Property I Prof. Ortiz Rule Against Perpetuities Problems in Each Of

Property I Prof. Ortiz

Rule Against Perpetuities Problems

In each of the following conveyances, assume that A and B are still living, and neither A nor B had any children at the time of the conveyance. For each conveyance: a. Classify the interests. b. Apply the common law What-Might-Happen test for the Rule Against Perpetuities to the second future interest subject to RAP. Is the interest valid or void? Why?

1. T devises “to A for life, then to A’s children for their lives, then to B if A dies childless.”

2. T devises “to A for life, then to A’s children for their lives, then to B’s children.”

3. T devises “to A for life, then to A’s children for their lives, then to B’s children then living.”

4. T devises “to A for life, then to A’s children for their lives, then to A’s grandchildren.”

5. T devises “to A for life, then to A’s children for their lives, then to T’s grandchildren.”

1 RAP Answers

Note: This question only asked for application of RAP to the second future interest because the first future interest was the same in each conveyance and it would be valid each time because A’s children will vest the moment A dies. At that point, we will know whether A had children. If A did, then the interest vests. If A did not, then the interest fails. Therefore, the interest will vest or fail within 21 years of a life in being (i.e., within 21 years of A’s life).

1. T devises “to A for life, then to A’s children for their lives, then to B if A dies childless.”

a. A has a life estate A’s children have a contingent remainder in life estate. (Contingent because unknown.) B has a contingent remainder in fee simple absolute. (Contingent because subject to condition precedent.) T has a reversion in fee simple absolute.

b. Application of RAP: B’s interest is valid.

Create, Kill and Count Approach – We cannot create anyone who can satisfy the condition other than A. (This is the Create, Kill, and Count shortcut). Therefore, the interest is necessarily valid.

The longer rationale for why B’s interest is valid is as follows: A is a life in being at the creation of this interest. When A dies, we will know whether A died with children. If A did not have children, B’s interest will vest immediately. If A did have children, then B’s interest will fail immediately. Therefore, we will know whether B’s interest vests or fails the moment A dies, which is within 21 years of a life in being at the time the interest was created.

2. T devises “to A for life, then to A’s children for their lives, then to B’s children.”

b. Application of RAP: The interest in B’s children is valid, because when B dies, we will know immediately whether B’s children’s interest will vest or fail by knowing whether B had children or not. Therefore, the interest vests or fails within 21 years of a life in being at the creation of the interest because B was a life in being. The answer using Create, Kill and Count is as follows:

1. Create – X, A’s child. Y, B’s child. 2. Kill – A and B. T is already dead. 3. Count 21 years – After Y is born (became known) and B dies, Y’s class closes because B cannot have more children. Y is not subject to a condition precedent. Therefore, Y’s interest vested in interest* when B died. B was a life in being at the creation of the interest.

*Note: Even if X lives to be 1000, Y’s interest is still valid under RAP. RAP only requires that an interest vest in interest within 21 years of a life in being; the interest does not necessarily have to vest in possession in that time. 2 3. T devises “to A for life, then to A’s children for their lives, then to B’s children then living.”

a. A has a life estate. A’s children have a contingent remainder in life estate. (Contingent because unknown.) B’s children have a contingent remainder in fee simple absolute. (Contingent because unknown and subject to condition precedent – the children of B must be alive at the time that the last of A’s children dies.) T has a reversion in fee simple absolute.

b. Application of RAP: B’s children’s interest is void. Since the interest of B’s children (who are unknown) is contingent on the death of A’s children (who are also unknown), it is possible that B’s children’s interest won’t vest or fail (i.e., surviving or not surviving) within 21 years of the deaths of A, B or T (i.e., the lives in being at the creation of the interest). The rationale using Create, Kill and Count is:

1. Create – X, A’s child. Y, B’s child. 2. Kill – A and B. T is already dead. 3. Count 21 years - After Y is born (became known) and A and B die, Y is still subject to a condition precedent – surviving until A’s children die. X, A’s child, who was not a life in being at the time of the creation of the interest, could live to be 100. If X lived to be 100 and Y died before X, Y would not meet the condition of surviving X. Therefore, Y’s interest might not vest or fail within 21 years of a life in being at the creation of the interest (i.e., within 21 years of A, B or T’s deaths). Therefore, the interest is void.

4. T devises “to A for life, then to A’s children for their lives, then to A’s grandchildren.”

a. A has a life estate. A’s children have a contingent remainder in life estate. (Contingent because unknown.) A’s grandchildren have a contingent remainder in fee simple absolute. (Contingent because unknown.) T has a reversion in fee simple absolute.

b. Application of RAP: A’s grandchildren’s interest is void. It is possible to create a scenario where B’s children will not vest within 21 years of A, B or T (i.e., the lives in being at the creation of the interest). Since the interest of A’s grandchildren (who are unknown) is contingent on the death of A’s children (who are also unknown), it is possible that A’s grandchildren’s interest will not vest or fail (i.e., becoming ascertained and class closing) within 21 years of the deaths of A, B or T (i.e., the lives in being at the creation of the interest). The rationale using Create, Kill, and Count is:

1. Create – X, A’s child. Y, A’s grandchild (e.g., X’s child). 2. Kill – A and B. T is already dead. 3. Count 21 years - After Y is born (became known) and A and B die, Y’s interest is still only a vested remainder subject to open (VRmStoO) because X (who is still alive) could have more children. VRmStoO’s are not considered vested for purposes of RAP, so Y must wait until X dies before Y’s interest vests in interest.* It is possible that X could live to be 100. Y’s class therefore would not close until after 21 years of a life in being at the creation of the interest (i.e., within 21 years of A, B or T’s deaths). Therefore, the interest is void.

*Note that in this situation, vesting in interest occurs at the same that Y vests in possession.

3 5. T devises “to A for life, then to A’s children for their lives, then to T’s grandchildren.”

a. A has a life estate. A’s children have a contingent remainder in life estate. (Contingent because unknown.) T’s grandchildren have a contingent remainder in fee simple absolute. (Contingent because unknown.) T has a reversion in fee simple absolute.

b. Application of RAP: T’s grandchildren’s interest is valid. T’s children are all lives in being at the creation of the interest. T’s grandchildren’s interest will vest or fail immediately (i.e., be born or not born) on the death of T’s children. Therefore, the interest is valid since it will vest or fail within 21 years of a life in being at the creation of the interest (i.e., within 21 years of the deaths of T’s children). The rationale using Create, Kill, and Count is:

1. Create – X, A’s child. Y, T’s grandchild. 2. Kill – A and B, any of T’s children who may be living (including Y’s parent). T is already dead. 3. Count 21 years – T died the moment this interest was created (it was a devise). Therefore, all of T’s children (whatever their names may be) were lives in being at the creation of the interest, and T cannot have any more children. When Y is born, his interest changes from a contingent remainder to a vested remainder subject to open. The class will not close until T’s children die. (Remember, T’s children are the only people who can create T’s grandchildren.) When T’s children die, Y will vest in interest because the class closes.* Since all of T’s children were lives in being at the creation of the interest, Y therefore has vested within 21 years of a life in being.

*Note that this is true even if X lives to be a 1000. X’s existence as A’s child has no bearing on Y’s vesting, since Y must be the grandchild of T, not A.