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PROBLEMS IN PERPETUITIES None of these problems are numbered problems in DKM4, though most of them are posed without numbers in DKM4. The problem here is followed in parentheses by the number of the class outline and the paragraph number in the outline in which they are found. Assume that the grant or devise is of adequately described land of which grantor/devisor is solely seised in fee simple absolute. Assume that the statute Quia Emptores is in effect, that there is a statute of wills, and that there is a statute that states that a grant or devise of land is assumed to be to the grantee or devisee and his/her heirs unless the contrary is expressed. The problems assume the modern common-law Rule Against Perpetuities is in effect (i.e., no statutory variations unless stated). You need not describe all the interests created by the devise or grant but simply answer the question posed about the applicability of Rule and give a reason why it is or is not in violation of the Rule. Note: The problems assume, as did the common law and as does modern law, that women cannot have children after they are dead and that men cannot have posthumous children whom they have not conceived while they were alive. (How both common law and modern law deal with posthumous children is discussed in DKM4, p. S257; we simply assume here that the problem is covered.) It is, of course, no longer true that women cannot have children after they are dead and that men cannot have posthumous children whom they have not conceived while they were alive. That is a very large problem, with ramifications in both private and public law far broader than its applicability to the Rule Against Perpetuities. We have hardly begun to deal with it and do not do so here. G = G grants D = D devises —> = the land to
(i) The remainder in the grandchildren is void. Why? (Class outline 18, 1.b.i) Check Answer (ii) If G is not living, i.e., G (now D) devises, it makes no difference. The remainder in the grandchildren is still void. Why? (Class outline 18, 1.b.ii) Check Answer (iii) Could we save the grant if we rewrote it to say “G —>le A —>rdr le A’s children living at the effective date of this grant —>rdr A’s grandchildren”? (Class outline 18, 1.b.iii) Check Answer (iv) If that will not work, what will? (Class outline 18, 1.b.iii) Check Answer Check Answer Check Answer Bottom line (of all the previous problems): A gift to the grandchildren of a living person is almost always problematic. A gift to the grandchildren of a dead person is fine. The following problems involve, frequently in combination: (a) the “all or nothing” rule (previously discussed), (b) a presumption that anyone of whatever age, gender, or physical condition is capable of having children, and (c) an application of the “what might happen” approach (DKM4, p. S251) that might be described as Murphy’s Law run rampant. (i) D —>le A —>rdr le A’s children —>rdr A’s grandchildren. A is an 80-year old woman. The “fertile octogenarian.” (Class outline 18, 2.b.i) Check Answer (ii) D —>le A —>rdr le A’s widow —>rdr A’s children who survive both A and his widow. A is an 80-year old man, happily married to a woman of 79. The “unborn widow.” (Class outline 18, 2.b.ii) Check Answer (iii) D —>to such of my lineal descendants who are alive at the probate of my will. The “administrative contingency” (Class outline 18, 2.b.iii) Check Answer (iv) D —>le A —>rdr such of A’s grandchildren living at my death or born within 5 yrs. thereafter as attain the age of 21. The “precocious toddler.” (Class outline 18, 2.b.iv) Check Answer (v) D —>le A —>rdr such of A’s grandchildren as attain 21. Same facts as (i) with a statute removing presumption of fertility. The “fortuitous adoption.” (Class outline 18, 2.b.v) Check Answer (vi) D —>to my children. The Rule and high-tech procreation: “the fertile decedent.” (Class outline 18, 2.b.vi) Check Answer (a) G —>trustees to pay income to G for life —> income to G’s children for their lives —> corpus to be distributed to G’s grandchildren when they reach the age of 21. G retains power to revoke during his lifetime. (Class outline 18, 4.a) Check Answer (b) G —>trustees to pay income to G for life —> income to G’s children for their lives -> income to G’s grandchildren when they reach the age of 21 for their lives —>corpus to G’s great grandchildren when they reach 21. G retains power to revoke during his lifetime. G also grants the power to any grandchild income beneficiary to compel the trustees to distribute to him or her the portion of the capital attributable to him or her. (Class outline 18, 4.b) Check Answer
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