FERTILE-OCTOGENARIAN RULE

fertile-octogenarian rule.The legal fiction, assumed under the rule against perpetuities, that a

woman can become pregnant as long as she is alive. • The case that gave rise to this fiction was

Jee v. Audley, 1 Cox 324, 29 Eng. Rep. 1186 (ch. 1787). See W. Barton Leach, Perpetuities: New

Hampshire Defertilizes Octogenarians, 77 Harv. L. Rev. 729 (1963). — 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).[Blacks Law 8th]