Rule Against Perpetuities

1. Originated in the Duke of Norfolks Case, 22 Eng. Rep. 931 (Ch. 1681)
a. Heads of families were much concerned about securing family land from incompetent
children
b. Finally after about 150 years, the judges fixed the period as lives in being plus 21 years
thereafter
2. John Chipman Gray
a. No interest is good unless it must vest, if at all, not later than 21 years after some life in
being at the creation of the interest
b. Effect was to permit a donor to provide for all of those in his family whom he personally
knew and the first generation after them upon attaining majority.
3. Mechanics of the Rule
a. Applies only to interest that are NOT vested at the time of the conveyance that creates
them
b. Rule that strikes down contingent interests that might vest too remotely
i. Rule of logical proof
1. You must prove that a contingent interest is certain to vest or terminate
no later than 21 years after the death of some person alive at the creation
of the interest.
2. If you cannot prove that, then the contingent interest is void from the
outset.
c. 3 Interests Subject to Rule:
i. Contingent Remainders (subject b/c not vested)
ii. Executory Interests (subject b/c not vested)
iii. Class Gifts (special case) (interests subject to open that vest too remotely)
d. Next step is to determine whether the given interest might not vest within the perpetuity
period of lives in being plus 21 years.
i. What you are looking for is a person (it only takes 1) who will enable you to
prove that the contingent interest will vest or fail within the life, or at the death,
of that person, or within 21 years after that persons death
1. Called the validating life
2. Anyone in the world can be a validating life, so long as that anyone was
in being at or before the time at which the interest in question was
created.
a. A child is considered as in being from the time of conception if
later born alive.
b. Anyone that can affect events relevant to the condition precedent
3. If there is no person among this group of relevant lives by whom the
requisite proof can be made, the interest is void unless it must vest or fail
within 21 years.
e. If the contingent interest is created by will, the life in being must be a person alive at the
testators death.
f. If the contingent interest is created by an irrevocable inter vivos transfer, the life in being
must be a person alive at the time of the transfer.
g. In case of a revocable transfer, the Rule Against Perpetuities does not apply until the
transfer becomes irrevocable, and hence the life in being must be a person alive when the
power of revocation ceases.
4. Common Law RAP: it must be assumed that a person of any age can have a child, no matter
what the persons physical condition. The presumption of lifetime fertility is conclusive,
notwithstanding contrary evidence. Goes the other way around too, a 2-year old child is
conclusively presumed to be capable of having children.
5. IF a transfer creates more than one interest subject to the RAP:
a. Must test the validity of each interest separately
b. One interest may be valid and another not
c. The same person may or may not be the validating life for all interests
d. Different lives may validate different interests
6. Class Gifts:
a. All-or-nothing Rule
i. If a gift to one member of the class might vest too remotely, the whole class gift
is void
ii. Under the RAP, a class gift is not vested in any member of the class until the
interests of all members have vested.
iii. A gift that is subject to open is NOT vested under the RAP.
iv. For a class gift to be vested under the RAP, the class must be closed
1. That is, each and every member of the class must be in existence and
identified, AND, all conditions precedent for each and every member of
the class must be satisfied, within the perpetuities period.
v. Ex: A gift to A for life, then to As children, and A has living one child, B. Bs
remainder is vested subject to open, but it is not vested under the RAP until A
dies and all of As children are then in existence and identified. But because the
remainder beneficiaries will all be ascertained at As death, the remainder is valid.
b. Class Closing Rule (rule of convenience):
i. The natural, or physiological, closing of the class, that is, when the possibility of
births (or adoption) ends (e.g., the death of a classs ancestor); OR
ii. The premature or artificial closing of the class through the operation of the rule
of convenience.
iii. The rule of convenience may save an otherwise invalid interest under the
common law RAP.
1. Ex: T devised assets to such of As children as to survive age 25, at the
time of Ts death A was alive and had 2 children, X and Y, ages 26 and
22. Under RAP this is void, however, under the rule of convenience,
because X had reached 25 by the time of Ts death the class closes
prematurely at Ts death. Any child born to or adopted by A after Ts
death is not added to the class, saving the class gift.

7. Destructibility of Contigent Remainders

a. A legal remainder is land is destroyed if it does not vest at or before the termination of
the preceding freehold estate
b. The exemption of executory interests from the destructibility rule was a main reason why
judges developed the Rule Against Perpetuities
8. The Rule in Shelleys Case
a. Intent-overriding
9. Doctrine of Worthier Title
a. Where there is an inter vivos conveyance of land by a grantor to a person, with a
limitation over to the grantors own heirs either by way of remainder or executory
interest, no future interest in the heirs i created; rather, a reversion is retained by the
grantor