Chapter 8 - § 8.4 • FREEHOLD ESTATES — LIFE ESTATES

• Jurisdiction: Colorado

§ 8.4 • FREEHOLD ESTATES — LIFE ESTATES

§ 8.4.1—In General

The primary characteristic of a life estate in land is that the interest is limited to the life of some person.¹⁶⁶ A life estate may be created by a grant or devise to a person for life with a remainder to others; by a grant to a person for life, leaving a reversion in the grantor or testator;¹⁶⁷ or by a grant to a person reserving a life estate in the grantor.¹⁶⁸ A life estate may be created for the life of some person other than the person to whom it is granted, or by whom it is reserved. Such an estate is an estate pur autre vie.¹⁶⁹ A life estate may be created by a general grant without defining any specific interest; the grant need not specifically grant an interest "for life."¹⁷⁰ A life estate can be created subject to a special limitation, a condition subsequent, an executory limitation, or a combination of these restrictions.¹⁷¹ A deed reserving the right to possession and the rents and profits during the grantor's life reserves a life estate.¹⁷² A lease authorizing termination at will solely in the lessee creates a life estate.¹⁷³

§ 8.4.2—Rule in Shelley's Case

The Rule in Shelley's Case has not been abolished in Colorado,¹⁷⁴ and indeed it has been adopted by the legislature with respect to the attempt to create estates in fee tail.¹⁷⁵

In Haselwood v. Moore,¹⁷⁶ the Colorado Supreme Court considered a grant providing that:

[I]f [grantee] should die without issue then, in that case, the title to said land and all the interest therein conveyed hereby shall revert to the said [grantor], his heirs and assigns forever; but if the said [grantee] shall die leaving child or children, then this conveyance shall become absolute and the fee simple title to said land . . . shall vest in such child or children of [grantee].

To have and to hold the same . . . to the only proper use, benefit and behoof of the said [grantee] during her natural life and to her children as aforesaid.

The court held that the phrase "die leaving child or children" did not mean that the child or children need be living at grantee's death, and that the heirs of a predeceased child were entitled to take as remaindermen under the deed. Note that the fact that the remainder was to "children" and not to "heirs" prevented the application of the Rule in Shelley's Case.¹⁷⁷

§ 8.4.3—Effect of Power of Sale

In Barnard v. Moore,¹⁷⁸ a testator devised land to his wife for life, remainder to his children in fee simple, giving the wife the power to sell the land and divide the proceeds among the testator's children. The wife conveyed the land by a quitclaim deed, which purported to convey not the land but all her right, title, and interest in the land. The court held that:

A power to convey creates, in the donee thereof, no right, title or interest in the premises to be conveyed. . . . Her only right, title or interest then, was an estate for life; therefore she conveyed nothing more, unless, elsewhere in the deed, it appears that she intended to exercise the power.

In McLaughlin v. Collins,¹⁷⁹ a testator devised land to his wife, remainder (if she died possessed of the land) to his son for life, then remainder to others in fee. The wife was given the power to sell the land in fee; the son was not. The wife conveyed the land in fee, and died soon after. The court held, "A devise without words of inheritance, but coupled with an unqualified power of disposal, either express or implied, conveys an absolute estate."

In Davey v. Weber,¹⁸⁰ the testator devised land to his wife for life, the remainder (if at her death any of the estate remained) to others in fee, giving the wife power to sell the land. The court held that "An unqualified power given to a life tenant to dispose of property devised by will¹⁸...