This interactive textbook covers the essentials of estates in land and future interests.
The Fee Simple Absolute
The most elementary type of interest is a fee simple absolute (usually abbreviated to just fee simple). It is the interest in land that most closely corresponds to the lay understanding of "ownership." The owner of a fee simple owns the underlying property completely, without sharing it with anyone else.
O owns the property.Subsequent events do not affect fee simple ownership. It is perpetual.
O owns the property.
O graduates college.
The property is used as a school.
Mars becomes a state.Conveying a Fee Simple
One of the important rights that comes with fee simple ownership is alienability: the owner can give, or convey their interest to someone else. We will shortly discuss the different kinds of interests that an owner can convey to others, but the simplest is to give away their entire right. That is, a fee simple owner can make someone else into the fee simple owner:
O conveys to A and her heirs.The language and her heirs is a traditional phrasing. Each type of interest in land comes with its own distinctive language that can be used to create one. The traditional granting language to create a fee simple is to A and her heirs (or his, their, eir, or whatever the appropriate pronoun is). In Littleton, this type of fee-simple conveyance can be written as O conveys Graceland to A and her heirs, or, for convenience as O conveys to A and her heirs or even just to A and her heirs. All of these have the same effect: now A has a fee simple.
Once an owner conveys away their interest, they have nothing left to give, so any subsequent conveyances they execute have no effect. The traditional phrase expressing this rule is nemo dat quod non habet (Latin for "no one can give what they do not have"), which is often abbreviated to simply nemo dat. If O purports to convey to A and then to B, it is A who ends up with a fee simple, not B.
O conveys to A and her heirs.
O conveys to B and her heirs.On the other hand, an owner of a fee simple who receives it by conveyance has the has the power to convey it to others in turn. If O conveys a fee simple to A, she can then convey a fee simple to B.
O conveys to A and her heirs.
A conveys to B and her heirs.Gifts to "Heirs"
The phrase to A and her heirs contains two different kinds of language. The words to A are words of purchase: they explain who receives an interest. The words and her heirs are words of limitation, they explain what kind of interest that person receives. What makes and her heirs so confusing is that they look like words of purchase; it looks like the grant is giving something to A's heirs. That is an illusion; A receives everything and her heirs, whoever they are, receive nothing but what A leaves them at her death. If A conveys away her fee simple during her lifetime, her heirs receive nothing.
The following example illustrates this point. C and D are A's heirs apparent. (It is not possible to determine who a person's "heirs" will be until their death, because their family situation or their will could always change. So while they are alive they only have "heirs apparent": the people who would inherit their property if they were to die right now.) If A dies unmarried and without a will, then C and D will receive all of A's property. But C and D do not receive title to the property A got from O, even though O used the words and her heirs in the conveyance to A. Even after A's death, when C and D are promoted from heirs apparent to actual heirs, they still do not receive title to this property. They might receive other property from A's estate, but not the property O gave to A.
O conveys to A and her heirs.
A has child B.
A has child C.
A conveys to D and her heirs.
A dies.Life Estates, Remainders, and Reversions
The next significant type of interest is the life estate, which is an interest that terminates at the death of a named person. A fee simple is perpetual; a life estate is not.
Creating a Life Estate
Any language that indicates an intent to make the interest last for a specific person's lifetime will create a life estate, but the simplest traditional phrase is for life.
O conveys to A for life, then to B and her heirs.In this example, the phrase to A for life does two things. First, it specifies that the grantor (O) is giving an interest to A.
A life estate does what it says on the tin: it terminates as of the death of the named person:
O conveys to A for life, then to B and her heirs.
A dies.The Life Estate Pur Autre Vie
A life estate terminates as of the named person's death, no matter what that person does. If A conveys a life estate to C, what C receives is a life estate measured by the life of A. This type of interest -- held by one person but for the lifetime of someone else -- is often called a life estate pur autre vie (French for "for the life of another"). Notice that this happens even if A purports to give C a fee simple. This is another application of the nemo dat principle: A does not own a fee simple, so A cannot give one. What A can give is limited to what she owns: a life estate measured by her own life.
O conveys to A for life, then to B and her heirs.
A conveys to C and his heirs.
A dies.At A's death, the life estate terminates, regardless of who holds it at the time. This makes a life estate relatively unmarketable. The buyer receives an interest of unknown duration, which could terminate without warning at any time.
O conveys to A for life, then to B and her heirs.
A conveys to C and his heirs.
A dies.A grantor can also create a life estate pur autre vie explicitly:
O conveys to A for the life of C, then to B and her heirs.Reversions and Remainders
The interest that follows a life estate is called a reversion if it is held by the grantor or their heirs:
O conveys to A for life, then to O and his heirs.The interest that follows a life estate is called a remainder if it is held by anyone else. Traditionally, the owner of a life estate was called a life tenant and the owner of a remainder in fee simple was called a remainderman (less gendered terms like "remainderperson" were not traditionally used, but "remainder owner" is a reasonable gender-neutral alternative).
O conveys to A for life, then to B and her heirs.Notice the full names of these interests. B holds a "remainder in fee simple." B's interest is a "remainder" because it follows a life estate. Adding "in fee simple" explains that when B's interest becomes possessory at A's death, it will become a fee simple:
O conveys to A for life, then to B and her heirs.
A dies.This is the case for every future interest. If and when it becomes possessory, it will become a present interest like a fee simple or a life estate. We say that the nature of B's interest is that it is a remainder, but that the quantum of B's interest is in fee simple. Calling it a "remainder" tells us how the owner's right to possession will start; adding "in fee simple" tell us how it will end.
Remainders and reversions retain their identities even if they are subsequently conveyed. If the owner of a remainder conveys it to the original grantor, it is still a remainder:
O conveys to A for life, then to B and her heirs.
B conveys to O and his heirs.Similarly, if the owner of a reversion conveys it to a third party, it is still a reversion:
O conveys to A for life, then to O and her heirs.
O conveys to B and her heirs.Implied Reversions
Consider what happens when the owner of a fee simple gives away a life estate, without saying what happens after the grantee's death:
O conveys to A for life.It is clear enough that A is entitled to possession and will be until her death. But what happens after that? O has not said. Since O started off owning the property completely, and has not done anything to change who the owner is after A's death, it follows that O is still the owner of that temporal slice of ownership. We already have a name for an interest retained by the grantor that follows a life estate: it is a reversion. Thus, O retains an implied reversion, even if he does not create one explicitly.
A little more subtly, the same thing can happen if the owner of a life estate (or any other limited interest) gives away a life estate (or any other limited interest). There is still the possibility of a gap in ownership between the end of the interest given away and the end of the interest the owner started with. By the same reasoning, that gap must be filled with a reversion in the grantor. In the following example, C's interest is limited to A's life and also limited to C's life. It will end when either of them dies. If C dies first, then C's life estate will terminate but A's life estate will still be in existence, so the property will return to A. Thus, A must retain a reversion that follows C's life estate -- but it is a reversion in life estate, because it will still end at A's death.
O conveys to A for life, then to B and her heirs.
A conveys to C for life.These are examples of the principle of conservation of estates. Someone must always be entitled to possession of the property, so the various interests held by different people must "add up" to a fee simple. If the interests that have been explicitly created do not add up to one, there must be an implied reversion implicitly retained by a grantor to account for the gap.
Successive Interests
A grantor can create more than one life estate in the same conveyance by creating successive interests, one after the other:
O conveys to A for life, then to B for life, then to C and his heirs.Here, A has a life estate; it will end at her death. B has a remainder in life estate: it is a remainder that will become a life estate when it becomes possessory after A's death. C has a remainder in fee simple: it is a remainder that will become a fee simple when it becomes possessory after A and B's deaths. Watch what happens to the names of their interests as the life tenants die:
O conveys to A for life, then to B for life, then to C and his heirs.
A dies.
B dies.It is also illuminating to consider what happens if B dies before A. B's death means that her life estate can never become possessory. As soon as A dies, possession will pass to C. Thus, when we describe the state of title, there is no need to mention B's interest, and it can be safely omitted:
O conveys to A for life, then to B for life, then to C and his heirs.
B dies.The grantor need not stop at two life estates. Arbitrarily many successive life estates can follow each other. The later life interests are unlikely to be valuable or useful, since they must wait until all of the previous life tenants have died, and then only last for what remains of the holder's life, but they are legally valid.
O conveys to A for life, then to B for life, then to C for life, then to D for life, then to E for life, then to F for life, then to G and their heirs.The principle of nemo dat also applies to successive interests. It is not possible to create two successive fee simple absolutes. The first one is perpetual, so there is no time slice after it for the second to take possession.
O conveys to A and her heirs, then to B and her heirs.Indeed, no interest can follow a fee simple. Any language purporting to create an interest after a fee simple has no effect.
O conveys to A, then to B for life.Ambiguous Conveyances
One recurring problem in interpreting conveyances has to do with ambiguous language. Consider the following conveyance:
O conveys to A.The language of this grant does not use words like and her heirs that would clearly indicate that O intends to give A a fee simple. Nor does it use words like for life that would clearly indicate that O intends to give A a life estate. The bare grant to A is ambiguous between these two interpretations. The traditional canon of construction was to treat ambiguous language as creating a life estate, but the modern preference is to treat it as creating a fee simple.
Littleton models this shift in property law by including a setting to toggle between the two interpretations. In actual legal practice, a court would also consider other evidence to resolve the ambiguity. For example, the language to A, then to B implies that the grantor expects that there will be something left after A's interest for B, which is consistent with A having a life estate rather than a fee simple. A court would weigh this fact along with other factors to ascertain the most likely intent of the grantor.
Other Present Estates
The common law recognized other kinds of present estates besides the fee simple and life estate.
The Fee Tail
The most important was the fee fail, which was like the life estate in that the holder was entitled to use the property during their lifetime but not control what happened to if afterwards. The difference is that while a life estate terminated automatically at the death of the life tenant, a fee tail transferred automatically to their descendants. At the death of the owner, it passed to their oldest living child. At that child's death, it passed to their oldest living child, and so on. The fee tail itself terminated only when the original grantee had no remaining descendants.
The standard words of limitation to create a fee tail were and the heirs of his body (or her body, etc., as appropriate). Take a little time to play around with the following example to see how a fee tail works. Give A and B various children, give them children of their own, and so on, and then kill them off in different orders.
O conveys to A and the heirs of her body, then to X and his heirs.
A has child B.
A dies.
B dies.In most other ways, a fee tail functioned much like a life estate. Thus, it could be followed either by a remainder in a third party or a reversion in the grantor. Similarly, like a fee simple or life estate, a fee tail could be created as a future interest:
O conveys to A for life, then to B and the heirs of his body.The effect of a fee tail is typically to make land unmarketable, because no buyer is likely to be interested in buying property that is so thoroughly encumbered. Over time, courts and legislatures became more sympathetic to grantees trying to escape from the strictures of a fee tail. Some jurisdictions disallow the fee tail entirely, treating any attempt to create one as creating a fee simple instead. Others allow them to be created, but allow the present owner to convey fee simple title to a buyer. The doctrine of disentailment by conveyence can be turned on and off in Littleton in the Settings pane: when it is on, a conveyance in fee simple by the present owner of a fee tail converts the fee tail into a fee simple.
O conveys to A and the heirs of her body, then to B.
A has child C.
A dies.
C conveys to D.The Term of Years
One more important type of possessory estate is the term of years: an interest created to last a specific and specified amount of time. Like a life estate or fee tail, a term of years is followed a remainder in a third party or a reversion in the grantor. Here, the grantor retains a reversion:
O conveys to A for 5 years.
3 years pass.
2 years pass.Historically, the fee simple, fee tail, and life estate were freehold tenancies, in which the holder had a legal status known as seisin. In contrast, the term of years was a leasehold tenancy that left seisin with the grantor. Today, the term of years, as the term "leasehold" suggests, is frequently used to create leases. Often, the tenant agrees to pay rent to the grantor who retains a reversion, along with a right to terminate the tenancy and retake the property if the tenant fails to pay rent. Add in a few more clauses -- e.g., the tenant agrees not to cause damage to the property, the landlord agrees to provide heat, water, and other utilities, etc. -- and how have something that can be used as a modern residential or commercial lease. (Littleton does not currently model other common-law leasehold interests, such as the periodic tenancy, the tenancy at will, etc.)
One important note is that the common law regarded a term of years as being smaller, or "of lesser quantum," than a life estate, which was smaller than a fee tail, which was smaller than a fee simple. (This was the case even if a 99-year term of years is practically likely to be longer than the life expectancy of a life estate grantee.) This matters primarily for naming interests, because the name of an interest is based off the smallest quantum associated with it. In the following example, note that B takes a "term of years" rather than a "life estate", because A had only a term of years to convey.
O conveys to A for 5 years.
A conveys to B for life.Limitations
We now consider the effects of limitations on interests, such as until B marries or while the land is not used as a store. Their behavior is simple enough -- the affected interest terminates if and when the specified event takes place -- but the rules for naming the interests involved are unfortunately rather intricate.
Executory Limitations
Consider the following conveyance, and start by focusing on A's interest.
O conveys to A and her heirs until B marries, then to B and her heirs.Like a life estate or a fee tail, A's interest is (potentially) limited in time. If and when B marries someone, A's interest will terminate. An interest like this, which terminates on the occurrence of a specified event, is called a fee simple with executory limitation. It is worth dwelling on this name for a bit, because it helps explain what A's interest is and how it works.
The first half of then name -- "fee simple" -- indicates that it is a type of fee simple. The conveyance uses the words of limitation and her heirs, which create a fee simple. It is not a fee simple absolute, which never terminates. But it is still a type of fee simple, rather than a life estate, fee tail, or term of years. In other words, the quantum of A's interest is still a fee simple.
The second half of the name -- "with executory limitation" -- explains how it differs from a fee simple absolute. The words until B marries are an executory limitation. They take what would otherwise be a fee simple absolute (to A and her heirs) and limit it so that it terminates early (if and when B marries). The common-law system regarded the language for life as fundamentally changing the nature of an interest, turning it into a life estate rather than a fee simple. But it regarded an executory limitation like until B marries as taking an existing interest and modifying it. The full name -- "fee simple with executory limitation" -- reflects this concept of a base interest ("fee simple") with a modification ("with executory limitation").
An executory limitation can be created using a variety of different phrases, such as until B marries, so long as B is unmarried, while B is not married, and so on. What they have in common is the idea of duration: the terminating event is something that will happen in the future, and the interest will continue until it does. The event doesn't have to be one that is certain to happen; B might choose to remain unmarried for her entire life. Instead, the point is that the limitation is phrased using language of duration.
Executory Interests
In the example above, B's interest is called an executory interest. It will become possessory if and when B marries. If so, it becomes a fee simple (as there is no other limit on it). Thus, its full name is an "executory interest in fee simple."
O conveys to A and her heirs until B marries, then to B and her heirs.
B marries C.A little more formally, B's interest is called an executory interest because it becomes possessory only when the interest that it follows terminates before its "natural" expiration. A life estate, fee tail, and term of years are all regarded as having a natural, built-in, inherent endpoint (e.g., the death of the life tenant). They are followed by remainders, which are defined as interests in a third party that can become possessory at the natural expiration of the previous interests. In contrast, an executory interest is defined as an interest in a third party that cannot become possessory at the natural expiration of the previous interest. A fee simple with executory limitation cannot expire naturally; it terminates only when the specified event cuts it short. Thus, it is followed by an executory interest.
What happens if B dies without ever having married? In this case, the event that could terminate A's interest becomes impossible, so A's interest will continue forever, and B's interest can never become possessory. That means A has a fee simple absolute, and B's interest is effectively nonexistent. (Littleton can automatically recognize when conditions become impossible, and modify the state of title accordingly).
O conveys to A and her heirs until B marries, then to B and her heirs.
B dies.The Fee Simple Determinable
When an interest subject to a limitation is followed by an interest held by the grantor, rather than an interest held by a third party, it behaves the same, but its name is different. Now it is called a fee simple determinable and the interest that follows it is called a possibility of reverter. The limitation itself is no longer "executory"; instead it is just a "limitation" (or sometimes, a "special limitation"). Otherwise, the language and the logic are the same. The key characteristic of the language creating one is that it uses words of duration like until, so long as, or while. And again, A's interest terminates when the event takes place. The only difference is that it the grantor, O, who takes possession then, rather than a third party like B.
O conveys to A and her heirs until B marries.Again, the name "fee simple determinable" tells you what it is. It is a "fee simple" (rather than a life estate, etc.), and it is "determinable" (i.e., potentially limited in time) rather than "absolute" (i.e. not limited in time). There is very little legal distinction between a "determinable" interest and one with an "executory limitation." The interest behaves the same way under most circumstances, and it terminates under the same conditions. The difference is essentially terminological; it depends on what follows the interest, rather than what is. A fee simple with a limitation is "determinable" if it is followed by an interest retained by the grantor, and "with executory limitation" if it is followed by one given to a third party.
The name "possibility of reverter" gives a clue about the nature of the interest that follows it. The word "reverter," like the word "reversion," starts with "rev-," which indicates that it is retained by the grantor. And calling it a "possibility" emphasizes its contingency. The death of the grantee of a life estate, or the extinction of the bloodline of the grantee of a fee tail, were regarded as legal inevitabilities, after which the property would revert to the grantor. But the land might never be used as a store, so that the return of the property to the grantor here was regarded as only a "possibility." In other words, the common law treated the end of any quantum of estate (other than a fee simple) as inevitable, but all other events were contingencies that might or might not come to pass.The standard description of this distinction is that a reversion is not "subject to a condition precedent" other than the natural expiration of the previous interests, whereas a possibility of reverter is. The passage of time, the deaths of life estate owners, and the death of all of the descendants of fee tail owners are not such conditions. Anything else -- i.e. anything expressed as a limitation -- is.
To be fully precise, in this example, O has a possibility of reverter in fee simple. If and when B marries, O will have a fee simple:
O conveys to A and her heirs until B marries.
B marries.Limitations on Other Interests
A fee simple is not the only kind of interest that can be subject to a limitation. Any quantum of interest can have an added limitation. Here, for example, is a life estate determinable, created by adding a limitation to a life estate:
O conveys to A for life until the land is used as a store, then to B and her heirs.Here, the terminology is simpler. The interest subject to the limitation is "determinable." The following interest is still a remainder (if held by a third party) or reversion (if retained by the grantor), because it follows an interest that will eventually expire naturally.
Combining different interests with limitations can create more complicated relationships. Consider the following pair of conveyances. O's initial conveyance gives A a life estate and B a remainder in fee simple. A's conveyance to C would create a fee simple determinable followed by a possibility of reverter (in fee simple) if it stood alone. But since both of those interests are carved out of A's life estate, C ends up with a life estate determinable (technically a life estate pur autre vie because it is measured by A's life, and A has a possibility of reverter in life estate. B's remainder is unaffected by A's conveyance; it is still just a remainder in fee simple.
O conveys to A for life, then to B and her heirs.
A conveys to C and his heirs while the land is not used as a store.Divesting Executory Interests
Another way that a conveyance can terminate an interest is by adding language stating that on the occurrence of a specified event, an interest will divest (or more informally "cut short") one or more previous ones. Consider the language:
O conveys to A and her heirs, but if B marries to B and her heirs.This is almost identical to the earlier example to A and her heirs until B marries, then to B and her heirs. The actual legal relationships are the same: A's interest is possessory unless and until B marries, at which point A's interest terminates and B's interest becomes possessory. The difference is that the condition the land is used as a store is attached to the clause that creates B's interest, rather than the clause that creates A's interest.
The terminology is almost identical, too. B's interest is still called an executory interest. Unlike a remainder, which can take effect at the natural expiration of the preceding interests, it takes effect by divesting a preceding interest non-naturally. And A's interest is called "fee simple subject to executory limitation," (The difference, so slight that it is usually ignored, is that it is said to be "subject to" an executory limitation, rather than "with" an executory limitation.)
The ability to have one interest divest previous interests raises the question of which interests are subject to its potential divesting. While lawyers would typically use more precise descriptions, Littleton allows users to specify this using parentheses. Compare:
O conveys to A for life, then (to B and her heirs, but if C graudates college to C and his heirs).with
O conveys (to A for life, then to B and her heirs), but if C graduates college to C and his heirs.In the first example, the condition C graduates college applies only to B's fee simple. In the second example, it applies to A's life estate as well.
Conditions Subsequent
Another way to divest an interest, with somewhat different language and effects, is illustrated in the following example:
O conveys to A and her heirs, but if the land is used as a store the grantor may reenter.The language but if the land is used as a store the grantor may reenter is called a condition subsequent. What makes it distinctive is that it only takes effect if the grantor affirmatively reenters and takes legal action to reassert ownership. Compare the executory interests in the previous section, like but if B marries to B, which take effect automatically when the specified event takes place. With a condition subsequent, the specified event (or, more precisely, the "breach of a condition subsequent") is just the threshold event that triggers the owner's right to reenter.
O conveys to A and her heirs, but if the land is used as a store the grantor may reenter.
The land is used as a store.
O reenters.In this example, A's interest is called a fee simple subject to condition subsequent. Once again, "fee simple" is the base interest, and "subject to condition subsequent" modifies it, the same way that an adjective modifies a noun. O's interest is called either a power of termination or a right of entry.
There is a very important restriction on conditions subsequent. They can only be used to return possession to the grantor of the conveyance. Just as an executory interest can only be created in a third party, a power of termination can only be reserved to the grantor. The language but if the land is used as a store the grantor may reenter reserves a power of termination; the language but if the land is used as a store to B creates an executory interest.
Conditions Precedent
Limitations and conditions subsequent modify how interests end. But it is also possible to modify how an interest starts. We have already seen one way to do so: language like but if B marries to B explicitly divests the previous interest and also implicitly requires that B must marry before B's interest begins. Another way to control how an interest begins is with an explicit condition precedent: a condition that must be satisfied for it to become possessory.
Creating Conditions Precedent
Here is an example of a condition precedent. B's remainder is subject to the condition precedent that B is married:
O conveys to A for life, then if B is married to B for life, then to C and his heirs.The interests here have the same names that they would without the condition precedent: A has a life estate, B a remainder in life estate, and C a remainder in fee simple. The difference is that if the condition B is married is not satisfied, B's remainder cannot become possessory. This does not go to the quantum of B's interest; it is a life estate (from the words for life). And the nature of B's interest is a remainder, because it can become possessory when the previous interest (A's life estate) expires naturally.
The effects of the condition precedent depend on what happens by the time A dies. If B has married by then, the condition precedent is satisfied, and B's remainder takes possession as normal.
O conveys to A for life, then if B is married to B for life, then to C and his heirs.
B marries.
A dies.But if A dies while B remains unmarried, the condition precedent fails, and so does B's remainder. Even if B subsequently marries (try it!), her interest will never become possessory. Possession skips over it to C's remainder instead.
O conveys to A for life, then if B is married to B for life, then to C and his heirs.
A dies.Conditions precedent can be used to create alternative interests. Here, B's interest is subject to the condition precedent that B be married, and C's interest is subject to the condition precedent that B not be married. Exactly one of those two will be the case, so one of the interests will become possessory, but not both. (Compare this to the previous examples, where C's interest always waits at the end, and becomes possessory at the latest after B's death.)
O conveys to A for life, then if B is married to B and her heirs, otherwise to C and his heirs.Just as a life estate can create a gap in ownership that must be filled in with an implied interest, so can a condition precedent. In the following example, consider what happens to the property if B is unmarried when A dies. If the condition fails, then so does B's interest. Who, then, is entitled to possession? It must be the grantor O, since it cannot be either A or B. This is the principle of conversation of estates at work again. O has a possibility of reverter. (Why a possibility of reverter and not a reversion? Because O's interest is subject to a condition precedent: that B be unmarried as of A's death.)
O conveys to A for life, then if B is married to B and her heirs.Interpreting Conditions Precedent
Littleton treats to A for life, then if and when B has graduated college to B and her heirs. as meaning the condition is satisfied only if B is married at the instant of A's death. But this is not the only way a condition precedent can work. The grantor could also intend that the condition is satisfied if B is married at the instant of A's death or any time thereafter. Like the difference between a fee simple and a life estate, in real life this is ultimately a matter of the grantor's intent. There may be cases where a conveyance is ambiguous between these interpretations and a court will have to choose the better interpretation in light of all the evidence.
Because it is a modeling tool, Littleton takes a simpler approach: it provides explicit options that a grantor can use to specify either interpretation. The language if X to A means that A's interest becomes possessory immediately if X is true, but otherwise fails and is never possessory. This is the version used above. But the language after X to A means that A's interest becomes possessory as soon as X becomes true. Until then (possibly forever) it waits as a future interest. Consider:
O conveys to A for life, then after B marries to B and her heirs.Now, O achieves his intention of giving the property to B after A's death and after B's marriage. We can confirm that this works by trying:
O conveys to A for life, then after B marries to B and her heirs.
A dies.
B marries C.But wait! What happened during the time between A's death and B's marriage? By now you should be able to predict the answer: the same thing happens whenever there is a gap in the interests created by a conveyance. By the principle of conservation of estates, the gap must be filled by an interest retained by the grantor. And so there is does; Littleton shows that O has possession during the gap after A's death and before B's marriage. This is a reversion (because it follows the natural expiration of A's life estate) in fee simple (because it is not restricted to a shorter quantum like a life estate) subject to an executory limitation (becuase when B's interest becomes possessory, it will divest O's interest). Sometimes it can be cumbersome to include these implied reversions before a condition precedent, so Littleton has a setting to hide them unless they become possessory.
Even these two choices -- if and after -- do not exahust the possibilities. O wants the property to go to B after A's death when B marries, but what if B never marries? O might prefer to provide for this contingency. (Providing for all kinds of contingencies is a lawyer's job, after all.) Littleton provides a third way to specify a condition precedent using the language if and when. This is a hybrid of the other two options. Like after, it waits for the condition to become true. But it does not wait forever. If the event becomes logically impossible, at that point the condition fails. The following example illustrates. Now O has provided for B when she marries, but if she never does, the property passes to C instead.
O conveys to A for life, then if and when B marries to B and her heirs, otherwise to C and her heirs.
A dies.
B dies.Shifting and Springing Executory Interests
The final distinction to make in our taxonomy of future interests is between two types of executory interests: shifting and springing executory interests. The distinction by itself is not particularly important. It is purely terminological; no legal consequences attach to the question of whether an executory interest is classified as shifting or springing. But discussing the difference is a useful way of understanding what executory interests do, and how they can arise.
Remainders Versus Executory Interests
The common law classifies a future interest created in a third party as a remainder if BOTH:
- It cannot divest a previous interest before that interest's natural expiration, and
- It is capable of taking possession immediately after the natural expiration of the previous interest.
Otherwise, it is an executory interest.
For example, consider the following conveyance. This gives B a remainder. It cannot divest A's interest (nothing can), and once A's interest ends, B's interest becomes possessory immediately. A's life estate will expire naturally, and when it does, B's interest will be possessory immediately. This is the essence of a remainder. It patiently waits its turn, but when its turn comes, it can be ready immediately.
To A for life, then to B and her heirs.Here is another another example of a remainder. It passes the first test; it cannot divest A's interest. Neither the natural expiration (for life) nor the special limitation (until A graduates college) is regarded as divesting the interest. That is something only a subsequent interest can do, and B's interest is not created with any divesting language (e.g., but if). And it passes the second test; when A's interest naturally expires (at A's death), B's interest will become possessory immediately.
To A for life until A graduates college, then to B and her heirs.Shifting Executory Interests
If an interest fails either of these tests, it is classified as an executory interest instead. Thus, a future interest in a third party is an executory interest if either it can divest a previous interest or it cannot take possession immediately after the previous interest expires.
The following conveyance gives B an executory interest. It fails the first test. When B graduates college, B's interest divests A's interest.
To A, but if B graduates college to B and her heirs.The following conveyance also gives B an executory interest. This time it fails the second test. A's interest will never naturally expire, so it is not possible for B's interest to take possession "when" it does.
To A until A graduates college, then to B and her heirs.These examples have something in common. When they become possessory, they do so immediately after the early termination of another interest in a transferee. An executory interest that will become possessory this way is called a shifting executory interest because possession "shifts" from one transferee (A) to another (B). A remainder waits patiently, but a shifting executory interest takes possession before the previous interest would have naturally expired.
These examples show the two typical ways that a shifting executory interest can be created. First, it can be created with divesting language (e.g. but if X), in which case it can only take possession by divesting the previous interest. Second, it can follow a fee simple with an executory limitation (e.g. until X), which can only end non-naturally, when the event in the limitation takes place.
Springing Executory Interests
The other type of executory interest is a springing executory interest. Whereas a shifting executory interest follows an interest in another transferee, a springing executory interest follows an interest retained by the grantor. It is called a springing executory interest because possession "springs" out of the grantor's interest, as from nowhere.s
The following conveyance creates a straightforward springing executory interest. B has an executory interest (rather than a remainder) because it can divest another interest, and it is a springing executory interest (rather than a shifting executory interest) because the divested interest is one held by the grantor (O).
To O, but if B marries to B and her heirs.The most interesting cases of springing executory interests arise when an interest is not ready to take possession after the previous interest terminates. For example, consider the following conveyance, and pay attention to what happens at A's death. A's life estate is not possessory; it has terminated. Because B's interest can only take possession after a two-year delay, it cannot be possessory either. Someone must be entitled to possession, and the only someone remaining is the grantor. Thus, possession reverts to O. Just as in the case to A for life, there must be an implied reversion.
O conveys to A for life, then after 2 years pass to B and her heirs.
A dies.
2 years pass.The classification of B's interest is illuminating. It is an executory interest rather than a remainder because of the necessary delay between the end of A's interest and the start of B's. There is no possible way that B's interest can start immediately after A's. And the gap between the two interests, A's and B's, can only be filled with a reversion in O. That makes it a springing executory interest.
Whether an executory interest is shifting or springing is not some inherent eternal property; it can change over time. Consider the following conveyance. B has an executory interest because it can divest A's interest. Initially, it is a shifting executory interest: if it becomes possessory, it does so by cutting off A's life estate. But if A dies, then B's executory interest becomes a springing executory interest: it becomes possessory by cutting off the implied reversion interest held by O, the grantor.
O conveys to A for life, but if B marries to B and her heirs.
A dies.An even more surprising way that a springing executory interest can arise is that a remainder subject to a condition precedent can turn into one! Consider again this example of a condition precedent. B starts off with a remainder: her interest can become possessory at A's death. But if A dies while B is unmarried, the condition precedent on B's interest remains unsatisfied, so O must have an implied reversion. Should C now die, B's interest will immediately become possessory. This is not an interest that becomes possessory immediately after the natural termination of the previous interests, so it is an executory interest, and since it divests O's reversion, it is springing.
O conveys to A for life, then if and when B marries to B and her heirs.
A dies.Simplifying Doctrines
A number of common-law doctrines have effects that simplify the state of title. They complicate the process of of ascertaining who has what interest, and they complicate the process of learning how the system works, but their effect is to simplify the state of title itself by eliminating certain interests. Some of these doctrines have been abolished, but they are typically considered part of the traditional system of future interests.
Merger
The doctrine of merger holds that when the same person owns two successive interests, one of which will become possessory on the termination of the other, the two interests merge into a single interest.
To A for life, then to A.Merger is mostly is a bookkeeping convenience. If the end of one interest and the start of the next result in no observable consequences, it makes sense to treat them as a single interest. (One complication created by merger is discussed below in the section on vesting.)
The Doctrine of Worthier Title
In the following example, O purports to give a remainder to his own heirs: life estate in A, remainder in O's heirs:
O conveys to A for life, then to the heirs of O.Why would a grantor do this? During the heyday of conveyancing, gifts to "heirs" were used for tax evasion purposes, because potentially expensive "feudal incidents" were due when property passed by inheritance. If the property passed to O's heirs as part of O's estate as his death, the feudal incidents would be due, reducing the value of the property to them. But by executing this conveyance, O attempted to ensure that they would receive the property by conveyance instead, on which no feudal incidents would be due.
The doctrine of worthier title targeted this tax evasion by holding that an inter vivos grant (i.e. a conveyance executed during the grantor's lifetime, rather than as part of a will) to the grantor's "heirs" would be treated as a grant to the grantor themself.
The most striking application of the doctrine is in conjunction with merger. If the grantor reserves a life estate and gives the remainder to their heirs, the doctrine of worthier title converts the remainder into one retained by the grantor. Merger then operates to combine the life estate and remainder back into a single fee simple, rendering the entire conveyance moot.
O conveys to O for life, then to the heirs of O.To be precise, the doctrine of worthier title was a constructional preference that in theory could be overcome by clear evidence to the contrary. It was not an absolute rule of law forbidding grants to the grantor's own heirs, just a strong preference to read conveyances not to do so.
The doctrine of worthier title has been abolished in most states. It can be toggled on and off with a preference in Littleton.
The Rule in Shelley's Case
A similar rule, the Rule in Shelley's Case, applied to gifts to the "heirs" of a third party. If the same conveyance gives both a present interest to a grantee and a future interest to that person's "heirs," the future interest is treated instead as a gift to that person.
O conveys to A for life, then to B for life, then to the heirs of A.Once again, the Rule has the most bite in conjunction with merger.
O conveys to A for life, then to the heirs of A.Unlike the doctrine of worthier title, the Rule in Shelley's Case was a true rule of law; it could not be overcome, no matter how explicitly the conveyance indicated that A's heirs, rather than A, should receive the future interest.
The Rule in Shelley's Case has been abolished in most states. It can be toggled on and off with a preference in Littleton.
Vesting
The most important, most dramatic, and most difficult simplifying doctrine is the Rule Against Perpetuities. But because the intricate concept of vesting is so central to the Rule, that is where we will start.
Vested and Contingent Remainders
A remainder is said to be vested if:
(1) It is not subject to a condition precedent, and (2) It is known who will receive the interest.
A remainder that is not vested is said to be contingent. The classification of future interests as vested and contingent only applies to remainders. No other kinds of future interests are classified this way.
An interest is said to "vest in possession" when it becomes possessory. But it is important to see that the definition of vesting is broader that this. It is said to "vest in interest" when it becomes vested according to the definition above, and this can happen when it is still a remainder, long before it turns into a presently possessory estate. It is this second sense of vesting that matters. Very loosely, a vested remainder is one that is regarded as guaranteed to become possessory eventually as years pass, people die, and bloodlines die out.
In the following example, B's remainder is initially contingent because it is subject to the condition precedent that B graduate college. When B graduates from college, his remainder becomes vested.
O conveys to A for life, then if B has graduated college to B and her heirs.
B graduates college.The important thing about contingent remainders is that they can fail. In the following example, compare B's remainder (contingent) and C's remainder (vested). Since B has not graduated as of A's death, the condition precedent fails.
O conveys to A for life, then if B has graduated college to B for life, then to C and his heirs.
A dies.It is possible to have a conveyance that creates no vested remainders. The following conveyance, for example, creates alternative contingent remainders. Either B or C will take the property at A's death. But it is not presently possible to say which, so both remainders are contingent. (What do you think will happen to the state of title if B graduates college? Try it.)
O conveys to A for life, then if B has graduated college to B and her heirs, otherwise to C and his heirs.Destructibility of Contingent Remainders
Vesting has a number of important consequences. In brief, a contingent remainder is subject to several of doctrines that can eliminate it entirely -- even if the condition that makes it contingent is eventually satisfied.
One such doctrine, the destructibility of contingent remainders, held that if a remainder was not vested by the time it could first become possessory, it failed and could never become possessory. In this example, B's remainder is still contingent as of A's death, so under the destructibility of contingent remainders, it fails.
O conveys to A for life, then if and when B has graduated college to B and her heirs.
A dies.
B graduates college.In effect, the doctrine forces all conditions precedent to take the form if rather than after or if and when. They cannot wait to see whether the condition is eventually satisfied. It is now or never.
The doctrine of destructibility of contingent remainders has been almost entirely abolished. It can be toggled on and off in Littleton's preferences.
Merger, Redux
Merger also interacts with vesting. The common law rule was that if a life estate and the next vested interest in fee simple had a common owner, any intervening contingent remainders were destroyed. Here, for example, A starts off with a life estate and then receives a vested remainder from C. B's intervening contingent remainder is eliminated, and A's life estate and remainder merge into a fee simple. (Try making B's remainder vested to confirm that merger does not apply.)
To A for life, then if B has married to B for life, then to C and his heirs.
C conveys to A and her heirs.Vesting Subject to Complete Divestment
Vested remainders are further subdivided. Some remainders are indefeasibly vested; others are vested subject to complete divestment. A remainder is subject to complete divestment if the occurrence of some condition could cause it to terminate without ever becoming possessory. Here, B's remainder is vested, but C's graduation from college can cause it to terminate.
O conveys to A for life, then to B and her heirs, but if C has graduated college to C and his heirs.Note the fine distinction between this example and the ones in the previous section. A condition precedent on B's interest (then if B has graduated college to B and her heirs) makes it contingent. But the executory limitation on B's interest (to B and her heirs, but if C has graduated college to C and his heirs) makes it vested subject to complete divestment.
Unascertained Grantees
So far, we have been discussing the first prong of the definition of vesting: not being subject to a condition precedent. But to be vested, a remainder must also be given to a specific, known person. A future interest given to a currently unknown person is said to be in an unascertained grantee, and it is contingent.
The reason it is possible for a grantee to be unascertained is that a grant can refer to the grantee by a description rather than by name. If A and B are married, a gift to B and a gift to the spouse of A amount to the same thing.
A and B marry.
O conveys to the spouse of A and her heirs.Should a description of the grantee of a present interest fail to refer to an actual person, the grant typically fails. A conveyance to the spouse of an unmarried person is impossible.
O conveys to the spouse of A.
A and B marry.It is possible, however, to give a future interest to a currently unascertained person. Their identity can remain unascertained for now, and be resolved to a specific person later when it becomes possessory. Here, for example, the remainder held by the widow of A is initially contingent. Even after A and B marry, it is still contingent, because they could divorce or B could die before A. (Try it.) It vests only as of A's death, when there is no longer any question as to who will be A's widow, if anyone. Note also that the contingency of the gift to A's widow means it might never become possessory, so that O has an implied possibility of reverter to fill the gap in the state of title. (It is a possibility of reverter and not a reversion, because it is subject to the condition precedent that A die unmarried.)
O conveys to A for life, then to the widow of A.
A and B marry.
A dies.Class Gifts
A grant can also be made to a group of people identified by a description, in which case it is called a class gift. A grant of a present interest to a class raises no difficult problems: the interest is divided among whoever is currently in the class.
A has child B.
A has child C.
O conveys to the children of A.But class gifts of future interests raise subtle vesting problems, because the membership in a class can grow or shrink over time. In the following example, O gives a remainder to B's children. At the time of the gift, the only member of the class is C. Her individual interest is vested: she has been identified, and her right to receive her share is not subject to any condition precedent. But C's share could shrink if A has additional children. Her remainder is said to be vested subject to open. When D is born, his interest is also vested subject to open. C's and D's shares are presumptively each one half, but that could change if more children are born. When B dies, the class closes; no new members can join it. Now C's and D's shares are indefeasibly vested; they cannot shrink.
B has child C.
O conveys to A for life, then to the children of B.
B has child D.
B dies.Like a remainder vested subject to complete divestment, a remainder vested subject to open is officially vested rather than contingent. It is not subject to the destructibility of contingent remainders, to elimination in merger, or to the Rule Against Perpetuities. The distinction is mostly terminological.
Under the rule of convenience, a class also closes when any member of it is entitled to possession. Those grantees who currently have vested interests are entitled to possession. But any contingent interests of potential class members are destroyed; no one else can be added to the class in the future. In the following example, the class grows until A's death. At that point, C and D are entitled to possession, so the class closes. The property is divided among them and their interests become possessory. E's birth changes nothing. The class has already closed. E is not entitled to join it, and receives nothing.
O conveys to A for life, then to the children of B.
B has child C.
B has child D.
A dies.
B has child E.The Rule Against Perpetuities
The Rule Against Perpetuities is a common-law doctrine that invalidates interests that are deferred too far into the future. The Rule simplifies ownership, giving current owners a less encumbered title. Here is a simple example of the kind of interest that obviously violates the Rule:
O conveys to A and her heirs, but if Mars becomes a state to B and her heirs.B's executory interest is said to be remote, because it could take effect arbitrarily far into the future. Perhaps Mars will become a state next year, but perhaps it will become one in 500 years, or 50,000. That contingency will always be hanging over the title of A's heirs and successors, threatening to take away ownership and give it instead to B's heirs and successors.
Thus, The Rule Against Perpetutities invalidates B's executory interest. It is void from the moment O attempts to create it. It is deleted from the conveyance, so that A receives a fee simple, as if O had simply written to A and her heirs.
The standard statement of the modern Rule is John Chipman Gray's:
No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.
Stripped of the double negative and cleaned up, the Rule states that an interest is void if
- It is created in a third party, and
- as of when it is created
- the time that it vests
- could be after
- the death every person currently alive
- plus 21 years
The next few sections explore these elements in more detail.
Interests Subject to the Rule
The first element ("created in a third party") means that only remainders and executory interests are subject to the Rule. Interests retained by the grantor -- reversions, possibilities of reverter, and powers of termination -- are always valid.
In the following example, O's possibility of reverter is valid, even though the triggering condition might not happen for many centuries. This immediately shows that the policy justifications for the Rule must be taken with a grain of salt; the Rule is perfectly fine with allowing property to be perpetually encumbered by an interest retained by the grantor. Illogical as this seems, it follows from the common-law attitude that future interests are carved out of the grantor's rights; reversions and possibilities of reverter are just the leftover space that remains after those interests have been created.
O conveys to A and her heirs while Mars does not become a state.The second element ("as of when it is created") means that compliance with the Rule is checked only once: at the time an interest is created. This might be at the time of an inter vivos conveyance, or at the time that a will becomes effective (i.e. at the death of the testator). If the interest is valid at that moment, it will always be valid. Note that compliance with the Rule does not mean that the interest is guaranteed to vest or become possessory: it might not. It simply will not vest after the life plus 21 years measuring period of the Rule. (Of course, an interest that can never vest is void anyway. Nothing can make an interest that takes effect "when 2+2=5" possessory.)
The third element ("the time that it vests") means that the Rule depends on the full complexities of vesting as described in the previous section. An interest can vest when it becomes possessory ("vests in possession"), or at the time that it becomes vested in the sense described above ("vests in interest"). Thus, a remainder vests for purposes of the Rule when it is an ascertained grantee and is not subject to a condition precedent. That could happen, at the latest, at the moment it becomes possessory. Or it could happen earlier, if all of the uncertainties about who will receive it and whether they will receive it at all have been cleaned up. An executory interest cannot vest in interest, so it is vested for purposes of the Rule only when it actually becomes possessory.
Measuring Lives
The fourth element ("could be after") is the most important, and the subtlest. An interest fails the Rule if there is any possible way that it could vest after the life plus 21 years period. To invalidate an interest, demonstrate a scenario that results in vesting too late. A scenario in which the interest vests on time is not a problem. Neither is a scenario in which the interest never vests. Only a scenario in which the interest vests and does so too late is a problem. To show that an interest is valid under the Rule requires showing that no such scenario exists, i.e., that no matter what happens, the interest will either vest on time or not vest at all.
In the following conveyance, B's executory interest is valid. B's executory interest is subject to the condition precedent that B marry. If and when she does, it will vest (indeed, it will become possessory). It is entirely possible that it will never vest. That is fine. An interest does not have to be certain to vest to be valid under the Rule Against Perpetuities. What is important is that if B's interest vests, it will do so within B's lifetime, because she cannot marry after her death. There is no possibility that it could vest remotely. It will happen within B's lifetime -- within "some life in being" as Gray would say -- or it will not happen at all.
O conveys to A and her heirs, but if B marries to B and her heirs.B serves as a measuring life for her executory interest under the Rule. A measuring life is one that can be used as a guarantee of compliance with the Rule, because the events causing the interest to vest must take place during that person's lifetime plus 21 years. If they don't happen by then, they will never happen. One of the best ways to check compliance with the Rule is to find a measuring life. If you can find one for an interest, the interest is valid. If you can find a way for the interest to vest such that no person can serve as a measuring life, the interest is invalid.
The fifth element ("every person now alive") is a way of stating that there is no person who can serve serve as a measuring life. The sixth element ("plus 21 years") leads to some complications, because the perpetuities period can include up to 21 years following a measuring life. (Littleton does not currently model most of these complications.)
Examples
In the following example, C's interest is valid. It is currently vested, because it is in an ascertained grantee (C) and it is not subject to a condition precedent.
O conveys to A for life, then to B for life, then to C.In the following example, B's interest is valid. It is currently contingent, but if it vests, it will do so within B's lifetime. As of B's death, B will either have married already or become permanently unable to marry.
O conveys to A, but if B marries to B.In the following example, B's interest is invalid. It is currently contingent because the land has not been used as a store. It could be used as one at any time in the future, even long after B's death.
O conveys to A, but if the land is used as a store to B.In the following example, O's interest is valid. The Rule only applies to interests created in third parties, not interests created in the grantor. Reversions, possibilities of reverter (like this one), and powers of termination are exempt from the Rule.
O conveys to A so long as the land is not used as a store, then to O.In the following example, the interest in B's children is valid. The class will close at B's death, after which no more members can be added.
O conveys to A for life, then to the children of B.In the following example, the interest in B's grandchildren is invalid. The class will close as of the death of B's last surviving child. Since B could have more children after the conveyance is executed, that child might not be currently living. If that child has a child, then a member could join the class of B's grandchildren outside the vesting period. The rule of convenience (which closes a class when the first member is entitled to possession) does not save the interest, because it does not apply for Rule Against Perpetuities purposes.
O conveys to A for life, then to the grandchildren of B.In the following example, the interest in B's grandchildren is valid. The class will close as of the death of B's last surviving child. But that person will be either C or D, both of whom are currently alive. Any children they have will be added to the class during their lifetimes.
B has child C.
B has child D.
B dies.
O conveys to A for life, then to the grandchildren of B. Consequences of the Rule
The Rule Against Perpetuities operates at the level of interests; those that fail its test are invalidated. But this leaves a question of how the conveyance should be reformulated to close the potential gap in ownership opened by deleting an interest. For example, in the following conveyance, B's executory interest fails the Rule because there is no time limit on when Mars might become a state. The most straightforward reformulation is to strike the entire clause creating B's interest, leaving A with a fee simple.
O conveys to A, but if Mars becomes a state to B.But compare the following conveyance, which attaches the same condition to A's interest, rather than to B's. The Rule still applies to B's executory interest, so it still fails. But now it is less obvious that A should receive a fee simple absolute. Many courts confronting such a conveyance would hold instead that the condition continues in effect, but imply a possibility of reverter in O, leaving A with a fee simple determinable.
O conveys to A until Mars becomes a state, then to B.Ultimately, the proper reformulation is a matter of carrying out the grantor's intent. Littleton uses some simple heuristics to pick plausible reformulations, but in a real conveyance other evidence will bear on the proper resolution.
Co-Ownership
The interests discussed so far divide ownership over time: one interest follows another sequentially. Ownership can also be divided simultaneously. Once again, there are several ways to do so.
Tenancy in Common
The simplest form of co-ownership is the tenancy in common. When a possessory interest is divided in a tenancy in common, each co-tenant has the right to enter and use the property. None of them can exclude the others.
The clearest way to create a tenancy in common is to name the individual co-tenants and explicitly describe them as tenants in common. Here A and B are tenants in common with equal one-half shares. The shares of tenants in common need not be equal, but here they are. (Littleton does not include syntax for a grantor to give unequal shares when creating a tenancy in common, but as we shall see, it is possible for tenants in common to end up with unequal shares in other ways.)
O conveys to A and B as tenants in common.A tenancy in common can be created in any number of co-tenants. By default, they all receive equal shares. The Littleton syntax to create one is to put the word and between each pair of names.
O conveys to A and B and C and D as tenants in common. A tenancy in common can also be created through a class gift.
A has child B.
A has child C.
A has child D.
O conveys to the children of A.Consequences of a Tenancy in Common
Each co-tenant's share is freely alienable.
O conveys to A and B as tenants in common.
A conveys to C.Shares are fungible, which means that they can be added together:
O conveys to A and B and C and D as tenants in common.
A conveys to B.Shares can also be subdivided.
O conveys to A and B as tenants in common.
B conveys to C and D as tenants in common.Should one owner obtain all of the shares, the tenancy in common terminates and the property reverts to sole ownership.
O conveys to A and B as tenants in common.
A conveys to B.Any interest can be created as a tenancy in common. Here O divides a remainder between B and C.
O conveys to A for life, then to B and C as tenants in common.Joint Tenancy
The other major form of co-ownership is the joint tenancy. The clearest way to create a joint tenants in common is to name the individual co-tenants and explicitly describe them as joint tenants, or, more briefly jointly.
O conveys to A and B as joint tenants.
A dies.
B dies.A joint tenancy functions like a tenancy in common, except that it comes with the right of survivorship: on one joint tenant's death, their share disappears and passes proportionately to their co-tenants. Here, at A's death, B and C each hold equal one-half shares. After both A and B have died, C is the sole owner.
O conveys to A and B and C as joint tenants.
A dies.
B dies.Historically, the default when no specific form of tenancy was clearly specified was to create a joint tenancy. Today, the default has flipped and courts prefer to read a conveyance as creating a tenancy in common. In Littleton, this default can be set to either the historical or modern value.
O conveys to A and B.Survivorship is a relation that holds among joint tenants. It is possible for some co-tenants to have the right of survivorship with each other, but not with others.
O conveys to A and B as tenants in common.
A conveys to C and D as joint tenants.
C dies.Survivorship superficially resembles a life estate, in that the owner's interest terminates at their death. But there is a crucial difference. The owner of a life estate cannot control what happens to their interest after their death. But the owner of a joint tenancy can sever the joint tenancy by executing a unilateral conveyance of their interest. Doing so eliminates the right of survivorship and converts their interest into a tenancy in common. The right of survivorship among the remaining joint tenants is unaffected.
O conveys to A and B and C as joint tenants.
A conveys to X.
B dies.Tenancy by the Entireties
A variation on the joint tenancy is the tenancy by the entireties, which can only be created in a married couple.Like a joint tenancy, a tenancy by the entireties includes a right of survivorship. Unlike a joint tenancy, however, a tenancy by the entireties cannot be unilaterally severed: neither spouse can separately convey their own interest. In the following example, A's conveyance to X is ineffective, so that B becomes sole owner at A's death.
A and B marry.
O conveys to A and B as tenants by the entireties.
A conveys to X.
A dies.A tenancy by the entireties can be eliminated by a joint conveyance executed by both co-tenants. (Littleton does not currently support conveyances by more than one grantor.)
Inheritance
Although Littleton does not attempt to model anywhere near all of trusts and estates law, it includes basic support for wills and intestacy, which can interact with conveyances in important ways.
Wills
We have been dealing with inter vivos ("among the living") conveyances, which take effect immediately. A will is a conveyance deferred in time: it takes effect only at the testator's death.
O makes a will to A and her heirs.
O dies.A will is said to be "ambulatory": it walks around with the testator, who can change their mind at any time.
O makes a will to A and her heirs.
O makes a will to B and his heirs.
O dies.A will is also effective only as to property that the decedent owns at the time of their death. (Because Littleton only deals with ownership of a single piece of property, it makes no attempt to model general and specific devises.)
O makes a will to A and her heirs.
O conveys to X.
O dies.Like an inter vivos conveyance, a will can pass whatever interest the testator owns, even if it is less than a fee simple.
O conveys to A for life, then to B.
B makes a will to C.
B dies.Intestacy
If a person dies without a will, their property passes through intestacy, according to a set of rules laid down by the legislature. Typically, a surviving spouse, if any, has first priority:
O marries X.
O dies.If the decedent has no surviving spouse, matters become more complicated. Littleton models four different rules for intestacy, which can be selected using a setting: by primogeniture, per stirpes, per capita_, or by representation. These control which children and further descendants are entitled to take, and what their shares are. Littleton does not attempt to model intestacy provisions that allow parents, siblings, and further relatives to inherit. It should also be noted that there are numerous variations within these systems (especially primogeniture) and Littleton does not attempt to capture them all.
An inheritance rule of primogeniture passes the decedent's property to their eldest child.
O has child A.
O has child B.
O dies.If the eldest child dies before the decedent, their eldest child (i.e. the decedent's grandchild) if any succeeds to their rights.
O has child A.
O has child B.
A has child C.
A dies.
O dies.If the eldest child dies childless before the decedent, then the next-eldest child inherits.
O has child A.
O has child B.
A dies.
O dies.A rule of inheritance per stirpes divides the decedent's property equally among their children.
O has child A.
O has child B.
O dies.If one of the children dies first, their share is divided equally among their children.
O has child A.
O has child B.
A has child C.
A has child D.
A dies.
O dies.If multiple children die before the decedent, their shares are divided among their respective children: the more children one of them has, the smaller their shares will be.
O has child A.
O has child B.
A has child C.
A has child D.
B has child X.
B has child Y.
B has child Z.
A dies.
B dies.
O dies.A rule of inheritance per capita also divides the decedent's property equally among their children. It differs from per stirpes if one of the children dies first. That child's children inherit equal shares not of their parent's interest (as in per stirpes), but of the entire estate. In other words, descendants of different generations are treated equally
In the following example, B's share is reduced from one half to one third at the death of A, because A has two children, making for three total members of the class who inherit.
O has child A.
O has child B.
A has child C.
A has child D.
A dies.
O dies.A rule of inheritance by representation is a hybrid of per stirpes and per capita. Like per stirpes, it divides up and reallocates the shares of those children who die before the decedent -- but not of those children who are alive at the time of distribution. So in the previous example, B still has a one-half share, not a one-third share. Like per capita, distribution by representation equalizes shares among those in a class. Where per capita has one pool for everyone entitled to inherit, by representation has one pool at each generation:
O has child A.
O has child B.
O has child C.
A has child O.
A has child P.
B has child X.
B has child Y.
B has child Z.
A dies.
B dies.
O dies.If a decedent has no identifiable heirs, or an owner cannot be identified for other reasons, property escheats and becomes owned by the state.
O dies.