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personam) for the value of that portion. To contravene s. 73, the beneficiaries
would have to take some action that treated the unsubdivided portion as
being, in fact, subdivided under s. 73, such as entering into a lease of the
unsubdivided portion. A full discussion of the issue is beyond the scope of
this article, but the drafter of the will should be aware of the issue (including
related issues, such as who has the obligation to subdivide). These same
issues would potentially apply to an inter vivos gift of Terra.
A GIFT OF LESS THAN A FEE SIMPLE
When we talk about the owner making a gift of land, we are using shorthand
terminology. Presumably, we are talking about the owner in fee simple of
Terra making a gift of the fee simple of Terra to a donee. However, the
owner of the fee simple may be making a gift of an estate or interest less
than the fee simple—for example, a life estate. A life tenant has no power
of disposition of the life estate upon death. A life estate may only be the subject
of an inter vivos disposition (excluding a “donatio mortis causa”), the
donee receiving an estate pur autre vie in the land.
DETERMINABLE FEES AND CONDITIONAL FEES – TESTAMENTARY GIFT
What if you are the holder of a determinable or conditional fee simple? Can
you make a testamentary gift of these estates?
A determinable fee simple is an estate that will automatically determine
on the occurrence of some specified event that may never occur.26 The
grantor of the determinable fee simple retains a possibility of reverter. “If
the event is bound to happen at some time, the estate created is not a determinable
fee: because it is said to be an essential characteristic of every fee
that it may possibly last forever”.27 An example would be “to A as long as Mt.
Robson stands”. The words “as long as Mt. Robson stands” are an alternative
limitation to the words “in fee simple”. If the alternative never happens, the
fee simple estate continues as a fee simple.
If the occurrence of the determining event becomes impossible, the possibility
of reverter is destroyed and the determinable fee simple becomes
absolute. For example, this would be the case if the land were given “to A
until B marries”, and B dies unwed.28
A conditional fee or fee simple upon condition is “akin to but distinct
from a determinable fee”.29 It has some condition attached to it by which the
estate given to the grantee may be cut short.30 An example would be “to A
on the condition that A does not marry B”. This type of condition is sometimes
called a condition subsequent.31 The grantor of the conditional fee
retains a right of entry.