Smith v. Smith
In Smith v. Smith, 747 A.2d 85, 87 (Del. Ch. 1999), aff'd, 744 A.2d 988 (Del. 1999), the Chancery Court of Delaware addressed a a deed signed by former spouses that gave the husband and "'his heirs and assigns'" a right of first refusal should the wife, "'or her estate ("estate" to include her heirs or devisees) . . . decide to sell or gift'" the property. Recognizing a perpetuities issue, the parties included a savings clause:
"In the event that any of the reservations or restrictions contained herein should result in a violation of the rule against perpetuities if enforced, then such reservation or restriction shall be deemed and construed only to extend and apply to those persons or classes who may be lawfully restricted in the selling or gifting of all or a portion of the herein-described real property without violating the aforesaid rule." Id. at 88.
The court stated that, "if the parties' intended life in being can be discerned from the document, even if not expressly named as such, their intent should be honored." Id. at 91.
The court determined that "clearly the parties contemplated that this deed would bind the wife and her estate." Id.
Thus, the wife was deemed to be a life in being, but not her estate because it did not exist at the time of execution. Likewise, the court determined that the husband was a suitable measuring life, and concluded that the option was good until "21 years after the death of the later of the wife and the husband." Id. at 92.