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13. In an appropriate action to determine the ownership of Greenacre, the court should find that title is vested in
The common law Rule Against Perpetuities is unchanged by statute in the jurisdiction.
Two years ago, the son remarried. This year, the son died testate, survived only by his widow, to whom he left his entire estate.
25 years ago, when he was 41, the son married his first wife who was then 20 years old; they had one child. The first wife and the child were killed in an automobile accident three years ago when the child was 21. The child died testate, leaving his entire estate to a charity. His father was the child's sole heir at law.
Shortly thereafter, the father died testate. His son was his only heir at law. The father's will left his entire estate to his local church.
60 years ago by a properly executed and recorded deed, a father conveyed Greenacre, a tract of land: «To my son for life, then to my son's widow for her life, then to my son's child or children in equal shares.» At that time, the son was six years old.
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(i) Contingent remainders — To A for life, then to the heirs of B.
(ii) Executory interests — To A, but if A marries, to B; To A for life, then to B if B delivers a eulogy at A's funeral.
(iii) Class gifts (EVEN if vested remainders) — To A for life, then to A's children.
(iv) Options and rights of first refusal — To A for life, then B has the right to purchase.
(v) Powers of appointment — To A to be distributed as he sees fit.
D is correct. This is a tricky question because many of the facts are designed to create concerns that the Greenacre conveyance violates the RAP. It is important to remember, however, that vested interests are not subject to the RAP. Interests are vested if there is no condition attached which must be satisfied; the holder of the vested remainder has a present or certain right to take possession of the property when the prior estates terminate.
The father conveyed his entire interest in the tract of land, leaving no reversion or contingent remainder. Consequently, despite the fact that the son was only six years old and that his future wife was not yet born at the time the father conveyed the property to him, all interests would clearly vest or fail within the son's life. The son is the measuring life. Upon the son's death, there would be no possibility of an additional wife or children arriving more than 21 years later. Consequently, the widow's interest in a life estate vested upon her marriage to the son. Likewise, the son's child's interest vested upon his birth; his future possessory interest did not lapse upon his death but rather was devisable. This is the correct answer because it acknowledges the vested state of the interests.
A is incorrect. The church has no interest in the tract of land. It was deeded away before the father's death and was not part of his estate upon his death. In addition, the father deeded away his entire interest, creating vested interests that were not subject to the Rule Against Perpetuities.
B is incorrect. A remainder is vested if it is created in a born and ascertained person and is not subject to a condition precedent. Here, the child's future possessory interest vested upon his birth and was devisable by him, whether or not he survived his father's widow. The widow is only entitled to her life estate. Therefore, the child had a vested interest in Greenacre following the life estates of the son and son's widow.
C is incorrect. While the child's vested interest would only become a present possessory right after the widow's death, it did not require survival and was devisable to the charity. The widow's life estate future interest, however, became vested upon her marriage to the son. The charity, as the child's successor in interest, will only be entitled to present possession upon the widow's death.