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Debunking the Sanctity of Precedent Washington University Law Review Volume 76 Issue 3 1998 Debunking the Sanctity of Precedent David M. Becker Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Property Law and Real Estate Commons Recommended Citation David M. Becker, Debunking the Sanctity of Precedent, 76 WASH. U. L. Q. 853 (1998). Available at: https://openscholarship.wustl.edu/law_lawreview/vol76/iss3/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. DEBUNKING THE SANCTITY OF PRECEDENT DAVID M. BECKER* I. INTRODUCTION ........................................................................................... 854 II. SOME CASES-WHAT COURTS SAY AND Do ABOUT DEVIANT LANGUAGE ............................................................................................. 861 A. "To B and Her Children"............................................................ 861 1. Some GeneralObservations ................................................. 861 2. The Rules in Wild's Case-Then and Now ......................... 863 3. The First Rule-Analysis of Cases....................................... 869 a. StandardFormulation-Fee Tail ................................ 869 b. VariantFormulation-Fee Simple .............................. 871 c. VariantFormulation-Life Estate in the Parent, Remainder in Fee Simple to the Children................... 875 4. The Second Rule-Analysis of Cases................................... 878 a. StandardFormulation-Parent and Children Receive a Fee Simple Absolute as Tenants in Common .............................. 878 b. VariantFormulation-Life Estate in the Parent, Remainder in Fee Simple to the Children................... 887 B. "To B at SN Per Yearfor as Long as B Resides in the City of X 1" ...............................................................................................894 III. DEVIANT LANGUAGE-ASSESSING THE IMPORTANCE AND VALUE OF PRECEDENT .......................................................................... 916 A. Some ObservationsAbout Interpretive Consistency and the Circumstances in Which It Becomes Important .......................... 916 1. Title Assessm ent .................................................................... 916 2. Ownership Assessment ......................................................... 917 3. Ownership Creation.............................................................. 918 B. Deviant Language-TheImpact ofAd Hoc Interpretation upon Title Assessment, OwnershipAssessment and Ownership Creation...................................................................... 919 1. Ownership Creation.............................................................. 927 2. Title Assessment .................................................................... 931 3. OwnershipAssessment ......................................................... 943 * Joseph H. Zumbalen Professor of the Law of Property, Washington University. A-B. 1957, Harvard University; J.D. 1960, University of Chicago. The author acknowledges the helpful comments of Daniel L. Keating, Frank W. Miller, R.H. Helmholz and Robert J. Lynn. The author also acknowledges the assistance and important contributions of six former students: Heather E. McIntyre, David N. Royster, Nathan C. Collins, David M. Unseth, Elizabeth A. Rice and Phillip Stanton. Washington University Open Scholarship WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 76:853 IV. How COURTS SHOULD INTERPRET DEVIANT LANGUAGE .................... 951 A. A Processfor Ad Hoc InterpretationofDeviant Language ........ 955 B. Illustration andApplication Processfor Ad Hoc Interpretation................................................................................. 960 V . CONCLUSION ............................................................................................. 971 I. INTRODUCTION To "B and her heirs" is a familiar phrase that lawyers have used, and still use, to create a fee simple absolute. When asked to interpret this phrase, courts almost always confirm this result by relying on the precedents set by earlier court decisions to support their conclusion.' To be sure, this makes sense.. For the law and lawyers, the past is inescapably a large part of the present. Stability and certainty are indispensable ingredients of self-govemance. Lawyers must successfully predict the application of legal principles that are relevant to their clients' circumstances.2 Without consistent affirmation of 1. By way of holding or dicta, courts will usually cite cases when they affirm the meaning of "and her heirs" as words of limitation indicating creation of a fee simple. See, e.g., Chesnut v. Chesnut, 151 A. 339, 340 (Pa. 1930). Sometimes, however, courts do not cite cases for precedential meaning of "and her heirs" because, within the context of the case, they view such interpretation as indisputable. See, e.g., Gilchrist v. Empfield, 45 A. 46 (Pa. 1900). However, there are decisions in which a court rejects the usual meaning of such language because it believes that the words of the entire instrument clearly indicate an intent to create something less. See, e.g., In re Wettengel's Estate, 123 A. 488 (Pa. 1924). 2. Mr. Justice Holmes, at a dedication of a new hall at the Boston University School of Law, offered this explanation about what lawyers do: When we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before judges, or to advise people insuch a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgements and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457,457 (1897). Years later Karl Llewellyn explained law and lawyering in this manner This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itsef WWhether about disputes, or about when wills are valid ... we come back always to one common feature: The main thing is what officials are going to do. And so to my mind the main https://openscholarship.wustl.edu/law_lawreview/vol76/iss3/2 1998] DEBUNKING THE SANCTITY OF PRECEDENT 855 rules by courts, prediction is impossible and litigation becomes inevitable.3 thing is seeing what officials do, do about disputes, or about anything else; and seeing that there is a certain regularity in their doing-a regularity which makes possible prediction of what they and other officials are about to do tomorrow. In many cases that prediction cannot be wholly certain. Then you have room for something else, another main thing for the lawyer the study of how to make the official do what you would like to have him. At that point "rules" loom into importance... For judges think that they must follow rules, and people highly approve of that thinking. So that the getting of the judge to do a thing is in considerable measure the art of finding what rules are available to urge upon him, and of how to urge them to accomplish your result.... Rules, too, then, and their arrangement, and their logical manipulation, make up an unmistakable portion of the business of the law and of the lawyer. KARL N. LLEWELLYN, THE BRAMBLE BUSH 12-14 (2d ed. 1951). 3. See LLEWELLYN, supra note 2, at 13, 66. Llewellyn observed further that adherence to precedent produces efficiency in problem solving and that it minimizes the opportunity for capricious adjudication: The foundation, then, of precedent is the official analogue of what, in society at large, we know as folkways, or as institutions, and of what, in the individual, we know as habit. And the things which make for precedent in this broad sense are the same which make for habit and for institutions. It takes time and effort to solve problems. Once you have solved one it seems foolish to reopen it. Indeed, you are likely to be quite impatient with the notion of reopening it. Both inertia and convenience speak for building further on what you have already built; for incorporating the decision once made, the solution once worked out, into your operating technique without reexamination of what earlierwent into reaching your solution. ... Finally, it is clear that if the written records both exist and are somewhat carefully and continuously consulted, the possibility of change creeping into the practices announced is greatly lessened. At this place on the law side the institution of the bar rises into significance. For whereas the courts might make records and keep them, but
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