Memory Destructibility Doctrines
Terms
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- Destructibility of Contingent Remainders
- • Example: O ïƒ â€œto 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.
- Doctrine of Merger
- ⬢ 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
- Rule in Shelley’s Case
- • Example: O ïƒ â€œto 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.
- Doctrine of Worthier Title
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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. - Rule Against Perpetuities
- ⬢ Classic Exceptions: The Unborn Widow, The Magic Gravel Pits, The Fertile Octogenarian, The Slothful Executor.
- Create, Kill and Count
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• Method used in applying RAP.
• Example: T ïƒ â€œto 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 - The Unborn Widow
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• “To A and then to A’s widow for her life, and then to A’s grandchildrenâ€, 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. - The Magic Gravel Pits
- • “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.
- The Fertile Octogenarian
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• 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 - The Slothful Executor
- ⬢ 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.