RULE AGAINST PERPETUITIES AND REMAINDERMEN

In adopting the Uniform Rule Against Perpetuities, the Legislature essentially adopted the common law rule against perpetuities as it had been codified in M.G.L. c. 184A.  The new statute added several provisions whose purpose was to address various shortcomings made manifest in the old statute.

M.G.L. c. 184A §1 provides that..."[a] non-vested property interest is invalid unless...when the interest is created, it is certain to vest or terminate no later than twenty-one years after the death of an individual then alive..." M.G.L. c. 184A §1(a)(1).  This is the classic statement of the rule.  However, prominent in the new statutory scheme is a 90 year "wait and see" provision.  M.G.L. c. 184A §1(a)(2)  This section mandates that if an interest vests within 90 years of its creation, it will be valid.  If not, the grant may be reformed by judicial action to conform with "...the transferor's manifested plan of distribution..." M.G.L. c. 184A §3.

Because of its nature, the rule against perpetuities places a priority on the identification of the time at which a remainder interest can be considered vested within the meaning of the rule. Consequently, a determination of whether and to what extent an interest is deemed "contingent" or "vested" will necessarily be a prerequisite to application of the rule.  The caselaw appurtenant to the various statutory provisions on point, sections 2,3,4 and 5 of chapter 184, is largely fact-specific and not easily amenable to the distillation of bright-line rules.  However, at least one type of remainder interest, the life estate remainderman, lends itself to a general rule.

The life estate remainderman is probably the most common future interest, or at least the most familiar. General Laws c. 184 § 5 provides that where "...land is granted or devised to a person and after his death to his heirs in fee, however the grant or devise is expressed, an estate for life only shall vest in such first taker and a remainder in fee simple in his heirs..." M.G.L. c. 184 §5.  This has generally been taken to mean that where a devisee or grantee takes a life estate, the remainderman will be deemed to have a vested interest in the realty subject to the life tenant's interest.  See e.g., Porter v. Molloy,254 Mass. 398, 150 N.E. 179, Parkhurst v. Jonsberg 324 Mass. 66, 84 N.E.2d 538.  See also, Sims v. Pierce, 31 N.E. 718, 157 Mass. 52. (Where grantor gave life estate to A "...to have and to hold during their natural lives, and to their heirs after them, free from the control or interference of any and all persons...", the remaindermen's interest had vested such that grantor could not subsequently convey the same interest to different grantees).

One last caveat.  As noted above, the caselaw is very fact-sensitive, and should be consulted in attempting to determine whether an interest is vested