Defeasible Estates Continued Future Interests

Transcription

1 Defeasible Estates Continued Future Interests Ink v. City of Canton, 212 N.E.2d 574 (Ohio 1965), Casebook p. 257 Condemnation of a Determinable Fee The granting clause conveyed the land to the city for the use and purpose of a public park, but for no other use or purpose whatsoever. Statement of motive or purpose only, creating a fee simple in the city?

2 Ink v. City of Canton cont d The habendum clause gave the premises for so long a time as used for a public park (words indicating a determinable fee), with a proviso that upon breach of the condition the title shall revert (indicating a possibility of reverter determinable) and the grantors may thereupon enter (indicating right of entry subject to condition subsequent). Ink v. City of Canton cont d Who Takes the Condemnation Award? Majority View holder of the determinable fee. Restatement holder of the determinable fee if the defeasible fee probably would not end within a reasonably short period of time. Ohio View split between interest holders (city keeps money that will be used for park purposes and any excess goes the Inks). Gift Sale distinction Fiduciary Obligation

3 Ink v. City of Canton cont d Who Takes the Condemnation Award? Why not give each holder the value of its interest with respect to condemned land? Difficulty of determining the value of each interest Fee simple determinable no market for public parks Possibility of Reverter discounted for remote possibility that it would ever become possessory Other possible remedies Jee v. Audley, 1 Cox 324, 29 Eng. Rep (1787), Casebook, p Edward s will bequeathed the interest on 1,000 to his wife for life, with the remainder unto my niece Mary Hall and the issue of her body..., and in default of such issue [when all her descendants depart from the earth]... to the daughters then living of.... John and Elizabeth Jee. p. 306 (emphasis added).

4 Interests Created By The Will Edward s wife has a life estate. Mary has a fee simple, subject to shifting executory interest if Mary dies without issue. The future (executory) interest lies in the daughters then living of John and Elizabeth Jee. Indefinite Failure of Issue John and Elizabeth Jee might have children born ten years after the testator s death and then Mary Hall might die without issue 50 years afterwards, in which case it would evidently transgress the rules prescribed. p. 308 (emphasis added).

5 Indefinite Failure of Issue Cont d Mary is not the validating life. Mary Hall will die without issue when Mary is dead and there is no issue of Mary alive on the face of the earth, which could occur at her death, or hundreds of years after her death, or never! Remote Vesting Scenario After Edward s death, 1. Mary might give birth to a child, named Faith. 2. John and Elizabeth might have a fifth daughter named Hope. 3. All the relevant persons who were alive at Edward s death (Mary, John, Elizabeth, and the 4 daughters) might die in a catastrophe.

6 Remote Vesting Scenario Cont d 4. More than 21 years after the death of the relevant lives in being, Mary s daughter Faith dies childless, survived by Hope Jee. 5. At that point Mary would die without issue and the fund would vest in Hope, who was not a life in being. Interests in Transferor Reversion Future Interests Possibility of reverter Right of entry (power of termination; right of reentry) Interests in Transferee Vested Remainder Contingent Remainder Executory Interests