Some Rules of Future Interests Can Be Used to Clear Titles
| Publication year | 1983 |
| Pages | 1229 |
1983, August, Pg. 1229. Some Rules of Future Interests Can be Used to Clear Titles
There are at least seven rules of future interests. These include the following: (1) the rule that an attempt to convey inter vivos or by will to one's own "heirs" is a nullity; (2) the rule against perpetuities; (3) the rule in Shelley's Case; (4) the rule that contingent remainders are destructible; (5) the rule that one who has an estate in fee tail can convey an estate in fee simple absolute; (6) the rule that one who has a power of appointment can release the power; and (7) the rule that possibilities of reverter and rights of entry for condition broken can be released.
This first rule is that an attempt to convey or to devise to one's own "heirs" is a nullity. Let us use this example:
O's deed: "Blackacre to T upon an active trust for the benefit of A and B, and upon the death of the longer liver, in trust for 'the heirs' of O."
It would appear that the title could not be cleared until the death of O, because the identity of his heirs could not be determined before then. However, according to the rule, what appears to be a remainder to O's heirs is a nullity. The only beneficiaries of the trust are A and B. T merely has the estate that is necessary to enable him to perform his duties; that is, an estate for the lives of A and B. O has a reversion in fee simple absolute.(fn1) He and A and B can compel the termination of the trust(fn2) and the title is cleared. This is not the doctrine of worthier title.(fn3)
The famous and somewhat inaccurate statement by John Chipman Gray is as follows: "No interest is good unless it must vest, if at all, not later than some life in being at the creation of the interest."
O's deed: "Blackacre to T upon an active trust for the benefit of A for life and then for the benefit, equally, of all of his children who shall attain the age of twenty-five."
It would appear that the title could not be cleared until the death of A and then for such further time as might be required to determine which, if any, of his children did attain the age of twenty-five.
The validity of the attempted creation of an interest is to be determined by considering all possibilities in view of the circumstances that exist at the time of the delivery of the deed.(fn4) If it is determined that the interest might vest, if at all, at a time beyond that permitted by the rule, it is said to be "void ab initio." In other words, the rule permits the state of the title to be ascertained at the time of the delivery of the deed.
Under the circumstances of this case, it is obvious that a child might be born to A after the delivery of the deed, and that that child might not attain the age of twenty-five until more than twenty-one years after the death of A. Therefore, the interest which seemed to have been given to the children of A is void ab initio. A has a...
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