# Real estate lawyers--is this a fee tail or simply a violation of the rule against perpetuities?
**URL:** https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556
**Category:** In My Humble Opinion
**Created:** [May 21, 2015, 11:47pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556 "2015-05-21T23:47:45Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [May 21, 2015, 11:47pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/1 "2015-05-21T23:47:45Z")
This is a real case, so any help would be appreciated.
I have a 70 year old deed in which a grantor leaves a life estate to each of his six children, and “then to their children for their lives and then to their children in the same manner and continuing throughout the generations.”
This is clearly an invalid conveyance. But do I apply the rule against perpetuities and use my state’s method to solve it, or do I deem this to be an attempt at a fee tail and use the different state procedure to solve it?
We will have different winners and losers depending on the method used.
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### Author:  [@samclem](https://boards.straightdope.com/u/samclem)
#### Post date: [May 21, 2015, 11:56pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/2 "2015-05-21T23:56:07Z")
Since this is a real-life legal question, we prefer you post it in IMHO rather than General Questions. Moved.
**samclem** moderator
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### Author:  [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)
#### Post date: [May 22, 2015, 1:54am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/3 "2015-05-22T01:54:49Z")
No interest is valid unless it must vest within 21 years plus lives in being.
IIRC from some Real Estate classes. (Common law, so use your states laws)
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### Author:  [@LinusK](https://boards.straightdope.com/u/LinusK)
#### Post date: [May 22, 2015, 2:08am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/4 "2015-05-22T02:08:14Z")
You’re sure this isn’t law school homework?
I mean, I’m sorry to be an asshole, but it just gave me a flashback to something I thought didn’t exist outside of 1st year law school classes.
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### Author:  [@astro](https://boards.straightdope.com/u/astro)
#### Post date: [May 22, 2015, 2:13am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/5 "2015-05-22T02:13:59Z")
> [@LinusK](#):
>
> You’re sure this isn’t law school homework?
>
> I mean, I’m sorry to be an asshole, but it just gave me a flashback to something I thought didn’t exist outside of 1st year law school classes.
The OP has been with us since 2007 so if it’s law school homework he’s taking a measured pace toward graduating.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [May 22, 2015, 3:12am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/6 "2015-05-22T03:12:36Z")
> [@Morgenstern](#):
>
> No interest is valid unless it must vest within 21 years plus lives in being.
>
> IIRC from some Real Estate classes. (Common law, so use your states laws)
Correct. But this could also be read as a fee tail. Older deeds that violate the RAP may be reformed by a judge as equities suggest. A fee tail is invalid from the start and transforms into a fee simple to the first grantee (or a life estate for the first grantee and a remainder in fee simple to the next generation–I can’t remember which in this state. But it makes a difference.)
> [@LinusK](#):
>
> You’re sure this isn’t law school homework?
>
> I mean, I’m sorry to be an asshole, but it just gave me a flashback to something I thought didn’t exist outside of 1st year law school classes.
Nope. Many of these older deeds were just written between family members. This guy wanted to create his own unalienable estate which would last until the sun burns out.
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### Author:  [@usedtobe](https://boards.straightdope.com/u/usedtobe)
#### Post date: [May 22, 2015, 3:58am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/7 "2015-05-22T03:58:08Z")
Obviously IANAL.
I’ve never before heard of a “Fee Tail”.
According to a 30 second investigation, they appear to be illegal in the US. RaP is invalid for much longer, AIUI.
Is there some reason why it is not up to the OP to decide the grounds on which to attack?
If he/she presents an argument based on “Fee Tail” and the Court thinks it should be defined as a Perpetuity, is there some sanction?
Since the winner/loser changes, would one side have valid claim against OP? This is assuming it would be impossible to show bias/malice in choice of theory.
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### Author:  [@usedtobe](https://boards.straightdope.com/u/usedtobe)
#### Post date: [May 22, 2015, 4:04am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/8 "2015-05-22T04:04:43Z")
Second Q:
Can one create such an unalienable estate to follow his family?
Can he require that each subsequent owner bequeath to a direct descendent, and that the property transfers to the State if it is not so bequeathed? I’m guessing 'No.", but wonder about old family estates - if some twit comes along and wants to give it to the Moonies or a Charles Manson, Scientologists, whatever, could Great-great-great-grandfather have prevented it?
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [May 22, 2015, 1:57pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/9 "2015-05-22T13:57:40Z")
> [@usedtobe](#):
>
> Obviously IANAL.
> I’ve never before heard of a “Fee Tail”.
> According to a 30 second investigation, they appear to be illegal in the US. RaP is invalid for much longer, AIUI.
>
> Is there some reason why it is not up to the OP to decide the grounds on which to attack?
>
> If he/she presents an argument based on “Fee Tail” and the Court thinks it should be defined as a Perpetuity, is there some sanction?
>
> Since the winner/loser changes, would one side have valid claim against OP? This is assuming it would be impossible to show bias/malice in choice of theory.
There wouldn’t be any sanctions unless my argument is frivolous. The point of asking the question is because if “fee tail” is a winning argument for my guy and “RAP” is the winning argument for the other guy, I want to see which one should win.
To answer your second question: no, you may not create such an interest. Think about it. We are all just renting space here on the earth. Why should my 75 year life span be able to tie up a piece of land for millenia? Isn’t my child, grandchild, or 10th great grandchild’s interest just as good as mine?
It’s not good public policy to dictate what happens to land based upon the wishes of a guy who has been dead for 700 years.
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### Author:  [@Billdo](https://boards.straightdope.com/u/Billdo)
#### Post date: [May 22, 2015, 5:43pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/10 "2015-05-22T17:43:09Z")
> [@jtgain](#):
>
> I have a 70 year old deed in which a grantor leaves a life estate to each of his six children, and “then to their children for their lives and then to their children in the same manner and continuing throughout the generations.”
I think that you may have more questions there than a simple question of whether it is void as a perpetuity, or disentailed by the law prohibiting fees tail.
First, what does your state’s law say happens to fees tail. In New York, Estates, Powers and Trusts Law (EPTL) 6-1.2 provides, in relevant part, that any “estate which would be a fee tail, according to the law of this state as it existed before the twelfth day of July, seventeen hundred eighty-two, shall be a fee simple.” If your state’s law is like New York, your simple task is find the pre-1782 law of fees tail to see if that formulation is considered a fee tail. A more relevant question, however, is what happens in your state to an attempt at entailment: does it get converted to a straight fee simple, as in New York, or is it considered a life estate to the initial grantee(s) with the remainder passing to the grantee’s then-living issue in fee simple, with a reversion to the grantor in the absence of such issue, as I believe the law may be in some states.
Another question is to whom would be the land be entailed (were the tail valid). Since you say this is a deed, I assume it was a transfer by the grantor while he was still alive, and such, he didn’t have any “heirs of his body,” since one doesn’t have “heirs” until one dies. As such, was the transfer of an estate in tail (or estates in tail in common) to each of his six children living at the time of the grant. In other words, was this a grant of a one-sixth tenant-in-common interest to Kid 1 and the heirs of his body, a one-sixth tenant-in-common interest to Kid 2 and the heirs of his body, etc. As such, would this mean that each of the six kids (or their descendants) has an interest in the property, depending on how the law treats tails.
A related question is who would holds the remainder if this were valid. I assume that the grantor holds the remainder, which would pass with his estate. Would the grantor get back the fractional shares of the property of his children without issue? How would anything reverting to the grantor pass, either by will (most likely by the residuary clause of the grantor’s will or subsequent holder’s will) or by intestacy.
In fact, the question of how would the grantor’s interest pass is of paramount importance if the conveyance were voided under the rule against perpetuities.
Getting to the perpetuities question, would (i) the entire grant be void, or (ii) it be a valid life estate to the six then-living children and then a void attempt to grant the remainder to the grandchildren and beyond, or (iii) valid life estates to the children and grandchildren, but a void grant of the remainder to the later descendants.
If you were in New York, you would also have the question of whether the grant suspended the power of alienation, which is an even-more-complicated species of the perpetuities question.
A family tree and an idea of how the residuary passed would be helpful in contemplating the question (though you obviously have done some of that to determine who wins based on how and why the conveyance is voided).
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [May 22, 2015, 7:55pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/11 "2015-05-22T19:55:12Z")
> [@Billdo](#):
>
> I think that you may have more questions there than a simple question of whether it is void as a perpetuity, or disentailed by the law prohibiting fees tail.
>
> First, what does your state’s law say happens to fees tail. In New York, Estates, Powers and Trusts Law (EPTL) 6-1.2 provides, in relevant part, that any “estate which would be a fee tail, according to the law of this state as it existed before the twelfth day of July, seventeen hundred eighty-two, shall be a fee simple.” If your state’s law is like New York, your simple task is find the pre-1782 law of fees tail to see if that formulation is considered a fee tail. A more relevant question, however, is what happens in your state to an attempt at entailment: does it get converted to a straight fee simple, as in New York, or is it considered a life estate to the initial grantee(s) with the remainder passing to the grantee’s then-living issue in fee simple, with a reversion to the grantor in the absence of such issue, as I believe the law may be in some states.
>
> Another question is to whom would be the land be entailed (were the tail valid). Since you say this is a deed, I assume it was a transfer by the grantor while he was still alive, and such, he didn’t have any “heirs of his body,” since one doesn’t have “heirs” until one dies. As such, was the transfer of an estate in tail (or estates in tail in common) to each of his six children living at the time of the grant. In other words, was this a grant of a one-sixth tenant-in-common interest to Kid 1 and the heirs of his body, a one-sixth tenant-in-common interest to Kid 2 and the heirs of his body, etc. As such, would this mean that each of the six kids (or their descendants) has an interest in the property, depending on how the law treats tails.
>
> A related question is who would holds the remainder if this were valid. I assume that the grantor holds the remainder, which would pass with his estate. Would the grantor get back the fractional shares of the property of his children without issue? How would anything reverting to the grantor pass, either by will (most likely by the residuary clause of the grantor’s will or subsequent holder’s will) or by intestacy.
>
> In fact, the question of how would the grantor’s interest pass is of paramount importance if the conveyance were voided under the rule against perpetuities.
>
> Getting to the perpetuities question, would (i) the entire grant be void, or (ii) it be a valid life estate to the six then-living children and then a void attempt to grant the remainder to the grandchildren and beyond, or (iii) valid life estates to the children and grandchildren, but a void grant of the remainder to the later descendants.
>
> If you were in New York, you would also have the question of whether the grant suspended the power of alienation, which is an even-more-complicated species of the perpetuities question.
>
> A family tree and an idea of how the residuary passed would be helpful in contemplating the question (though you obviously have done some of that to determine who wins based on how and why the conveyance is voided).
I’ve basically followed that path. My state statute provides that an attempted fee tail results in a fee simple to the first grantee(s).
The common law RAP was in affect at the time of this conveyance and therefore still controls under the statute. As such (I believe, the RAP is complicated), only the invalid provisions are struck down. It was a deed, so his six children were lives in being at the time of conveyance: their life estates are valid. Likewise, the interests to grandchildren are valid as the children are measuring lives. However, any conveyance to great-grand children are invalid as more great grandchildren could be born beyond the measuring lives. The class remains open and the conveyances to them (and subsequent generations) are too remote and therefore void.
So the conveyance is O to children in equal shares for life, then to grandchildren in equal shares for life. The fee then reverts to O’s heirs through his will (which are, as you might have guessed, different than the grantees in the deed).
The difference arises because if any of the original grantee’s conveyed their interest, then under RAP they could only convey a life estate meaning that those conveyances expired upon their death; under the “fee tail fix” they could have granted a fee simple and those conveyances remain valid.
So which is it? This question has baffled me for about two days now…
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### Author:  [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)
#### Post date: [May 23, 2015, 1:02am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/12 "2015-05-23T01:02:46Z")
IANA lawyer. But my wife is and does estate planning, though not probate. And is probably not licensed in your state wherever it may be.
Her top of head comment was “At common law, fee tail is a special case of a perpetuity. Special trumps general. Apply fee tail rules.”
And that’s worth every penny you’ve paid for it.
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### Author:  [@Billdo](https://boards.straightdope.com/u/Billdo)
#### Post date: [May 23, 2015, 3:25am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/13 "2015-05-23T03:25:17Z")
Your question intrigues me, and after a bit of chasing, I think I may have an answer for you.
I see from your profile you are in West Virginia. For the heck of it, I googled the West Virginia law on fee tail, and came up with [WV Code § 36-1-12](http://www.legis.state.wv.us/wvcode/ChapterEntire.cfm?chap=36&art=1), which provides:
> [@](#):
>
> § 36-1-12. Estates tail.
> Every estate in lands so limited that, as the law was on the seventh day of October, in the year seventeen hundred and seventy- six, in the state of Virginia, such estate would have been an estate tail, shall, except as provided in section fourteen of this article, be deemed an estate in fee simple, and every limitation upon such an estate shall be held valid, if the same would be valid when limited upon an estate in fee simple.
So it seems to me that the question is whether the grant at issue would have been considered a fee tail in 1776. I certainly don’t know the answer to that off the top of my head, but I know whom might: Sir William Blackstone. Fortunately, this being the internet age, we can get Blackstone’s commentaries online, and in particular [Book II, chapter VII, “Of Freehold Estates of Inheritance”](http://oll.libertyfund.org/titles/2140#lf1387-01_label_3187).
There’s lots of good stuff in that chapter of Blackstone about what it means to be a fee tail, and how you make one:
> [@](#):
>
> our ancestors held, that such a gift (to a man and the heirs of his body) was a gift upon condition, that it should revert to the donor if the donee had no heirs of his body; but, if he had, it should then remain to the donee. . . . Now, we must observe, that, when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed becomes absolute, and wholly unconditional. So that, as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of the condition. . . . .
>
> The inconveniences which attended these limited and fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction, (for such it undoubtedly was,) in order to shorton the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second (commonly called the statute _de donis conditionalibus_) to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the antient feodal restraints which were originally laid or alienations, by enacting, that from thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go to the issue, if there were any; or, if none, should revert to the donor.
>
> Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal the instant any issue was born; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee-tail; and investing in the donor the ultimate fee-simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion. And hence it is that Littleton tells us that tenant in fee-tail is by virtue of the statute of Westminster the second. (_Id._ at 110-12).
Ah, the statute _de donis conditionalibus_, that old law school fave. I suppose that, at Blackstone’s suggestion, we should go back to our old statute books from 1285 and check it out. Unlike some US jurisdictions, which often seem to have anything older than last week only available on mimeograph copies in basement filing cabinets only available for inspection between 3:30 and 4:00 on alternate Thursdays, the UK Parliament has this thirteenth century beauty up online, both in the original and [in modern translation](http://www.legislation.gov.uk/aep/Edw1/13/1/section/I):
> [@](#):
>
> In case also where one giveth Land to another, and the Heirs of his Body issuing; . . . That the Will of the Giver, according to the Form in the Deed of Gift manifestly expressed, shall be from henceforth observed; so that they to whom the Land was given under such Condition, shall have no Power to aliene the Land so given, but that it shall remain unto the Issue of them to whom it was given after their Death, or [shall revert] unto the Giver or his Heirs, if Issue fail.
That’s all very interesting, but what does it mean to our situation. In a couple of lovely little sections that may very well answer the question, our friend Sir William brings it all home. First, he points out generally that:
> [@](#):
>
> The word “heirs” is necessary in the grant or donation, in order to make a fee, or inheritance. For if land be given to a man forever, or to him and his assigns forever, this vests in him but an estate for life. This very great nicety about the insertion of the word “heirs,” in all feoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness; by which we may remember it was required that the form of the donation should be punctually pursued; or that, as Cragg expresses it in the words of Baldus, “_donationes sint stricti juris, ne quis plus donasse præsumatur quam in donatione expresserit_.” (Blackstone, at 107-108)
That Cragg, man, I love when he riffs on Baldus like that. Pull up the YouTube of that, it has like a million billion views. Anyway, good old Willy B shows us exactly what is needed to tail up that fee:
> [@](#):
>
> As the word \*heirs \*is necessary to create a fee, so in further limitation of the strictness of the feodal donation, the word _body_, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance, or words of procreation, be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and _his issue of his body_, to a man and his _seed_, to a man and his _children_, or _offspring_; all these are only estates for life, there wanting the words of inheritance, his heirs.(a) So, on the other hand, a gift to a man, and his _heirs male_ or _female_, is an estate in fee-simple, and not in fee-tail: for there are no words to ascertain the body out of which they shall issue.(b) Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his _seed_, or to a man and his _heirs-male_; or by other irregular modes of expression.(_Id._ at 114-15)
So, by my reckoning, since we have a grant by deed during the grantor’s life that doesn’t use the terms “heirs” or “body”, we don’t have a grant of a fee tail under the law of 1776 as expressed in Blackstone’s interpretation of the statute _de donis conditionalibus_. What we have instead is some form of rolling life estate that the amateur draftsman tried to use to approximate his idea of what a fee tail should be.
Because the grant is not a fee tail, it is not deemed to be a grant of a fee simple under WV Code § 36-1-12. Instead, it is subject to the rule against perpetuities, about which in the next post.
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### Author:  [@Billdo](https://boards.straightdope.com/u/Billdo)
#### Post date: [May 23, 2015, 4:27am UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/14 "2015-05-23T04:27:56Z")
> [@jtgain](#):
>
> The common law RAP was in affect at the time of this conveyance and therefore still controls under the statute. As such (I believe, the RAP is complicated), only the invalid provisions are struck down. It was a deed, so his six children were lives in being at the time of conveyance: their life estates are valid. Likewise, the interests to grandchildren are valid as the children are measuring lives. However, any conveyance to great-grand children are invalid as more great grandchildren could be born beyond the measuring lives. The class remains open and the conveyances to them (and subsequent generations) are too remote and therefore void.
>
> So the conveyance is O to children in equal shares for life, then to grandchildren in equal shares for life. The fee then reverts to O’s heirs through his will (which are, as you might have guessed, different than the grantees in the deed).
Since we’ve determined that the grant is not a fee tail (or at least wouldn’t have been one in 1776), the rule against perpetuities comes into play. As an initial matter, I’m not sure that the common law RAP would have treated this as you suggest. At least in New York, grants violating the RAP are void _ab initio_, and it isn’t clear that granting clause wouldn’t be considered as a whole and found to violate the RAP, leaving the children and grandchildren no estate or life interest at all.
Since you are presumably in West Virginia, we have to go to the WV statute, that state’s adoption of the [Uniform Statutory Rule Against Perpetuities](http://www.legis.state.wv.us/wvcode/ChapterEntire.cfm?chap=36&art=1A). You say that the common law was in effect at the time of the grant, so it was presumably before the adoption of the Uniform Statutory RAP. However, that doesn’t mean that the statute doesn’t affect the grant. Section 36-1A-5, applicable to pre-adoption property interests provides:
> [@](#):
>
> §36-1A-5. Prospective application.
>
> (a) Except as extended by subsection (b) of this section, this article applies to a nonvested property interest or a power of appointment that is created on or after the effective date of this article. For purposes of this section, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
>
> (b) If a nonvested property interest or a power of appointment was created before the effective date of this article and is determined in a judicial proceeding, commenced on or after the effective date of this article, to violate this state’s rule against perpetuities as that rule existed before the effective date of this article, a court upon the petition of an interested person may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
So, clause (a) says that the common law RAP applies, but clause (b) changes what happens if the grant violates the common law RAP. Under the common law, as I understand it, a grant inconsistent with the RAP is void, end of story. Even the parts of the grant that fall within the perpetuities period are void. Again, I’m not sure whether under the common law, this would be considered: (i) one unitary grant entirely void; (ii) a vested grant of a life estate to the then-living children to which the RAP does not apply, and non-vested life estates to grandchildren and later descendants which are void; or (iii) valid grants of life estates to the then-living children and the grandchildren with a void gift to the later descendants.)
However clause (b) says that if the a grant violates the RAP, a court “may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the limits of the rule against perpetuities applicable.” This allows the court to reform the grant so it is valid through the life of the perpetuities period, but not extend it out beyond that. Under the reformation provision, I would guess that a court would, to the extent that the RAP doesn’t apply this way anyway, validate the life estates to the children and grandchildren, but probably couldn’t save later generations.
However, what this points out, and I’m sure you knew this already, is that there is no definitive answer to this without a quiet title action to which all potential claimants are parties.
More generally, there is a lot of practical lawyering involved in how to deal with this issue. I’m not asking to tell the message board and the world (though I am happy to have you contact me through PM or e-mail if you want to talk further), but whether and how to answer this question depends a lot on what the actual facts are, who the real-life parties are, what their interests are, who you represent, why you represent them, and how important it is to get an answer to and to get the answer right.
Relevant questions include: Is there an actual dispute between competing claimants? Do the people who think they are the “owners” want to do something with the property? How many of each generation are left? Who are the claimants through the original grantor’s will, and what relationship to they have to the descendants who may claim under the challenged grant? Can you get all potential claimants to agree to a settlement under which they deed/quitclaim their actual or potential interests to the party to hold title, and if so, who will pay what to whom to effect the settlement? Can you get title insurance to protect your client if your conclusion is is wrong? Are you representing a title company in a potential transaction who has to make a determination of who the record owner is and insure that conclusion?
Who has been occupying the property? Are there rents and profits from the property, and who has been receiving them? Who has been maintaining the property? Who has been paying the taxes? Adverse possession could come into play. Although in most cases that co-tenants in common cannot obtain property by adverse possession against their co-tenants unless there has been an actual ouster, adverse possession may well defeat the claim of the holder of remainder who doesn’t seek possession within the prescriptive time period. In this case, can or should you advise your clients to quietly keep possession in the hope that the prescriptive period will expire before the remainder holder wakes up?
How much is the property worth, compared to the costs of action, inaction or litigation? What do your clients and the other claimants want to do with the property? How much money do your clients have to spend on this? If you answer the question one way or another, will the aggrieved claimant fight it, and what resources do they have to fight? What will happen if the question remains unresolved or the status quo prevails?
What this points out, as I find again and again, even the craziest hypotheticals that law professors come up with to torment their students are nowhere near as screwed up as some of the the real-life situations you encounter in law practice.
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### Author:  [@bizerta](https://boards.straightdope.com/u/bizerta)
#### Post date: [May 23, 2015, 1:32pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/15 "2015-05-23T13:32:01Z")
Who pays the maintenance and taxes on the property? If I only had a life estate, there’s no incentive to pay the maintenance, especially if I had to share the property with 43 other cousins.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [May 23, 2015, 2:36pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/16 "2015-05-23T14:36:02Z")
**Billdo** , I simply cannot type enough to express how much I appreciate your serious and thoughtful research in this matter. It is far above and beyond what I would expect of someone I paid, let alone a poster on this board. Many thanks.
Regarding the fee tail: excellent commentary by Blackstone, and I believe that it would carry the day. The short version (if I understood correctly) is that a fee tail as of 1776, being a doctrine with conspicuous judicial validity in the first place, must be strictly construed by the operative words of “heirs of his body” to specifically outline how a failure of issue will restore the fee simple to the donor. Anything short of that (i.e. “my children”) or in the least bit vague will not be construed to create a fee tail because it is not clear how and when a failure of issue will restore the fee simple to the donor. So Blackstone says that the law says “No way, pal” it is not a fee tail unless you absolutely make it so.
So, since not a fee tail under the law of 1776 in Virginia, the statute does not apply. Agreed, and I think a judge would agree as well (after a 100 page memorandum of law) 🙂 .
Now to the RAP:
[QUOTE=Morgenstern]
No interest is valid unless it must vest within 21 years plus lives in being.
IIRC from some Real Estate classes. (Common law, so use your states laws)
[/QUOTE]
If I am one of the children in this conveyance, I say that my interest must vest within a life in being plus 21 years. His conveyance, at least to me, is valid. Same with the grandchildren.
I pulled out the old property law notes, and although I don’t have case cites, everything says that in this case, one simply excises the invalid conveyances, not the valid ones. (However, again, I could be wrong).
The reformation provision you cited has been used in recent cases to cure conveyances unlike this one. A common one is a provision in a will that funds be used to provide education expenses for my descendants after the death of a certain person, but no later than age 25. Oopsy, violates the RAP (a testator could have a so should that mean no education funds at all? A judge will correct that and say age 21.
But in this case, I would argue that a judge would almost have to grant a life estate to the children and grandchildren, and a reverter to the donor because that: 1) keeps with the donor’s intent as far as it can, 2) is the only thing that doesn’t violate the RAP.
I agree that it is a morass and a nightmare. Far worse that any unborn widow or fertile octogenarian.
Again, I appreciate your efforts and will keep you updated…
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### Author:  [@usedtobe](https://boards.straightdope.com/u/usedtobe)
#### Post date: [May 23, 2015, 10:34pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/17 "2015-05-23T22:34:15Z")
Did a snake just swallow its tail?
If (Aha! RAP violated!)
Then
Deed reverts as Fee simple to Testator.
Except Testator Extinct. Testator’s stated intent just declared null.
If Deed does not follow progeny (give me some slack on definitions, OK?), where DOES the Deed go - who DOES own the property?
The poor lawyer who just spent 2 years arguing (and winnig the argument)?
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [May 24, 2015, 3:06pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/18 "2015-05-24T15:06:53Z")
> [@usedtobe](#):
>
> Did a snake just swallow its tail?
>
> If (Aha! RAP violated!)
> Then
> Deed reverts as Fee simple to Testator.
>
> Except Testator Extinct. Testator’s stated intent just declared null.
>
> If Deed does not follow progeny (give me some slack on definitions, OK?), where DOES the Deed go - who DOES own the property?
>
> The poor lawyer who just spent 2 years arguing (and winnig the argument)?
It would go to the testator’s estate. Did he have a will? It goes to the person/people mentioned in the will. If he didn’t have a will, you follow the state law for intestate succession.
If that person is dead as well, rinse and repeat for them.
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### Author:  [@usedtobe](https://boards.straightdope.com/u/usedtobe)
#### Post date: [May 24, 2015, 8:25pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/19 "2015-05-24T20:25:39Z")
Obviously, I’m missing something - I thought it was the testator’s will which contained the Perpetuity, thereby making the will void.
I’ll drop it - and thanks for your time.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [May 24, 2015, 9:04pm UTC](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556/20 "2015-05-24T21:04:36Z")
> [@usedtobe](#):
>
> Obviously, I’m missing something - I thought it was the testator’s will which contained the Perpetuity, thereby making the will void.
>
> I’ll drop it - and thanks for your time.
It wasn’t, but a will would still work the same way. Say my will is as follows:
1. I leave my laptop to Billdo.
2. I leave my television to Bricker.
3. I leave my baseball card collection to my first descendant born after October 1, 2124.
4. I leave the remainder of my estate to usedtobe.
Since the bequest in #3 violates the rule against perpetuities, it is a void gift. Therefore, it reverts back to my estate. It then falls under #4, and you would be entitled to my baseball card collection.
[Next page](https://boards.straightdope.com/t/real-estate-lawyers-is-this-a-fee-tail-or-simply-a-violation-of-the-rule-against-perpetuities/720556.md?page=2)