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Fertile octogenarian
From Wikipedia, the free encyclopedia
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| Property law |
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| Part of the common law series |
| Acquisition of property |
| Gift · Adverse possession · Deed |
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| Rule in Shelley's Case |
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| Equitable servitude |
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The fertile octogenarian and the unborn widow are two concepts from the law of real property (and trusts) that can be used either to invoke the rule against perpetuities to make an interest in property void or, alternatively and much more frequently, to demonstrate the seemingly bizarre results that can occur as a result of the rule. The rule itself, simply stated, makes a future interest in property void unless it can be logically proven that the interest must either vest or fail to vest within 21 years after the end of a life in being at the time the interest is created. See its article for further explanation
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The fertile octogenarian is a fictitious character that comes up in applying the rule. The rule against perpetuities presumes that even an octogenarian - that is, a person between 80 and 90 years of age - can parent a child, regardless of gender or health. For instance, suppose that a will devises a piece of land known as Blackacre "to A for her life, and then to the first of A's children to reach 25 years of age." A is, at the time the will is probated, an 85-year-old woman. In applying the rule against perpetuities, an imaginative lawyer will argue (and a court must accept under the common law rule itself) that A could have a child in her 86th year and then in her 87th year die along with any of her children who were alive at the time the will was probated. Because the interest will not vest until her new child reaches 25 years of age, which cannot happen until more than 21 years after A and her other children (together who form the "lives in being" that the rule refers to) have all died, the rule against perpetuities makes the entire gift "to the first of A's children to reach 25 years of age" void. A will hold Blackacre for life, and then the property will revert back to the person whose will transferred it to A in the first place. (Actually, it will go to that person's estate, since the will was probated only after his death.)
The unborn widow poses a similar seemingly silly but logical problem. Suppose that property is left "to A for life, then to his widow for life, then to A's issue." Because the gift to A's widow cannot be resolved until A dies, the law will consider the possibility that, after the property is left to A, he marries a woman who was not born at the time the gift was made. For instance, it is logically possible (however improbable) that in 1950 the property is left to A, in 1955 a woman B is born, and in 1975 A and B marry each other. Furthermore, it is possible that A will die, say in 1980, and his widow B will outlive him for more than 21 years. Suppose that she dies in 2005. B was not a life in being at the time of the transfer, and the only remaining "validating life" under the rule against perpetuities is A, who has been dead for 25 years by this time. The gift to A's issue does not vest until his widow dies, and since that could theoretically happen more than 21 years after the death of all lives in being at the time of the transfer, the transfer to A's issue is invalid from the start. Note that changing the word "issue" to "children" makes the gift valid, since the class of "A's children" is closed and completely cognizable at the time of A's death (plus a gestation period as allowed by the rule). On the contrary, the class of "A's issue" is subject to expand long after A's death, and thus a gift to A's issue cannot vest in this case until B dies. Because her death is assumed to be more than 21 years after A's death, the result is that the gift to A's issue can vest more than 21 years after the end of all lives in being at the time the gift was created.
Other similar cases which almost never actually occur but have been invoked to invalidate transfers under the rule against perpetuities include the slothful executor (a situation where the executor of the estate does not probate the will for many years after the testator's death), the magical gravel pit (a transfer to be made as soon as a gravel pit is out of gravel may not vest for hundreds of years), the war that never ends (a transfer to be made at the end of a war might never happen), and other creations that live only in the creative minds of lawyers.
Because these hypothetical scenarios show how a reasonable gift can be voided based on so unlikely an outcome, they have generated much criticism among legal scholars, resulting in the abrogation of the rule against perpetuities by statute in many jurisdictions. These rules have also long been a target of legal humorists. Indeed, www.fertileoctogenarian.com is the name of a legal humor website.