Property - Rule Against Perpetuities - Problem Set

Example 43: O grants Blackacre "to A for life, then to A's first child to reach the age of 25." A is alive, and has one child, B, who is 22 years old.

(afterborn child) Classifying without the RAP: A has a life estate. B has a contingent remainder in fee simple absolute. O has a reversion in fee simple absolute. Common-law approach: The contingent remainder in fee simple absolute is void under the common-law approach. You might think that it is valid because B is alive and B will reach the age of 25, or not, during B's lifetime. Plus, B is only three years away from reaching the age of 25! There are scenarios, however, where the contingent remainder might vest or fail outside of the perpetuities period. (afterborn child problem) Because of this possibility, the contingent remainder is void. Under the common-law approach, we would reclassify the interests in the grant: A has a life estate. O has a reversion in fee simple absolute. B has nothing whatsoever. Note that this is true even if B has reached the age of 25 by the time the dispute is adjudicated. An interest that violates the Rule is void from the time of the grant—we treat it as if it never existed in the first place. Wait-and-see approach: The contingent remainder in fee simple absolute might be void or it might be valid—we have to wait and see. If B or another of A's children reaches the age of 25 during the perpetuities period, the contingent remainder will vest and be valid. If an afterborn child scenario like the one set forth above occurs, then the contingent remainder will be void. Note that there is also a possibility that the contingent remainder will simply fail on its own terms—for example, if A and B die in 2001 and A has no other children.

Example 47: O grants Blackacre "to my children for life, then to my grandchildren." O is 80 years old, and has one child, A, and one grandchild, B.

(the fertile octogenarian) Classifying without the RAP: A has a life estate that may have to be shared if additional children are born. B has a vested remainder in an open class in fee simple absolute. Common-law approach: B's vested remainder in an open class is void under the common-law approach because of the potential for afterborn children. Classifying the interests applying the common-law Rule, A has a life estate that may have to be shared if additional children are born; O has a reversion in fee simple absolute. There are three important lessons to take from this scenario. First, remember that for the Rule Against Perpetuities, any living person can have children. Second, conveyances in this general pattern are often called fertile octogenarian problems, for the obvious reason that they turn on the idea that an 80-year old can have children. Third, conveyances to a living person's grandchildren are often problematic under the common-law approach to the Rule Against Perpetuities. Wait-and-see approach: B's vested remainder in an open class may or may not be valid. If O dies without having any further children, then the vested remainder in the open class of O's grandchildren will be valid—all of O's children are lives in being, and when the last child dies, the class of O's grandchildren will vest in a closed class. If O does have an afterborn child, the vested remainder might vest too late and be void under the Rule.

Example 50: O conveys Blackacre "to A for life, then to B when A's will is probated."

(the slothful executor) Classifying without the RAP: A has a life estate. O has a reversion in fee simple subject to executory limitation. B has an executory interest. Why isn't B's interest a remainder? Because it will not become possessory, if at all, on the natural end of the preceding estate. When A dies, some period of time will pass before A's will is probated—probate is a legal process that takes some time. Common-law approach: B's executory interest is void under the common-law approach. Reclassifying the interests taking the application of the Rule into account, A has a life estate and O has a reversion in fee simple absolute. The name of this problem is the slothful executor. Most wills are probated within a short time of the testator's death. There remains a possibility, however remote, that the executor will not successfully probate the will for more than 21 years after lives in being. As a result, the executory interest is void under the common-law approach.

Example 49: O conveys Blackacre "to A for life, then to A's widow for life, then to A's children then living." A is alive and is married to B. A has one child, C.

(the unborn widow) Classifying without the RAP: A has a life estate. A's widow has a contingent remainder in life estate. Why is this remainder contingent? Because it is in an unascertained person—we do not know the identity of A's widow until A dies. C has a contingent remainder in fee simple absolute, and O has a reversion in fee simple absolute. Common-law approach: Both of the contingent remainders are subject to the Rule. A's widow's contingent remainder is valid under the Rule, because it will vest or fail on A's death, and A is a life in being. C's contingent remainder, however, is void under the Rule. We therefore need to reclassify the interests as follows: A has a life estate, A's widow has a contingent remainder in life estate, and O has a reversion in fee simple absolute. Wait-and-see approach: The contingent remainder in A's children who survive A's widow may or may not be valid. So long as the person who becomes A's widow was alive at the time of conveyance, the remainder will vest or fail during the perpetuities period (at the end of the widow's life) and will be valid.

Example 42: O grants Blackacre "to A for life, then to A's children." At the time of conveyance, A has one child, B.

Classifying without the RAP: A has a life estate and B has a vested remainder in an open class. B's vested remainder in an open class is subject to the Rule. Common-law approach: B's vested remainder will vest in a closed class on A's death. A is alive, and so provides the life in being to validate B's vested remainder in an open class. Wait-and-see approach: Because B's vested remainder in an open class is valid under the common-law approach, it also is valid under the wait-and-see approach. We do not need to wait around for the class to actually close to determine whether B's interest is valid under the Rule.

Example 41: O grants Blackacre "to A for life, then to B if B reaches the age of 50." At the time of the conveyance, B is alive and is two years old.

Classifying without the RAP: A has a life estate, B has a contingent remainder in fee simple absolute, and O has a reversion in fee simple absolute. B's contingent remainder is subject to the Rule. Common-law approach: B's contingent remainder will vest or fail during B's life—either B will live to 50, or will not. B therefore provides the life in being for this interest, and it is valid under the common-law approach. Wait-and-see approach: Any interest that is valid under the common-law approach will also be valid under the wait-and-see approach. We could wait around to see if B lives to age 50 or not, but we don't need to do so—we know that this contingency will resolve itself one way or the other during B's life.

Example 44: O grants Blackacre "to A for life, then to A's first child to reach the age of 21." A is alive, and has one child, B, who is 18.

Classifying without the RAP: A has a life estate. B has a contingent remainder in fee simple absolute. O has a reversion in fee simple absolute. Common-law approach: The contingent remainder in fee simple absolute is valid. Even in an afterborn child scenario, the contingent remainder will vest or fail within the perpetuities period because any child of A will reach 21, or not, within 21 years of A's death. Because the contingent remainder must vest or fail within 21 years of A's death, it is valid under the common-law approach. Wait-and-see approach: Because the contingent remainder is valid under the common-law approach, it is valid under the wait-and-see approach.

Example 45: T grants Blackacre "to A for life, then to my first child to reach the age of 25." A is alive and T has one child, B, age one.

Classifying without the RAP: A has a life estate. B has a contingent remainder in fee simple absolute. T's estate has a reversion in fee simple absolute. This conveyance is similar to that in Example 43, but the contingent remainder is in T's first child to reach 25, not A's first child to reach 25. Common-law approach: B's contingent remainder is valid under the common-law approach. This is because T is dead and therefore cannot have any more children. The afterborn child problem that was present in Example 43 therefore is absent here. B was alive at the time of conveyance and provides her own measuring life to validate her interest. Wait-and-see approach: Because B's interest is valid under the common-law approach, it is valid under the wait-and-see approach.

Example 48: T grants Blackacre "to my children for life, then to my grandchildren." At her death, T is survived by one child, A, and one grandchild, B.

Classifying without the RAP: A has a life estate. While the gift to T's children was a class gift, the class closed and the gift fully vested in A once T died. B has a vested remainder in an open class in fee simple absolute. Common-law approach: B's vested remainder in an open class is valid. The key difference from Example 47 is that at the time of conveyance, T was dead. Because T has died, T cannot have afterborn children. The class of T's children is closed at the time of conveyance. T's children provide the measuring lives for the class of T's grandchildren, because the class of grandchildren will close on the death of the last child. Wait-and-see approach: Because B's interest is valid under the common-law approach, it is valid under the wait-and-see approach.

Example 58: ABC Inc. grants XYZ LLC an option to purchase Blackacre "for $100,000 at any time prior to 30 years from the date of this agreement."

Classifying without the RAP: ABC Inc. owns Blackacre in fee simple absolute. XYZ LLC has an option to purchase Blackacre. Common-law approach: XYZ LLC's option is void. This is the same basic conveyance as the previous example. Here, however, both the grantor and the grantee are legal entities, not natural people. As a result, neither can provide lives in being. The perpetuities period therefore ends up being 21 years. Because the option by its terms has a 30-year period, it is possible that the option will be exercised outside of the perpetuities period. Wait-and-see approach: XYZ LLC's option may or may not be valid. Because both the grantor and the grantee are entities, the perpetuities period will be 21 years. If XYZ LLC exercises the option within 21 years, it will be valid. If not, it will be void.

Example 46: T grants Blackacre "to A for life, then to A's first child to reach the age of 25." At the time of the conveyance (T's death), A has died and has one child, B, age 23.

Classifying without the RAP: Because A is dead at the time of conveyance, A's life estate never becomes possessory—it effectively disappears. Under the modern approach that does not follow the rule of destructibility of contingent remainders, B's contingent remainder is converted into an executory interest. To classify the grant, T's estate has a fee simple subject to executory limitation, and B has an executory interest in fee simple absolute. This executory interest is subject to the Rule. Common-law approach: B's executory interest is valid under the Rule. B was alive at the time of conveyance, and provides the measuring life that validates her executory interest—B obviously will reach 25 or not within her own lifetime. Note three things about this conveyance. First, we care about the facts at the time of conveyance. With testamentary conveyances, this is the time of death. The facts at the time the will was drafted are irrelevant. Second, because A was dead at the time of conveyance, there was no afterborn child problem. Third, the result is that the exact same language that was a problem in Example 43 was not a problem here. Wait-and-see approach: Because B's interest is valid under the common-law approach, it is valid under the wait-and-see approach.

Example 57: O grants A an option to purchase Blackacre "for $100,000 at any time prior to 30 years from the date of this agreement."

Classifying without the RAP: O owns Blackacre in fee simple absolute. A has an option to purchase Blackacre. Common-law approach: A's option is void. O and A could die tomorrow, and A's estate could try to exercise the option in 30 years—more than 21 years after the deaths of O and A, who are our potential lives in being. Wait-and-see approach: A's option may or may not be valid. So long as either O or A survives for nine years, the option period will fall within the perpetuities period of lives in being plus 21 years, and the interest will be valid. Even if O and A die soon after the option was executed, the option will be valid if A exercises the option during the perpetuities period.

Example 51: O conveys Blackacre "to the School Board so long as it is used for school purposes."

Classifying without the RAP: The School Board has a fee simple determinable. O has a possibility of reverter in fee simple absolute. All interests created in the grantor (reversions, possibilities of reverter, and rights of entry) are exempt from the Rule Against Perpetuities, so the Rule does not apply here at all.

Example 53: O conveys Blackacre "to the School Board, but if the property is no longer used for school purposes then A may enter and take the property."

Classifying without the RAP: The School Board has a fee simple subject to executory limitation. A has an executory interest in fee simple absolute. Common-law approach: The executory interest violates the Rule Against Perpetuities. The reason is the same as in the last example—the School Board could stop using Blackacre for school purposes 500 years from now. Remember that if an interest violates the Rule, we simply cross it out of the conveyance. Note what happens when you cross the language creating the executory interest out of this conveyance—you are left with "to the School Board." The School Board owns Blackacre in fee simple absolute. It is best not to try to think of a good reason for the difference in result between this example and Example 52, where the elimination of the executory interest resulted in a fee simple determinable. The Rule Against Perpetuities is a mechanical rule, so apply it mechanically. Wait-and-see approach: As in the previous example, the executory interest may or may not be valid. If the School Board stops using Blackacre for school purposes within the perpetuities period, then the executory interest will be valid. If not, it will be void.

Example 52: O conveys Blackacre "to the School Board so long as it is used for school purposes, then to A."

Classifying without the RAP: The School Board has a fee simple subject to executory limitation. A has an executory interest in fee simple absolute. Common-law approach: The executory interest violates the Rule Against Perpetuities. This one should be fairly intuitive—the School Board could stop using Blackacre 500 years from now. Therefore it is possibility for the executory interest to vest or fail well outside of the perpetuities period. Reclassifying the interest to take the application of the Rule into account, the School Board has a fee simple determinable and O has a possibility of reverter in fee simple absolute. Wait-and-see approach: The executory interest may or may not be valid. If the School Board stops using Blackacre for school purposes within the perpetuities period, then the executory interest will be valid. If not, it will be void.

Example 54: O conveys Blackacre "to the School Board for so long as the property is used for school purposes, then to the State University."

Classifying without the RAP: The School Board has a fee simple subject to executory limitation. The State University has an executory interest in fee simple absolute. Common-law approach: The State University's executory interest is valid under the Rule Against Perpetuities. This is due to the charity-to-charity exception. This exception states that if both interests—the interest subject to executory limitation or divestment, and the executory interest that might take it away—are held by charities, then the executory interest is exempt from the Rule Against Perpetuities. Wait-and-see approach: Because the State University's executory interest is valid under the common-law approach, it is valid under the wait-and-see approach.

T devises BA "to A for life, then to A's children for life, then to A's grandchildren for life, then to A's great-grandchildren and their heirs." At the time of T's death, A is alive and has two children, B and C, each of which have two children, B1 and B2, and C1 and C2. 25 years later, A, B, and C have died without having more children. B1 has had a child, B3. C2 has had two children, C3 and C4.

Common Law: The correct answer is: T's estate owns Blackacre in fee simple. This follows from the result above. Wait and See: The correct answer is: B1, B2, C1, and C2 [the grandchildren] have a life estate in Blackacre as tenants in common; B3, C3, and C4 [the great-grandchildren] have vested remainders in an open class in fee simple absolute. As things have turned out, there haven't been any afterborn children to screw up the grandchildren's interest, and there haven't been any afterborn grandchildren to screw up the great-grandchildren's interest. The grandchildren's vested remainder closed on the death of B and C (who couldn't have any more children). The great-grandchildren's vested remainder in an open class is fine because it will close at the deaths of the grandchildren, B1, B2, C1, and C2, who all were alive at the time of the conveyance. A A's children: B and C A's grandchildren: B1, B2, C1, and C2 A's great-grandchildren: B2, C3, C4

Example 55: O grants A an option to purchase Blackacre "for $100,000 within one year of the date of this option agreement." A has an option to purchase Blackacre for $100,000 within one year. If O refuses to sell Blackacre to A, A can compel the sale.

The majority common-law view is that options are subject to the Rule Against Perpetuities. A less strong majority of jurisdictions also hold that rights of first refusal are subject to the Rule. In our examples that follow, we will follow this majority rule. We should note that the majority common-law rule applying the Rule to options has been altered in many states by statute. The Uniform Statutory Rule Against Perpetuities (USRAP), adopted in about half of U.S. jurisdictions and discussed further below, abolishes the application of the Rule to options and rights of first refusal.

Example 56: O grants A a right of first refusal to purchase Blackacre "within one year of the date of this agreement." A has a one-year right of first refusal in Blackacre. If O offers to sell Blackacre to anyone else during the one-year period, A has the right to step in and purchase the property. If O does not offer to sell to anyone else, however, A cannot compel O to sell Blackacre.

The majority common-law view is that options are subject to the Rule Against Perpetuities. A less strong majority of jurisdictions also hold that rights of first refusal are subject to the Rule. In our examples that follow, we will follow this majority rule. We should note that the majority common-law rule applying the Rule to options has been altered in many states by statute. The Uniform Statutory Rule Against Perpetuities (USRAP), adopted in about half of U.S. jurisdictions and discussed further below, abolishes the application of the Rule to options and rights of first refusal.

T grants BA "to my children for life, then to their children for life, then to my surviving issue." T is survived by two children, A and B.

Without RAP: A and B have a life estate in common, T's grandchildren have a contingent remainder in life estate, T's issue have a contingent remainder in fee simple absolute, T's estate has a reversion in fee simple absolute. Common Law: The correct answer is: A and B have a life estate in common, T's grandchildren have a contingent remainder in life estate, T's estate has a reversion in fee simple absolute. T's grandchildren's interest is fine—T's children provide the measuring lives, and because this is a testamentary gift, we know that there won't be any afterborn children. T's issue's contingent remainder is invalid because one of T's children could have an afterborn child [T's grandchild] who could die more than 21 years after lives in being, causing T's issue's contingent remainder to vest or fail outside of the perpetuities period. Wait and See: The correct answer is: A and B have a life estate in common, T's grandchildren have a contingent remainder in life estate, T's issue have a contingent remainder in fee simple absolute that may become invalid on actual events, T's estate has a reversion in fee simple absolute.

T conveys Blackacre "to my children for life, then to my grandchildren who reach the age of 25." At T's death, T is survived by her children A and B, and one grandchild, C, who is 18 years old.

Without RAP: A and B have a life estate in common. C has a contingent remainder in fee simple absolute. T's estate has a reversion in fee simple absolute. Common Law: The correct answer is: A and B have a life estate in common. T's estate has a reversion in fee simple absolute. The contingent remainder is void. A could have an afterborn child, D, who would be one of T's grandchildren. If A, B, and C die the next year, then D would reach the age of 25 (or not), more than 21 years after lives in being. Wait and See: The correct answer is: A and B have a life estate in common; C has a contingent remainder in fee simple absolute that may become invalid on actual events; T's estate has a reversion in fee simple absolute. So long as all of the grandchildren reach the age of 25 within the perpetuities period, the interest in the grandchildren will be valid.

O conveys Blackacre "to A until my first grandchild reaches the age of 21, then to that grandchild."

Without RAP: A has a fee simple subject to executory limitation, A's grandchild has an executory interest in fee simple absolute. Common Law: The correct answer is: A has a fee simple determinable; O has a possibility of reverter in fee simple absolute. The executory interest in the grandchild fails because O could have an afterborn child, who could then have a child who turns out to be the first grandchild to reach 21 more than 21 years after lives in being. Note that the possibility of reverter would expire, and A would have Blackacre in fee simple absolute, if it turns out that none of O's grandchildren reach the age of 21. Wait and See: The correct answer is: A has a fee simple subject to executory limitation, A's grandchild has an executory interest that will be valid only if the first grandchild reaches 21 within 21 years of lives in being.

T devises Blackacre "to A and her heirs, but if A dies childless, then to B's children then living."

Without RAP: A has a fee simple subject to executory limitation; B's children have an executory interest in fee simple absolute. Common Law: All of the interests are valid, so same as above. The executory interest will vest or fail in a closed class of people on A's death. Wait and See: Same as above.

O grants BA "to A for life, then to A's children, but if any of A's issue are ever convicted of a felony, then the interest in A's children will be divested and shall go to the Widener City School Board."

Without RAP: A has a life estate, A's children have a contingent remainder in fee simple absolute (because we don't know if A has any children), the Widener City School Board has a contingent remainder in fee simple absolute, O has a reversion in fee simple absolute. (Why does O have a reversion? If A dies without having children neither of the contingent remainders would be satisfied. If A had a child, then A's child would have a vested remainder in an open class subject to divestment, WCSB would have an executory interest, O's reversion would disappear). Common Law: The correct answer is: A has a life estate, A's children have a contingent remainder in fee simple absolute, O has a reversion in fee simple absolute. The children's contingent remainder is fine because it will vest or fail on A's death. The WCSB's contingent remainder is void under the rule against perpetuities—one of A's great-great grandchildren could be convicted of a felony 200 years from now. The charity-charity exception only applies if both the interests are in charities, which is not the case here. Wait and See: The correct answer is: A has a life estate, A's children have a contingent remainder in fee simple absolute, the WCSB has a contingent remainder in fee simple absolute that will only be valid for lives in being plus 21 years, O has a reversion in fee simple absolute. Under the wait-and-see approach, WCSB could get the property if the contingency (A's issue convicted of a felony) happens within lives in being plus 21 years. The relevant lives in being would be A and any of A's issue alive at the time of the conveyance. Twenty-one years after the last one of these people dies, the contingent remainder disappears if it hasn't done so already (as it would if A dies without having children).

O conveys Blackacre "to A for life, then to A's children for life, then to A's issue born during the lifetime of any of the issue of President John F. Kennedy alive at the time of this conveyance."

Without RAP: A has a life estate, A's children have a contingent remainder in life estate, A's issue have a contingent remainder in fee simple absolute, O has a reversion in fee simple absolute. Common Law: All of the interests are valid, so same as above. The contingent remainder in A's children is fine because it vests at A's death. The contingent remainder in A's issue is fine because it will vest (i.e., the class will close) on the death of the last Kennedy issue alive at the time of the conveyance. This is a fairly common way around the RAP—the Kennedy issue qualify as lives in being because by the terms of the conveyance they both (a) were alive when the conveyance was made and (b) affect the vesting. Wait and See: Same as above.

T grants Blackacre "to my son, David, for life, then to his children for their lives, then to his grandchildren and their heirs." At T's death, David is alive and has two children, Katie and Laura. 15 years later, David has died, survived by Katie and Laura. Neither Katie nor Laura have children.

Without RAP: Essentially the same answer as 19, but the classifications have changed. Katie and Laura have life estates, their children have contingent remainders in fee simple absolute and T's estate has a reversion in fee simple absolute. Common Law: Essentially the same answer as 19, but the classifications have changed. Katie and Laura have life estates, and T's estate has a reversion in fee simple absolute. Wait and See: Katie and Laura have life estates; the grandchildren have contingent remainders in fee simple absolute that are valid under the RAP, T's estate has a reversion in fee simple absolute. The grandchildren's contingent remainder will now never be invalidated under the RAP because it will vest in a complete class or fail on the deaths of Katie and Laura, both of whom were lives in being.

T conveys Blackacre "to my sister, Maura, for life, then to Maura's husband Max for his life should he still be married to Maura at her death, then to Maura and Max's children then living."

Without RAP: Maura has a life estate, Max has a contingent remainder in life estate, their children have a contingent remainder in fee simple absolute, T's estate has a reversion in fee simple absolute. Common Law: All of the interests are valid, so same as above. Max's contingent remainder will vest or fail on Maura's death. The unborn widow(er) problem is avoided by naming a specific person, Max, so the children's contingent remainder is fine—it will vest or fail in a closed class on either Max's or Maura's death. (It would work even if the "then living" was omitted because the class of their children would be closed on their death.) Wait and See: Same as above.

O sells A an option to purchase BA "for $100,000 at any time prior to the date 30 years from the date of execution of this agreement."

Without RAP: O owns Blackacre in fee simple absolute; A has an option to purchase Blackacre from O. Common Law: The correct answer is: O owns Blackacre in fee simple absolute; the option is invalid. O and A could die tomorrow; A's estate could exercise its option more than 21 years after the death of these lives in being. Wait and See: The correct answer is: O owns Blackacre in fee simple absolute; A has an option to purchase Blackacre that will either 30 years from the date of execution of the option or 21 years after the deaths of O and A, whichever is first.

O gives BA "to my children for life, then to my grandchildren who reach the age of 21."

Without RAP: O's children have a life estate in common, O's first grandchild has a contingent remainder in fee simple absolute, O has a reversion in fee simple absolute. Common Law: The correct answer is: O's children have a life estate in common, O has a reversion in fee simple absolute. This one is fairly easy—O's first grandchild to reach 25 could be born after the conveyance and could outlive all lives in being. Wait and See: The correct answer is: O's children have a life estate in common, O's first grandchild has a continent remainder in fee simple absolute that may become void on actual events, O has a reversion in fee simple absolute. If any of O's grandchildren reach 25 within 21 years of lives in being, the contingent remainder will become vested and will be valid.

O conveys BA "to my children for life, then to my grandchildren who reach the age of 21."

Without RAP: O's children have a life estate in common, O's grandchildren have a contingent remainder in fee simple absolute, O has a reversion in fee simple absolute. Common Law: The correct answer is: O's children have a life estate in common, O has a reversion in fee simple absolute. O could have an afterborn child, who in turn could have a child (O's grandchild) who reaches 21 more than 21 years after lives in being. Wait and See: The correct answer is: O's children have a life estate in common, O's grandchildren have a contingent remainder in fee simple absolute that may become void on actual events, O has a reversion in fee simple absolute. If O's grandchildren reach 21 (or die before doing so) within 21 years of lives in being, the grandchildren's interest is good.

T dies, leaving a will that states in part: "my estate in North Widener City shall be sold and the proceeds divided equally amongst my surviving issue."

Without RAP: T's estate owns the NWC estate in fee simple, T's issue have an executory interest in the proceeds of sale. Common Law: The correct answer is: T's estate owns the NWC estate in fee simple. This is the slothful executor problem—it is possible that the estate won't be sold for more than 21 years after the death of T and other lives in being. Wait and See: The correct answer is: T's estate owns the NWC estate in fee simple absolute, T's issue have an executory interest in the proceeds of sale that may become invalid on actual events. Presuming that the executor of T's estate is vaguely competent, T's issue's interest will be fine. Something to think about: what does "my surviving issue" mean? Surviving at T's death or surviving when the estate is finally sold? We would argue that the Testator's intent was probably surviving at T's death because T probably imagined that the sale would happen quickly. When you are drafting, you should try to avoid this kind of ambiguity.

T devises "to my widow for life, then to my issue then living."

Without RAP: T's widow has a life estate, T's issue have a contingent remainder in fee simple absolute, T's estate has a reversion absolute. Common Law: All of the interests are valid, so the answer is the same as above. But what about the unborn widow problem? At T's death, we know who T's widow is. Put another way, T isn't going to be marrying anyone else. So the contingent remainder is fine; it will vest or fail on T's widow's death. Wait and See: Same as above.

O grants BA "to A for life, then to A's oldest child then living for life, then to A's grandchildren then living and their heirs.

Without RAP: A has a life estate, A's oldest child has a contingent remainder in life estate, A's grandchildren have a contingent remainder in fee simple absolute, and O has a reversion in fee simple absolute. The reversion is exempt from the RAP, so we only need to worry about the two contingent remainders. Common Law: The correct answer is: A has a life estate, A's oldest child has a contingent remainder in life estate, and O has a reversion in fee simple absolute. The first contingent remainder is fine—it will vest (or fail if no child is living) at A's death, and A is a life in being. The second contingent remainder violates the RAP—(a) A could have a child, B, after the conveyance; (b) B could be the oldest living child on A's death, and any children born before the conveyance could die; (c) B could die more than 21 years after A's death, in which case the contingent remainder would vest or fail more than 21 years after lives in being. So, under the common law, you strike out the invalid conveyance. Wait and See: The correct answer is: A has a life estate, A's oldest child has a contingent remainder in life estate, A's grandchildren have a contingent remainder in fee simple absolute that may become invalid based on actual events, and O has a reversion in fee simple. Under the wait-and-see approach, you don't invalidate the interest until you find out what actually happens. If A doesn't have a child after the conveyance, then the contingent remainder will be valid (it will vest or fail at the death of A's oldest child, who in this scenario is a life in being). If A has an afterborn child, and if the contingent remainder does not vest within 21 years of a life-in-being who affects vesting (A or A's children), then the contingent remainder will be void.

T grants Blackacre "to my child, A, for life, then to A's children, but if any of A's children fail to graduate from college by age 30, then that child's share shall go to A's other children." A is alive and has two children, B and C. B received her B.A. in 1999; C is a junior in high school.

Without RAP: A has a life estate, B has a vested remainder in an open class in fee simple absolute, C has a vested remainder in an open class and subject to divestment in fee simple absolute, B has an executory interest in fee simple absolute. Common Law: The correct answer is: A has a life estate, B and C have vested remainders in an open class in fee simple absolute. The vested remainders in an open class are fine because the class will become closed on A's death. The executory interest fails because A could have an afterborn child who graduates from college (or fails to do so by age 30) more than 21 years after lives in being. Wait and See: The correct answer is: A has a life estate, B has a vested remainder in an open class in fee simple absolute, C has a vested remainder in an open class and subject to divestment in fee simple absolute, B has an executory interest in fee simple absolute that may become invalid on actual events.

T devises BA "to A for life, then to B for life, then to B's children."

Without RAP: A has a life estate, B has a vested remainder in life estate, B's children have a contingent remainder in fee simple absolute (contingent because we don't know whether B has any kids, so "B's children" is unascertained), O has a reversion in fee simple absolute. Our RAP analysis would not change if B had a living child, making the remainder a vested remainder in an open class because the RAP requires vested remainders in an open class to close during the perpetuities period. Common Law: The contingent remainder does not violate the RAP, so the answer is as stated above. The contingent remainder will vest or fail at B's death (or at A's death if B predeceases A); because it will vest or fail at the death of a life in being, it is fine. Wait and See: Same as above.

T's will gives BA "to A for life, then to A's children for their lives, then to B's children." When T dies, A is alive and has two children, A1 and A2. B has died and is survived by three children, B1, B2, and B3.

Without RAP: A has a life estate; A1 and A2 have vested remainders in an open class in life estate; B1, B2, and B3 have vested remainders in fee simple absolute. The last interest is not in an open class because at the time of the conveyance B has already died. Common Law: All of the interests are valid, so the answer is the same as above. The only interest subject to the RAP is the vested remainder in an open class, and that vests or fails on A's death. Wait and See: Same as above.

T devises BA "to A for life, then to A's children for life, then to A's grandchildren for life, then to A's great-grandchildren and their heirs." At the time of T's death, A is alive and has two children, B and C, each of which have two children, B1 and B2, and C1 and C2.

Without RAP: A has a life estate; B and C have vested remainders in life estate in an open class; B1, B2, C1 and C2 have vested remainders in life estate in an open class; A's great-grandchildren have a contingent remainder in fee simple absolute; T's estate has a reversion in fee simple absolute. Common Law: The correct answer is: A has a life estate; B and C have vested remainders in life estate in an open class; T's estate has a reversion in fee simple absolute. B and C's vested remainders are fine because the class (A's children) will close at A's death. The grandchildren's vested remainder in an open class fails because A could have an afterborn child who could die more than 21 years after lives in being. See the discussion of Example 47 in the text for a detailed explanation of why a conveyance in a living person's grandchildren is problematic under the RAP. The contingent remainder in A's great-grandchildren is even more remote. Wait and See: The correct answer is: A has a life estate; B and C have vested remainders in life estate in an open class; B1, B2, C1, and C2 have vested remainders in life estate in an open class that may become invalid on actual events, A's great-grandchildren have a contingent remainder in fee simple absolute that may become invalid on actual events, T's estate has a reversion in fee simple absolute.

T grants Blackacre "to my son, David, for life, then to his children for their lives, then to his grandchildren and their heirs." At T's death, David is alive and has two children, Katie and Laura.

Without RAP: David has a life estate, Katie and Laura have vested remainders in an open class in life estate, David's grandchildren have contingent remainders in fee simple absolute, T's estate has a reversion in fee simple absolute. Common Law: The correct answer is: David has a life estate, Katie and Laura have vested remainders in an open class in life estate, T's estate has a reversion in fee simple absolute. The grandchildren's interest fails because David could have another child, who in turn could have a child more than 21 years after lives in being. Wait and See: The correct answer is: David has a life estate, Katie and Laura have vested remainders in an open class in life estate, the grandchildren have contingent remainders in absolute ownership that will be valid if the class closes within 21 years of lives in being, T's estate has a reversion.