On Sunday, there was a tragic story from New York. An expectant mother (7 months), and her husband were riding in a taxi to the hospital, when the taxi was slammed by another car. The parents were killed, but somehow the baby survived. In fact “their baby was rescued from her dead mother’s womb by Cesarean section.”
What an absolutely horrible story–though it does raise one property question.
Can a child be born to a dead mother? For purposes of the common law rule against perpetuities, the answer is no. Many states have modified the common law RAP to account for children who are born following the death of a parent through the use of artificial insemination or surrogates. But, this case would present an interesting twist. The child was born after the mother died. In class, I used the example of a mother die during childbirth, but usually, the mother passes after the child is delivered.
What if there was a grant like this: From grantor to mother for life, then to any children born of the mother.
Usually, if the child was born before the mother, the child would take it after the completion of the mother’s life estate.
But here, there is a gap (even a few minutes perhaps) between the mother’s death, and the birth of the child. During that gap, I think there would be a reversion to the Grantor. Thus, the poor child would be cut ouf of the estate. Though this would OK under RAP because the interest will vest, if at all, within 21 years of the life of the mom.
Sorry, I don’t mean to take a tragedy and turn it into a law school hypo, but I taught future interests last week and it is fresh in my mind. This may make a good exam question.