The Rule Against Perpetuities

Question 1

• Traditional length:

Answer 1

life in being plus 21 years

Question 2

o Interests Subject to RAP

Answer 2

Contingent Future Interests
• executory interests
• contingent remainders
• vested remainders subject to open – as long as the class of grantees is still open, the rule applies

Question 3

o Interests that are NOT subject to the rule

Answer 3

 * reversions
 * rights of entry
 * possibilities of reverter
 * vested remainders

Question 4

• All or nothing rule for class gifts

Answer 4

if it will not vest for all members of the class, it vests for none

Question 5

• “Wait and See” approach-

Answer 5

we wait until the measuring life has run its course, and then we take a second look to gauge the integrity or validity of any previously suspect future interest

Question 6

• Delaware Rule:

Answer 6

Must vest in 105 years or void

Question 7

• Uniform Statutory Rule Against Perpetuities (USRAP) –

Answer 7

creates 90 year period; if contingent future interest hasn’t vested w/in 90 years, then it is terminated

Question 8

• 4 Steps to analyze perpetuities problem:

Answer 8

o 1. Does the rule apply to this interest? [Executory interest; contingent remainder; vested remainders subject to open]
o 2. What must happen for the interest to vest or forever fail to vest?
o 3. Who is the measuring life?
o 4. Will the interest vest after the measuring life plus 21 years? (Test each relevant life)

Question 9

• Shifting executory interest unbounded by time

Answer 9

will always violate the RAP

Question 10

• O to A in 22 years

Answer 10

springing executory interest is voided as a workaround of RAP

Question 11

• Classic perpetuities nonsense:

Answer 11

o “Fertile octogenarian”
o People can die anytime
o “Unborn widow” (Chenoweth, infra)

Question 12

• Chenoweth v. Bullitt

Answer 12

“remorseless application”

o No guarantee that son’s wife would be his wife at the date of mother’s death – not necessarily life in being, thus court invalidates slew of interests based on longshot possibilities

Question 13

• Deiss v. Deiss – IL (1989)

Answer 13

“Mortgage remainder”
o F: P wants trust that she (and her husband) created voided because of rule against perpetuities
 Argues that condition of mortgages being paid off is a perpetuities violation (condition precedent) – thus all her children have contingent, not vested remainders; since there is no guarantee that mortgage will be paid off, interests should be voided
 Ct. rejects
o H: For D; says this is a vested remainder subject to divestment
 Modern tendency to save interests from RAP

Question 14

• Fletcher v. Ferrill – AR (1950)

Answer 14

o F: Fletcher provides life estate to himself, then to Masonic Lodge so long as it is used as an orphanage in AR; if it fails, then “revert to Fletcher’s heirs”
o I: Is the future interest a shifting executory interest (and Lodge has FS subject to executory limitation)? Or is it FS determinable with possibility of revert
o H: For D – Fletcher intends this as a reverter – thus court allows this to be FSD and not subject to perpetuities problem
 Even though this cannot be reverter, because it will never revert during Fletcher’s life (he will be dead when estate used as orphanage)  technical error excused by court, says that reverter can be devised