Misstatements of the Rule Against Perpetuities by Experts
| Publication year | 1986 |
| Pages | 210 |
| Citation | Vol. 15 No. 2 Pg. 210 |
1986, February, Pg. 210. Misstatements of the Rule Against Perpetuities by Experts
The National Conference of Commissioners on Uniform State Laws, W. Barton Leach and John Chipman Gray are the experts whose misstatements of the Rule against Perpetuities ("Rule") are to be considered.
In 1955, the National Conference promulgated the "Model Rule Against Perpetuities Act" ("Model Act"),(fn1) which states:
No interest in real or personal property shall be good unless it must vest [if at all] not later than twenty-one years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of vesting must not be so numerous nor so situated that evidence of their deaths is likely to be unreasonably difficult to obtain. It is intended by the enactment of this statute to make effective in this state the American common law rule against perpetuities.
The phrase, "if at all" should have been inserted in the first sentence between "vest" and "not." This is a serious mistake. Some states corrected the mistake;(fn2) some did not.(fn3) It has not been corrected by the Conference.
Of course, the misstatement was inadvertent, as was the same misstatement by W. Barton Leach in his article, "Perpetuities in a Nutshell," which states that a "future interest is invalid unless it is absolutely certain that it must vest within the period of perpetuities."(fn4)
It is bad enough when this misstatement appears, as it frequently does, in carelessly written judicial opinions. When it is stated by experts in a field with which many lawyers are unfamiliar, it is even more liable to produce erroneous and unnecessarily harsh applications of the Rule.
Without the words "if at all," the Rule would invalidate all contingent interests because it can never be said that a contingent interest "must vest not later than twenty-one years after some life in being at the creation of the interest." It may never vest.(fn5)
Another part of the Model Act, which though not inaccurate may be misleading, is as follows: "... twenty-one years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies." Although it is true that in context "any period" means "all periods," it would have been better to say so.
There could be three such periods. For example, assume the following: A devises, "Blackacre to my children for their lives, and upon the death of my longest living child to my then living grandchildren, and when the youngest of such grandchildren attains the age of twenty-one, to my then living great-grandchildren and their heirs."
Suppose that A had a child, B, who was born nine months after the death of A. B is "some life in being at the creation of the interest." That is one period of gestation. Now, suppose that B is A's "longest living child" and that B had a child, C, born nine months after the death of B. C is one of A's "then living grandchildren." That would be a second period of gestation. Finally, suppose that C had a child, D, born nine months after D attained the age of twenty-one. D is a "then living great-grandchild." That is three periods of gestation. Could there be a fourth?
This discussion shows that statements of the Rule, even by experts, may not be quite accurate. The statement of the Rule by John Chipman Gray can also be criticized. He "carved it in stone," in capital letters,
NO INTEREST IS GOOD UNLESS IT MUST VEST, IF AT ALL, NOT LATER THAN TWENTY-ONE AFTER SOME LIFE IN BEING AT THE CREATION OF THE INTEREST.(fn6)
For eighty years, judges have quoted this statement, sometimes even in capital letters.(fn7) These words have acquired an aura of infallibility and immutability.(fn8) It would have been better if the Rule had...
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