)
• I’ll Post Memo with Some Additional FollowThrough
• Tomorrow We Start Chapter 5 (Materials &
Assignments Already Posted)
OLYMPIC: Problem 4P
SUNSET IN THE PARK
4P: Olympic
Renee conveys “to Stacy for life, then
to my heirs, but should Stacy marry
before she turns 35, to Marni.”
AMBIGUITIES/QUESTIONS?
4P: Olympic
Renee conveys “to Stacy for life, then to my heirs,
but should Stacy marry before she turns 35, to
Marni.”
•
•
•
•
AMBIGUITIES/QUESTIONS
R alive or dead?
M’s interest intended to cut off life estate?
Condition void?
Today or “At Common Law”?
(4P: Olympic) AMBIGUITIES
• R alive or dead?
• M’s interest intended to cut off life estate?
• Condition void?
• Today or “At Common Law”?
(4P: Olympic) Renee conveys “to Stacy for life, then to
my heirs, but should Stacy marry before she turns
35, to Marni.”
• R alive or dead: Why matters?
(4P: Olympic) Renee conveys “to Stacy for life, then to
my heirs, but should Stacy marry before she turns 35,
to Marni.”
• R alive, “to my heirs” = contingent remainder
• R dead, “To my heirs” = vested remainder subject
to divestment.
(Olympic: 4P) AMBIGUITIES
• R alive or dead?
• M’s interest intended to cut off life
estate?
• Condition void?
• Today or “At Common Law”?
(Olympic: 4P) Renee conveys “to Stacy for life, then to
my heirs, but should Stacy marry before she turns 35,
to Marni.”
M’s interest cut off life estate?
Arguments ?
(Olympic: 4P) R “to S for life, then to my heirs, but should S
marry before she turns 35, to M.”
• M’s interest cut off life estate?
–
–
–
–
punishes S for early marriage
discourages fortune hunters
maybe concern w Stacy support for Marni
no “then to Marni”
• BUT: could have placed right after life estate
• Could check for other facts (ages of S&M) (!)
(Olympic: 4P) AMBIGUITIES
• R alive or dead?
• M’s interest intended to cut off life estate?
• Condition void?
• Today or “At Common Law”?
(Olympic: 4P) Renee conveys “to Stacy for life, then to
my heirs, but should Stacy marry before she turns
35, to Marni.”
• Partial Restraint on Marriage: OK to
Postpone Marriage Until 35?
(Olympic: 4P) R “to S for life, then to my heirs, but should S
marry before she turns 35, to M.”
Partial Restraint on Marriage OK?
• Probably OK if only effects remainder (no harm to S)
• Check S’s age
– Not much effect if S is 33
– Bigger deal if S is 14 or engaged to be married soon
• Might argue concern about effects on safe pregnancies
– Bigger deal if S is ill and might die before 35 (Ibeh)
• If void, pencil out condition & resulting interest in M
(Olympic: 4P) AMBIGUITIES
• R alive or dead?
• M’s interest intended to cut off life estate?
• Condition void?
• Today or “At Common Law”?
(Olympic: 4P) Renee conveys “to Stacy for life, then to
my heirs, but should Stacy marry before she turns
35, to Marni.”
At Common Law or Today: Why Matters?
(4P) Renee conveys “to Stacy for life, then to my heirs, but
should Stacy marry before she turns 35, to Marni.”
• At Common Law: M’s interest presumed to be in
Life Estate
• Today: M’s interest presumed to be in fee simple
absolute
• NOTE: Even at common law, a grant “to my heirs”
was presumed to be in fee simple; no need to
write “to my heirs and their heirs.”
REVUE:
“At Common Law”
v.
“Today”
Default Estate
“At Common Law”
Life Estate
(Must use “and M’s Heirs”
to create fee simple.)
v.
“Today”
Fee Simple
“to X and the Heirs of his Body”
“At Common Law”
Created a
Traditional
Fee Tail
v. “Today”
Traditional Fee Tail
eliminated;
state statutes provide
different results when
this language used
Doctrine of Destructability of
Contingent Remainders
“At Common Law”
Applied
everywhere
v. “Today”
Eliminated in all
states except Florida
(Olympic: 4P) Renee conveys “to Stacy for life, then to my heirs,
but should Stacy marry before she turns 35, to Marni.”
Work Through Decision Tree:
One Example
(Olympic: 4P) R “to S for life, then to my heirs, but
should S marry before she turns 35, to M.”
• Example: Condition void, Renee alive, today.
–S?
(Olympic: 4P) R “to S for life, then to my heirs, but
should S marry before she turns 35, to M.”
• Example: Condition void, Renee alive, today.
–S: Life Estate
–R’s Heirs?
(Olympic: 4P) R “to S for life, then to my heirs, but
should S marry before she turns 35, to M.”
• Example: Condition void, Renee alive, today.
– S: Life Estate
–R’s Heirs: Contingent Remainder in F.S.
–R?
(Olympic: 4P) R “to S for life, then to my heirs, but
should S marry before she turns 35, to M.”
• Example: Condition void, Renee alive, today.
– S: Life Estate
– R’s Heirs: Contingent Remainder
–R: Reversion
–M?
(Olympic: 4P) R “to S for life, then to my heirs, but
should S marry before she turns 35, to M.”
• Example: Condition void, Renee alive, today
– S: Life Estate
– R’s Heirs: Contingent Remainder
– R: Reversion
–M: Nothing
YOSEMITE:
Problems 4Q-4R
HALF DOME
(4Q) (Yosemite): Xaviera, in her valid will:
“I grant Brothelacre to Betsy if it continues to be
used as a house of prostitution, but if not, my heirs
can take it. I leave the rest of my property to my
friend Phil.”
Xaviera was survived by no issue or spouse, but by her
mother, Yvonne. Betsy later closed the existing brothel and
replaced it with an ad agency.
AMBIGUITIES/QUESTIONS?
(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be
used as house of prost., but if not, my heirs can take it. I leave the rest of my
property to friend P.”
X survived by mother, Y. B closed brothel and opened ad agency.
AMBIGUITIES
• Condition Valid?
• Heirs take automatically v. must act
• Ad agency violate grant? 
NOT AMBIGUITIES
• Common Law v. Today (Ad Agency)
• Who is X’s “heir”: Y not P
(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be
used as house of prost., but if not, my heirs can take it. I leave the rest of my
property to friend P.”
X survived by mother, Y. B closed brothel and opened ad agency.
AMBIGUITIES?
• Condition Valid?
(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be
used as house of prost., but if not, my heirs can take it. I leave the rest of my
property to friend P.”
X survived by mother, Y. B closed brothel and opened ad agency.
AMBIGUITIES?
• Condition Valid?
– If in Nevada or other jurisdiction where
prostitution legal.
–If not?
(YOSEMITE: 4Q) : X, in valid will: “I grant Brothelacre to B if continues to be
used as house of prost., but if not, my heirs can take it. I leave the rest of my
property to friend P.”
X survived by mother, Y. B closed brothel and opened ad agency.
AMBIGUITIES?
• Condition Valid?
– If in jurisdiction where prostitution legal.
– If not, pencil out both condition and the grant to
heirs dependent on it, leaving B with Fee Simple
Absolute.
• Heirs take automatically v. must act?
(Arguments)
(Yosemite: 4Q) : X, in valid will: “I grant Brothelacre to B if continues
to be used as house of prost., but if not, my heirs can take it.”
Automatically
• Single Purpose
• Time Language
• Condition in 1st Clause
Must Act
• Two Clauses
• “can take it”
• Presumption
(4R) (Yosemite)
R: “to C for his support and benefit so long as the
property is not used for commercial purposes, then
to my nephew J and his heirs if J reaches 35.”
C on land writes novels & does deals on phone.
C dies; J is not 35.
VERY HARD (ESPECIALLY IF ESSAY Q)!!
Multiple Variations in Old Tests
(Yosemite: 4R) R: “to C for his support and benefit so long
as the property is not used for commercial purposes, then
to my nephew J and his heirs if J reaches 35.”
C on land writes novels & does deals on phone.
C dies; J is not 35
AMBIGUITIES/QUESTIONS?
(Yosemite: 4R) R: “to C for his support and benefit so long as the property
is not used for commercial purposes, then to my nephew J and his heirs if J
reaches 35.”
C on land writes novels & does deals on phone. C dies; J is not 35
AMBIGUITIES
•
•
•
•
Life Estate or Fee?
Condition Violated by Writing/Deal-Making?
When Does J’s Interest Take Effect?
Destructibility Apply?
NOT AMBIGUITIES
• Common Law v. Today (Deals on the Phone)
• Cf. Medical or Law School, which date to medieval Europe
(YOSEMITE: 4R) R: “to C for his support and benefit so long as the property
is not used for commercial purposes, then to my nephew J and his heirs if J
reaches 35.”
C on land writes novels & does deals on phone. C dies; J is not 35
AMBIGUITIES
• Life Estate or Fee?
– Arguments/Missing Facts?
(YOSEMITE 4R) R: “to C for his support and benefit so long as the property
is not used for commercial purposes, then to my nephew J and his heirs if J
reaches 35.”
C on land writes novels & does deals on phone. C dies; J is not 35
• Life Estate or Fee?
–
–
–
–
“support & benefit” v. presumption of fee
“then to J” looks like remainder
Check age of J (more likely fee if J very young)
Is condition intended to be just on C (more likely life estate)
or on whoever owns the land (more likely fee)?
– Check relationship between R & C: Any reason to think it’s
a support life estate?
• Note that arguments about whether J’s interest
intended to cut off life estate are similar.
(YOSEMITE 4R) R: “to C for his support and benefit so long as the property
is not used for commercial purposes, then to my nephew J and his heirs if J
reaches 35.”
C on land writes novels & does deals on phone. C dies; J is not 35
Condition Violated?
(YOSEMITE 4R) R: “to C for his support and benefit so long as the property
is not used for commercial purposes, then to my nephew J and his heirs if J
reaches 35.”
C on land writes novels & does deals on phone. C dies; J is not 35
Condition Violated?
• Maybe literally because commercial transactions taking place at
least partially on site. (Literal arguments generally taken seriously
when interpreting grants)
• BUT:
– Still being used as residence, so “supporting” C
– Customers not coming to site to shop
– Pretty common for people to work some at home & do online
transactions
• Could check cases or local zoning laws on “commercial purposes”
• Was R aware that C wrote novels at home? If so, presumably
would have said something more specific if intended to prevent
(Bandstra)
(YOSEMITE 4R) R: “to C for his support and benefit so long as the property
is not used for commercial purposes, then to my nephew J and his heirs if J
reaches 35.”
C on land writes novels & does deals on phone. C dies; J is not 35
If C had life estate & when C dies, condition not violated:
• J had contingent remainder; condition not met.
• R (or Successor = S) had reversion.
What Happens at C’s Death?
(YOSEMITE 4R) R: “to C for his support and benefit so long as the property
is not used for commercial purposes, then to my nephew J and his heirs if J
reaches 35.”
C on land writes novels & does deals on phone. C dies; J is not 35
If C had life estate & when C dies, condition not violated:
•
•
J had contingent remainder; condition not met.
R (or Successor = S) had reversion.
• What Happens at C’s Death?
– If destructability: R or S has fee simple absolute.
– If no destructability:
•
•
R or S has fee simple on executory limitation
J has springing executory interest
OLYMPIC: Problem 4S
SUNSET IN THE PARK
PROBLEM 4S (Olympic)
• T (in will): “to the Holy Shrine Church to be
used for church purposes, but if not, to my
son D if he is still living.”
• Use of Property:
– Parking Lot
– Empty for Several Months
– Winter Homeless Shelter Run by Parishioner
• D dies & leaves interest to J
PROBLEM 4S (Olympic)
• T (in will): “to the Holy Shrine Church to be
used for church purposes, but if not, to my
son D if he is still living.”
AMBIGUITIES in GRANT?
PROBLEM 4S (Olympic)
• T (in will): “to the Holy Shrine Church to be
used for church purposes, but if not, to my
son D if he is still living.”
AMBIGUITIES in GRANT
• Is limit on HSC supposed to survive D?
• Is Dick’s interest self-executing or did he have
to act to retake the property?
PROBLEM 4S (Olympic): T (in will): “to the Holy Shrine
Church to be used for church purposes, but if not, to my son
D if he is still living.”
• Use of Property Violate Grant?:
– Parking Lot
– Empty for Several Months
– Winter Homeless Shelter Run by Parishioner
FIN