Thursday, January 25, 2007

fertile octogenarians and unborn widows

The Rule Against Perpetuities

Property law is the most arcane, convoluted area of law still on the books, I believe. In school we read cases from 16th century England that are still good law in America today. The overall view of property law and it's evolution can be described like this: imagine a 600 year old house onto which each generation has built new wings, new stories, new turrets and gutters and porches and roofs and ornaments, never tearing anything down to make room for the new, just building right on top. It is monstrously enormous, maddeningly complicated, irretrievably cumbersome and totally impenetrable.

One of its weird diversions is the rule against perpetuities which, put simply, says that no interest in property is valid if it may vest later than 21 years after some life in being at the time of the creation of the interest.


This is so complicated, that after typing up several paragraphs with long examples and explanations, I just decided to drop it and grossly paraphrase. To paraphrase: it is possible to set up transfers of land that are really remote and might take a really long time to play out. The rule against perpetuities operates to try and keep things happening within a reasonable amount of time.

When you dig around in what is essentially abstract, theoretical territory, you come up with conundrums that boggle the mind and yet, if they somehow occurred, would cause problems. The fertile octogenarian is one. For the purposes of the rule against perpetuities, a woman is conclusively presumed to be able to bear children up until the moment she dies regardless of her age or health. If you create a devise that assumes that because granny is 78 she can't possibly have more kids, and therefore the interest in her kids won't take longer to vest than is allowed, you have just violated the rule against perpetuities. Even though it is unlikley nigh unto impossible that granny will make anymore babies, it doesn't matter. The rule against perpetuties doesn't wait and see, it just says no.

Same thing for the unborn widow. You might want to make a will that leaves land to your brother and after him to his widow and after her to her kids. Well, that would violate the rule because he could marry somebody who wasn't even born yet at the time you made the will. For reasons that are too complicated to explain, just the possibility of the as yet unborn widow violates the rule because it creates the possibility that the kids' interest in the land will vest after the appropriate period. Like with the fertile octogenarian, it doesn't matter what actually happens, it only matters what *might* happen. The rule says no.

As a writer, the concepts of fertile octogenarians and unborn widows are so poetically creepy, I love them and wanted to blog about them. As a human being, Property law is so tedious and awful and complicated and boring, I am afraid I was not able to translate these terms into anything interesting to read. And for that, I apologize. Next time, I will try to blog about some aspect of the law that's actually interesting, maybe even useful.


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