Also known as: period of gestation · gestation period · gestation periods
Written by attorneys · grounded in primary & secondary sources — see 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.
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Perry 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.
A 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,…