Answers/Explanations for RAP Problem Sets

Note 3(a), page 315. Assuming B is not yet age 50, O’s conveyance attempts to create a life estate in A, a contingent remainder in fee simple absolute in B (contingent upon his attaining age 50), and a reversion in fee simple absolute in O. B’s contingent remainder is valid under the RAP. The interest will either vest when B reaches age 50 or it will fail if he dies before reaching age 50. In this scenario, B is his own validating life; he was alive at the time the conveyance was created and the determining event must occur or not within his lifetime. O’s reversion is not subject to the RAP; it is vested for purposes of the RAP. [If B is already age 50 or older at the time of the conveyance, his interest is a vested remainder in fee simple absolute, which is not subject to the RAP.]

Note 3(b), page 315. O’s conveyance attempts to create a life estate in A, a contingent remainder in fee simple absolute in B (contingent upon surviving A), an alternative contingent remainder in fee simple absolute in C (contingent upon B not surviving A), and a reversion in fee simple absolute in O. The interests in B and C are valid under the RAP because the determining event must happen at the end of A’s lifetime. B will either survive A, in which case his remainder will vest and C’s will fail, or B will die before A, in which case his remainder will fail and C’s will vest. Because A is a life in being, both contingent remainders will vest or fail within the perpetuities period. As in note 3(a), O’s reversion is not subject to the RAP.

Note 3(c), page 315. O’s conveyance attempts to create a life estate in A, a contingent remainder in fee simple absolute in B, an alternative contingent remainder in fee simple absolute in C, and a reversion in fee simple absolute in O. B and C’s interests are void under the RAP because the determining event—the Cubs winning the World Series by 2050—is not tied to a human life. To the contrary, it is possible that A, B, and C, could all die before the year 2029 and, if so, we might have to wait more than 21 years after their deaths to find out whether the Cubs have won the World Series by 2050. Of course, it is possible that the Cubs could win the World Series well in advance of 2050 —OK, probably not—but the RAP is not concerned with the possibility that an interest might vest; instead, it invalidates an interest if there is any possibility that it might not vest within 21 years of a life in being. After red-penciling the void remainders, the conveyance creates a life estate in A, and a reversion in fee simple absolute in O.

Note 3(d), page 315. O’s conveyance attempts to create a life estate in A, a contingent remainder for life in A’s first born child (it is contingent because at the time of the conveyance, A is age 12 and has no children), a contingent remainder in fee simple absolute in A’s heirs who survive the first-born child (this is contingent not only because A has no heirs until A dies but also because the heirs must survive the first-born child), and a reversion in fee simple absolute in O. The remainder in A’s first-born child is valid under the RAP because the determining event is the first child’s birth, which must happen during A’s lifetime. Thus, A is a validating life; the interest is either certain to vest if a child is born during A’s lifetime or certain to fail if no child is born before A dies. Conversely, the remainder in A’s heirs is void under the RAP. In this case, the determining event is the death of A’s first-born child. Because A does not have any children, the first-born child cannot be a life in being and, therefore, cannot be a validating life. A is not a validating life, either, because it is possible for A’s first-born child to live much longer than 21 years after A dies. After red-penciling the void remainder, the conveyance creates a life estate in A, a contingent remainder for life in A’s first born child, and a reversion in fee simple absolute in O.

Note 3(e), page 315. O’s conveyance attempts to create a fee simple subject to an executory interest in Temple Beth-El, and an executory interest in fee simple absolute in Tiffany. The executory interest in Tiffany violates the RAP and is void. The determining event—Temple ceasing to use the land as a synagogue—is not tied to a human life. At the time of the deed, it might be 1,000 years before the Temple ceases using the land as a synagogue, far in excess of any life in being at the time of the deed plus 21 years. After red-penciling the attempted executory interest in Tiffany, we are left with “to Temple Beth-El so long as used for a synagogue.” Because Temple Beth-El’s interest is still subject to the “so long as” condition of using the land for a synagogue, Temple Beth-El has a fee simple determinable and O has a possibility of reverter in fee simple absolute. This example demonstrates the absurdity of treating reversionary future interests as vested interests unaffected by the RAP. O’s valid possibility of reverter renders the land just as inalienable as the would-be executory interest in Tiffany; treating reversionary future interests as vested seems counterintuitive given the RAP’s role in promoting the alienability of land titles. [This explains why some states have enacted statutes placing time limits upon defeasances (note 4, page 284).]

Tiffany cannot be a measuring life, because her living or dying has no effect upon whether Tiffany’s interest vests or fails. [Tiffany’s interest is not made expressly contingent upon Tiffany’s survival to the time when the land is no longer used as a synagogue.] If Tiffany dies at a time when Temple is still using the land as a synagogue, then Tiffany’s interest (if valid) would pass to devisees under Tiffany’s will, or to Tiffany’s heirs in default of a valid will. Thus, the interest could vest years after Tiffany’s death.

Note 3(f), page 315. Similar to note 3(e), O’s conveyance attempts to convey to Temple a fee simple subject to executory interest and an executory interest in fee simple absolute to Tiffany. In this case, however, Tiffany’s interest is valid under the RAP because one of the conditions of her executory interest is that she must be alive at the time the determining event (Temple Beth-El’s ceasing to use the land as a synagogue) occurs. Thus Tiffany is her own validating life. Her interest will have vested if the Temple ceased using the land as a synagogue while Tiffany was alive; conversely, if the land is still a synagogue when Tiffany dies, then Tiffany’s interest will fail at that moment. Thus, the interest could not remain contingent beyond the moment of Tiffany’s death.

Note 2(a), page 318. O’s conveyance attempts to create a life estate in A, a contingent remainder in fee simple absolute in A’s children who reach age 21, and a reversion in fee simple absolute in O. The contingent remainder in A’s children is valid under the RAP. The determining events are (1) closure of the class; and (2) each member of the class reaching age 21. For this conveyance, A is the validating life because the class of A’s children will close at A’s death and we will know within 21 years after A dies how many of the children reach age 21.

Under the create, kill, and count approach, one could create a new child for A, born after the conveyance. If we then kill the existing lives in being (A and the existing child), the interest in the new child is still certain to either vest or fail within 21 years after the death of A.

Note 2(b), page 318. O’s conveyance attempts to create a life estate in A, and a vested remainder in fee simple absolute subject to open in A’s existing child (who has already reached age 26). The vested remainder subject to open is void under the RAP. Similar to note 2(a), the determining events are (1) closure of the class; and (2) each member of the class reaching age 25. In this case, however, A cannot be a validating life. Although the class will close at A’s death, it might be more than 21 years after A dies that A’s last child reaches age 25. For example, A could have a second child, Martha, after the conveyance and both A and her existing child could die soon after Martha is born. Because Martha would not yet be age 25 within 21 years after the deaths of the lives in being, her interest is not certain to have vested nor is it certain to have failed within the perpetuities period. Under the “all or nothing” rule, the RAP invalidates the entire class gift if the interest of any member of the class could vest too remotely. By red-penciling the offending clause from the conveyance, we are left with a life estate in A and a reversion in fee simple absolute in O.

Using the create, kill, and count approach, if we create a new child for A, born after the conveyance, and immediately kill the existing lives in being (A and the existing child), the interest in the new child is not certain to vest or fail within 21 years. Accordingly, the entire class gift is void under the “all or nothing” rule.

Note 2(c), page 318. O’s conveyance attempts to create a life estate in A, a contingent remainder for life in A’s children (assuming that A has no children right now), and a contingent remainder in fee simple absolute in B’s children (again assuming B has no children at the time). Both contingent remainders are valid. The determining event for the first remainder is A’s death, which will close the class of A’s children. Each member of the class is vested upon birth because there is no other condition precedent that must be satisfied. Thus, A is the validating life for the remainder in A’s children. Similarly, the determining event for the second remainder is B’s death, which will close the class of B’s children. Each member of the class is vested upon birth because there is no other condition precedent that must be satisfied. Accordingly, B is the validating life for the remainder in B’s children.

If A or B had children at the time of the conveyance, the existing child would have a vested remainder in fee simple absolute subject to open. For purposes of the RAP, the interest also would be valid because the class of A’s children would close, and every member would be vested, at A’s death. The class of B’s children would close, and every member would be vested at B’s death.

Under the create, kill, and count approach, one could create a new child for A, born after the conveyance, and a new child for B, born after the conveyance. If we then kill the existing lives in being (A and B), the interest in this after-born children would vest immediately upon the death of their parents. There is no need to count 21 years.

Note 2(d), page 318. Similar to note 2(c), O’s conveyance attempts to create a life estate in A, a contingent remainder for life in A’s children (assuming A has no children now), and a contingent remainder in fee simple absolute in B’s children (again assuming B has no children at the time). For the reasons explained in note 2(c), the interest in A’s children is valid. The contingent remainder in B’s children, however, is void because their interest is contingent not only upon being born, but also upon surviving A’s children. The determining event, therefore, is the death of A’s longest-living child. Because that child may not have been alive at the time of the conveyance, there is no validating life. [Thus, this conveyance is similar to the unborn widow problem described in note 2(c), page 314.] By red-penciling the offending clause from the conveyance, we are left with a life estate in A, a contingent remainder for life in A’s children, and a reversion in fee simple absolute in O.

Using the create, kill, and count approach, if we create a new child for A, born after the conveyance, and immediately kill the existing lives in being (A and B), the contingent remainder in A’s children will vest immediately in A’s child. But it may be much longer than 21 years before that child dies, causing the contingent remainder in B’s children to vest. Accordingly, the class gift in B’s children is void.

Note 2(e), page 318. O’s conveyance attempts to create a life estate in A, a vested remainder subject to open for life in A’s existing children, a contingent remainder in fee simple absolute in A’s grandchildren, and a reversion in fee simple absolute in O. The interest of A’s children is valid under the RAP because the class will close and all members of the class will be vested at A’s death. The interest in A’s grandchildren is void under the RAP, however, because the class will not close until the death of A’s longest-living child. Although A has several children as the time of the conveyance, it is possible that A might have another child who was not alive at the time of the conveyance and that after-born child might be the longest-living child of A. Because the vesting of the grandchildren’s interest is dependent on the life of the longest-living child (and that child might not have been alive at the time of the conveyance), there is no validating life. By red-penciling the offending clause from the conveyance, we are left with a life estate in A, a vested remainder subject to open for life in A’s children, and a reversion in fee simple absolute in O.

Under the create, kill, and count approach, we can create a new child for A, born after the conveyance. If we immediately kill the existing lives in being (A and A’s existing children), the class of A’s children will immediately close and every child will be completely vested. But it may be much longer than 21 years before A’s after-born child dies, causing the contingent remainder in A’s grandchildren to vest. Accordingly, the class gift in A’s grandchildren is void.

Note 2(f), page 318. O’s conveyance attempts to create a life estate in O’s children, a contingent remainder in fee simple absolute in O’s grandchildren, and reversion in fee simple absolute in O. The contingent remainder in the grandchildren is void. Here, the determining event is the closure of the class upon the death of O’s longest-living child. Because O has created these interests in an inter vivos conveyance, it is possible for O to have additional children who are not lives in being at the time of the conveyance. Because the vesting of O’s grandchildren’s interest is dependent on the life of the longest-living child (and that child might not have been alive at the time of the conveyance), there is no validating life. By red-penciling the offending clause from the conveyance, we are left with a life estate in O’s children, and a reversion in fee simple absolute in O.

Under the create, kill, and count approach, we can create a new child for O, born after the conveyance. If we immediately kill the existing lives in being (O and O’s existing children), we still have the after-born child of O, but it could be much longer than 21 years before that child dies, thereby closing the class of grandchildren. It is possible for the class to close under the Rule of Convenience when the after-born child gives birth to the first grandchild, producing a class member who is eligible to demand possession. Here again, however, it could be much longer than 21 years after the deaths of O and O’s existing children that the after-born child produces a grandchild. Accordingly, the class gift in O’s grandchildren is void.

Note 2(g), page 318. In this variation on note 2(f), O has created the interest by devise in her will, which has a significant impact upon who counts as a life in being. As in note 2(f), the devise creates a life estate in O’s children, a contingent remainder in fee simple absolute in O’s grandchildren, and reversion in fee simple absolute in O. In this case, however, because O is deceased at the time of the conveyance, O cannot have any more children. As a result, all of O’s children can serve as validating lives for the contingent remainder in O’s grandchildren because no matter which child lives the longest, he or she was a life in being at the time the interests were created by O’s will.

Note 6(a), page 325. The will attempted to create the following estates: (1) a life estate in Dauer; (2) a contingent remainder for life in his widow (because, by definition, we cannot ascertain the identity of Dauer’s widow until he dies); (3) a contingent remainder in fee simple absolute in Dauer’s children alive when the widow dies; and (4) it also reserves a reversion in fee simple absolute, which would pass under the residuary clause in the will or to Barnes’s heirs (if the other provisions of the will do not dispose of it). The contingent remainder in the widow satisfies the RAP, because it will vest or fail at Dauer’s death (when we will know whether he has a widow or not). Dauer is the validating life for this interest.

The contingent remainder in Dauer’s children is void, however. This interest must vest at the death of Dauer’s widow—but Dauer’s widow could be a person who is not currently alive (the “unborn widow”). What might happen? After the will takes effect, Dauer’s wife and all his current children could die. Then, 30 years later, Dauer could get remarried to a 25-year-old woman, Anna Nicole, who was not a life in being when the will of Barnes took effect. They could have a child, and then Dauer could die. At that point, Anna Nicole would be entitled to the land for her life (she could live 50 more years), and the child’s interest could not vest until after her death—more than any life in being at the time of Barnes’s death plus 21 years.

Under a “wait and see” approach, the court could wait until Dauer’s death to see if his widow was someone alive at the time the interests were created. We could further wait to see if the widow had died (causing the final remainder to vest) during the lives of those of Dauer’s children who were alive at the time of the conveyance.

Under a cy pres approach, a court might attempt to reform the gift to Dauer’s children in several ways, such as: (1) limiting the gift “to Dauer’s children living at his death” (causing the interest to vest at Dauer’s death, rather than at the death of the widow); or (2) to “Dauer’s currently living children who survive Dauer’s widow” (which would limit the gift to children who were “lives in being” and, therefore, allow the children to be their own validating lives). Under USRAP, we would wait a maximum of 90 years to see if the interest had vested; if the interest had not vested at the end of the 90-year period, it could be reformed in a manner that would best approximate the grantor’s intent under the circumstances that exist at that time.

Note 6(b), page 325. Barnes’s deed attempts to create the following estates: (1) an executory interest in fee simple in Corrada that will take effect at the moment Barnes’s will is probated; and (2) an executory interest in fee simple in Bryan that will take effect at the moment Barnes’s will is probated, if Corrada is not then alive. Both interests are void because they are contingent upon an event that is not tied to a human life. At the time Barnes’s deed takes effect, we have no way to know when, if ever, the probate court will enter a final order probating Barnes’s will; it could be one week after Barnes’s death, or 5000 years after Barnes’s death—there’s simply no way to know for sure when that would happen. In fact it is possible that the will never gets admitted to probate, either because no will is found upon Barnes’s death or if Barnes’s survivors decide it is inefficient to probate his estate.

What about the fact that Bryan’s executory interest is tied to Corrada’s lifetime? Unfortunately, that fact does not help Bryan because Corrada’s death would resolve only one of the contingencies attached to his interest; even after Corrada dies, Bryan’s interest might remain contingent upon probate of the will. The survival contingency does not help Corrada either, although this is a little trickier. Certainly, one could argue that Corrada’s interest should be valid because his interest will fail (he would be divested by Bryan) if Corrada dies before the final order is entered in the probate of Barnes’s will. But reading comma to comma, the clause creating Corrada’s executory interest does not expressly condition the interest upon Corrada’s survival; his interest is conditioned only upon probate of the will. Because Corrada’s survival is a contingency only for Bryan’s executory interest, red-penciling the clause creating Bryan’s interest eliminates the possibility that Corrada could be divested upon his death if the final order had not been entered at that time. Accordingly, Corrada’s interest is void as well, leaving Barnes with a fee simple absolute.

Under the “wait and see” approach, we would wait to see whether the will had been probated within 21 years after both Corrada and Bryan died. Under the cy pres approach, the provision could be reformed by making Bryan’s interest contingent upon survival (“then to Bryan if he is then living.”) Under USRAP, we would wait a maximum of 90 years to see if the interest had vested; if the interest had not vested at the end of the 90-year period, it could be reformed in a manner that would best approximate the grantor’s intent under the circumstances that exist at that time.

Note 6(c), page 326. Nice’s deed attempts to create the following estates: (1) a life estate in Bryan; (2) a contingent remainder in fee simple in Bryan’s children (contingent both upon surviving Bryan and reaching age 25); (3) a contingent remainder in Chen (contingent upon Bryan leaving no surviving children); and (4) a reversion in fee simple absolute in Nice (in case both contingent remainders failed). If Bryan is alive at the time of the conveyance, then the contingent remainder in Bryan’s children is void, as it is possible it could vest too remotely. After the conveyance takes effect, Bryan could have a child. Then, the next day, Nice, Bryan, Chen, and all other lives in being could die, and it would take 25 years before the after-born child’s interest could vest. Chen’s remainder interest is valid, however; it will vest if none of Bryan’s children survive her, which will be ascertained at the moment of her death. Chen’s interest will either vest (if Bryan leaves no surviving children) or fail (if she does) at the time of Bryan’s death; thus, Bryan is the validating life for Chen’s interest. Accordingly, Bryan has a life estate, Chen has a contingent remainder in fee simple (that will take effect if Bryan dies with no surviving children), and Nice has a reversion in fee simple (that will take effect if Bryan dies with surviving children).

Under the “wait and see” approach, we would wait until Bryan died to see if he had any children who were born after the conveyance. If not, the interest in his children would vest within their own lifetimes; they would be their own validating lives. If he did have additional children, we could see if they were all over age 4, in which case their interests would vest within 21 years after Bryan died. Otherwise, we could wait for 21 years after Chen and any children of Bryan who were alive at the time of the conveyance have died to see whether the interest in Bryan’s children had vested.

Under the cy pres approach, the provision could be reformed by (1) limiting the gift “to Bryan’s children currently living who reach age 25"; or (2) modifying the age contingency from 25 to 21. The first alternative could result in denying a gift to any after-born children of Bryan. Thus, in some circumstances, the second alternative might be preferable. Under USRAP, we would wait a maximum of 90 years to see if the interest had vested; if the interest had not vested at the end of the 90-year period, it could be reformed in a manner that would best approximate the grantor’s intent under the circumstances that exist at that time.

Note 6(d), page 326. Nice’s deed attempts to create an executory interest in the heirs of Bryan’s first child. This interest would not vest until the death of Bryan’s first child, Sam, who was not born until three years after the conveyance. Thus, this interest can vest too remotely. Bryan, Nice, and all other lives in being could die shortly after Sam was born. Sam could then live for 100 years before dying, at which point the executory interest in Sam’s heirs would vest. As a result, Nice’s deed created no valid interests and is void. Nice has a fee simple absolute, which then passes to Sam two years later when she deeds her interest to him.

Under the “wait and see” approach, we could wait until 21 years after Bryan dies to see if Sam has died, thus causing the interest to vest in his heirs. The cy pres approach would be difficult to apply because Nice is attempting to create an interest that would vest upon the death of a person who is not yet born. Reforming the conveyance to cause the interest to vest sooner (e.g. “to Bryan’s descendants living 21 years after his death”) would seem to be contrary to the grantor’s intent.

Under USRAP, we would wait a maximum of 90 years to see if the interest had vested; if the interest had not vested at the end of the 90-year period, it could be reformed in a manner that would best approximate the grantor’s intent under the circumstances that exist at that time.

Note 6(e), page 326. Chen’s will attempts to create an executory interest in fee simple in his grandchildren. This interest is valid—it cannot vest too remotely. The validating lives are Chen’s children, all of whom are “lives in being” at the time Chen’s will takes effect (as Chen is dead, he can have no more children). When Chen’s children die, they will have either had children (who would be grandkids of Chen, and who would then have vested interests), or they will die without children (and the interest of the grandkids will then fail). Because the interest cannot remain contingent after the death of Chen’s children, Chen’s children are “validating lives” that prove that the interest in the grandchildren cannot vest too remotely.

Note 6(f), page 326. Chen’s deed attempts to create an executory interest in fee simple in his grandchildren. This interest is invalid—it could vest too remotely. As long as Chen is alive, he can have more children. Thus, what could happen? After the conveyance, all of Chen’s children could die (including Mark). Then, Chen could have another child, Marie. Chen and his wife, and all other persons alive at the time of the conveyance could die. Marie might then live 50 years before having a child—Chen’s grandchild—in whom the interest would vest. Thus, Chen’s deed creates no valid interest in the grandchildren. As a result, Chen continues to hold a fee simple absolute estate, which then passes two months later to Nice (by way of Chen’s deed to Nice).

Under a “wait and see” approach, the court could wait until Chen’s death to see if he had any children in addition to Mark. If not, the interest in the grandchildren would be valid because it would vest at the end of a life in being (Mark’s life). Alternatively, we could wait until Mark’s death to see if he was the longest-living child of Chen (and, therefore, the class of grandchildren would close upon his death). Under the cy pres approach, a court could reform the deed to convey the property to “Chen’s grandchildren living at the death of Chen’s son, Mark.” It’s questionable, however, whether that really approximates the grantor’s intent, as it could exclude grandchildren born after Mark’s death—particularly if Mark died at a young age. Under USRAP, we would wait a maximum of 90 years to see if the interest had vested; if not, it could be reformed in a manner that would best approximate the grantor’s intent under the circumstances that exist at that time.