lawdopers: can blackacre vest in a zombie?

Cafe Society
1

Okay - so, say Orson conveys Blackacre to Alice for life, then to Alice’s children who reach the age of 21. At the time of the conveyance, Alice has two children, Bob and Chris. Alice is bitten by a zombie, becomes zombified, and attacks her children. Bob is killed, Chris survives the attack (by decapitating Alice), but was wounded and later turns into a zombie himself.

Questions: Can Blackacre vest in Zombie Chris? If not, I assume it would revert to Orson - am I right? Also, do zombies raise any other property law issues I should be aware of?

(This is what happens when you tell Mr. Excellent he has a property final in thirteen hours.)

2

I think we need to know Chris and Bob’s ages at the time Bob is killed and Chris becomes the living dead, no?

3

Before I saw this thread, I never knew how much I cared about property law and the walking dead.

4

My answer (I graduated from law school yesterday, so my knowledge of property law is two years old) is to look at it in steps:

OK. At this point Alice is a non-zombie, living human. The conveyance vests in her and she owns in (IIRC) fee simple subject to condition subsequent.

At this point comes the crucial question: Is a zombie legally “alive”? I’m thinking the answer is yes; just as a patient with irreversible brain damage is legally alive, a zombie is still a living person, just horribly diseased.

That’s good thinking on Chris’s part. Decapitation is a sure way to kill zombies. I’m thinking at this point that, when Alice dies, Blackacre would go into trust for Chris on his 21st birthday (if possible), OR it would revert to Orson. But:

Most states (including Tennessee) have “slayer statutes,” saying that a killer cannot take from a victim if the killing was felonious and intentional. There’s a question here as to whether the killing was felonious; it sounds like self-defense to me. If it WAS felonious, then Chris can’t take and it will pass to Alice’s intestate successors.

Wait a second, or can he? Is he taking from Alice or from Orson? Suddenly I’m blanking on this. I think he’s taking from Alice; she owned in “FEECOS,” as my property prof called it, and Chris would gain nothing from killing Orson, while he would (probably) gain from killing Alice. OK, let’s say he’s taking from Alice.

Let’s also assume Chris killed Alice in valid self-defense, so it’s not felonious and we can keep going.

(Emphasis added.) How old is Chris? Is he over 21 already? If so, he took in fee simple absolute when Alice died, because he was over 21 and not a zombie.

If Chris is not yet 21, then I think the devise would collapse and revert to Orson (again, depending on the legal status of zombies as living, dead, or “other”). The only other option I see is that it could go into constructive trust of some kind until Chris turns 21.

The big question here, of course, is the legal status of zombies. Are they dead? Alive? Some third possibility that’s never existed before? Are they alive, but “new people” (i.e., not retaining the legal identity of the person they originally were)?

The living/dead/undead issue could raise hell with the Rule Against Perpetuities. Can zombies get pregnant? (We know they can bear children because of that horrible scene in the remake of Romero’s Dawn of the Dead, but that gal was already pregnant when she became a zombie. This is a crucial distinction here.)

If zombies can get pregnant, the question is whether they are “alive” legally. If they are legally “dead,” but they can get pregnant, then you could never devise anything to “X’s children,” because the class could be open for more than 21 years after X dies and the Rule Against Perpetuities would kill the devise. (Unless you’re in a USRAP jurisdiction. I don’t think zombies can live for 90 years.)

Another question could arise about competence. Are zombies competent to enter contracts?

Also, if you’re going to give real property to a zombie–say, a favorite nephew of yours who has become undead and thus rather inattentive–you should consider putting it in trust. Zombies don’t seem likely to pay real close attention to what’s going on with their country estates, and would thus be sitting sucks for adverse possessors.

5

What the flying fuck are you talking about?

6

It’s real property law-speak. In university exams the questions always seem to relate to a hypothetical piece of land called Blackacre/Greenacre/Insertcolouracre and the conveyance of title in that property.

7

…the last line of my previous post should read “sitting ducks” instead of “sitting sucks,” of course.

8

You are me, on my first day of Property.
jackelope has it pretty much right- the main issues are the legal status of the zombie as living or dead, and how the property owner was killed.

My only question is- are these the kind of zombies that die and become reanimated, or ar they the “disease” kind?

Because the death might be a triggering event. And I don’t know if a zombie would have standing to contest a property claim, as he has no need of property. Besides which, would you be able to get him to show up for court?

9

It’s clear that the question being posed does not pre-suppose death as a condition for becoming a zombie, or else it would state she is “bitten and killed by a zombie, rises from the dead, and attacks her children.” We can call this Option B if anyone wants to go down that road, but I’ll work from jackelope’s excellent explanation under Option A.

In the matter of jackelope’s question of the living status of zombies, this court finds that zombies are living. Once she is decapitated, the question about Alice becomes moot, although you might argue that her zombification makes her incompetent for pretty much all legal purposes.

Decapitation is a good move, especially if you can make it look like self-defense after the other heir is dead (or is he?). A better move, assuming you love your brother, is to work with him jointly to have the mother declared incompetent. This seems like a more straightforward property issue – how would the brothers handle this, assuming neither is yet 21? Let’s assume that Bob but not Chris is over 18, for whatever that’s worth.

10

Wait a second - is this right? I could be wrong, but I think Alice just has a life estate, without condition. When she dies, Blackacre passes to her kids who are over 21 - but there’s nothing in the conveyance that could take Blackacre from Alice before her death. (Or zombification, if you disagree with this thread’s consensus and think zombie = dead.) Or am I out to lunch here.

Excellent work, counselors. I especially like jackelope’s point on the RAP.

11

I agree with you (though my Property class was longer ago than jackelope’s).

I came in here just to see if the RAP would come up. I never did really understand the damn thing.

I do have some experience in elder law, though, and I’m thinking if someone is bitten by a zombie, and transforms into an animate zombie without a significant period of any death-like state, that the person would be generally considered alive, but incompetent. First, it wouldn’t necessarily come to attention that the person has no pulse, since there are plentiful signs of life such as movement, respiration, moaning, and eating people. Plus these attributes would probably prevent a death certificate being issued in any case. However, since they are clearly unable to care for themselves personally and financially, zombies would have to have appropriate guardians appointed.

12

D’oh! You’re right, Mr. Excellent; Alice has a life estate, not a FEECOS.

The more I think about this (for some reason this question is preying on my mind, or EATING MY BRAIN, if you will), I’m not sure zombies would be considered legally alive, or at least not with all the rights of a non-zombie living human.

I have just called one of the world’s foremost experts on zombie movies: My wife. Seriously, she’s seen pretty much every zombie movie ever made, and she’s starting to get bored with Netflix because she’s seen their whole catalog. On her desk sits an autographed picture of George Romero.

So, having established the credibility of my source, here are a few more thoughts about the legal status of zombies:

In no zombie movie is there ever a moral/legal dilemma about “killing” zombies. Doesn’t have to be in self-defense; you can walk up behind a zombie who’s just minding his own business and blow its head off with a smile on your face. In the original Night of the Living Dead, even the cops are getting into the act, killing them indiscriminately. People even have some fun with it, using them for target practice and laughing.

The only time anyone shows any compunction about killing a zombie is when it’s a family member or a good friend, at which time someone invariably says, “That thing isn’t your brother anymore” and they kill it.

I can think of two contradictory possible explanations for this:

  1. Zombies are dead, and people confronted with zombies know this immediately and instinctively.

  2. The open-season on zombies is more in the manner of a declaration of martial law than an instinctive response to them. We do always see Army trucks rumbling around. The martial-law hypo suggests that zombies are alive, but treated like an invading army rather than U.S. citizens with rights.

Another point, and a more legalistic one (it’s probably unwise to derive one’s idea of the law from observing what cops do) is that in the law, “death” is generally tied to the cessation of the heart, not the brain. I did my big seminar research paper on similar issues this semester, and even anencephalic infants (born with only enough brain stem to control basic bodily functions like respiration and heartbeat) are legally “alive.”

So here’s the kicker: Zombies’ hearts don’t beat. Their brains work a little, and occasionally they do appear to act on some vague memories (like flocking back to the mall), but their hearts don’t beat. This sounds like legal death to me, although we’re clearly looking at a case of first impression here; I don’t know of any non-zombie who’s had their heart permanently stop while their brain kept functioning at any level.

Finally: My wife (who LOVED this conversation) says zombies can’t get pregnant. Their nonessential bodily functions all shut down. There was apparently a movie in which some guy raped a zombie (ick) and no mention of pregnancy or the possibility thereof.

So the Rule Against Perpetuities is safe–for now. We must remain vigilant.

13

I’ve just conducted an impromptu survey here at the office. Seven attorneys, two secretaries and one suit salesman all concurred that a zombie is, in fact, dead. I disregarded one respondent who yelled out “White Zombie!” as a answer. The really interesting part is that half of them answered with absolutely no hesitation whatsoever, suggesting that they were just sitting around waiting to answer that question. I’m not kidding, they didn’t even bat an eye before answering. That’s awesome.

So on the basis of this research I must conclude that Alice died upon rising as a zombie, bringing her life estate to an end. If none of the children were 21 at the time, then the Blackacre reverted to Orson.

14

Ok - assuming zombies are considered dead, it goes back to how old the kids were. For old times sake, let’s start diagramming this biotch (please feel free to correct as necessary):

  1. Orson conveys Blackacre to A for life, then to A’s children who reach the age of 21. A has two children, B and C. (We don’t know how old they are).

O —> [strike]possibility of reverter[/strike] Reversion
A —> life estate
B & C —> Contingent remainder (It’s an open class because more children can be born. It’s contingent because they must attain the age of 21).

  1. A is bitten by a zombie and becomes zombified (DEAD). Two possibilities:

If B & C are 21 years old:
O —> Nothing
A —> Nothing
B & C —> Blackacre

If B & C are NOT 21 years old:
O —> Fee simple subject to an executory interest
B & C —> Executory interest (a springing executory interest - oh, it’s flowing back now!)

  1. Then A the zombie attacks B and kills him, and then zombifies C (also killing him).

If B & C are 21 years old, Blackacre goes to B & C’s heirs.

If B & C are NOT 21 years old, then O keeps Blackacre (the executory interest never kicks in).

Thoughts?

15

If B and C are not 21 years old at the time of A’s zombification [death], isn’t their interest destroyed because it was still contingent at the end of the immediately preceding life estate? In that case, once A is zombified [dies], O owns the property in FSA. Period.

If the jurisdiction has abolished destructability, then once A is zombified [dead], O’s got a fee simple subject to a springing executory interest and B and C have springing executory interests. I don’t think there’s a RAP problem because (assuming zombies can’t have babies), their interest will necessarily either vest or be destroyed within 21 years of A’s death (and A is a “measuring life”).

This is all assuming, of course, that zombies are legally dead and that neither B nor C are already 21 at the time of conveyance.

16

Yep - at common law, it would have been destroyed. Most states junked this rule, IIRC. It’s been awhile though, forgive me if I’m wrong!

My brain hurts.

17

There’s got to be some way to word a defeasable future interest so that it’s contingent on never becoming a zombie. An undead-defeating clause, if you will.

18

Keep an eye on it. This is zombie country.

19

Well, sure. It shouldn’t even be that hard - wouldn’t “Blackacre to A for life, and then to B, so long as B is not a zombie” create a contingent remainder in fee simple subject to condition subsequent? And then, if B got zombified, Blackacre would revert to O (or O’s estate).

Or am I out to lunch here?

20

And here I was, always assuming that law school would be boring.