Reference no: EM131662614

Question: ROBB, Judge, dissenting. I dissent because the majority's analysis of Nye's argument appears to elevate form over substance. I acknowledge Indiana's recognition of the difference between conditions and limitations, as well as the importance of classifying language in an instrument transferring property as either a limitation, marking the period that determines an estate, or a condition, rendering an estate liable to defeat. However, the distinction is only drawn where it is logical to do so, which is not presently the case. Here, the clause "or until he remarries" is a restraint of marriage, and void in light of public policy against such restraints. Regardless of how the instrument is worded, or whether the restrictive language is classified as a condition or a limitation, Lynn gets only a life estate. The language of the bequest allowing Lynn "to Continue to live at said real estate as if he had been devised a life estate in said real estate, or until he remarries" makes it clear he does not receive an interest in fee simple.

No matter whether he receives a life estate unless he remarries (void as a condition), or whether he may live on the property so long as he does not remarry (a permitted limitation), the "measuring stick" is the life of Lynn, and in either case his interest in the property is shortened by remarriage. Thus, either language produces the same result. Clearly then, under the present circumstances, it should make no difference whether this language is classified as a condition or a limitation because the substance of the clause acts as a restraint of marriage. In other words, the intent behind the use of such a clause-whether to penalize remarriage or to demarcate the period of time an estate shall exist-cannot alter the consequential disincentive to remarry. Under the present circumstances, either both versions of the provision are a restraint on marriage, or neither one is. But having two interpretations here, one considered acceptable and the other invalid, makes no sense.

1 LAW. How does the majority respond to the trustee's argument in this case? What is the majority's reasoning?

2 LAW. How does the dissent analyze the majority's distinction between conditions and limitations?

3 ECONOMIC D IMENSIONS. Does the majority's ruling make real property more alienable (available for transfer), or is the dissent's position more favorable for the real estate market? Why?

4 SOCIAL D IMENSIONS. Why is a restraint on marriage considered to be against public policy?

5 IMPLICATIONS FOR THE GRANTOR. What does the interpretation of the language in the will at the center of this case suggest to grantors who wish to impose certain restrictions on their beneficiaries?