Comments on: MBE Question of the Day #38

By: Tony

Tony — Sat, 06 Feb 2010 16:54:55 +0000

The lumberjack got the land as a “specific gift”; the remainder of teacher’s estate went to the roofer. So the land was not one of the residuary legacies. When the “specific gift” lapsed and reverted to the teacher’s estate, why would it not revert to his heirs and successor in title instead of to a residuary legatee? In other words, why is the preference to a residuary legatee who was only designated to receive the “residue” of the estate?

By: Maryann Herman

Maryann Herman — Sat, 06 Feb 2010 15:49:45 +0000

Answer C is correct and Answers A, B, and D are incorrect. Since the lumberjack did not survive the teacher, the devise of the land to him lapses, and neither the lumberjack’s estate nor his son is entitled to the land. Many states have an anti-lapse statute which would substitute the child of a deceased legatee in place of the legatee, with respect to the devise. An anti-lapse statute would not operate in this case because the lumberjack is not related to the teacher. Since the gift that lapsed was a specific devise, the gift falls to the residue. The roofer, as the residuary legatee, who was alive at the teacher’s death, takes the residue even though he did not survive to see the teacher’s estate probated. The land should be transferred to the roofer’s estate and disposed of according to its terms so that the hauler, rather than the daughter, will eventually own the land. If the lapse involved the residuary legacy, the teacher’s mother and heir at law would take. Here, however, the teacher’s residuary legatee survived and takes the lapsed specific legacy in preference to an heir.

By: BV

BV — Sat, 06 Feb 2010 05:41:00 +0000

I like D. Many of the anti-lapse statutes apply only when the named beneficiary is a descendant of the testator. Mother (as Teacher’s only heir) takes the tract of land as a result of the lapse since nothing in the facts suggests that Lumberjack and Teacher had a familial relationship.

By: Cory

Cory — Sat, 06 Feb 2010 01:52:57 +0000

E. (Lumberjack’s Son) if the jurisdiction has enacted an anti-lapse statue as most juris have, or D. (The Mother) if it has not under the principle of lapse. B/C are red herring answers due to the awkwardness of the question…the remainder here is not a remainder as we’re used to thinking about it, but rather the remainder of the estate (i.e. personal property).

By: Tony

Tony — Fri, 05 Feb 2010 23:44:38 +0000

D
A will speaks at the death of the testator. When the Lumberjack died (1995) before the teacher (19970, his gift of the land lapsed and reverted back to the teacher. At teacher’s death, the remainder of his estate will go to the Roofer who died in 1997, and the land will go to his mother as his only heir.

By: Cheese

Cheese — Fri, 05 Feb 2010 19:15:13 +0000

C note RK

By: Mona

Mona — Fri, 05 Feb 2010 18:20:40 +0000

C The roofer’s estate

By: RK

RK — Fri, 05 Feb 2010 17:49:54 +0000

I think C is the best answer. The original conveyance by the teacher was a life estate to the lumberjack and the remainder went to the roofer. When the lumberjack died, this parcel of land did not follow the will because it was a life estate. Instead, the parcel of land went to the roofer as per the original conveyance from the Teacher. This would eliminate answer A. Answer D is also wrong because the parcel of land did not revert back to the teacher after the lumberjack’s death.