- Indefeasibly vested remainder: Holder of this remainder is certain to acquire an estate in the future with no conditions or no strings attached.
“To A for life, remainder to B.” A is alive. B is alive.
A has – life estate
B has – indefeasibly vested remainder
If B predeceases A – at common law, B’s future interest passes by his will or by intestacy to his heirs
- Vested remainder subject to complete defeasance (vested remainder subject to total divestment). Remainderman exists; his taking is NOT subject to any condition precedent. However, his right to possession could be cut short because of a condition subsequent.
Condition precedent = creates a contingent remainder
Condition subsequent = vested remainder subject to complete defeasance
To tell difference, apply comma rule: When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a vested remainder subject to complete defeasance.
EX: O “to A for life, remainder to B, provided, however, that if B dies under the age of 25, to C.” A is alive. B is 20 years old.
A = life estate
B = vested remainder subject to complete defeasance
C = springing executory interest
**If B is under 25 at the time of A’s death: B still takes – it is a condition subsequent.
However, B must live to 25 for his estate to retain his interest. Otherwise, B’s heirs lose it all, and C or C’s heirs take.
O has a reversion – it is possible that neither C nor C’s heirs will exist if and when the condition is breached.
If, by contrast, the conditional language appears before the language creating the remainder, the condition is a condition precedent, and you have a contingent remainder.
EX: O “to A for life, and if B has reached the age of 25, to B.” A is alive. B is 20 years old.
A = life estate
B = contingent remainder (his taking is subject to a condition precedent; he must be 25 before he can take possession)
O = reversion
If B is still alive but under 25 at the time of A’s death = B cannot take. Instead, the estate reverts back to O and O’s heirs, who hold it subject to B’s springing executory interest (If and when B reaches 25, B divests O).
- Vested Remainder Subject to Open
Remainder vested in a class of takers, at least one of whom is qualified to take possession.
Each member’s share is subject to partial diminution because: additional takers, not yet ascertained can still qualify as class members.
EX: “To A for life, then to B’s children.” A is alive. B has two children C and D.
C and D = vested remainder subject to open.
OPEN CLASS = possible for others to enter
CLOSED CLASS = its maximum membership has been set, so persons born after are shut out.
A CLASS IS EITHER OPEN OR CLOSED
Class closes whenever any member can demand possession. It establishes a bright line.
Exception: The womb rule -- A child of B in the womb at A’s death will share with C and D (from the above example)