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45 Cards in this Set
- Front
- Back
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Afterborn
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A child conceived before, but born after, the death of the grantor. An afterborn child is considered to be alive from the time of conceptio, if such a fiction would benefit the child's interests. For the purposes of the Rule Against Perpertuities, a child conceived, but not yet born, at the time of conveyance is considered a life in being.
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Alienable
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Capable of being transferred inter vivos.
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Alternative Contingent Remainders
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Contingent remainders created in the same conveyance, each dependent on the same condition for vesting. If one contingent remainder vests, the other cannot. A contingent remainder followed by a "but if" clause oftern will be followed by an alternative contingent remainder. When the grantor creates alternative contingent remainders, the grantor retains a reversion.
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Ascertainable Individual
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An individual (of defined group) whose identity is certain and who is in existence at the time of conveyance. If at the time of conveyance, the grantor has one sone, then "to my only son" describes an individual whose identity is certain and who is in existence at the time of conveyance. Generally, an ascertainable individual is someone to whom the grantor can point. Individuals who are not certain, or do not exist at the time of conveyance, are unascertainable.
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Condition
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A set of facts that must be met for an estate or interest to vest, continue, or end.
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Adverse Possession
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The use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, hostile, open and notorious.
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Ancestors
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By statute parents usually take as heirs if the D leaves no issue.
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Bailment
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A bailment is the rightful possession of goods by one who is not their owner.
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Collaterals
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All persons related by blood to the D who are neither descendants nor ancestors are collateral kin. This includes: siblings, nephews/nieces, uncles/aunts, and cousins.
a. If D leaves no spouse, no issue, and no parents, the D’s siblings (and their descendants by representation) take in all jurisdictions. The rules for determining what remote collateral take were/are complicated. |
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Condition Precedent
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a condition that must be met before a future interest will vest.
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Constructive Delivery
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Handing over a key or some object that will open access to the subject matter as a gift – Physical Delivery of gift. Newman v. Bost (pg. 159)
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Contingent Remainder
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a contingent remainder is a remainder that is:
i. Subject to a condition precedent, or ii. Held by an unascertainable person. b. A reversion will always follow a contingent remainder (so that someone will hold seisin if the interest fails to vest). |
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Cy Pres
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“as near as possible”. When a conveyance violates the Rule Against Perpetuities, some jurisdictions allow the court to alter the conveyance so that it no longer exceeds the perpetuities period. This alteration must be consistent with the general intent of the grantor. Some jurisdictions apply Cy Pres to interests which have not vested by the end of a wait-and-see period.
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Devisable
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capable of being transferred by will. See: Alienable; Inheritable
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Disabilities - Adverse Possession
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a. Minority Age
b. Unsound Mind c. Imprisoned |
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Divest
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to “cut short” or terminate an estate before its natural duration. Thus, a life estate is divested (cut short) if it ends before the death of the measuring life. Because a fee simple has potentially limitless duration, the termination of a fee simple estate is always a divestment.
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Doctrine of Destructibility of Contingent Remainders
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a doctrine that makes land more marketable by destroying contingent remainders. In a destructibility jurisdiction, a remainder is destroyed if it doesn’t vest at, or before, the termination of the previous estate. The remainder is extinguished forever, and seisin moves on to the next vested estate. In a non-destructibility jurisdiction, seisin reverts back to the grantor (usually as a fee simple on executory limitation) until the remainder can vest. See: Rules furthering Marketability.
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Doctrine of Laches
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a doctrine applicable in various jurisdictions that requires an interest or right to be asserted within a certain amount of time, or else it is extinguished.
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Doctrine of Merger
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a doctrine that allows estates to merge, when successive vested estates are held by the same person. As one example, when the holder of a life estate (present possession) is also the holder of the following vested remainder (future interest), the interests merge and they hold a fee simple absolute. Application of Shelley’s Rule may trigger the Doctrine of Merger.
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Doctrine of Worthier Title
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a rule furthering marketability. Where a conveyance creates a remainder (or an executory interest) in the transferor’s own heirs, the transferor is deemed to have created a future interest in themselves rather than in their heirs. In the United States, this rule does not apply to testamentary transfers. The Doctrine of Worthier Title is a rule of construction.
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(Donatio) Causa Mortis
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Gift given in contemplation of death.
a. Requirements i. Intention to make the gift ii. Delivery of the thing given iii. If donor recovers they may revoke gift. b. (pg. 165) Strict approach to causa mortis may be no longer justified due to Uniform Probate Code. Modern trend is to enforce D’s intent. |
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Equitable Interest (or Estate)
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an interest held by virtue of equitable title or on equitable grounds. The holder of an equitable interest often does not have legal title to property, but does have certain enforceable equitable rights (for example the right to income from the property). The beneficiary of a trust has an equitable interest in the property managed by the trust, while the trustee has a legal interest in the property and holds legal title.
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Escheat
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Dying intestate without heirs.
a. If no kin can be found, the personal property of the decedent (D) goes to the state. |
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Estate
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a possessory interest in land, typically defined by a measured period of time.
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Executory Interest
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one of two types of future interests created in a transferee. An executory interest is a future interest that divests the preceding estate upon the satisfaction of a condition.
i. A shifting executory interest divests a transferee. ii. A springing executory interest divests a transferor. b. Executory interests are alienable, devisable, and inheritable. |
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Fee Simple
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Fullest possible collection of rights in land. – The largest quantum estate, consisting of a right to total ownership both in the present and in perpetuity. A fee simple is fully alienable, devisable, and inheritable. Because fee simple interests are fully marketable, they are highly favored; ambiguities regarding the type of estate created are generally resolved in favor of finding a fee simple estate.
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Fee Simple Absolute
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a fee simple interest, specifically a fee simple interest which is not defeasible.
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Fee Simple Defeasable
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a fee simple which may end upon the occurrence of a stated future event. Fee Simple Defeasibles consist of the:
i. Fee Simple Determinable, ii. Fee Simple Subject to Condition Subsequent, and iii. Fee Simple on Executory Limitation. b. May extend forever but also may be cut off contingent on some future event. |
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Defeasible Estate
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Estate which is voidable. It gives rise to future interests.
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Fee Simple Determinable
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a fee simple estate which will automatically revert to the grantor when a certain condition occurs or fails to occur. The conveyance’s wording usually contains words of duration introducing the condition that divests the estate: “as long as,” “while,” “until,” and “during.” This estate is alienable, devisable, and inheritable. When a fee simple determinable is created, the grantor retains a future interest (representing the right to repossess) known as a possibility of reverter. See: Fee Simple on Executory Limitation, Possibility of Reverter. (pg. 207) Voidability of the estate is automatic. A possibility of reverter exists.
a. Fee Simple Determinable Language – “So long as, while, until, during.” |
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Fee Simple Subject to Condition Subsequent
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a fee simple estate which may be terminated at the grantor’s election when a certain condition occurs or fails to occur. The conveyance usually contains words introducing the condition that divests the grantee of the estate: “provided that,” “but if,” and “on condition that.” Modernly, in most jurisdictions, where the type of defeasible fee is ambiguous, a fee simple subject to condition subsequent is presumed. This estate is alienable, devisable, and inheritable. When a Fee Simple Subject to Condition Subsequent is created, the grantor retains a future interest (representing the right to elect to repossess) known as a right of entry. See: Fee simple on Executory Limitation, Right of Entry. (pg. 207) Doesn’t automatically terminate but may be cut short.
a. Fee Simple Subject to Condition Subsequent Language – “but if, on condition that, however.” i. Example – “To A and A’s heirs, but if used as a law school, the grantor has the right to re-enter and retake the property.” |
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Fee Simple on Executory Limitation
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a fee simple defeasible estate where the right to repossess (upon the occurrence of the condition) is created in a third party, rather than in the grantor. Whenever the right to repossess is created in a third party, regardless of whether repossession is automatic or by election, the estate created is a fee simple on executory limitation. The future interest held by the third part is always an executory interest regardless of whether it becomes possessory automatically or by election. The Fee Simple on Executory Limitation is alienable, devisable, and inheritable.
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Fee Tail
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an estate which provides the transferee and the transferee’s direct lineal descendants present possession so long as the transferee’s bloodline continues. The transferor retains a future interest known as a reversion, which becomes possessory should the transferee’s bloodline fail. The holder of the present possessory interest may only alienate the right to possession during the holder’s life. This interst is not devisable. It is inheritable only by lineal descendants in the manner described in the fee tail grant.
a. “To A and the heirs of his/her body” b. “To A and the heirs of his body, and if A dies w/o issue, then to B and the heirs of her body.” |
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Current Fee Tail States
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i. Delaware
ii. Maine iii. Massachusetts iv. Rhode Island |
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Freehold
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An estate in land held in fee simple. In fee tail, or life estate
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Future Interest
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an interest in an estate which is not yet possessory, but which may become possessory at some time in the future. The holder of a future interest does not have traditional possessory property rights such as the right to possess, occupy, or exclude, but does have a protected interest in future possession of the property.
a. “To A for life then to B and her heirs.” |
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Gift
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A gift is a present transfer of property by one person to another without any consideration or compensation.
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Gift Inter Vivos
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A gift of personal property made during the donor’s lifetime and delivered to the donee with the intention of irrevocably surrendering control over the property.
a. Valid Inter Vivos Gift i. Intent must exist on part of donor to make a present transfer: 1. Delivery of the gift; either a. Actual OR b. Constructive 2. Acceptance by the donee ii. Proponent of gift has burden of proving each element by clear and convincing evidence. |
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Heirs
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People who survive D and are designated as intestate successors under the state’s statute of descent. A person who is entitled to receive property upon the death of an individual. A living individual has no heirs, only “heirs apparent.” Conveyances to an individual’s heirs are somewhat problematic, since these individuals are only ascertainable at the individual’s death.
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Heirs Apparent
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while alive, an individual does not have any heirs, only heirs apparent. Heirs apparent are those individuals who, at that point in time, are likely to become heirs upon the individual’s death.
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Inheritable
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capable of being transferred pursuant to the laws of intestate succession
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Inter Vivos Transfer
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a transfer of a real property interest made during life.
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Intestate
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Dying without a will.
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Issue
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Blood Descendents
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Joint Tenancy
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a tenancy with two or more co-owners who take identical interests simultaneously by the same instrument and with the same right of possession.
a. (pg. 276) Undivided Interests b. Right to possess the whole c. Rights of survivorship – Just one less joint tenant. d. (4) Four unities – Necessary for creation i. Time – Acquired or vests at the same time ii. Title – Title by the same instrument iii. Interest – Undivided and Shared iv. Possession – Right to possession of the whole |
