Memory Destructibility Doctrines

Front 1

Destructibility of Contingent Remainders

Back 1

• Contingent remainders are destroyed if they do not vest upon the natural or artificial (forfeiture or merger) termination of the life estate.
• Does not apply to executory interests.
• Applies where? Minority rule – still exists in Arkansas.

Front 2

Doctrine of Merger

Back 2

• If the life estate and the next vested estate in a fee simple come into the hands of one person, the lesser estate is merged into the larger.
o Example: “To A for life, remainder in B and her heirs.” If A conveys his life estate to B, the life estate and remainder merge, giving B a fee simple.

Front 3

Doctrine of Merger

Back 3

• Also applies to situation where the life estate was followed by a contingent remainder and a reversion.
o Example: O  “to A for life, then to B and her heirs if B survives A.” A conveys his life estate to O; the life estate merges into the reversion, destroying B’s contingent remainder.

Front 4

Doctrine of Merger

Back 4

• Exception: If life estate and next vested estate are created simultaneously in the same person, they do not merge at that time so as to destroy intervening contingent remainders

Front 5

Destructibility of Contingent Remainders

Back 5

• Example: O  “to A for life, then to B and her heirs if B reaches 21.” If at A’s death B is under the age of 21, B’s remainder is destroyed. Seisin returns to O. It will take a new conveyance to O to give B anything.

Front 6

Rule in Shelley’s Case

Back 6

• If (1) one instrument (2) creates a life estate in land in A, and (3) purports to create a remainder in persons describes as A’s heirs (or heir’s of A’s body), and (4) the life estate and remainder are both legal or both equitable, then the remainder becomes a remainder in fee simple (or fee tail) in A. (Note: it does not say it is a VESTED remainder).

Front 7

Rule in Shelley’s Case

Back 7

When an instrument that creates a life estate also purports to create a remainder in persons described as the grantor’s heirs; if both have legal & equitable interests, the conveyance creates a remainder in fee simple absolute. The effect of the rule is to vest the remainder in the grantee and not the grantee’s heirs. • Applies when? When a grantee gets a life estate and the heirs of the grantee get a remainder.
o Only applies to remainders, not to executory interests.
• Applies where? Arkansas
• Absolute rule of law – doesn’t matter what grantor’s intent was.
• Doctrine of merger may come into play – a life estate in A merges into a vested remainder in fee held by A. However, a life estate cannot merge into a vested remainder in fee simple if there is an intervening vested life estate.

Front 8

Rule in Shelley’s Case

Back 8

• Example: O  “to A for life, then to A’s heirs.” The rule in Shelley’s Case gives A a vested remainder in a fee simple. A’s life estate then merges into the remainder, leaving A with a fee simple in possession. The land is immediately alienable by A and not tied up for A’s lifetime.

Front 9

Doctrine of Worthier Title

Back 9

• When the land is conveyed during life by a grantor to a person, with a limitation over to the grantor’s own heirs either by way of remainder or executory interest, then there is no future in interest in the heirs but a reversion is retained by the grantor.
• Has both an inter vivos (and contrary to the text – a testamentary branch) so that a gift to the grantor’s heirs which would otherwise be interpreted as a contingent remainder in fee simple absolute is treated as a reversion in the grantor.
• Rule of interpretation – look at what grantor’s intent was.

Front 10

Doctrine of Worthier Title

Back 10

o Without Doctrine: A has a life estate and O’s heirs would have a contingent remainder in a fee simple absolute followed by a reversion in O.
o With Doctrine: A has a life estate and the remainder to O’s heirs is void so O has a reversion.

Front 11

Rule Against Perpetuities

Back 11

• “No interest is good unless it must vest, if at all, not later than 21 years after some life in being or the creation of the interest.”
o Interests subject to the rule – all future non-vested or subject to some sort of condition (i.e. contingent remainders, vested remainders subject to open, executory interests)
o Interest must vest OR be destroyed with certainty
o When is interest created? Decedent dies, trust becomes irrevocable, deed is conveyed.
o Lives in Being: The grantor, anyone named in the grant, any one that can affect the vesting or destruction of the interest.
 Example: “To A for life, and then to A’s children.”
• A, O, A’s wife (because she can influence the period in which children can arise), any existing children
 If lives in being is a corporation, the rule is automatically 21 years.
o Once we kill off all of the lives in being, the clock starts running.
• Validating life is person that can be identified who proves that the interest will vest or fail within the perpetuities period.
• Grantor is not subject to RAP.
• Apply What Might Happen Test. Imagine contingent interest could possibly vest happen 21 years after the last measuring life; if it can be identified, then RAP applies.

Front 12

Rule Against Perpetuities

Back 12

• Classic Exceptions: The Unborn Widow, The Magic Gravel Pits, The Fertile Octogenarian, The Slothful Executor.

Front 13

Create, Kill and Count

Back 13

• Method used in applying RAP.
• Example: T  “to A for life, and on A’s death to A’s children for their lives, and upon the death of A and A’s children, to B if A has no grandchildren then living.” A and B survive T.
• CREATE a child of A who is not in existence at the time of the grant = C.
• KILL off A and any other of A’s children.
• COUNT 21 years. Say that C lives 25 or 26 years. We don’t know that we have all of the grandchildren at this point, so don’t know for certain if B vests or not – therefore is it INVALID

Front 14

The Unborn Widow

Back 14

• “To A and then to A’s widow for her life, and then to A’s grandchildren”, A may (even if A is presently married and has been years) acquire a new wife that has not even been born at the time of the creation of the interest. That intervening contingent remainder in the life estate goes to the unborn widow – since cannot prove with certainty A’s current wife will be A’s widow (A’s wife may die and A may marry some sweet young thing that wasn’t even born at the time of the gift.)
• Strikes grandchildren’s future interest grandchildren’s under RAP.

Front 15

The Magic Gravel Pits

Back 15

• “To British Petroleum so long as oil is produced on the land, and then to B.” Even if it is a dry hole B’s interest is destroyed because it could magically start gushing oil the next day.

Front 16

The Fertile Octogenarian

Back 16

• An 80-year-old woman that might give birth to a child would elongate the 21-year period. We presume both men and women are capable of conceiving children until the moment that they die (doesn’t matter age or surgical intervention) so the future interest is destroyed.
• Example: Jee v. Audley

Front 17

The Slothful Executor

Back 17

• In regards to RAP. Those looking at the transaction wait until 21 years after the last life in being to see if the interest vested instead of looking at whether the interest could have vested beyond the 21 years after the last life in being.