The "Magic" of Law!

Google says this picture has something to do with my post


A great man once said "Reason is the life of law." As I have come to learn in my 1.5 years in law school, this man was full of crap. Or at least, that he should have followed that with a minor qualification like "...except in the many cases where law makes no sense."

What provokes such cynicism in me you ask? As you may or may not know, one of the subjects I'm studying this semester is estate law, wills, trusts and the like. Now estate law, like all property law in our country, is descended from our ancestors the English, who ruled a vast empire that spanned the planet while also believing in things like fairies and Merlin. Clearly this required a mind-set that was attuned to the most practical of concerns, while simultaneously being willing to accept the most absurd of possibilities. This is clearly reflected in the law we have inherited from the English.

One of the things we study in property law is a highly important rule known as the "Rule Against Perpetuities." Now, I'm not going to even attempt to explain this rule in any full way here, mostly because I don't understand it. But basically, the rule is simply an attempt to prevent people's cold dead hands from reaching out of the grave to tell us years or decades later what we're supposed to do with the property they were so kind to give us before kicking the bucket. So you have to adhere to this rule whenever you create a trust or write a will, and if you don't your will or trust may be struck down and your property may go to that bastard cousin who touched you inappropriately when you were both in 3rd grade.

Now the crazy thing about this rule is that it requires you to look to the future for any possible way in which your will or trust my violate it. And if there is any possible way, no matter how improbable that the rule will be violated, then that provision is struck down, after which you can sue your attorney for malpractice, though you'll be dead at the time so never mind.

Here comes the fun part. There are possibly an infinite number of ways this rule can be violated if you're not careful, but there are several which have proven to be so common that they've earned their own labels. Allow me to share. First we have the fertile octogenerian. What is the fertile octogenerian? Well, for the purposes of common law, it is a woman who is presumed to be able to have a child despite the fact that she's in her 80's. What women does this apply to? All of them. Yes, for the purposes of trusts law, all women are presumed to be able to have children up until the moment of their death.

How about another? Next we have the unborn widow. This is pretty much what it says it is...the woman who will later be a widow who has not been born yet. For the purposes of trusts law, every man who is not actually dead is presumed to have the ability to re-marry a woman who will later survive him, even if she is not born yet.

Also, under the common law and for the purposes of the rule, gravel pits were in one case presumed to be able to last for hundred of years, if not infinity(or the death of the Earth at least, though the court did not address when exactly the Earth would die) and World War Two was presumed in another to case to last decades, if not centuries even though, amazingly, the case was decided in 1953...8 years after the war actually ended.

There are more; as I said above the fun possibilities are endless. Now, to be fair, many states have begun to reform the rule so that these sorts of wacky happenings are no longer presumed to be possible. But states have gone so far as to undermine the purpose of the rule. One state allows for trusts that can last 400 years. Another allows for trusts that can last 1000. Yet another state allows for trusts that can last forever. And yet another allows trusts that can last forever and a day! Okay I made that last part up, but you can see where I'm going with this. The English were all concerned with burying the cold dead-hand of the rich uncle who gave you some money in a trust. We Americans, ever practical, want to dig it back up and put it on your shoulder!

So that's the law. As a reminder, none of this should be considered legal advice in any way, shape, or form, so don't go running home asking your spouse if you can have an unborn widow/widower or a magical gravel pit that lasts forever.