Class closed by X’s death
- Class closed by convenience- if one member
- Watch out for the specific bequest: X is alive w/20 year old son gift to living child is valid and only the afterborn will lose under the rule.
- Gifts to charities: a gift over from one charity to another does not have to satisfy the rule of perpetuities
(4) look for Reform statute: USRAP- seeks to update the common law rule by using an alternative vesting period.
a. The Common Law Rule
Jee v. Audley- the gift to Mary Hall was subject to an executory limitation. Failure of issue is called “indefinite”, which can occur at any time down stream
- People can have children at any age, regardless of physical condition
- a person of any age can adopt a child
- Hall could have children at any time
- The then surviving daughters interest won’t vest until Mary’s interest runs out
indefinite failure of issue
- when Mary’s bloodline runs out. Mary’s bloodline might run out at her death, if she leaves no decedents then living, or it might run out centuries hence, when her decedents disappear from the face of the earth. It is this second possibility that leads to a gift that might vest too remotely.
Gift to Classes
- under RAP a class gift is not vested in any member of the class until the interests of all members have vested. A gift that is vested subject to open is not vested under RAP. For a class gift to be vested under the Rule, the class must be closed (that is each and every member of the class must be identified), and all conditions precedent for each and every member of the class must be satisfied within the perpetuities period.
“ Saving clause” in a trust (p. 312)
- A saving clause is designed to terminate the trust, and distribute the assets, at the expiration of specified measuring lives plus 21 years, if the trust has not earlier terminated.
- a commercial option is subject to the RAP
- option in gross- option not connected with the lease
- commercial beings do not have “a life in being” they just have 21 years, but the 24 year set-up made it void
b. The Wait-and-See Doctrine
- wait and see if all interest vest within 21 years
(1) Wait and See for the Common Law Perpetuities Period
- some states adopting wait-and-see provide that a contingent interest is valid if it vests within the common law perpetuities period
(2) Wait-and-See for 90 Years
- the USRAP supersedes the common law Rule with a statutory Rule that provides for a period of 90 years
- Under USRAP, a donor can comply either with the common law RAP or with the 90-year wait-and-see period.
- if at the time of its creation, a contingent interest will necessarily vest, if at all, within lives in being plus 21 years OR 90 years , it is valid .
- If the contingent interest is not certain to vest or fail within one of those two periods, we wait for 90 years to see if it actually vests within 90 years. If it does not, the contingent interest will be reformed by a court at the end of the 90 years so as to most closely approximate the dispositive plan of the donor and vest within 90 years
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- Spring '07
- Common Law, Possession, Fee simple