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27. In that action, if the court rules that the daughter has a life estate in the whole of Blueacre and that the remainder is contingent, it will be because the court chose one of several possible constructions and that the chosen construction
The two children brought an appropriate action for declaratory judgment as to title of Blueacre. Guardians ad litem were appointed and all other steps were taken so that the judgment would bind all persons interested whether born or unborn.
The woman died and the will was duly admitted to probate. The woman's husband predeceased her. The woman was survived by her two children, four grandchildren, and one great-grandchild. The two children were the woman's sole heirs at law.
A woman owned Blueacre, a tract of land, in fee simple. The woman wrote and executed, with the required formalities, a will that devised Blueacre to «my daughter for life with remainder to my descendants per stirpes.» At the time of writing the will, the woman had a husband and no descendants living other than her two children, a daughter and a son.
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A remainder is a future interest given to a person (who is referred to as the transferee or remainderman) that is capable of becoming possessory upon the natural end of a prior estate created by the same instrument.
A remainder is contingent if one or more of the following is true: (i) it is given to an unascertained or unborn person; or (ii) it is made contingent on anything but the natural termination of the preceding estate. Basically, a remainder becomes contingent when it was subject to a condition precedent or made in favor of someone unknown at the time of the question.
C is correct. When a remainder is given to a person or her children, the word «or» is usually construed as disjunctive, giving alternative contingent remainders to the parent and to her children. The implied condition precedent for the parent's remainder is her survivorship of the preceding life estates; the implied condition precedent for the children's remainder is the failure of the parent to survive the preceding life estates.
Here, if the court finds that the daughter has a life estate in the whole of Blueacre and that the remainder is contingent, it will be because the court implied the condition of survivorship beyond the daughter.
A is incorrect. A vested remainder is one that is certain to become possessory when the prior estate terminates, and whether a remainder is vested is determined by how certain that outcome is. The writing of the will does not determine the time of vesting because the property could still be alienated before the woman's death. This answer fails to address conditional interests.
B is incorrect. As explained above, a vested remainder can only be made in a person who has been ascertained at the time of the will. The creation of an interest by will occurs at the death of the testator, but whether the interests are vested will be determined by the language of the will. This answer also does not address the issue of conditional interest, which is the call of the question.
D is incorrect. Nothing in the facts supports an inference of a life estate to the son. The issue is the contingency of the remainder, not an additional life estate.