Brief or IRAC Real Estate Cases

In the Estate of Dalton Edward Craigen and choose two out of the four “Notes and Questions” problems following the case to answer (Page 12)

Part III: Interests
To this point we have largely been conceiving the res of property law—the “thing” in
which property rights inhere—as a physical thing (a plot of land, a jewel, an animal), or
perhaps a circumscribed intangible concept that we can treat as such a thing (a
trademark, a domain name, a radio frequency). But typically—and especially when
dealing with that most primal and valuable res: land—property does not confer
ownership of a thing. Rather, it confers ownership of a particular interest in a thing.
While in lay conversation and informal contexts it might be perfectly acceptable to say
you own a plot of land, to be precise you would have to say that you own a legal interest
in that plot of land—most likely a legal estate we will come to know as a fee simple
absolute. The conceptual separation between legal interests in a valuable physical (or
intangible) resource and the resource itself allows lawyers to structure a diverse array
of legal relations regarding the possession, use, disposition, and control of such
resources. Interests can be divided up among multiple people at the same time, or
among a succession of people over time, or any combination thereof, allowing for
subtle control of—and deep predictability about—the rights of all interested parties in
particular resources. In this part we will explore the legal tools and concepts that make
such arrangements possible.
The tools of control and planning that the common law puts in the hands of owners
(and their lawyers) are powerful, but they carry risks of both malice and incompetence.
Malice, because they can be abused by overzealous owners and attorneys in ways that
are detrimental to society’s interest in the appropriate allocation of scarce and contested
resources. Incompetence, because they are complex and subtle, and therefore provide
lots of opportunities for laypeople—and even lawyers and judges—to make mistakes
that have the effect of thwarting their wishes. Property law has developed tools to
guard against these dangers, and we will be investigating those tools as well.
Chapter 5: Estates and Future Interests
A.
Introduction
All land under the dominion of the English
crown is held “mediately or immediately, of the
king”—that is, the crown has “radical title” to all
land under its political dominion. William the
Conqueror declared that all land in England was
literally the king’s property; everyone else had to
settle for the privilege of holding it for him—the
privilege of tenure (from the Norman French
word tenir—to hold). Tenurial rights were
intensely personal in early feudal society: the
right to hold land was a privilege granted by the
Homage Ceremony
Source:
J
AMES
H
ENRY BREASTED & JAMES HARVEY
crown in exchange for an oath of allegiance and
ROBINSON, 1 OUTLINES OF EUROPEAN HISTORY 399
a promise of military service by the tenant—the
(1914).
oath of homage. The word homage derives from
the French word homme—literally “man”—precisely because the ceremony surrounding the
oath created not only the right of tenure, but a political and military relationship between “lord
and man.” 1 In exchange for the tenant’s faithful support, or fealty, the lord warranted the
tenant’s right to hold a plot of land, called a fief, or fee.
Acceptance of this form of military tenure obligated the tenant to provide a certain number
of knights when called on by the king, and the land held by the tenant was supposed to provide
sufficient material support to enable him to meet this military obligation. Sometimes, by the
The ceremony of homage, recorded by the 13th-century jurist and ecclesiastic Henry de Bracton, required the tenant to
come to the lord in a public place, and there “to place both his hands between the two hands of his lord, by which there
is symbolized protection, defense and warranty on the part of the lord and subjection and reverence on that of the tenant,
and say these words: ‘I become your man with respect to the tenement which I hold of you … and I will bear you fealty
in life and limb and earthly honour … and I will bear you fealty against all men … saving the faith owed the lord king and
his heirs.’ And immediately after this [to] swear an oath of fealty to his lord in these words: ‘Hear this, lord N., that I will
bear you fealty in life and limb, in body, goods, and earthly honour, so help me God and these sacred relics.’” 2 Bracton
Online 232 http://bracton.law.harvard.edu/Unframed/English/v2/232.htm. The Anglo-Saxon Chronicle contains a
remarkable and much-debated passage in which William the Conqueror is said to have held court at Salisbury twenty years
into his reign, and there summoned and taken direct oaths of homage and fealty from every landowner “of any account”
in the whole of England. See H. A. Cronne, The Salisbury Oath, 19 HISTORY 248 (1934); J.C. Holt, 1086, in COLONIAL
ENGLAND, 1066-1215, at 31 (1997).
1
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process of subinfeudation, the King’s direct tenants (or “tenants-in-chief”) could spread this
burden around by in turn accepting homage from other, lesser nobles and freemen, each of
whom would be responsible to the tenant-in-chief for a portion of the tenant-in-chief’s
obligation to provide knight-service. The tenants-in-chief thereby became “mesne lords” in
their own right (“mesne” being Norman French for “middle” or “intermediate,” today
pronounced “mean”). There could be several layers of mesne lords (i.e., “land lords”) in the
feudal hierarchy, at the bottom of which were “tenants in demesne” (“demesne” being
Norman French for “domain” or “dominion”)—who actually held the land rather than
subinfeudating it further. Of course, holding land did not mean one actually worked it; a tenant
in demesne often left the cultivation and productive use of land to those of lower social status.
These could be “villeins”—serfs legally bound to the land by birth—or “leasehold” tenants—
a leasehold being a right to hold land for a term of years in exchange for payment of rent in
cash or (more often) kind, and of lesser status than the “freehold” estate held by feudal tenants
tracing their rights up the feudal pyramid to the crown.
Because a feudal tenant’s land rights were intimately connected to this web of personal,
political, and military relationships, there was no logical reason why the tenant ought to be free
to transfer those rights to anyone else—and good reason for the lords to resist such alienation
of the fee by their tenants. Indeed, fees could be forfeited to the lord for the tenant’s breach
of the homage relationship or commission of some other “felony,” and on the tenant’s death
it was not clear that his family members had the right to inherit the fee. The king was assumed
to have the right to retake the fee and re-grant it to a preferable new tenant upon his
displeasure with or the death of the old tenant (it was his land, after all). Within a century,
however, the dynastic ambitions of the baronage compelled King Henry I to concede (in his
Coronation Charter of 1100) that a recently deceased baron’s heir could redeem his fee upon
payment of “a just and lawful relief”—i.e., a payment of money to the crown, as a kind of
inheritance tax. Under the principle of primogeniture that took hold in England around this
time, the lord’s heir was his eldest son; landowners were not free to choose who would take
over their tenancy after their death. Thus, subject to the payment of a relief, the fee became
descendible—capable of being inherited from one generation to the next—and the grant of a
descendible tenancy by the crown was now made not “to Lord Hobnob,” but “to Lord
Hobnob and his heirs.” To this day, the latter phrase remains the classic common-law formula
for creating the broadest interest in land that the law will recognize: the fee simple absolute.
Descendibility of the fee simple having been settled early in the history of English land law,
the broader question of full alienability took several more centuries to work out. The history
of medieval English land law is a history of tenants trying to secure their families’ wealth and
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power by expanding alienability and evading tenurial obligations to their lords and the crown,
while the crown and higher nobility tried to adapt the law to preserve their status and prevent
such evasions. There is a dialectical quality to this history. For example: for complicated
reasons subinfeudation quickly came to present a greater threat to the economic interests of
the higher ranks of the feudal hierarchy than simple substitution of one tenant for another.
Thus, in 1290 the Statute of Quia Emptores banned subinfeudation. (Quia Emptores is Latin for
“Whereas Purchasers,” the first two words of the statute which opens with a complaint against
land purchasers who engage in transactions that might effectively deprive a lawful lord of his
fiefdom.) But in banning subinfeudation Quia Emptores validated substitution, and with it the
practice of selling an entire fee in exchange for money during the life of the tenant. Similarly,
in 1536, at the insistence of King Henry VIII, the Statute of Uses abolished many clever
schemes adopted by tenants to use intermediaries to direct the disposition of real property
interests after death, and to put those interests outside the reach of the law courts (and of the
crown’s feudal authority). But in doing so, the statute validated one type of flexible property
arrangement we have come to know as a trust. Moreover, the removal of the primary
mechanism lawyers had developed to meet tenants’ demand for intergenerational planning
was sufficiently unpopular that Henry felt compelled to consent to the enactment of the
Statute of Wills in 1540—finally permitting tenants to pass their legal estates in land by will
rather than being at the whim of the rule of primogeniture. Finally, since the 16th century,
primogeniture has given way to a more complex system of default inheritance rights for
various relatives of the deceased who leaves no will; these rights are designed to try to
approximate what legislatures think the decedent would have wanted, not necessarily what is
best for the government. This set of default rights comprises the law of intestate succession, which
we will discuss briefly in a separate unit (and which you may study more thoroughly in a
separate course on trust and estates law).
Various other statutes and common-law developments over the centuries culminated in the
system of possessory estates and future interests that were imported into the North American
English colonies, and thus into the independent American states (excluding Louisiana).
Underlying them all is a fundamental distinction that traces back to the “radical title” asserted
by William the Conqueror in 1066: there is a conceptual difference between the
ownership of land and the ownership of a legal interest in that land . This distinction
remains important to modern property law, and this unit will introduce you to the types of
legal interests in land that American law will recognize. In particular, it examines how the
common law divides up legal interests in land among successive owners over time.
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Before delving into this material, we should warn you that the estates system has limited
relevance even for the practicing real estate lawyer of today. The study of estates and future
interests remains in property courses for three primary reasons: (1) the estates are still legally
valid property interests, and their complexity can therefore can be a danger to lawyers who
encounter them and are unfamiliar with them; (2) some of the legal estates and future interests
in real property can be usefully extended to equitable interests in property held in trust; and
(3) the bar examiners are fond of testing aspirant attorneys on future interests—perhaps
simply because they are fairly mechanical and therefore highly testable. To be sure, mastering
the system of estates and future interests requires considerable exercise of the lawyerly skills
of close reading, logical reasoning, and breaking down a big problem into lots of smaller
problems. But there are other ways of learning those things, and a contemporary lawyer whose
client wanted to divide up interests in property would be courting malpractice by relying on
legal estates and future interests in land (which makes the bar examiners’ continued affection
for them even more baffling). Instead, the modern lawyer should look to the much more
flexible law of trusts and to the various forms of business associations—such as
corporations—that can own property in their capacity as fictional legal “persons.” We discuss
these strategies in a separate chapter on trusts and corporate property.
B.
Concepts, Vocabulary, and Conventions
To begin understanding how the law divides up interests in land over time, we begin with the
fundamental distinction between possessory estates and future interests. A possessory
estate is a legal interest that confers on its owner the right to present possession of some thing. A
future interest is a legal interest that exists in the present, but does not entitle the owner to
possession until some point in the future.
This may sound confusing, but you are probably already familiar with an arrangement that
follows this pattern: a lease. A lease is a transaction in which the landlord gives the tenant a
possessory estate (a leasehold estate), and retains a future interest—the right to retake
possession after the lease term ends. This retained future interest—an unqualified right to
future possession retained by the party who created the possessory interest that precedes it—
is called a reversion. (Landlord-tenant relationships are obviously more complicated than
this—they entail a number of contractual rights and obligations and are heavily regulated by
statutory and decisional law and, in many cases, administrative codes. We cover these
relationships more thoroughly in our unit on Landlord and Tenant.)
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The idea that both landlord and tenant can have legal interests in the same parcel of land at
the same time, even though only one of them has the right to possess the land at any given time,
is a good introduction to the concept of future interests. If you think about it, you will probably
recognize that the basic idea of a lease implies certain rights and powers of a landlord in the
leased premises even during the term of the lease. The most important one is the reversionary
right itself: the right to take possession at some point in the future. That’s a right the tenant
can’t take away, even while the tenant has the right to possession. The landlord might be
interested in selling (or mortgaging) this reversionary right, even before the lease ends. And if
she does sell or mortgage her interest (which she may, subject to the tenant’s interest), the
thing sold is not “the property”; it is the landlord’s reversion: a legal interest in real property that
exists in the present but will not entitle its holder to possession of that real property until some
point in the future.
When learning about estates and future interests, we will follow some conventions that will
simplify our discussion as much as possible. Most of our problems will involve an owner of
land transferring some interest in that land to one or more other parties. Following
longstanding tradition in the study of Anglo-American property law, we will refer to the parcel
of land in question as “Blackacre” (or “Whiteacre,” “Greenacre,” “Ochreacre,” etc. if more
than one parcel is at issue). We will refer to the original owner as O, and the other parties as
A, B, C, etc.
In addition, there are a variety of technical terms that arise, a few of which you should be
familiar with:
• A grant or conveyance is a transfer of an interest in property. The person making the
grant is the grantor (or transferor); the person receiving the grant is the grantee (or
transferee). If the grant is made during the life of the grantor, it is said to be an inter vivos
conveyance (literally, “between the living”). If in a will, it is said to be a testamentary
conveyance. A testamentary conveyance of real property is called a devise. A
testamentary conveyance of personal property is called a bequest (or sometimes a legacy).
• When a person dies, they will either have left a valid will or not. A person who dies
with a valid will dies testate; one who dies without a valid will dies intestate. Either way,
the dead person can be referred to as a decedent. If the decedent did leave a valid will,
they may also be referred to as a testator if male, or a testatrix if female.
• The assets that a decedent owned at her death are collectively referred to as the
decedent’s estate. An estate can sometimes take on the qualities of a legal person—it
is not uncommon to say that a certain asset is owned by “the estate of O.” The
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•
•
•
•
•
property rights of this fictional legal person are managed by an actual person whose
title depends on whether the decedent left a will. The instructions in a will are carried
out by an executor, designated as such in the will itself. An intestate estate is disposed
of by a court-appointed administrator. In some jurisdictions these titles are subject to
binary gender distinctions; a female executor may be referred to as an executrix and a
female administrator as an administratrix.
The authority of an administrator or executor to dispose of the estate’s assets is
conferred by a probate court. When a valid will is filed with the probate court and
deemed valid, the court will admit the will to probate (or probate the will), and will issue
letters testamentary to the executor authorizing him to take possession of the estate’s
assets and dispose of them according to the will’s instructions. If the decedent died
intestate, the court will issue letters of administration to an administrator authorizing him
to take possession of the estate’s assets and dispose of them according to the laws of
intestate succession.
If the decedent did leave a valid will, it will typically contain instructions for
transferring assets to various identified people or entities. The parties receiving the
bequests are referred to as the will’s beneficiaries, devisees (for real property), or legatees
(for personal property). When a decedent passes property by will he or she is said to
have devised that property. A property interest that the decedent has the power to
transfer by will is said to be devisable.
Sometimes a will fails to provide instructions for all the assets owned by the testator
at death; in this case the unallocated assets are said to create a partial intestacy. When
this happens, assets designated in the will are distributed according to the will’s terms,
while the estate’s remaining assets are distributed according to the laws of intestate
succession. In order to avoid partial intestacy, it is good practice to include a residuary
clause in a will, disposing of all the assets of the decedent not designated in specific
bequests. Such unenumerated assets are referred to as the residuary estate.
If the decedent did not leave a valid will, her property will pass to her heirs (sometimes
referred to as heirs at law). Heirs are those who are designated by law as successors to
property that passes by intestate succession rather than by will. When heirs take such
property, they are said to inherit it. A property interest that can pass by intestate
succession is said to be descendible.
Note that until the decedent actually dies, we don’t know who her heirs are; rights of
inheritance are allocated only to relatives of the decedent who survive her—who are
still alive when the decedent dies. Thus, until a property owner dies, her relatives have
no legally enforceable rights in her property under the laws of intestate succession. It
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is sometimes said that such relatives have a mere expectancy, and they are sometimes
referred to as heirs apparent; but neither title gives them any enforceable interest in
property. Similarly, because a will can always be changed by the testator prior to their
death, the beneficiaries of a will have no legally enforceable rights in a testator’s
property until the testator dies; they too are sometimes said to have a mere
unenforceable expectancy.
• Heirs under intestacy laws are drawn from various categories of relatives. In addition
to spouses, there are issue: the direct descendants of the decedent (children,
grandchildren, great-grandchildren, etc.); ancestors (parents, grandparents, greatgrandparents, etc.); and collaterals: relatives who are not direct ancestors or descendants
(siblings, aunts, uncles, nieces, nephews, cousins).
• If a person dies without a will and without any heirs at law, any property in their estate
escheats to the state, which becomes its owner.
C.
Basic Estates and Future Interests
We will begin by examining two possessory estates—the fee simple absolute and the life
estate—and two future interests (one of which you have already encountered)—the reversion
and the remainder.
1.
The Fee Simple Absolute
The fee simple absolute is the most complete interest in land that the law will recognize. When
we say that “O owns Blackacre” without any further qualification, what we actually mean is
that O owns a presently possessory fee simple absolute in Blackacre. The key distinguishing
characteristic of the fee simple absolute is that it has no inherent end—it is an estate of indefinite
duration. It is descendible, devisable, and alienable inter vivos; so it can be transferred to a new
owner, but it cannot be destroyed. At most, it can be carved up into lesser estates and interests
for a while, and we will spend most of the rest of this chapter understanding how that happens.
At common law, as previously noted, the fee simple absolute was created by the formula: “to
A and his heirs.” (This reflected the medieval innovation of a fee that could be passed from
father to son by inheritance, as opposed to one that reverted back to the king on the death of
the tenant.) That formula still works, but in modern usage it is sufficient to simply say “to A,”
and the use of such language in a conveyance from the owner of a fee simple absolute will be
presumed to create a fee simple absolute in A. Note, however, that the traditional language
creates no legal interest in anyone other than A; the words “and his heirs” are simply a legal
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formula that has been passed down over the centuries to indicate this particular type of estate.
(Remember: a living person has no heirs, and once A dies A’s property will pass by will or
intestate succession.)
2.
The Life Estate
The life estate is just what it sounds like: an estate that confers a right to possession for the life
of its owner. The owner of a life estate is referred to as a life tenant. The life estate terminates
by operation of law upon the owner’s death (i.e., it ceases to exist). It is created by the formula:
“to A for life.” Because it must by definition end—we all have to die sometime—any land
held by a life tenant must also be subject to a future interest in some other person. We’ll explore
what those future interests might be shortly.
Recall the legal principle of nemo dat quod non habet (or nemo dat for short), which we encountered
in our discussion of good faith purchasers: a grantor cannot convey title to something she
doesn’t herself own. Following this principle, life estates are alienable inter vivos during the life
of the life tenant, but obviously not devisable or descendible: they cease to exist upon the
death of their owner, so the life tenant’s estate has nothing to convey. Nemo dat also implies
that the owner of an interest in real property cannot convey more than their interest; a life
tenant cannot convey a fee simple absolute, for example. More to the point, if a life tenant A
transfers their life estate to a grantee B, B cannot receive anything more than what A owns: a
possessory estate that will terminate by operation of law when A dies. Because such an interest
is measured by the life of someone other than its owner, it is called a life estate pur autre vie
(literally, in Law French, “for another life”). A life estate pur autre vie can also be created
explicitly, as by a grant “to A for the life of B.”
We’ll hold off on any further illustrative problems at this point, because we still need some
exposition of what happens after a life tenant dies. The answer, as we’ve already noted, involves
future interests.
3.
The Reversion
We encountered the reversion once before, when discussing leases as an introduction to the
concept of a future interest. But reversions often arise in non-leasehold contexts too. Consider
what happens when A, owning a life estate in Blackacre, dies. A’s life estate terminates by
operation of law; it simply ceases to exist and disappears. Who “owns” Blackacre now? It
seems obvious that somebody must have a right to possession of the land, but it seems equally
obvious that whoever that somebody is, they had no right to possession before A died. Whoever
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they are, during the term of A’s life estate they must have held an interest that would entitle
them to take possession at some point in the future (that is, a future interest).
There are two candidates for such an interest. We will begin with the most basic: the reversion.
Suppose that O, owning a fee simple absolute in Blackacre, conveys Blackacre “to A for life,”
and says nothing more? What is the legal effect of this grant?
Based on the formula we just learned, it should be clear that A receives a life estate in
Blackacre. But what other effects does the grant have on the legal rights of the parties? Think
about the interest O held prior to the conveyance: the fee simple absolute. Remember that a
fee simple absolute is an interest of infinite duration—it never ends. So when O starts with a
possessory interest of infinite duration, and then gives away a life estate—whose duration is
limited by a human lifespan—to A, something was left over. Specifically, O never gave away the
right to possession of Blackacre from the day of A’s death to the end of time. Whether
meaning to or not, O gave away less of an interest in Blackacre than what he owned, meaning
he still holds some interest. We call this type of interest—the residual interest left over when a
grantor gives away less than they have—a retained interest.
This retained interest can’t entitle O to possession during A’s life—A has the exclusive right
to possession as the life tenant. So O’s interest must be a future interest during the term of A’s
life estate: an interest that will entitle O to possession after the natural termination of the life estate.
As we discussed in the example of the lease, we call this kind of future interest a reversion. It
is a retained interest in the grantor—created when a grantor conveys less than his entire interest—
that will become possessory by operation of law upon the natural termination of the preceding
estate. Colloquially, we say that Blackacre “reverts” to O. In some opinions, you will see the
holder of a reversion referred to as a “reversioner.”
A reversion can of course also be created explicitly, for example, if O conveys Blackacre “to
A for life, then to O.” In this case, O has explicitly created a life estate in A followed by a
reversion in O.
4.
The Remainder
A remainder is a type of future interest created in someone other than the grantor. The
distinguishing characteristic of the remainder is that—like a reversion—it cannot cut short or
divest any possessory or vested estate. (We will later encounter other future interests that can.) A
remainder simply “remains,” sitting around and waiting for the natural termination of the
preceding possessory estate (be it a life estate or a lease), at which point the remainder will
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become possessory by operation of law. Suppose that O, owning a fee simple absolute in
Blackacre, conveys Blackacre “to A for life, and then to B.” Again, A would have a life estate,
but now O has also affirmatively created a future interest in B. Because the future interest is
created in someone other than the grantor, it isn’t a reversion. And because it cannot cut short
A’s life estate (note the “and then” language), it must therefore be a remainder. Due to the
persistence of dated gendered terms in legal discourse, you will often see the holder of a
remainder referred to as a “remainderman,” even today, regardless of that person’s gender.
Future interests get a lot more complicated than this, but you now have enough to begin
examining some problems that can arise from even this limited set of interests.
Questions
1. O, owner of a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then
to B for life.” (Assume that both A and B are alive at the time of the grant.) What is
the state of title in Blackacre?
a. What will be the state of title if A dies, survived by B and O?
b. What will be the state of title if B dies, survived by A and O?
c. What will be the state of title if O dies, then A dies, then B dies?
2. What will be the state of title if, while O, A, and B are still alive, B conveys her interest
to C?
a. What will be the state of title if, after B conveys her interest to C, A dies,
survived by B, C, and O?
b. What will be the state of title if, after B conveys her interest to C, C dies, leaving
D as his heir, and is survived by A, B, and O?
c. What will be the state of title if, after B conveys her interest to C, B dies,
survived by A, C, and O?
D.
Construing Ambiguous Grants
We’ve recited a few formulas for creating the small number of common-law interests you’ve
encountered. For example, “to A and his heirs” creates a fee simple absolute in A; “to B for
life, then to C” creates a life estate in B and a remainder in C. But the actual language of
documents conveying legal interests in real property don’t always stick to the formula—
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especially (but unfortunately not exclusively) when they are drafted without the assistance of
counsel. Consider the following case.
In the Estate of Dalton Edward Craigen
305 S.W.3d 825 (Ct. App. Tex. 2010)
HOLLIS HORTON, Justice.
We are asked to determine whether the trial court properly interpreted the dispository language
in a holographic will. If the will is ambiguous, the applicable rules of will construction yield
one result. If the will is unambiguous, the trial court was required to give effect to the express
language of the will, and arguably should have reached a different result.
The trial court, in construing the testator’s intentions under the will, found “[t]hat it was the
intent of the [t]estator to leave his entire estate to his surviving wife in full.” The trial court
further found “[t]hat there was no intention to leave a life estate to her.” In a single issue on
appeal, the testator’s adult children contend the testator intended to leave a life estate to his
wife, and they argue that the remainder of the estate passed to them through the laws of
descent and distribution. We find the will is ambiguous and hold that under the appropriate
rules of will construction, the trial court properly construed the will. Accordingly, we affirm
the judgment.
THE WILL
Dalton Edward Craigen left a holographic will that in its entirety stated:
Last Will & testament
Debbie gets everything till
she dies.
Being of sound mind & this
is my w. last will & testament.
I leave to my Wife Daphne
Craigen all p. real & personal property.
12–17–99 Dalton Craigen
CONTENTIONS OF THE PARTIES
The parties stipulated “[t]hat Debbie and Daphne named in Dalton Craigen’s will are one and
the same person.” Brian Craigen and Sabrina Brumley, Craigen’s adult children, argue that the
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testator’s intent under the will is “crystal clear—the testator left everything (all of his real and
personal property, his definition of ‘everything’) to his wife for as long as she lived.” According
to Brian and Sabrina, the dominant provision of the will (the first sentence) creates a life estate,
and the will’s third sentence can be harmonized with the will’s first sentence by construing the
third sentence to define the property that Craigen intended to include in his wife’s life estate.
Brian and Sabrina ask that we render a judgment in their favor by holding that Daphne
received only a life estate under Craigen’s will.
Daphne died on January 17, 2009. Yvonne Christian, the independent administratrix of
Daphne’s estate, argues we should affirm the trial court’s judgment. According to Christian,
the will is not ambiguous as it reflects Craigen’s intent to leave his entire estate to Daphne.
RULES OF CONSTRUCTION
The rules involved in construing wills are well settled. “The primary object of inquiry in
interpreting a will is determining the intent of the testator.” Gee v. Read, 606 S.W.2d 677, 680
(Tex.1980). “The [testator’s] intent must be drawn from the will, not the will from the intent.”
Id. We ascertain intent from the language found within the four corners of the will. “In
construing the will, all its provisions should be looked to, for the purpose of ascertaining what
the real intention of the [testator] was; and, if this can be ascertained from the language of the
instrument, then any particular paragraph of the will which, considered alone, would indicate
a contrary intent, must yield to the intention manifested by the whole instrument.” McMurray
v. Stanley, 69 Tex. 227, 6 S.W. 412, 413 (1887).
When a will has been drafted by a layperson who is not shown to be familiar with the technical
meanings of certain words, courts do not place “‘too great emphasis on the precise meaning
of the language used where the will is the product of one not familiar with legal terms, or not
trained in their use.’” Gilkey v. Chambers, 146 Tex. 355, 207 S.W.2d 70, 71 (1947) (quoting 69
C.J. Wills § 1120 (1934)). Instead, in arriving at the meaning intended by the layman-testator,
courts refer to the popular meaning of the words the testator chose to use. In summary, the
testator’s intent, as gathered from the will as a whole, prevails against a technical meaning that
might be given to certain words or phrases, unless the testator intended to use the word or
phrase in the technical sense.
With respect to the creation of a life estate, no particular words are needed to create a life
estate, but the words used must clearly express the testator’s intent to create a life estate. A
very strong presumption arises that when a person makes a will, the testator intended a
complete disposition of his property. “[T]he very purpose of a will is to make such provisions
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that the testator will not die intestate.” Gilkey, 207 S.W.2d at 73. When faced with ambiguity,
and in applying that presumption, courts generally interpret wills to avoid creating an intestacy.
…In reconciling different parts of a will, the Texas Supreme Court has explained:
Where, however, the language of one part of a will is not easily reconciled with that
used in another, the principal and subordinate provisions should be construed in their
due relation to each other, and the intent which is disclosed in the express clause ought
to prevail over the language used in subsidiary provisions, unless modified or controlled
by the latter. And a clearly expressed intention in one portion of the will will not yield
to a doubtful construction in any other portion of the instrument.
Heller v. Heller, 114 Tex. 401, 269 S.W. 771, 774 (1925).
ANALYSIS
A will is ambiguous if it is capable of more than one meaning. Because Debbie and Daphne
are in fact the same person, the ambiguity in Craigen’s will becomes apparent. Why would
Craigen in the first sentence grant his wife a life estate, but then in the concluding sentences
bestow upon her all of his property? The resolution of that question by Craigen’s children
seems reasonable, as the last sentence could be construed to merely describe the property that
Craigen intended to include in Daphne’s life estate.
On the other hand, Craigen did not mention his children in his will and he made no provisions
to expressly benefit them. Moreover, Brian and Sabrina’s construction of Craigen’s will would,
if adopted, allow all of Craigen’s property to pass under the laws of intestacy at Daphne’s
death. Brian and Sabrina’s construction assumes that Craigen, when writing his will, did not
intend to completely dispose of his estate. The rule that Craigen did not likely intend to create
an intestacy favors the construction of the will that the trial court adopted.
Brian and Sabrina contend that the will gave Daphne a life estate, but Craigen did not utilize
those exact words in his will. Although no particular words are needed to create a life estate,
the words used must clearly express the testator’s intent to create one. In the absence of a
remainderman clause, we are skeptical that Craigen used the phrase “till she dies” in a technical
sense to create a life estate. Instead, Craigen likely intended to limit Daphne’s use of his
property; nevertheless, the will manifests an intent that she have his property in fee simple
absolute. Consequently, although the first sentence in the will is susceptible to the
interpretation that Craigen created a life estate, the will becomes ambiguous when, in the will’s
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third sentence, Craigen expressly names Daphne as the beneficiary of all of his property and
he makes no further provision for his estate upon her death.
We conclude that the will is reasonably capable of more than one meaning; therefore, we resort
to the rules of construction that apply to ambiguous wills…. Craigen’s will can be interpreted
to avoid the intestacy certain to result under Brian and Sabrina’s construction of the will. The
potential intestacy is avoided if the phrase “till she dies” is interpreted as a conditional bequest.
The third sentence then functions as intended to give Daphne all of Craigen’s property in fee
simple. The immediate vesting construction favors Daphne, the sole beneficiary named in
Craigen’s will. It also affords the phrase “till she dies” a nontechnical meaning.
We decline to apply the presumption that Craigen did not intend to disinherit his children
when the will expressly states that Craigen gave all of his real and personal property to Daphne
and when Brian and Sabrina offered no evidence regarding Craigen’s situation and the
circumstances surrounding the execution of the will. Taking the will as a whole, the dominant
gift is all of Craigen’s real and personal property, and he made that gift to his wife. As this is
the dominant clause, Craigen’s expressed intention prevails.
We hold that under the appropriate rules of will construction, the trial court correctly
construed the will. We overrule the issue and affirm the judgment.
AFFIRMED.
Notes and Questions
1. Holographic Wills. A holographic will—a will handwritten by the testator—often
presents a particular challenge for courts attempting to interpret it. Indeed, they are
thought to be so problematic that about half of American jurisdictions refuse to
recognize them as valid wills at all. See Stephen Clowney, In Their Own Hand: An Analysis
of Holographic Wills and Homemade Willmaking, REAL PROPERTY, TRUST AND ESTATE
LAW JOURNAL 27 (2008) (arguing that the defects of holographic wills, though real, are
overstated). Lay testators attempting to settle their affairs without assistance of counsel
often make legal or technical errors of various kinds, including errors of ambiguity such
as the one that generated the litigation in Craigen.
2. Presumptions and Rules of Construction. The court reviews a number of rules of
construction applied by courts in construing ambiguous grants. Most jurisdictions have
similar rules of construction—sometimes promulgated by statute, other times judgePage 15 of 23
made. In Craigen, two rules in particular do considerable work: the presumption against
intestacy and the clear-statement rule for creation of a life estate. The latter rule is
sometimes expressed in other jurisdictions as a presumption in favor of the largest
estate the grantor could convey. See, e.g., White v. Brown, 559 S.W.2d 938, 939 (Tenn.
1977) (quoting Tenn. C. Ann. § 32-301) (“Every grant or devise of real estate, or any
interest therein, shall pass all the estate or interest of the grantor or devisor, unless the
intent to pass a less estate or interest shall appear by express terms, or be necessarily
implied in the terms of the instrument.”).
What justification is there for presuming that an ambiguous grant conveys a fee simple
absolute rather than a life estate? Is it any different for the justification underlying the
presumption against intestacy? Was Craigen an appropriate case for the application of
these presumptions?
3. Finding Ambiguity. Are you convinced by the court’s arguments that the language
“till she dies” does not “clearly express the testator’s will to create a life estate”? What
do you think Dalton Craigen meant by this phrase?
4. Dueling Presumptions. The court mentions another rule of construction—the
presumption against disinheritance—but declines to apply it. Why? Is its reason for
following the presumption against intestacy but declining to follow the presumption
against disinheritance persuasive? How is a court to decide when a presumption or
other rule of construction applies and when it doesn’t?
E.
Present vs. Future: The Doctrine of Waste
Even if we are very clear on the nature and allocation of possessory and future interests in a
parcel of land, we soon run into a practical problem: it can be difficult to protect the value of
a future interest while someone else is in possession of the land, acting for most purposes as
its owner. What if a life tenant burns down the structures on the parcel? Or decides to
undertake a remodeling project that would make the parcel less desirable to future renters? Or
fails to do anything about a leaky pipe, leading to a costly mold infestation? What if the
possessor uses the property in such a way as to maximize its current value at the expense of
its future value—depleting natural resources, wearing out buildings and fixtures without
repairing or maintaining them—in ways that can’t be recovered? Can it be wrongful—as a
matter of property law—for a lawful possessor to use the possessed premises however they
wish, for good or for ill?
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The common law recognized that it could be wrongful for a present lawful possessor to take
(or fail to take) certain acts with respect to land in their possession—if those acts affected the
ability of a future possessor to enjoy their interest when their turn came around. To vindicate
the rights of these future interest holders, the common law gave them a private right of action
to enjoin, and obtain damages for, the acts and omissions of possessors that permanently
decrease the value of the future interest. This was the action for waste.
Jackson v. Brownson
7 Johns. 227 (N.Y. Sup. Ct. 1810)
… THIS was an action of ejectment for a farm in Whitestown. The cause was tried at the
Oneida circuit, the 5th June, 1809, before Mr. Justice Yates.
At the trial, the plaintiff gave in evidence the counterpart of a lease, dated the 3d September,
1790, from Philip Schuyler, 2 of Albany, to the defendant, for the premises in question, for the
lives of the defendant, his wife, and Samuel Shaw, respectively. The farm contained 133 acres
and a half. The lease contained various covenants, reservations and conditions, among which
was the following: …“And it is further conditioned on the part of the said lessee, that neither
the said lessee, his executors, &c., … shall, at any time hereafter, commit any waste.”
“And in case the said lessee, his, &c., shall not perform, fulfil, abide by, and keep all and every
of the covenants and conditions herein covenanted and conditioned, &c., then in each of the
said cases, it shall thenceforth be lawful for the lessor, his, &c., into the whole of the said
premises, or into any part thereof, in the name of the whole, to reënter, and the same to have
again, repossess and enjoy, as his or their former estate,” &c.
The lessors were the heirs of Philip Schuyler; this action was brought to recover the possession
of the south half of the premises, on the ground of forfeiture by a breach of the covenant; the
lessee or his assigns having committed waste thereon by clearing and draining off the land
more than a reasonable and due proportion of the wood. It was admitted that, at the date of
the lease, the premises were wild and uncultivated, and covered throughout with a forest of
heavy timber.
The plaintiff proved that the defendant occupied the south half of the premises, which were
entirely cleared of wood, before the commencement of the suit; and that on the north half
occupied by Shaw, the whole was cleared except about six or eight acres, on which more than
2
[Yes, that Philip Schuyler.—eds.]
Page 17 of 23
half the wood and timber had been cut down and removed, before the commencement of the
suit.
It was also proved, that a permanent supply of fuel, timber for buildings, and wood for fences,
for the use of the demised premises, would require that, at least, thirty acres should have been
preserved in wood.
… It was also proved, that about 12 years since, there were 35 acres of land covered with
wood and timber on the premises, and about 12 acres of woodland, on that part in the
possession of the defendant, only half of which was good for timber, … that the defendant
had cut no wood or timber on the part in his possession, except for fuel, fences, and building
for the use of the farm, and which had been gradually cut, … [that] the defendant had built a
house on the premises, which was completed about four years since; and had used the farm in
a husbandlike manner, and had carried on more materials for fences than he had taken off;
that … cleared land was of much greater value than land covered with wood and timber; and
that good farms in the vicinity of the premises had not reserved more than 12 acres of
woodland out of 100 acres….
The judge was of opinion, … that the gradual clearing of that part in possession of the
defendant, … did not, in law, amount to waste; and he directed the jury to find a verdict for
the defendant; and the jury found accordingly.
A motion was made to set aside the verdict and for a new trial, for the misdirection of the
judge.…
VAN NESS, J.
… It is a general principle, that the law considers every thing to be waste which does a
permanent injury to the inheritance. Now, to say that cutting down the wood on almost every
acre of the demised premises is not waste, within the spirit and meaning of the covenant in
the case, is to say that no waste, by the destruction of wood, can be committed at all. We are
bound to give effect to this covenant if we can, but to decide that the facts stated in the case
do not constitute waste, would be destroying it almost altogether. That the destruction of the
timber is a lasting injury to the reversion cannot be disputed. For this injury the lessors of the
plaintiff may, at their election, bring covenant, or enter as for condition broken.
… It is true, that what would in England be waste, is not always so here. The covenant must
be construed with reference to the state of the property at the time of the demise. The lessee
undoubtedly had a right to fell part of the timber, so as to fit the land for cultivation; but it
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does not follow that he may, with impunity, destroy all the timber, and thereby essentially and
permanently diminish the value of the inheritance. Good sense and sound policy, as well as
the rules of good husbandry, require that the lessee should preserve so much of the timber as
is indispensably necessary to keep the fences and other erections upon the farm in proper
repair. The counsel for the defendant is mistaken when he says that lessees in England are
prohibited from cutting wood upon the demised premises altogether; the prohibition, in
principle, extends no further, in this respect, there than it does here. In England, that species
of wood which is denominated timber shall not be cut down, because felling it is considered
as an injury done to the inheritance, and therefore waste. Here, from the different state of
many parts of our country, timber may, and must be cut down to a certain extent, but not so
as to cause an irreparable injury to the reversioner. To what extent wood may be cut before
the tenant is guilty of waste, must be left to the sound discretion of a jury, under the direction
of the court, as in other cases.… The principle upon which all these cases were decided is that
which I have before stated, namely, that whenever wood has been cut in such a manner as
materially to prejudice the inheritance, it is waste; and that is the principle upon which I place
the decision of this cause.
…My opinion, therefore, is, that the motion for setting aside the nonsuit, and granting a new
trial, ought to be granted.
KENT, Ch. J., and THOMPSON, J., were of the same opinion.
SPENCER, J.
… The land was covered with heavy timber; and, for the use of it, the lessee was to pay a rent.
The parties must, therefore, have intended that the lessee should be at liberty to fell the timber
to a certain extent, at least, for agricultural purposes.
If the restriction to commit waste would operate to restrain the lessee from the use of the
premises, it would be void, as repugnant to the grant. I shall have no difficulty in maintaining
that, according to the common law of England, the lessee could not enjoy the land, nor derive
any benefit from it, without the commission of waste; and should that point be established,
this covenant must be rejected. The general definition of waste is, that it is a destruction in
houses, gardens, trees, or other corporeal hereditaments, to the disherison of him in remainder
or reversion. It is not every injury to lands that the law considers as waste, nor every act which
injures the remainder-man, or the reversioner. To test this supposed waste, by considering the
reversioner injured by the acts done, is not warranted by law; and, in point of fact, when the
premises were cleared of the timber, cleared land was more valuable than wood land.… I insist
that, according to the common law of England, no tenant can cut down timber, &c., or clear
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land for agricultural purposes; and that the quantity of timber cut down never enters into the
consideration whether waste has or has not been committed; but that it is always tested by the
fact of cutting timber, without the justifiable excuse of having done it…. A single tree cut
down, without such justifiable cause, is waste as effectually as if a thousand had been cut down;
and the reason is this, that such trees belong to the owner of the inheritance, and the tenant
has only a qualified property in them for shade and shelter.
The doctrine of waste, as understood in England, is inapplicable to a new, unsettled country.
…The rule furnished by the common law is fixed and certain; and the lessor knows what wood
he may cut, and for what purposes; but if a covenant not to commit waste is hereafter to be
considered as a covenant to leave a sufficient quantity of land in wood, no lessee is safe. If the
act of cutting timber on the premises, without the justifiable excuse already stated, was not
waste, cutting more or less was immaterial. Under the covenant not to commit waste, we have
no right to say some waste might be committed, and other waste might not; the covenant is
inapt to the case, and if any remedy exists, it must lie in covenant. I am, therefore, against
granting a new trial.
YATES, J., was of the same opinion.
Rule granted.
Notes and Questions
1. What exactly is the dispute between the majority and the dissent? Do they agree on the
existence of a remedy for waste under New York law? On the definition of waste? On
the applicability of waste doctrine to the lease before the court? On the remedy for
waste?
2. Although this case deals with a lease for life—a peculiar hybrid estate that is not
recognized in many jurisdictions—the doctrine of waste applies between freehold
possessory estate holders and future interest holders just as it applies between leasehold
tenants and landlords. Thus, even in the absence of a lease contract, Brownson could
have been held liable for damages, or enjoined from felling any further timber, in an
action for waste by the reversioners (if the jury concluded that it would indeed be waste
for a possessor in Brownson’s position to fell such timber).
3. Forms of Waste. Waste can be either voluntary or permissive. Voluntary waste
(sometimes called affirmative waste) refers to acts of the holder of the possessory estate,
Page 20 of 23
such as erecting or demolishing a structure, or extracting non-replenishing natural
resources. Permissive waste refers to omissions of the holder of the possessory estate,
such as failing to pay property taxes, or failure to make needed repairs. Either can
support a claim for waste by the owner of a future interest whose rights are permanently
devalued as a result. Which form of waste was at issue in Jackson?
4. Theories of Waste. One commentator argues that Jackson was the starting point for a
peculiarly American departure from the English doctrine of waste deplored by the
dissenters. In this view, “courts created the American law of waste for several reasons:
to promote efficient use of resources that the English rule would have inhibited; to
advance an idea of American landholding as a republican enterprise, free of feudal
hierarchy; and perhaps to advance a belief that a natural duty to cultivate wild land
underlay the Anglo-American claim to North America.” Jedediah Purdy, The American
Transformation of Waste Doctrine: A Pluralist Interpretation, 91 CORNELL L. REV. 653, 661
(2006). And indeed, the sensitivity of both opinions in Jackson to local conditions, the
desirability of converting wild lands to agricultural use, and the sustainability of yeoman
farming tend to support this pluralist view.
5. Law-and-economics theorists, in contrast, identify waste doctrine solely with the
criterion of efficiency, and particularly the internalization of externalities and mitigation
of holdout problems. As Judge Posner puts it: “The incentive of a life tenant is to
maximize not the value of the property—that is, the present value of the entire stream
of future earnings obtainable from it—but only the present value of the earnings stream
obtainable during his expected lifetime. So he will, for example, want to cut timber
before it has attained its mature growth even though the present value of the timber
would be greater if the cutting of some or all of it were postponed; for the added value
from waiting would inure to the remainderman…. [Moreover,] since tenant and
remainderman would have only each other to contract with, the situation would be one
of bilateral monopoly and transaction costs might be high.” To avoid these problems,
“[t]he law of waste forbids the tenant to reduce the value of the property as a whole by
considering only his own interest in it.” Richard A. Posner, Comment on Merrill on the
Law of Waste, 94 MARQ. L. REV. 1095-96 (2011).
A Note on Ameliorative Waste
What if, instead of doing something that decreases the value of the future interest, the holder of
the possessory estate does something that increases the market value of the land, but in doing
Page 21 of 23
so changes the premises in ways the future interest holder doesn’t like? Such alterations—
known as ameliorative waste—have generated two types of approaches in the courts.
The first approach, adopted in Melms v. Pabst Brewing Co., 79 N.W. 738 (Wisc. 1899), looks to
the effect of the life tenant’s actions on the market value of the parcel and whether those
actions were necessitated by a change in conditions surrounding the parcel. In Melms, the Pabst
Brewing Company had torn down an old mansion abutting a brewery it owned, mistakenly
believing it owned the lot in fee simple when in fact it owned only the life estate of the widow
Melms (the remainder being owned by her children). At the time of the demolition, the
neighborhood around the house had become heavily industrialized, and had been re-graded
such that the house stood 20-30 feet above street level and was worthless as a residential
property. In these circumstances, the court held, whether the act of destroying the mansion
and re-grading the lot on which it stood to street level constitutes waste is a question of fact
for the jury. The court suggested that such actions will not constitute waste “when it clearly
appears that the change will be, in effect, a meliorating change, which rather improves the
inheritance than injures it.” Id. at 739.
The second approach—more consistent with the common-law roots of waste doctrine—
holds that any material change to real property caused by a lawful possessor without the
consent of the holder of the future interest is waste, full stop. This approach informed the
decision of the New York Supreme Court in Brokaw v. Fairchild, 237 N.Y.S. 6 (Sup. Ct. N.Y.
Cty. 1929). In that case, the court refused to allow the life tenant of a stately mansion on New
York’s Fifth Avenue at 79th Street to tear the mansion down over the objections of the holders
of future interests in the lot, even though living in the mansion had become cost-prohibitive
and the neighborhood had become a prime location for luxury apartment buildings, which
could be built and operated on the site for a substantial profit. The theory underlying this
result is that a life tenant has merely the rights of use, not full rights of ownership, and that
the holder of the future interest is entitled to take possession of the parcel in substantially the
same condition as it existed at the time the future interest was created: “The act of the tenant
in changing the estate, and whether or not such act is lawful or unlawful, i.e., whether the
estate is so changed as to be an injury to the inheritance, is the sole question involved.” Id. at
15.
The opinion in Brokaw generated a backlash in New York’s reform-minded legislature, which
enacted a statute redefining waste law along the lines set forth in Melms; that statute remains
in force today. See N.Y. REAL PROP. ACTS. LAW § 803. But interestingly, the opinion in Melms
itself seems to have arisen from a number of questionable factual and legal pronouncements
from the Wisconsin courts. The full, fascinating story is recounted in Thomas W. Merrill,
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Melms v. Pabst Brewing Co. and the Doctrine of Waste in American Property Law, 94 MARQ. L.
REV. 1055 (2011). As of 2009, the rule of Melms was followed in most U.S. jurisdictions, while
a small number continued to follow the rule of Brokaw. Id. at 1083 (citing Gina Cora, Want
Not, Waste Not: Contracting Around the Law of Ameliorative Waste (Apr. 1, 2009) (Yale Law School
Student Prize Papers: Paper 47), http://digitalcommons.law.yale.edu/ylsspps_papers/47).
Which of these two rules do you think is most consistent with the pluralist justifications for
waste doctrine described by Professor Purdy? Which do you think is most consistent with the
law-and-economics approach? Do either of the rules require some other form of justification,
and if so, what might that justification be?
Page 23 of 23
How to Brief or IRAC a case:
Issue:
A good issue statement includes the party names, the name of the rule
of law the brief is analyzing, and a key fact. What is the issue before the court?
What Problem is the court trying to solve? The issue should be one or two
sentences, state the party names and the relevant legal terms.
Rule:
The rule is the law that governs the outcome of the case. It should be
stated as a general principle and not include any party names or facts. The
rule should be stated as a list or an outline- not in paragraph form.
Application:
The application is a discussion of how the rule applies to the facts of a case.
The application shows how you can analyze arguments on both sides and
is the most important skill you will learn. The application is normally paragraphs long.
It should be a written debate – not simply a statement of the conclusion. Whenever possible,
present both sides of any issue.
Conclusion:
What was the result of the case? Did the appellate or supreme court affirm,
reverse or reverse and remand the lower court’s decision? The case gives you a background
of the facts along with the judge’s reasoning and conclusion. When you brief cases,
you are summarizing the judge’s opinion.