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Articles 91 - 120 of 125
Full-Text Articles in Estates and Trusts
A Rejoinder By Professor Waggoner, Lawrence W. Waggoner
A Rejoinder By Professor Waggoner, Lawrence W. Waggoner
Articles
Since the patience of the reader and the space in this issue of the Law Review are nearing their limits, I wish to publish only two points in response to what Professor Dukeminier has written.. These points further support my position that Dukeminier's proposed statute would lead almost anyone to conclude that A, not X, is the causal relationship measuring life in Example 1 of my article.1 By implication, these points, along with the others made in my article, corroborate my overall thesis: Professor Dukeminier's proposed one-sentence statute2 cannot be counted a responsible way of identifying the measuring lives for …
Perpetuity Reform, Lawrence W. Waggoner
Perpetuity Reform, Lawrence W. Waggoner
Articles
After years of debate, perpetuity reform is still controversial. To be sure, there is agreement among virtually all of the commentators and experts in the field that the Rule Against Perpetuities is in need of reform. The disagreement, on the surface, centers on the methods of reform to be employed. At least three basic methods have been advanced: (1) specific statutory repair of discrete problem areas; (2) reformation; and (3) wait-and-see. Each method has its sponsors, and each has in one form or another been adopted as part of the law of a few states. These methods are not mutually …
In Re Lattouf's Will And The Presumption Of Lifetime Fertility In Perpetuity Law, Lawrence W. Waggoner
In Re Lattouf's Will And The Presumption Of Lifetime Fertility In Perpetuity Law, Lawrence W. Waggoner
Articles
Adoption of children is an ever-present complication of class gifts and the Rule Against Perpetuities. Given this fac any effort to find the presumption of lifetime fertility rebuttable is largely illusory. The author demonstrates that the gift in In Re Lattouf's Will could have been sustained even in face of an irrebuttable presumption.
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
Articles
In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.
Closely Held Stocks—Deferral And Financing Of Estate Tax Costs Through Sections 303 And 6166, Douglas A. Kahn
Closely Held Stocks—Deferral And Financing Of Estate Tax Costs Through Sections 303 And 6166, Douglas A. Kahn
Articles
The enactment of the Economic Recovery Tax Act of 1981 (hereinafter referred to as "the 1981 Act") will reduce both the impact of federal wealth transfer taxes and the number of persons still subject to them. Nevertheless, even after the 1981 Act takes full effect, a category of persons remains for whom wealth transfer taxes will constitute a meaningful burden and whose estates face a liquidity problem in satisfying the estate tax liability. The focus of this article is on two statutory techniques: redemptions of stock pursuant to section 3031 and deferral of estate tax payments under section 6166.2 These …
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Articles
Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …
The Estate And Gift Tax Changes Of 1981: A Brief Essay On Historical Perspective, Edward A. Zelinsky
The Estate And Gift Tax Changes Of 1981: A Brief Essay On Historical Perspective, Edward A. Zelinsky
Articles
No abstract provided.
Editor's Introduction, Richard H. Weisberg
Editor's Introduction, Richard H. Weisberg
Articles
The article introduces a special issue of a journal dedicated to the field of Law and Literature, showcasing essays that highlight the enduring relevance of literary works in understanding legal themes and structures. It emphasizes the significance of Kafka's The Trial and other works by authors like Dickens and Chaucer in exploring legal systems and their societal impact. The issue also underscores the importance of interdisciplinary scholarship in advancing the field, demonstrating its ability to attract new voices and perspectives.
The Estate Tax Marital Deduction, Harold Dubroff, Douglas A. Kahn
The Estate Tax Marital Deduction, Harold Dubroff, Douglas A. Kahn
Articles
The estate tax marital deduction, section 2056 of the Internal Revenue Code, was enacted in 1948, along with the split-income provisions of the income tax law and the marital deduction and split-gift provisions of the gift tax law. The purpose was to give married residents of common law states approximately the same federal tax advantages that were available to married residents of community property states. Ordinarily, upon the death of a married resident of a community property state, only one-half of the community property is taxed in the decedent's estate. Section 2056 achieves approximately the same result for married residents …
Federal Taxation Of The Assignment Of Life Insurance, Douglas A. Kahn, Lawrence W. Waggoner
Federal Taxation Of The Assignment Of Life Insurance, Douglas A. Kahn, Lawrence W. Waggoner
Articles
The most litigated estate tax issue concerning life insurance is whether the proceeds should be included in the insured's gross estate. This question usually is governed by section 2042 of the Internal Revenue Code of 1954, the estate tax provision directed specifically at life insurance. While the Tax Reform Act of 1976 wrought enormous changes in many areas of estate taxation, Congress did not change section 2042. Thus the several unresolved questions concerning the interpretation of that section remain unsettled. But the question of the includability of life insurance proceeds in the gross estate of the insured is not always …
Transactions Subject To Gift Tax, Douglas A. Kahn, Earl M. Colson
Transactions Subject To Gift Tax, Douglas A. Kahn, Earl M. Colson
Articles
The gift tax is imposed on the "transfer of property by gift." The term gift is not expressly defined either in the Code or in the Treasury Regulations. However, section 2512(b), dealing with the valuation of gifts, states that "where property is transferred for less than an adequate and full consideration in money or money's worth," the difference between the value of the property transferred and the consideration received constitutes a gift. Thus, for gift tax purposes, the determination of whether a gift was made does not turn so much on the intent of the transferor as it does on …
A Guide To The Estate And Gift Tax Amendments Of 1970, Douglas A. Kahn
A Guide To The Estate And Gift Tax Amendments Of 1970, Douglas A. Kahn
Articles
The Excise, Estate, and Gift Tax Adjustment Act of 1970 [Pub. L. No. 91-614 (Dec. 31, 1970) made a number of amendments to the federal estate and gift tax laws. The estate tax laws were amended to shorten the period of time for filing estate tax returns and for the alternate valuation date and for several related items. In addition, for income tax purposes, the holding period of property that was included in a decedent's gross estate and that was acquired from the decedent was altered; and fiduciaries were granted additional means of obtaining a discharge of their personal liability …
Mandatory Buy-Out Agreements For Stock Of Closely Held Corporations, Douglas A. Kahn
Mandatory Buy-Out Agreements For Stock Of Closely Held Corporations, Douglas A. Kahn
Articles
A buy-out of a shareholder's stock is a sale of his stock holdings in a specific corporation pursuatnt to a pre-existing contract. In recent years such arrangements have, deservedly, become an increasingly popular planning device for shareholders in closely held corporations; they make it possible to limit the class of potential shareholders, provide liquidity for the estate of a deceased shareholder, and establish a value for stock which has no active market. There are two popular categories of buy-out plans. If the prospective purchaser of a decedent's shares is the corporation that issued them, the plan is called an "entity …
Federal Estate Tax Burden Borne By A Dissenting Widow, Douglas A. Kahn
Federal Estate Tax Burden Borne By A Dissenting Widow, Douglas A. Kahn
Articles
Renunciation of her deceased husband's will entitles a widow to a specified percentage of the husband's net estate (or a dower interest) in lieu of any benefits she would otherwise have received under the will. The size of the dissenting widow's share differs among the several states, but the normal range is from one third to one half of her husband's net estate. In some jurisdictions the widow's share is determined, in whole or in part, according to the portion to which she would be entitled if her husband had died intestate, but in these jurisdictions the widow's share generally …
The Russian Reinsurance Case, Edwin D. Dickinson
The Russian Reinsurance Case, Edwin D. Dickinson
Articles
Professor Dickinson's second commentary on Russian Reinsurance Company v. Stoddard and Bankers Trust Company: "The facts in the Russian Reinsurance Company case were without precedent. The Reinsurance Company had been incorporated in Russia in 1899 under a special statute constituting its charter and by-laws.... In 1917 the revolutionary Soviet Government was established in Russia and seven of the eight persons constituting the company's board of directors was driven into exile. In 1918 Soviet decrees nationalized the company, confiscated its property, and apparently terminated its corporate existence. Nevertheless, the exiled directors held meetings in Paris and continued to direct the …
Perpetuity Statutes, Edwin C. Goddard
Perpetuity Statutes, Edwin C. Goddard
Articles
THE common law of perpetuities is one of the most interesting examples of almost pure judicial legislation. De Donis, The Statutes of Uses and of Wills, but gave wider scope to the development by the courts of rules of law to thwart the attempt of the great landowners to tie up their landed estates in their families in perpetuity. One body of rules to this end limited restraints upon alienation, another the creation of future interests vesting at too remote a period. Restriction of restraints upon alienation, and the rule against perpetuities, these two were developed for the same end, …
Escheat - How State Acquires Title, Edwin C. Goddard
Escheat - How State Acquires Title, Edwin C. Goddard
Articles
Escheat is of feudal origin, and properly applied only to land which on failure of heirs or for certain other reasons, "fell in" to the lord under whom it had been held. Personal property without an owner, as bona vacantia, became the property of the crown. In re Bond [1901] 1 Ch. 15. In the United States escheat is used more broadly, but usually arises when the owner of property dies intestate without heirs. Our alienage laws have generally removed disabilities of aliens to take, but in some jurisdictions there may still be escheat because of alienage, see 5 MICH. …
Mutual Wills, Edwin C. Goddard
Mutual Wills, Edwin C. Goddard
Articles
SO LATE as 1822 Sir John Nicholl is reported to have said in Hobson v. Blackburn, that a mutual, or conjoint will is an instrument "unknown to the testamentary law of this country; or, in other words, that it is upknown, as a will, to the law of this country at all. It may, for aught that I know, be valid as a compact." In Darlington v. "Pulteney, Lord MANSFIELD said, "there cannot be a joint will." Following these distinguished and learned judges, Jarman and Williams in their classical treatises accepted the statement of Sir John, and some early American …
Deeds To Take Effect After Death Of Grantor, Ralph W. Aigler
Deeds To Take Effect After Death Of Grantor, Ralph W. Aigler
Articles
That Instruments in form of wills may be effective as deeds of conveyance is clear. If a present interest is passed and execution is complete (which includes delivery), the instrument must take effect as a deed. On the other hand, If no interest is to vest until or after death of the maker and there has been no complete execution as a deed, the instrument, if operative at all, must take effect as a will. Difficulties arise when there is a fully executed deed, which, however, is to be postponed in its complete operation until the death of the grantor.
Wills - Revocation By Judicial Legislation, Edwin C. Goddard
Wills - Revocation By Judicial Legislation, Edwin C. Goddard
Articles
Wills and their revocation as we know them are peculiarly the result of the actions and reactions of our common and statute law. We are sufficiently familiar with statutes, declaratory of the common law, in derogation thereof, and creating entirely new principles of law. We also know law the result of no legislative act. Whatever may or may not be admitted about court-made law, we see the undoubted fact that the great body of our law is the outgrowth of decisions applying to new conditions principles of law found in analogous cases, whereby the common law is able to adapt …
Deeds To Take Effect After Death Of Grantor, Ralph W. Aigler
Deeds To Take Effect After Death Of Grantor, Ralph W. Aigler
Articles
That Instruments in form of wills may be effective as deeds of conveyance is clear. If a present interest is passed and execution is complete (which includes delivery), the instrument must take effect as a deed. On the other hand, If no interest is to vest until or after death of the maker and there has been no complete execution as a deed, the instrument, if operative at all, must take effect as a will. Difficulties arise when there is a fully executed deed, which, however, is to be postponed in its complete operation until the death of the grantor.
The Writing Required To Establish An Express Trust Of Land, Edgar N. Durfee
The Writing Required To Establish An Express Trust Of Land, Edgar N. Durfee
Articles
It has frequently been said that the Seventh Section of the Statute of Frauds, concerning Trusts of land, requires a writing containing "all the terms of the trust." Forster v. Hale, 3 Ves. 707; Smith v. Matthews, 3 DeG., F. & J. 139; Loring v. Palmer, 118 U. S. 321; Gaylord v. Lafayette, 115 Ind. 423; McClellan v. McClellan, 65 Me. 500; Blodgett v. Hildreth, 103 Mass. 484; York v. Perrine, 71 Mich. 567; Newkirk v. Place, 47 N. J. Eq. 477; Steere v. Steere, 5 Johns. Ch. 1; Cook v. Barr, 44 N. Y. 156; Dillaye v. Greenough, 45 …
Contingent Gifts And Incorporation By Reference, John R. Rood
Contingent Gifts And Incorporation By Reference, John R. Rood
Articles
The courts have had great difficulty in reconciling certain contingent gifts with the statutes requiring wills to be in writing duly executed. At first glance there appears no inconsistency, but in practice troubles accumulate.
The Statute Of Uses And Active Trusts, Edgar N. Durfee
The Statute Of Uses And Active Trusts, Edgar N. Durfee
Articles
To explain the survival of uses, alias trusts, after the Statute of Uses, one is probably justified in assuming a sympathetic attitude toward this Equitable institution on the part of the Common Law Judges. Maitland, Equity, 29. But, however predisposed the Judges might be, they would have to satisfy themselves, perhaps others as well, that they were interpreting rather than nullifying the Statute. Only such uses could be saved as could be "distinguished." The case of the use raised upon a chattel interest is clear enough, as it was without the letter, and fairly without the mischief, of the Statute. …
Substitutional Gifts To Classes, John R. Rood
Substitutional Gifts To Classes, John R. Rood
Articles
In some recent cases we have fresh reminder of the futility of Sir William Grant's distinction between original and substitutional gifts, a rule over which courts have quarreled and disagreed ever since it was promulgated, and which never was applied to the exclusion of anyone without disappointing the wish of the testator. In speaking of this rule in Re Hickey, [1917], 1 Ch. D. 601, 604, Neville, J., says: "The alleged principle seems to be that the meaning of the word 'substitute' involves the idea of replacing one thing by another. One cannot 'substitute' something for nothing. The proposition appears …
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
Articles
The object sought in this article is to collect and classify the cases in which the courts have passed on the question as to what shall be done with property over which a power of appointment has been given; when it finally turns out for some reason that the power has not been exercised. It is not the object to establish any particular thesis, but rather to ascertain how the adjudicated cases stand.
What Words Create A Power?, John R. Rood
What Words Create A Power?, John R. Rood
Articles
As the right to sell may exist either as a result of ownership, or by virtue of a power without or independent of ownership, it is sometimes a question whether words indicating a right to sell, contained in an instrument granting an estate, are intended to give a power, or are merely descriptive of the rights incident to the estate given. When property is devised without any designation of the estate given, and the devise is followed by words indicating that the devisee is to have the right of absolute disposal in fee, or to sell in fee, it has …
Corporations And Express Trusts As Business Organizations, Horace Lafayette Wilgus
Corporations And Express Trusts As Business Organizations, Horace Lafayette Wilgus
Articles
PRESIDENT BUTLER of Columbia University is reported to have said in an address before the New York Chamber of Commerce in 1911, that "the limited liability corporation is the greatest single discovery of modem times, whether you judge it by its social, by its ethical, by its industrial, or, in the long run--after we understand it and know how to use it,--by its political, effects." 1
How To Beat The Rule Against Perpetuities, John R. Rood
How To Beat The Rule Against Perpetuities, John R. Rood
Articles
Many people seem to think that the lawyer's problem is not so much to know what the law is as to know how to get all they want while obeying the law to the letter. In the case of perpetuities the history of nearly a thousand years of our law shows an almost unbroken series of disastrous failures of the best-laid schemes to violate the public policy of freedom of alienation.
Unenforceable Trusts And The Rule Against Perpetuities, George L. Clark
Unenforceable Trusts And The Rule Against Perpetuities, George L. Clark
Articles
Bequests upon trust to use the income thereof each year in keeping a monument or grave in repair, or in saying masses,8 or in having a brass band to play at the testator's grave each year on the anniversary of the testator's death9 have been held invalid, and the reason given is that the gift is a "perpetuity"1 or is in "violation of the rule against perpetuities."11 What do the courts mean by calling such a gift a "perpetuity?" And in what way, if at all, could the bequest be so changed as to avoid the "rule against perpetuities" and …