Also known as: first taker rule · first-takers rule · first taker
Written by attorneys · grounded in primary & secondary sources — see below
An estate of potentially infinite duration that descends only to the lineal descendants of the initial grantee. The first taker receives the full quantum of the estate described by the granting words, and any attempted limitation over on an indefinite failure of issue is disregarded.
Paul conveyed his residence to his son Daniel and his heirs, but added that if Daniel died without surviving children the property would pass to Carla. Daniel later contracted to sell the residence to Megan. Because the initial words created a fee simple and the gift over turned on an indefinite failure of issue, Daniel received the entire estate and could convey marketable title to Megan.
Dean Mills deeded a rental house to her son Daniel and his heirs forever, but provided that if he died at any time without children the property would go to the college endowment. Daniel sought to sell the house free of any cloud. The initial fee-simple language gave Daniel the full estate. The later limitation on indefinite failure of issue was ineffective.
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The rule states that both a fee simple conditional and a fee tail are estates of potentially infinite duration that pass only to the issue of the first taker.
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When a conveyance first uses words sufficient to create a fee simple absolute and then adds a gift over keyed to an indefinite failure of issue, the first taker receives a fee simple absolute and the attempted limitation is void.
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Yes. The initial fee-simple words control, the later limitation on indefinite failure of issue is disregarded, and the first taker holds a fee simple absolute.
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The first taker receives an estate greater than a life estate, and the issue of the first taker receive a fee simple absolute upon the first taker's death.
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