Restatement of the Law Second, Property (Donative Transfers)

Property 2d, Donative Transfers (vols. 1-4)

vol. 1 xxxi, 471 pp., 1983, Order Code 5687, $63.50 -- Order this item

vol. 2 xxxv, 508 pp., 1986, Order Code 5784, $63.50 -- Order this item

vol. 3 xxxv, 550 pp., 1988, Order Code 5968, $63.50 -- Order this item

vol. 4 xxv, 436 pp., 1992, Order Code 5335, $63.50 -- Order this item

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Volume 1 (1983)

The first volume of Restatement Second, Property (Donative Transfers), supersedes Volume 4 of the original Restatement, and is concerned with the body of law that in the interest of some overriding social policy limits the nature of the property interests a donor can create or the restraints he or she can effectively impose. It deals, therefore, with the rule against perpetuities and related limitations on the power to postpone or inhibit alienations; with the validity of various restraints on personal conduct, such as marriage, separation and divorce, religious practice and affiliation, education, occupation, or habitual activity, and with restraints upon a donee’s interference with or challenge to the donor’s plan of disposition. The impingement of the law of property on human interests of the first importance is plainly exhibited in these materials.

The transforming change in style of the Second Restatement from that of the original Restatement is widely reflected in the new volume: the inclusion of extensive Comments explaining and elaborating the black letter; the analyses of pertinent legislation, coupled with the sense that courts (and, therefore, the Restatement) may, within subtle limits, accord weight in adjudication to legislative policy manifested in enactments that do not specifically resolve the instant question; and the incorporation of extensive Reporter’s Notes, marshaling the decisions and other authoritative sources deemed by the Reporter to have bearing on the issues.

Although the main changes are stylistic, there is one modification on a point of substance that had been vigorously debated at The American Law Institute’s 1978 Annual Meeting. A section of the new Restatement approves the version of the Rule Against Perpetuities known as the "wait-and-see" approach that measures the validity of a disposition by how long the vesting of the interest was actually postponed, as distinguished from how long it could conceivably have been postponed, the rule supported by the Institute 40 years ago.

A table of cross-references to the first Restatement of Property is contained in this volume as well as cross-references to the West Key Numbers Digest System and to A. L. R. Annotations. Also included is the current cumulative annual pocket part applicable to this volume and to Volume 4 of the first Restatement. Owners of Volume 4 may wish to retain that volume as it contains materials of historical interest and value not included in the new volume.

Reporter: A. James Casner, Harvard University Law School, Cambridge, Massachusetts.

Advisers: Curtis J. Berger, Columbia University School of Law, New York, New York; Charles D. Breitel, Chief Judge (Retired), New York Court of Appeals, New York, New York [from 1978]; Marvin K. Collie, Houston, Texas; Charles Donahue, Jr., Harvard University Law School, Cambridge, Massachusetts; Raya S. Dreben, Justice, Appeals Court of Massachusetts, Boston, Massachusetts; Edward C. Halbach, Jr., University of California School of Law, Berkeley, California [from 1978]; Mendes Hershman, New York, New York; Ronald H. Maudsley, University of San Diego, School of Law, San Diego, California [from 1978; deceased 1981]; Malcolm A. Moore, Seattle, Washington; Patrick J. Rohan, St. John’s University School of Law, Jamaica, New York; Edmund B. Spaeth, Jr., Judge, Superior Court of Pennsylvania, Philadelphia, Pennsylvania; Robert A. Stein, University of Minnesota Law School, Minneapolis, Minnesota; Judith T. Younger, Cornell Law School, Ithaca, New York.

Volume 2 (1986)

The second volume of Restatement Second, Property (Donative Transfers), deals with the law governing powers of appointment, the use of which in estate planning has developed and expanded significantly since the Institute’s previous treatment of the topic in the first Restatement. Volume 2 follows the organization and much of the substance of Chapter 25 1940, of the first Restatement (Volume 3), which it supersedes, but it is distinctive in its extensive references to legislation and its use of legislation as a basis for rules of decisional law. Also noteworthy are the elaboration of rationale in the Comments, which explore the relevant competing considerations and alternative resolutions to a far greater extent than the original Restatement, and the significance accorded to tax considerations. The comprehensive Statutory and Reporter’s Notes develop fully the legislative, judicial, and scholarly bases for the positions taken in the black letter and Comments, and divergences from the first Restatement are identified and explained throughout.

Chapter headings include: Definitions; Creation of Power of Appointment; Creditor of the Donee and Spouse of the Donee; Release and Disclaimer of Powers of Appointment; Revocation or Amendment of Power of Appointment or Its Exercise; Contracts to Appoint; The Donee’s Intent to Appoint; Effectiveness of Appointments; Permissible Appointments; Excessive Appointments—Fraud on Powers; Exclusive and Non-Exclusive Powers; Allocation of Appointive Assets to Attain Maximum Effectiveness; Ineffective Appointments; and Gifts in Default of Appointment. Volume 2 is updated by a cumulative annual pocket part.

Reporter: A. James Casner, Harvard University Law School, Cambridge, Massachusetts.

Advisers: Curtis J. Berger, Columbia University School of Law, New York, New York; Charles D. Breitel, Chief Judge (Retired), New York Court of Appeals, New York, New York; Marvin K. Collie, Houston, Texas; Charles Donahue, Jr., Harvard University Law School, Cambridge, Massachusetts; Raya S. Dreben, Justice, Appeals Court of Massachusetts, Boston, Massachusetts; Edward C. Halbach, Jr., University of California School of Law, Berkeley, California; Mendes Hershman, New York, New York; Malcolm A. Moore, Seattle, Washington; Patrick J. Rohan, St. John’s University School of Law, Jamaica, New York; Edmund B. Spaeth, Jr., Judge, Superior Court of Pennsylvania, Philadelphia, Pennsylvania [to 1983]; Robert A. Stein, University of Minnesota Law School, Minneapolis, Minnesota; Judith T. Younger, Cornell Law School, Ithaca, New York.

Volume 3 (1989)

The third volume of the project sets forth the rules of construction for determining a donor’s intention with respect to the identities and respective shares of donees described in the dispositive instrument as members of a class rather than individually. This volume supersedes the material on class gifts contained in Chapters 22 and 23 of the original Restatement of Property (Volume 3, 1940), and reflects the changes in law, public policy, and social mores that have occurred in the intervening decades. Of particular significance are new presumptions stated with respect to children born out of wedlock, children produced by means other than sexual intercourse, and adopted children, and a different approach toward determining the shares of class gifts to "issue" or "descendants."

Like the previous volumes in the Second Restatement of Property, Volume 3 of Donative Transfers draws extensively upon legislative as well as judicial developments as bases for rules of decisional law. Like its predecessor volumes, this volume contains an elaboration of the rationale in the Comments and comprehensive Statutory and Reporter’s Notes. Divergences from the original Restatement are identified and explained throughout.

Chapter headings are: Primary Meaning of Class Gift Term; Time Within Which a Class Member Must Be in Being in Order to Share in Class Gift—Increase in the Class Membership; A Class Member Fails to Meet a Requirement of Survival or to Fulfill Some Other Condition—Decrease in Class Membership; Shares of Each Class Member; Gifts to Heirs and the Like as Words of Purchase; and Effect of Limitations to "Heirs," "Heirs of the Body," "Next of Kin," or "Relatives" Under the Rule in Shelley’s Case and the Doctrine of Worthier Title. Volume 3 is updated by a cumulative annual pocket part.

Reporter: A. James Casner, Harvard University Law School, Cambridge, Massachusetts.

Advisers: Curtis J. Berger, Columbia University School of Law, New York, New York; Jackson M. Bruce, Jr., Milwaukee, Wisconsin; Dave L. Cornfeld, St. Louis, Missouri; Edward M. David, Philadelphia, Pennsylvania [Deceased 1985]; Charles Donahue, Jr., Harvard University Law School, Cambridge, Massachusetts; Raya S. Dreben, Justice, Appeals Court of Massachusetts, Boston, Massachusetts; Susan F. French, University of California at Davis School of Law, Davis, California; Edward C. Halbach, Jr., University of California School of Law, Berkeley, California; Mendes Hershman, New York, New York; Stanley M. Johanson, University of Texas School of Law, Austin, Texas; Vincent L. McKusick, Chief Justice, Supreme Judicial Court of Maine, Portland, Maine; Malcolm A. Moore, Seattle, Washington; Patrick J. Rohan, St. John’s University School of Law, Jamaica, New York; Robert A. Stein, University of Minnesota Law School, Minneapolis, Minnesota; Richard V. Wellman, University of Georgia School of Law, Athens, Georgia.

Volume 4 (1992)

Volume 4 of Restatement Second, Property (Donative Transfers), addresses a number of important problems in the law of gifts, including gifts taking effect at the death of the donor. Chapters 31 and 32 deal with gifts made during the donor’s lifetime including such matters as what constitutes a delivery to a donee, wedding presents, the effect if there is no delivery but there is manifestation of intent to make a gift, gifts of personal property in which the donor retains reversionary interest, the meaning of a document of transfer, and a document of transfer as a substitute for a will. Chapter 33 treats gifts by will and addresses the meaning of a will and multiple wills. Chapter 34 deals with various situations in which the law may refuse to give effect to an attempted gift for reasons of public policy and addresses such topics as the effect of a donative transfer on the spouse of the donor, spousal rights that accrue on divorce or death, substitutes for a will, and determining a surviving spouse’s share.

The analysis throughout this volume is sensitive to the fact that recourse to the rules described in this Restatement is frequently the result of failure or flaw in the attempt at accomplishing a donor’s wishes.

The topics addressed in this volume were not addressed in the original Restatement of Property. Therefore, the Reporter’s Notes have no references to counterpart sections in the earlier Restatement. Absence of direct common-law precedents on these topics has influenced the drafting of the black letter and Comments. Many sections draw heavily upon statutory law as a source of policy and as a basis for reasoning by analogy to problems not directly addressed by statute.

Chapter headings are: Accomplishing a Donative Transfer in Donor’s Lifetime Without Using a Document of Transfer; Accomplishing a Donative Transfer in the Donor’s Lifetime by a Document of Transfer; Accomplishing a Donative Transfer by a Will; and Failure of Attempted Donative Transfers. There is, as yet, no annual pocket part for Volume 4, and citations to sections contained in Volume 4 will be found in the pocket part to Volume 3.

The usefulness of each of the above volumes is enhanced by a table of cases, statutes, authorities, and cross-references to the West Digest System and ALR annotations.

Reporter: A. James Casner, Harvard University Law School, Cambridge, Massachusetts [Deceased 1990].

Advisers: Jackson M. Bruce, Jr., Milwaukee, Wisconsin; Dave L. Cornfeld, St. Louis, Missouri; R. Ammi Cutter, Cambridge, Massachusetts, Retired Justice, Supreme Judicial Court of Massachusetts; Charles Donahue, Jr., Harvard University Law School, Cambridge, Massachusetts; Raya S. Dreben, Justice, Appeals Court of Massachusetts, Boston, Massachusetts; Susan F. French, University of California at Los Angeles School of Law, Los Angeles, California; Edward C. Halbach, Jr., University of California School of Law, Berkeley, California; Mendes Hershman, New York, New York [Deceased 1992]; Stanley M. Johanson, University of Texas School of Law, Austin, Texas; Mildred E. Kalik, New York, New York; Vincent L. McKusick, Chief Justice, Supreme Judicial Court of Maine, Portland, Maine; Malcolm A. Moore, Seattle, Washington; Patrick J. Rohan, St. John’s University School of Law, Jamaica, New York; Edward S. Schlesinger, New York, New York; Robert A. Stein, University of Minnesota Law School, Minneapolis, Minnesota; Lawrence W. Waggoner, University of Michigan Law School, Ann Arbor, Michigan; Richard V. Wellman, University of Georgia School of Law, Athens, Georgia.

Tentative and Other Annual Meeting Drafts

Tentative Draft No. 1: Division I. Social Restrictions Imposed upon the Creation of Property Interests by Donative Transfers: Part I. The Common Law Rule Against Perpetuities and Related Rules as Applied to Donative Transfers; Chapter One. The Rule Against Perpetuities as Applied to Donative Transfers; Appendix: Commentary on Wait-and-See Approach xi, 154 pp., 1978, Order Code 5181, $7 -- Order this item

Tentative Draft No. 2: Division I. Social Restrictions Imposed upon the Creation of Property Interests by Donative Transfers: Part I. The Rule Against Perpetuities and Related Rules as Applied to Donative Transfers; Revision of Chapter One. The Rule Against Perpetuities as Applied to Donative Transfers; Chapter Two. The Period of the Rule Against Perpetuities Used in Donative Transfers for Purposes Other than Controlling the Time of Vesting xii, 189 pp., 1979, Order Code 5182, $12 -- Order this item

Tentative Draft No. 3: Division I. Social Restrictions Imposed upon the Creation of Property Interests by Donative Transfers: Part II. Direct Restraints on Alienation in Donative Transfers; Chapter Three. Definitions; Chapter Four. Validity of Restraint of Personal Conduct; Chapter Five. General Rules; Chapter Six. Restraints on Marriage; Chapter Seven. Provisions Relating to Family Relationships; Chapter Eight. Provisions Relating to Religion, Personal Habits and Education or Occupation xviii, 252 pp., 1980, Order Code 5183, $14 -- Order this item

Tentative Draft No. 4: Division I. Social Restrictions Imposed upon the Creation of Property Interests by Donative Transfers: Part IV. Restraints on Interference with Transferor’s Dispositive Plan; Chapter Nine. Restraints on Contests and Restraints on Attacking Fiduciaries; Chapter Ten. Restraints on Enforcing Obligations of the Transferor or of the Transferor’s Estate and Restraints on Asserting any Right to Other Property Owned or Disposed of by the Transferor xx, 85 pp., 1981, Order Code 5621, $10 -- Order this item

Tentative Draft No. 6: Division II. Powers of Appointment, Class Gifts, and Related Matters: Part I. Powers of Appointment (Continued): Chapter 17. The Donee’s Intent to Appoint; Chapter 18. Effectiveness of Appointments; Chapter 19. Permissible Appointments; Chapter 20. Excessive Appointments—Fraud on Powers; Chapter 21. Exclusive and Non-Exclusive Powers xxxiii, 225 pp., 1983, Order Code 5679, $15 -- Order this item

Tentative Draft No. 7: Division II. Powers of Appointment, Class Gifts, and Related Matters: Part I. Powers of Appointment (Continued): Chapter 22. Allocation of Appointive Assets to Attain Maximum Effectiveness; Chapter 23. Ineffective Appointments; Chapter 24. Gifts in Default of Appointment; Reconsiderations of: Section 13.7. Spousal Rights in Appointive Assets on Death of Donee; Section 18.6. Operation of Antilapse Statutes with Reference to Appointments xxxvi, 153 pp., 1984, Order Code 5729, $15 -- Order this item

Tentative Draft No. 8: Division II. Powers of Appointment, Class Gifts, and Related Matters: Part II. Class Gifts: Chapter 25. Primary Meaning of Class Gift Term xx, 190 pp., 1985, Order Code 5789, $20 -- Order this item

Tentative Draft No. 9: Division II. Powers of Appointment, Class Gifts, and Related Matters: Part II. Class Gifts: Topic 1. Class Gifts to Others Than "Heirs" and the Like; Chapter 26. Time Within Which a Class Member Must Be in Being in Order to Share in the Class Gift—Increase in the Class Membership; Chapter 27. A Class Member Fails to Meet a Requirement of Survival or to Fulfill Some Other Conditions—Decrease in the Class Membership xviii, 164 pp., 1986, Order Code 5824, $20 -- Order this item

Tentative Draft No. 10: Division II. Powers of Appointment, Class Gifts, and Related Matters: Part II. Class Gifts: Topic 1. Class Gifts to Others Than "Heirs" and the Like; Chapter 28. Share of Each Class Member; Topic 2. Class Gifts to Heirs and the Like; Chapter 29. Gifts to Heirs and the Like as Words of Purchase; Chapter 30. Effect of Limitations to "Heirs," "Heirs of the Body," "Next of Kin," or "Relatives" Under the Rule in Shelley’s Case and the Doctrine of Worthier Title xxiii, 361 pp., 1987, Order Code 5859, $25 -- Order this item

Tentative Draft No. 11: Division III. Requirements for Effectuating a Donative Transfer: Chapter 31. Accomplishing a Donative Transfer in Donor’s Lifetime Without Using a Document of Transfer xiv, 109 pp., 1988, Order Code 5927, $20 -- Order this item

Tentative Draft No. 12: Division III. Requirements for Effectuating a Donative Transfer: Chapter 32. Accomplishing a Donative Transfer in the Donor’s Lifetime by a Document of Transfer; Chapter 33. Accomplishing a Donative Transfer by a Will xxii, 186 pp., 1989, Order Code 5970, $25 -- Order this item

Tentative Draft No. 13: Division III. Requirements for Effectuating a Donative Transfer: Chapter 34. Failure of Attempted Donative Transfers; Appendix I. Matters Relating to Tentative Draft No. 12 xxxii, 292 pp. 1990, Order Code 5985, $30 -- Order this item

 

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