Also known as: period of gestation · gestation period · gestation periods
Written by attorneys — see sources below.
Any period during which a child is in utero that is included when measuring the time allowed for a future interest to vest under the rule against perpetuities. The period accounts for the time between conception and birth so that a child en ventre sa mere counts as a life in being and the vesting window extends through actual gestation.
Paula Pierce executes a deed creating a trust that vests in her first grandchild born after the death of the last of her three named siblings. Paula's niece is in the third trimester at execution. The court includes the remaining weeks of gestation in the perpetuities calculation, confirming that the interest must vest or fail within lives in being plus twenty-one years plus the actual gestational period.
Priscilla Parks's will leaves property to her children living at the death of her last surviving sibling. One child is conceived before but born after the sibling's death. The court treats the gestational period as part of the perpetuities window, holding that the child qualifies as a life in being and the gift is valid.
In January 1993, Lauren Woodward and her husband Warren Woodward, who had been married for approximately three and one-half years and remained childless, learned that Warren had leukemia. The couple arranged for a quantity of Warren's semen to be medically withdrawn and preserved through a process known as sperm banking before he began treatment. Warren underwent an unsuccessful bone marrow transplant and died in October 1993, after which Lauren was appointed administratrix of his estate. In October 1995, Lauren gave birth to twin girls who had been conceived through artificial insemination using Warren's preserved semen. In January 1996, she applied to the Social Security Administration for child's insurance benefits under 42 U.S.C. § 402(d)(1) and mother's benefits under 42 U.S.C. § 402(g)(1). The SSA denied the claims on the ground that the twins were not the husband's children within the meaning of the Act. In February 1996, while pursuing appeals from the SSA denial, Lauren filed a complaint for correction of birth record in the Probate and Family Court against the clerk of the city of Beverly, seeking to add Warren as the father on the twins' birth certificates. In October 1996, a Probate Court judge entered a judgment of paternity based on stipulations of voluntary acknowledgment of parentage and ordered the birth certificates amended to declare Warren the children's father. An administrative law judge conducted a de novo hearing. The judge concluded that the children did not qualify for benefits because they were not entitled to inherit from Warren under Massachusetts intestacy and paternity laws. The SSA appeals council affirmed that decision. Lauren appealed to the United States District Court for the District of Massachusetts. The court certified the question regarding the inheritance rights of posthumously conceived children under Massachusetts intestacy law to the Supreme Judicial Court because the parties agreed that a determination under state law was dispositive and no directly applicable precedent existed.
View casePerry Pratt devises land to the first of his grandchildren to reach age twenty-five. At Pratt's death his daughter is pregnant with a grandchild who is later born and reaches twenty-five within the allowable period. The court adds the gestational months to the measuring lives plus twenty-one years, finding the interest valid because vesting occurs inside the extended window.
Plaintiffs, who are some of the beneficiaries under the will of Eugene H. Emmick, deceased, brought this action for damages against defendant L. S. Hamm, an attorney at law who had been engaged by the testator to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer to the second amended complaint without leave to amend. The allegations of the first and second causes of action are summarized as follows. Defendant agreed with the testator, for a consideration, to prepare a will and codicils thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15 per cent of the residue as specified in that paragraph. Defendant prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code. Paragraph Eighth of these instruments transmitted the residual estate in trust and provided that the trust shall cease and terminate at 12 o’clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over the probation of this will. After the death of the testator the instruments were admitted to probate. Subsequently defendant advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount. As a result, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator. The third cause of action alleges that after admission of the will and codicils to probate, Harold Houghton Emmick, Walton Russell Emmick, Delta Inez Spelman, and Retha Newell instituted a will contest. The executors, defendant, and the contestants reached a settlement agreement under which $10,000 would be paid to the contestants from the assets of the estate in return for releases. Defendant caused to be executed releases which did not preclude the contestants from a subsequent attack upon the validity of the testamentary instruments. As a consequence, the contestants joined in a legal attack upon the validity of the residual clause and plaintiffs would have received an additional sum of $15,000 from the estate if the releases had been prepared in accord with good legal practice. The trial court sustained a general demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal from which the plaintiffs appealed.
View caseA child in gestation is treated as alive from the moment of conception for purposes of the rule. The actual period of gestation is added to the lives-in-being-plus-twenty-one-years window so that the child counts as a life in being and the interest is tested for vesting within the extended period.
Supporting sources
No. The rule expressly includes any actual period or periods of gestation involved in the situation. Courts add the gestational time to the measuring period rather than ignoring it.
Supporting sources
A child in gestation when a class closes is regarded as in being and included in the class if born viable. The gestational period is counted in determining whether the interest vests within the perpetuities period.
Supporting sources
…457, 467 (1944); Gorey v. Guarente , 303 Mass. 569, 576-577 (1939), and that children born after death within the probable period of gestation may inherit as issue of the deceased parent in exception to the general rule. See Bowen v. Hoxie , 137 Mass. 527, 528-529 (1884). See also Waverley Trust Co., petitioner , 268 Mass. 181,…