« on: September 28, 2008, 12:04:48 AM »
Can anyone knowledgeable about Property/Future Interests held explain this to me? The following hypo was taken from the Examples & Explanations series (which, IMO, is horribly written and explains things terribly):
"Owen transfers Blackacre to Abby for life so long as she farms Blackacre, but if she does not farm it, to Becky. What is Becky's interest. It is a remainder--that is, it succeeds the life estate, becoming possessory at Abby's death. It can also succeed sooner--upon Abby's not farming Blackacre--but that earlier termination does not turn Becky's interest into an executory one. It would if the earlier termination were the only possible way Becky's interest could end, but it is not. Abby's life estate being a determinable one does not prevent Beck's interest from being a remainder"
My understanding of executory interests and remainders are as follows: They are similar in the respect that the future interest is in a 3rd person, not the original grantor. They differ, however, in that a remainder follows the natural ending of a prior estate (i.e. for example, a plain old 'life estate'). The executory interest, on the other hand, follows the unnatural ending of a prior estate (i.e. for example, a defeasible fee estate)
THAT BEING SAID--how can the hypo above say that Becky has a remainder? The language, IMO, appears to say that Becky only gets the land if Abby does not farm the land. If she does--doesn't the original grantor retain a reversion following Abby's death? Moreover, shouldn't the future interest be classified as an executory one--that is, subject to the condition that no farming take place for Becky to get the land? I just don't understand how, based on the language of the grant, Becky succeeds to the land whether or not Abby actually does any farming. (i.e. how she gets the land at the end of Abby's life regardless of whether any farming took place). Any help on this one?