Chapter 7

Question 1

Subject to Open

Answer 1

An estate is this if it is given to a class of persons and if one or more of those persons is already ascertained as part of the class but others could be added. Example: “O to A (who is alive and has one child, B), then to A’s children.” The future interest held by B (in his capacity as A’s child) is this because A could have more children.

Question 2

Subject to Partial Divestment

Answer 2

A synonym to subject to open.

Question 3

Vested Remainder Subject to Divestment

Answer 3

A remainder that is vested (has an ascertained taker and is not subject to a condition precedent) but could later be divested before it ever becomes possessory. If the divesting condition could happen before the vested remainder becomes possessory, the remainder is subject to divestment. Here is an example of a vested remainder subject to divestment: “O to A for life, then to B, but if B does not survive A, then to C.” B’s remainder is vested because there is no condition precedent contained within the language creating B’s interest. However, if B dies before A, B’s remainder will be divested. The language creating this condition is located in C’s interest rather than in B’s interest. If the condition had been contained within the language creating B’s interest (“then to B if B survives A”), B’s interest would be subject to a condition precedent and would therefore be a contingent remainder rather than a vested remainder subject to divestment.