— Also termed presumption-of-fertility rule.
“Suppose testator bequeaths in trust to pay the income to A for her life, then to pay the income to the children of A for their lives, and upon the death of the survivor of such children, to pay the principal to the grandchildren of A. At the time of the testator’s death A is 79 years old, and she has two children. Believe it or not, it has been held that the remainder to the grandchildren of A is violative of the rule against perpetuities and invalid. The law adopted the conclusive presumption that every person is capable of having children until the day he or she dies, as far as the rule against perpetuities is concerned. Consequently, A could have an additional child who would not be a life in being at the testator’s death, and that child could have a child who would be born beyond the permissible period. The result of this hypothesis is to invalidate the remainder to the grandchildren. This situation is sometimes referred to as the case of the ‘fertile octogenarian.’ Remember that the class gift is invalid if it is possible that the interest of any one member of the class can violate the rule.” Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 188 (2d ed. 1984).
