Question concerning Rule against Perpetuity and Class Gift to Grandchildren Forum

[Rookiewillow]

Hey guys, I have got a question on Rule against Perpetuities.

First example: If the grantor in his will conveys the land "to all my grandchildren who shall live to the age of 21; by this I mean all grandchildren whenever born." When grantor dies, he has 3 children and 2 grandchildren. Emmanuel book (strategy 1, question 47) says the grantor's children is the measuring life, and because it is a class gift in will, there won't be new child added into measuring lives upon grantor's death, therefore the conveyance does not violate RAP (since all children are measuring lives, at least one grandchild must achieve 21 in 21 years of the measuring life).

My question is: why the grandchildren cannot be the measuring life even if they are alive at the time of the death of the grantor? (The answer to the question explicitly says children shall be measuring life, but does not mention why grandchildren cannot be.)

I know it is perfectly reasonable to set children as measuring life, and no so reasonable to set grandchildren's. But they are also a "live in being" at the time of conveyance. Why it cannot be?

If grandchildren can be measuring life, the will needs not set "21 years old" and can also has no violation of RAP. But if only children are measuring lives, the upper limit of age requirement for conveyance is 21.

There is another example (strategy 1, question 45): the grantor conveys the land to a relative "in fee simple, but if my friend shall be living 30 years from the date of this deed, then to my friend in fee simple". Emmanuel says in this deed the measuring life is the friend's because he is alive at the time of conveyance. What the heck? If the friend can be measuring life in this example, why cannot grandchildren be measuring lives in the first example? Is it because the second example is a conveyance inter vivos and the first is a conveyance in will? Why that will make a difference on deciding measuring life?

After all, how to decide measuring life? Is it "any person who is alive at the time of conveyance of the interest"? There must be some restrictions. If following the first example, should it be "any person in the chain of conveyance or who can give birth to a person that will be in the chain of conveyance, except for anyone in an open class"? Nah this seems totally wired...I cannot figure it out. Please share your view, thanks tons!

[dvlthndr]

First
There is no guarantee that all of his "grandchildren" exist during the grantor's life. The children might make some more after the grantor is dead. That is why a bequest "to all of my grandchildren who live to 30" would violate the RAP. There is some hypothetical unborn grandchild you haven't accounted for.

If you worded the bequest carefully the already-born grandchildren could be measuring lives -- but it makes for a messy and wordy class gift (e.g., I leave this land to my grandchildren X & Y who are currently alive, as well as any of their children who may be born in the future and who live to 21).

Second
The friend is a convenient measuring life to prove that the RAP isn't violated (you will know within the friends lifetime + 21 years whether or not he died in the time-frame specified). Some hypothetical grand-kid doesn't work. To see why this is the case, consider that the grand-kid might die tomorrow in a freak accident. You wouldn't know how to sort things out until 30 years the grand-kid kicked the bucket.

You can look up the usual formulation, but in general anybody alive at the time the interest is created can be a measuring life. The only tricks are (1) naming an open class of people is dangerous and needs to cover every crazy hypothetical; (2) when it comes to testamentary instruments the "interest" is created at the time of the grantor's death (prior to that, any of the named beneficiaries have a mere expectancy).

[germlegal]

If the friend can be measuring life in this example, why cannot grandchildren be measuring lives in the first example

After grandfather dies, his kids can have additional children (who will technically be "granchildren"). So those new kids (grandchildren of the grantor) would not be alive at the time of conveyance.

In your 2nd example, the "friend" is alive at the time of conveyance.

[Bingo_Bongo]

You just gave me massive PTSD with this question, dude.