if A dies w/ child(ren) under 21, then both are destroyed alternate CRs … First is destroyed b/c NO children of A reached 21 before A died (thus, CR no one in whom could CR vest) Second is destroyed b/c children still MAY reach 21 (thus, may CR CR A’s NOT in B b/c did NOT occur) vest condition precedent in is NOT subject to BUT, in CR trust destructability rule… CR mortgage? (Astley) In jurisdiction, lender holds as security until borrower pays off title theory title loan thus, since lender is essentially a is NOT at least, trustee, CR destroyed… NOT until loan paid off In jurisdiction, lender holds as security thus, since borrower lien theory lien retains title, lender is NOT a and, thus, IS destroyed CR trustee… Like purpose of stems from (“smooth DWT, destructability rule common law flow NOT BUT, still useful today to clear title of seisin”, “in abeyance”)… RULE AGAINST PERPETUITIES In order for a contingent future interest (i.e. to remain valid, it must (if CR/EI) vest ever) before the end of the (at time that interest is RAP period life/lives in being created) + 21 yrs. Deal w/ actual facts as of that time that interest is created (RAP period begins)… during imagine RAP period, … possibilities… if there is any possibility that interest will outside of then vest RAP period, … it is void Choose a (a measuring life life in being)… if there is NO way that would 21 yrs. after that the death of CR/EI vest … that then is valid (measuring measuring life, CR/EI life “works”)… BUT, if it is possible that would vest 21 yrs. after the death of CR/EI … that then is void (measuring does NOT measuring life, CR/EI life “work”)… unless another would measuring life … “work” Theories behind RAP… want vesting to take place too far into Don’t future… AND, want power of alienation to be suspended too far into future … don’t (though, some states allow transferability of CRs/EIs) is NOT avoid through RAP rule of law, rule of construction (can’t drafting)…
… if A dies w/ child(ren) under 21, then both alternate CRs are destroyed First CR is destroyed b/c NO children of A reached 21 before A died (thus, no one in whom CR could vest) Second CR is destroyed b/c A’s children still MAY reach 21 (thus, CR may NOT vest in B b/c condition precedent did NOT occur) CR in trust is NOT subject to destructability rule… BUT, CR in mortgage? (Astley) In title theory jurisdiction, lender holds title as security until borrower pays off loan thus, since lender is essentially a trustee, CR is NOT destroyed… at least, NOT until loan paid off In lien theory jurisdiction, lender holds lien as security thus, since borrower retains title, lender is NOT a trustee… and, thus, CR IS destroyed Like DWT, purpose of destructability rule stems from common law (“smooth flow of seisin”, NOT “in abeyance”)… BUT, still useful today to clear title RULE AGAINST PERPETUITIES In order for a contingent future interest (i.e. CR/EI) to remain valid, it must vest (if ever) before the end of the RAP period life/lives in being (at time that interest is created) + 21 yrs. Deal w/ actual facts as of that time that interest is created (RAP period begins)… … during RAP period, imagine possibilities… … if there is any possibility that interest will vest outside of RAP period, then it is void Choose a measuring life (a life in being)… … if there is NO way that CR/EI would vest 21 yrs. after that the death of that measuring life, then CR/EI is valid (measuring life “works”)… … BUT, if it is possible that CR/EI would vest 21 yrs. after the death of that measuring life, then CR/EI is void (measuring life does NOT “work”)… … unless another measuring life would “work” Theories behind RAP… Don’t want vesting to take place too far into future… … AND, don’t want power of alienation to be suspended too far into future (though, some states allow transferability of CRs/EIs) RAP is rule of law, NOT rule of construction (can’t avoid through drafting)…