Fertile octogenarian
Encyclopedia
The fertile octogenarian and the unborn widow are two legal fiction
s 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.
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 probate
d, 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 all of A's other children could die, then in her 88th year A herself could die. 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" to which the rule refers) 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.)
There is often no statutory maximum age limit to perform an adoption, and adopted children are often treated the same as natural children, so an 86-year-old woman who adopts a newborn child is legally in the same position as an 86-year-old woman who gives birth.
The legal fiction
of the fertile octogenarian assumes that a living person, regardless of sex, age, or physical condition, will always be capable of having more children, thus allowing an interest to vest 21 years after all the lives in being at the time of the grant are dead. Couples have been known to marry in their late eighties.
In certain places this assumption will be limited to a fixed age set by statute. Furthermore, many jurisdictions have discarded old common-law fictions such as the "fertile octogenarian."
A related legal fiction, which assumes that a living person is fertile at birth, is known as the precocious toddler.
." 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 possible 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.
The problem of the unborn widow is a frequently used illustration of the Rule's complexities. Suppose that a woman, A, wants to devise her estate to her son B and his wife, and then to their children.
A's devise might look something like this:
Though this seems like a reasonable devise, it actually violates the Rule because there is a possibility, however remote, that the interest to "B's children then living" will vest more than 21 years after the deaths of all lives in being.
Suppose B is married without children at the time of the devise. Suppose further that B's wife were to die or B were to divorce. If B were to remarry to someone who was born after the devise, the new wife would not be a life in being at the time of the devise. Similarly, any children born to B and his new wife would also not be lives in being at the time of the devise. If B's new wife were to outlive him (making her his widow) and survive him by more than 21 years, then the interest to "B's children then living" would not vest until after the perpetuities period expired (21 years after the death of B, the only relevant life in being at the time of the devise), because only upon the death of the widow can one ascertain who are "B's children then living."
Alternately, if B is not married at the time of the devise and B were to get married afterwards, again the wife could not be a life in being since she is not identifiable at the time of the devise. Similarly to the previous case, she could outlive B by more than 21 years, voiding the grant to their children (who also could not be lives in being because they would have been born after the devise was made).
However, if the last interest were simply to B's children, rather than to B's children then living, it would vest upon B's death because at that time all of B's children would be ascertainable. In this instance, the devise would be valid under the Rule.
in many jurisdictions. Many U.S. State
s have adopted laws mollifying the application of the rule by requiring courts to "wait and see" for a period of years, sometimes as long as 360 years (which effectively negates the possibility of litigation ensuing during the life of any person alive at the same time of the author of the will).
Some jurisdictions have ameliorated specific problems of the rule by creating statutory presumptions to counter those problems. Under such statutes, for example, a woman is presumed to no longer be fertile after a particular age (typically 55), and a gift to a person's widow or widower is presumed to vest in whoever was that person's spouse at the time of the gift.
These rules have also long been a target of legal humorists.
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
s from the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
(and trusts) that can be used either to invoke the rule against perpetuities
Rule against perpetuities
The common law rule against perpetuities forbids some future interests that may not vest within the time permitted; the rule "limit[s] the testator's power to earmark gifts for remote descendants"...
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.
The fertile octogenarian
The fertile octogenarian is a fictitious character that comes up when applying the rule against perpetuities. The rule presumes that anyone, even an octogenarian (i.e., someone between 80 and 90 years of age) can parent a child, regardless of gender or health. For instance, suppose that a willWill (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
devises a piece of land known as Blackacre
Blackacre
Blackacre, Whiteacre, Greenacre, Brownacre, and variations are the placeholder names used for fictitious estates in land.The names are used by professors of law in common law jurisdictions, particularly in the area of real property and occasionally in contracts, to discuss the rights of various...
"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 probate
Probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
d, 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rule itself) that A could have a child in her 86th year and then in her 87th year all of A's other children could die, then in her 88th year A herself could die. 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" to which the rule refers) 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
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
, since the will was probated only after his death.)
There is often no statutory maximum age limit to perform an adoption, and adopted children are often treated the same as natural children, so an 86-year-old woman who adopts a newborn child is legally in the same position as an 86-year-old woman who gives birth.
The legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
of the fertile octogenarian assumes that a living person, regardless of sex, age, or physical condition, will always be capable of having more children, thus allowing an interest to vest 21 years after all the lives in being at the time of the grant are dead. Couples have been known to marry in their late eighties.
In certain places this assumption will be limited to a fixed age set by statute. Furthermore, many jurisdictions have discarded old common-law fictions such as the "fertile octogenarian."
A related legal fiction, which assumes that a living person is fertile at birth, is known as the precocious toddler.
The unborn widow
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 issueIssue (legal)
In law, issue can mean several things:*In wills and trusts, a person's issue are his or her lineal descendants or offspring. These are distinguished from heirs, which can include other kin such as a brother, sister, mother, father, grandfather, uncle, aunt, nephew, niece, or cousin.*In...
." 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 possible 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.
The problem of the unborn widow is a frequently used illustration of the Rule's complexities. Suppose that a woman, A, wants to devise her estate to her son B and his wife, and then to their children.
A's devise might look something like this:
- To B for his life, then to his widow, if any, for life, then to B's children then living.
Though this seems like a reasonable devise, it actually violates the Rule because there is a possibility, however remote, that the interest to "B's children then living" will vest more than 21 years after the deaths of all lives in being.
Suppose B is married without children at the time of the devise. Suppose further that B's wife were to die or B were to divorce. If B were to remarry to someone who was born after the devise, the new wife would not be a life in being at the time of the devise. Similarly, any children born to B and his new wife would also not be lives in being at the time of the devise. If B's new wife were to outlive him (making her his widow) and survive him by more than 21 years, then the interest to "B's children then living" would not vest until after the perpetuities period expired (21 years after the death of B, the only relevant life in being at the time of the devise), because only upon the death of the widow can one ascertain who are "B's children then living."
Alternately, if B is not married at the time of the devise and B were to get married afterwards, again the wife could not be a life in being since she is not identifiable at the time of the devise. Similarly to the previous case, she could outlive B by more than 21 years, voiding the grant to their children (who also could not be lives in being because they would have been born after the devise was made).
However, if the last interest were simply to B's children, rather than to B's children then living, it would vest upon B's death because at that time all of B's children would be ascertainable. In this instance, the devise would be valid under the Rule.
Other examples
Other hypothetically relevant possibilities which almost never actually occur but have been invoked by lawyers or courts 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 similar situations.Criticism and humor
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 statuteStatute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
in many jurisdictions. Many U.S. State
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s have adopted laws mollifying the application of the rule by requiring courts to "wait and see" for a period of years, sometimes as long as 360 years (which effectively negates the possibility of litigation ensuing during the life of any person alive at the same time of the author of the will).
Some jurisdictions have ameliorated specific problems of the rule by creating statutory presumptions to counter those problems. Under such statutes, for example, a woman is presumed to no longer be fertile after a particular age (typically 55), and a gift to a person's widow or widower is presumed to vest in whoever was that person's spouse at the time of the gift.
These rules have also long been a target of legal humorists.