Ben Potter’s will devised Blackacre to his granddaughter, “Anna Naomi Coverdale, in fee simple and absolutely forever; but in case the said Anna Naomi Coverdale should die without leaving lawful issue of her body begotten then and in that case I give, devise and bequeath all the same over unto” the children of William B. Potter in fee simple.
If we were counseling Ben Potter in preparation for drafting his will, what should we have asked him about his intentions concerning his granddaughter, Anna?
Did he want her to have a Fee Simple Absolute, an estate she could sell and liquidate into cash?
Did he want her to have a Fee Tail, an estate that could be converted into a Fee Simple Absolute?
Or did he want her to enjoy the property during her lifetime and at her death pass it on to her children if she had any, or else to the children of William Potter?
Let's try to draft this provision in Ben Potter's will to better accomplish his purposes and to do so without resorting to an unusual defeasible fee.
How about this: "to Anna for her life, and at her death to her then living children, but if no children of Anna survive her, then to the then living children of Ben Potter and their heirs."
