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within which an estate must vest, but there has been much difficulty
in determining what is a vesting of an estate, and what is a suspension
of the power of alienation, within the meaning of the rule against per-
petuities. As to the question of time, we may therefore leave the
reader to consult the statutes of the state in which the question is to be
determined, but in respect to the other questions we must refer him
to the numerous decisions of the courts both in England and America,
«nd even then we shall probably not have furnished him with a guide
whose directions he will always be able to understand and follow.
Either the rule against per{>etuities is exceedingly difficult to master,
or elae it is one the attempting to avoid which can rarely be resisted.
Jndge Henshaw truly remarked in the principal case: ''The books
abound in cases which, while monuments to the learning of the judges,
are eqnallv monuments to the persistency of testators or to the reok-
leasneaa of their advisers."

With Eespeet to the Computation of Time it is to commence when the
conveyance or devise takes effect. In the case of a devise, it is not
necessary that the estate should vest in persons in being when the will
was executed, but it is sufficient that it vest in peraoni in beins at the
death of the testator, or, in other words, at the time when the will
begins to be operative: Vanderplank v. King, 3 Hare, 1; Peard v.
Kekewich, 15 Beav. 166; Hosea v. Jacobs, 98 Mass. 65, 67; McArthur
▼. Scott, 113 U. S. 340; Lang v. Ropke, 6 Sand. 363; and if the estate
ireots within the time required by the rule against perpetuities, it is not
material that it may continue beyond that time: Williams v. Teale, 6
Hare. 239; Hampton v. Holman, L. R. 5 Oh. Div. 183, 188; Otis v.
McLellan, 13 Allen, 839; Minot v. Taylor, 129 Mass. 162: Donohue v.
McNichol, 61 Pa. St. 73; Qoldsborough v. Martin, 41 Md. 488; Heald
ir. Heald, 66 Md. 300.

Estate mu9t Vest <U all EverUe within the THme AUowed.^lt is not suffl«
•dent that the limitation may take effect within the time required by
the rule agiinst perpetuities. The rule upon this subject is exceedingly
rigid and seems to admit of no exception. Therefore, no limitation can
be permitted to have effect, unless any suspNension of the power of
alienation created by it must necessarily terminate under any and all
•circumstances within the time allowed by law: Ford v. Ford, 70 Wis.
19; 6 Am. St. Rep. 117; Thorndike v. Loring, 15 Gray, 391; Smith v.
Ounninghame, 13 L. R. Jr. 480; Ooggin's Appeal, 124 Pa. St. 10; 10
Am. St. Rep. 565. It is not material that the circumstances have been
such that the contingency upon which the estate was to vest has taken
place within the period permitted by the rule against perpetuities, if it
might have taken place at a later period : Proctor v. Bishop of Bath, 2
U. Black. 358; Ibbetson v. Ibbetson, 10 Sim. 495; 5 Mylne & 0. 26;
Smith V. Dungannon, Flan. A K. 638; 5 Jr. £q. 84; Thatcher's Trusts,
26 Beav. 365; Dana v. Murray, 122 N. Y. 604; Hodson v. Ball, 14 Sim.
558, 574; D'Abbadie v. Bizoin, L. R. 5 Ir. Eq. 205; Sears v. Russell,
8 Gray, 86; Stephens v. Evans, 30 Ind. 39; Lawrence's Estate, 136 Pa.
St. 354; 20 Am. St. Rep. 925; Kent v. Dunham, 142 Mass. 216; 56 Am.
Rep. 667; Davis ▼. Williams, 85 Tenn. 646; Oruikshank v. Home of the
Friendless, 113 N.Y. 337; Ooggin's Appeal, 124 Pa. St. 10; 10 Am. St.
Rep. 565; Barnum v. Bamum, 26 Md. 119; 90 Am. Dec. 88. Therefore,
if property is devised to be held until such time as an act of the legis-
lature can be procured authorizing the formation of a corporation to
which such propertv shall be transferred, such devise is void in a
-state restricting the suspension of alienation to lives in being^ because
it is not certain that such incorporation can be procured within the
duration of those lives: Booth v. Baptist 0hurch,126 N.Y. 215; People
T. Simonson, 126 N. Y. 299; Oruikshank v. Home of the Friendless, 113
Xi. Y. 337. So, if property is devised to trustees with directions that



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120 In be Walkbrly. [Cal-

if any of the testator's children or grandchildren shall come to suffer-
ing in any other way than by idleness, then that the trustees shall
provivie for such cbiidren or grandchildren, the interest thus created i»
too remote, because it may happen that none of the beneficiaries com»
to want either within lives in being or within twenty-one years there-
after: Moore V. Moore, 6 Jones Eq. 132. So it has been held that an
agreement between two persons tnat one shall hold the title to land
under a trust for both, and that no part shall be sold without th<) con-
sent of both, the party not owning the fee to have the right to pur-
chase a portion at a specified price under the agreement, is void as cre-
ating a perpetuity J Winsor v. Mills, 157 Mass. 362. On the other
hand, a provision in a will by which it was directed that an executor
should not bd compelled to make partition until the lapse of five years
from the date of the probate of the will, for the reason that he might
not be able to sell speedily without entailihg sacrifice and loss, does
not constitute a perpetuity. Such a provision manifestly does not ab-
solutely prohibit action upon the part of the executor, nor necessarily
suspend his power to alienate, for any time whatever: Henderson v.
Henderson, 113 N. Y. 1.

Anotiier consequence of the fact that the time of the vesting of an
estate or of suspending the power of alienation must not be more
remote than that permitted bjr the statute is, that if the statute meas-
ures such time by lives in being, anotht?r and different measure can-
not be adopted, and a suspension for a definite period of time, however
short, is nob permitted: Farrand v. Petit, 84 Mich. 671; Gruikshank
V. Home for the Friendless, 113 N. Y. 337; Booth v. Baptist Churchy
126 N, Y. 215; De Wolf v. Lawson, 61 Wis. 469: 50 Am. Rep. 148;
Rice V. B^irrett, 102 N. Y. 161.

In the principal case the test applied to the devise in question, and
under which it waa pronounce 1 invalid, was to inquire whether, at
the death of the testator, there were persons in being through whose
united action an estate in fee cojU liava been conveyed. This test
was un loiibteily proper and decisive under the statute of the state
in which the opinion of the court was pronounced, because that stat-
ute expressly forbade any suspension of the power of alienation beyond
lives in being, and declared that "the power of alienation is suspended
when there are no persons in being by whom an absolute interest in
possession can be conveyed": Civ. Code, sec. 716; and this test is usually
accepted as applicable, even in the absence of a like stringent etatutorv
prohibition. It may be that the fact that it is impossible, though all
the world join, to make a conveyance which must necessarily pass the
fee, is conclusive of the existence of an attempted perpetuity, but the
recent English decisions appear to show, at least, that the converse of
this is not true, and that the ability of persons in being to convey in
fee is not necessarily conclusive that a perpetuity ha^ not been at-
te npted. In other words, *'a present right to an interest in property
which may arise at a period beyond the legal limit is void, notwith-
standing the person entitled to it may release it": London etc. Ry. Co.
V. Gomm, L. R. 20 Oh. Div. 562. It was therefore held in this case
that a covenant on the part of a grantee that if the lands granted to him
should at any time thereafter be required for the railway or works of
the grantor, the grantee would, whenever required and upon receiving
a sum stipulated, reconvey to the grantor, created an interest not per-
missible under the rule. This is a very clear illustration of the fact
that an interest in land may be covenanted for which may not vest a.
fee within the time allowed by the rule against perpetuities, and
which could have been rele.^sed by persons in being. There are
several other Eni^lisli cases which, by their results, tend to the same
conclusion, namely: that a limitation may be too remote, though
there are persons in beinoj comp-^tent to convey a perfect title: Dunn
▼. Flood, L. R. 25 Ch. Div. 629; Courtier v. Oram, 21 Beav. 91; Ed-
mondson'd Estate, L. R. 5 E'l. 389. On the other hand, there are
earlier English cases supporting the generally received theory that, ii



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there are persona in being through whose Joint action the fee oan be
conveyed, the rale against perpetuities has not been violated : Avern
V. Lloyd, L. B. 5 £q. 383; GUbertson v. Richards. 4 Hurl. <& N. 277; 5
Hurl. & N. 453; Birmingham etc. Co. v. Oartwright, L. R. 11 Oh. Div.
421.

Mr« Gray, speaking upon this subject, says: "The true object of the
rule against perpetuities is to prevent the creation o' interests on re-
mote contingencies. Its effect on removing restrictions on the im medi-
ate conveyance of property is only an incident. It is from regarding
this incident as the main object of the rule that the erroneous, though
common, notion mentioned at the beginning of the last section has had
its origin. It is not the inalienability of an interest dependent on a
remote contingency, but its utterly uncertain value which furnishes
the sufficient juatihcation, if it was not the original ground of the rule
against perpetuities. If there is a gift over of an estate on a remote
contingency, the market value of the interest of the present owner will
be greatly re luced, while the executory gift will sell for very little, or,
in other words, the value of the present interest plus the value of the
executory gift will fall far short of what would be the value of the prop-
erty if there were no executory interest. And further, if the owner of
the present interest wishes to convey an absolute fee, the holder of the
executory gift can extort from him a price which greatly exceeds what
it ought to be, if baaed on the ch.ince of his succeeding to the property*' :
Qray on Perpetuities, sec. 269. We are not sure that these views fail to
meet with approval of any of the American courts, or that these courts
deny that there may be instances in which a limitation is too remote
though there are persons in being capable of conveying the fee, but, on
the other hand, it is certain that the courts, both here and in England,
have treated the capacity of alienation as a test, and have, in many
instances, on finding it to exist, affirmed, that the rule against perpe-
tuities had not been disregarded : Cooper's Estate, 150 Pa. St. 576; 30
Am. St. Rep. S29; Mifflin's Appeal, 121 Pa. St. 205; 6 Am. St. Rep.
781 ; Cage v. Green, 78 Mich. 540.

There are instances, however, in which Mr. Gray admits that the
power of alienating the fee or of destroying the poasibility of a remote
future contingency is conclusive against the existence of a perpetuity.
Thus he says, *'A future estate which, at all times until it vesta, is in
the control of the owner of the preceding estate, is, for every purpose
of convening, a present estate, and is, therefore, not obnoxious to the
rule against perpetuities. Consequently, an e3tate after an estate tail
which must vest, if at all, at or before the termination of the estate tail
is not too remote; for there is alwavs some one, viz., the tenaut in
tail, who can at any time destroy it by barring the entail": Gray on
Perpetuities, sees. 143, 144.

Ves^d InUreats are not Subject to the Rule against perpetuities, though
there may be instances, as shown in the principal case, in which they
may be subject to the statutory prohibition against the auspenaion of
the power of alienation. A vested intereat is not subject to the rule
at^ainst perpetuities if, ''ex vi termini, it is not subject to a condition
precedent. Reversions and vested remainders, and those equitable
estates and interests in personaltr which, if they were legal interests
in realty, would be reversions and vested remaind-^rs are, for the pur-
poses ot the rule against perpetuities, to be considered vested inter-
ests. The other future interests are not vested" : Gray on Perpetuities,
sec. 205j Craig v. Stacey, Ridg., L. & S. 249 . Therefore, **H an estate
must, it it is to take effect at all, become a vested interest within
twenty-one years after lives in being, it is good": Gray on Perpetui-
ties, sec. 20(3; Hodson v. Ball, 14 Sim. 558; Lett v. Randall, 3 Smaie <fc
G. 83; D'Abba.iie V. Bizoin, L. R. 5 Ir. Eq. 205; Van Brunt v. Van
Brunt, 111 N. Y. 178. A vested interest does not necessarily include
a right to the possession. Therefore, if property is devised to be used
for the fupport of the testator's daughter during her life, and for the
support ^* her ahild or ohildren, should she have any, and the bal-



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122 .In re Walkerlt. [GaL

ance for the benefit of a designated corporation, the interest of the lat-
ter, though not in possession, is vested, and, therefore, not within the
rule agaiust perpetuities: Vanderpoel v. Loew, 112 N. Y. 167; Seaver
V. Fitzgerald, 141 Mass. 401; Cole v. Sewell, 4 Dru. k Walsh, 28; Bel-
field V. Booth, 63 Conn. 299. A remainder after an estate tail, though it
is not an estate in possession, is not too remote if it must take effect, if
at all, upon the termination of the estate tail: Cole v. ;5ewall, 4 Dru. A
Walsh, 1 ; Heasman v. Fearse, L. R. 7 Ch. App. 275; Gray on Perpe-
tuities, sec. 447.

A limitation which involves a possibility upon a possibility, or a
contingency upon a contingency, is not, in the opinion of Mr. Gray,
invalid, and he devotes much space to proving that the authorities
to the contrary are either mere dicta, or have been misunderstood:
Gray on Perj)etuities, sees. 123-184. The most recent decisions in Eng-
land affirui that there is "a rule in existence which does prevent the
limitation from being good, namely: that ^ou cannot have a possibility
upon a possibility; or, to state the rule in a more convenient form,
that you cannot have a limitation for the life of an unborn person with
a limitation after his death to unborn children to take as purchasers.
This same thing has been called a possibility upon a possibility"; In
re Frost, L. R. 43 Ch. DiV. 246; Whitby v. Mitchell, 42 Ch. Div. 494;
44 Ch. Div. 85.

To the Number of Lives in Being During which the vesting of an estate
might be postponed and the power of alienation suspended there waa
no limit at the common law. Therefore, a numerous class might be
selected, and if the estate must vest during the lives o; some of them
and within twenty-one years and nine months thereafter, it was not too
remote: Stanley v. Lei^h, 2 P. Wms. 686; Taylor v. Biddal, 2 Mud.
289; Hopkins V. Hopkins, 1 Atk. 580, 596; Thellusson v. V^oodford, 4
Yes. 227; 11 Yes. 112; Hale v. Hale, 125 111. 399; Brown v. Brown, 86
Tenn. 277; Lowry v. Muldrow, 8 Rich. Eq. 241 ; Hills v. Simonds, 126
Mass. 536; Trickey v. Trickey, 3 Mylne & K. 560; Picken t. Mat-
thews, L. R. 10 Ch. Div. 204. The only limitation which has ever
been suggested is that the lives in being must not be so numerous or
so designated that there could not be some reasonable wav of proving
the decease of the survivor of them : Love v. Wyndham, IMod. 60, 64;
Thellusson v. Woodford, 11 Yes. 146; nor some means of ascertaining
all the members of the class to which they belong before the expira-
tion of the time allowed by the rule against perpetuities: London etc.
Ry. Co. V. Gomm, L. R. 20 Ch. Div. 562, 573. A bequest of an annuity
for the benefit of a volunteer corps on the appointment of the next
lieutenant colonel was held to be void as offending the rule against
perpetuities. This decision was not rested on the gruund of the great
number of persons who might at that time be members of the corps,
but upon the very remote possibility that, though the present lieuten-
ant colonel should die, there might not be an appointment of his succes-
sor by competent authority within the time allowed by the rule against
perpetuities: In re Stratheden (1894), 3 Ch. 265.

A Life is in Being, within the meaning of the rule, from the moment
of its conception, when it is for its benefit to be so considered : Doe v.
Clarke, 2 H. Black. 899; but third persons are not entitled to the
advantage of this rule: Blasson v. Blasson, 2 De Gez, J. A S. 665.
There may be instances in which it is proper to allow for two, or even
three, periods of gestation to prevent a limitation from falling within
the rule: Long v. Blackball, 7 Term Rep. 100; Gray on Perpetuities,
sec. 222.

It is, as we have already shown, the English rule and that of the
states of this Union which have not adopted some modification of it,
that every estate must vest within lives in being and twenty-one years
and nine months. Therefore, every estate dependent upon a contin-
gency which may not happen within that time must fail. This failure
may arise either because some specific time is named after which the
estate is to vest, and that time surely will not fall within the period



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SepL 1895.] In rb Walkbrly. 123

of time, as where ancb period is more than twenty-one rears and nine
months: Davis v. Williams, 85 Tenn. 646; or more than that time
after the termination of some life designated : Coggin's Appeal, 124 Pa.
St. 10; 10 Am. 8t. Rep. 565; or where, while the time mentioned is
not measured by years, it is designated in some other mode, and the
interest affected is intended to be vested in some person not living at
the death of the testator, or the time when the deed takes effect, and
who may not be conceived within twenty-one years thereafter. There-
fore, every disposition of property which professes to be in favor of per-
ilous not born when it takes effect must fail, if they would be included
within the descriptive wonls, "thousih not conceived within twenty-one
ve^rs thereaiter": In re Mervin (1891), 3 Ch. 107; Armstrong v. Doug-
lass, 89 Tenn. 219; In re Hargreaves (C. A.), L. R. 43 Ch. Div. 401;
Butterdeia v. Reel, 160 Mass. 361; Dorr v. Lovering, 147 Mass. 530.
Nor need the deed or will describe the beneficiary as unborn, nor show
an intention of the testator to vest an estate in an unborn person, if,
as a matter of fact, it may happen that an unborn person will fail
within the descriptive words: in re Frost, L. R. 43 Ch. Div. 246. If,
on the other hand, the estate must vest within the time permitted by
the rule, it cannot fail though many lives in being must first terminate:
Low V. Burron, 3 P. Wms. 262; Boutelle v. City Sav. Bank, 17 R. I.
781 ; and although a period must afterward intervene, provided it is less
than twenty-one years: Potter v. Couch, 141 U. S. 296.

RegtrainU an Alienation as Part of the Rule. — Where the common-law
limitation of the rule against perpetuities has been modified by statute,
care must be taken in preparing conveyances, devises, and other transfers
or gifts that their terms ao not conflict with such modification. Whether
the object of the rule at the common law was to prevent restraints upon
alienation or not, it is certain that such object is manifest in all, or
nearly all, of the American statutes upon the subject, and the fact that
a limitation can possibly result in a suspension of the power of aliena-
tion beyond the period designated in the statutory rule against perpe-
tuities, will be accepted as conclusive of the invalidity of such limitation :
€al. Civ. Code. se<*s. 715, 716.

In New York and some of the other states, as has already been
shown, this suspension cannot be extended so as to include all lives in
being, but is restricted to two such lives. Any attempt, therefore, to
suspend the power of alienation for any definite period must, under
these statutes, fail, because it is not certain that any two lives in being
will continue during such period. Therefore, a devise in trust to the
testator's widow of property to be held until their youngest child reaches
twenty-one years of age, or would have reached that age had he survived,
is unlawful, because, though such child should die, the trust must con-
tinne: Haynes v. Sherman, 117 N. Y. 433. If, on the other hand, the
terms of the trust had been such that it might have been executed in
the lifetime of the person named as beneficiary, then it could not have
been defeated by a direction that the moneys should have been paid to
him only upon his reaching a certain age, though that was the age of
bis majority, or even at a later period of his life. A devise to a person
when be shall attain a desienated age merely postpones the time when
he may take possession. He has a vested estate, (lefeasible under con-
ditions subsequent, and, though it may suspend the power of aliena-
tion, such suspension is expressly permitted by the statutes of New
York: Radley v. Kuhn, 97 N. Y. 26. If however, the terms of the
devise or bequest are such as to show that no estate is to vest in the
beneficiaries until or unless they attain the age of twenty-one, and they
are not in being at the testator's decease, the attempted limitation in
their favor is void, because it may not take place within lives in being
at such decease: Greenland v. Wadriell. 116 N. Y. 234; 16 Am. St. Rep.
400. A gift of the use or income of the testator's estate to his wife for
life, and then to his two sons and the heirs of each, or, in the event of
one having no heirs, then to the heirs of the other, and, if neither
•honld have heirs, then as the law would 'iiroct, is void, beciuseit sus-



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124 In RB Walkbrlt [Cal.

pends the power of alienation for at least three lives in being at the
testator's death ; Ward v. Ward, 105 N. Y. 68. The same mast be the
result of every attempted devise of propertv under the statutes of New
York and states having similar statutes, toe effect of which is to sus-
pend the absolute power of alienation for more than two lives in being
when such dispositions take effect: Cross v. United States etc. Co., 131
N. Y. 330; 27 Am. St. Rep. 597. On the other hand, whatever the dis-
position may be, it will be sustained as against the rule against perpe-
tuities there in force, if its effect cannot be to suspend such power beyond
such lives: Uillen v. Iselin, 144 N. Y. 365. A devise of propertv to the
testator's widow for life, and, after her death, to his six children for
the terms of their natural lives, respectively, and from and after the
decease of each, to his or her heirs in fee, does not violate the rule
against perpetuities, because the interests of the children vested upon
the deatn of the widow, and may be conveyed, and there is, therefore,
no suspension of the power of alienation beyond two lives in being:
Bailey v. Bailey, 97 N. Y. 460; Surdam v. Cornell, 116 N. Y. 305. A
bequest of bonds to be held in trust to pay the income to the testator's
daughter for life, and, after her death, to her children until the youngest
reaches his majority, and then to be divided among them, is void by
the laws of California, under which there can be no suspension of the
power of alienation beyond lives in being, where it appears that the
children of the daughter were not born at the death of 'he testator:
Whitney v. Dodge, 105 Cal. 192. The result would have been different
had iill the persons beneticially interested been living at the decease
of the testator: Goldtreev. Thompson, 79 Cal. 613. Many other illus-
trations might be furnished from the reported cases showing applica-
tions of the rule, both as it existed at the common law, and as it has
been modified by local statutes, but our space will not permit of them,
and we think it will be better occupied in formulating general rules
than by detailing decisions in peculiar cases.

Conflict of Laws, — It may happen that a grantor has made a deed or
other instrument of transfer, or that the will of the testator has been
executed in one state or country, and the projJerty affected by it
is situated in another, and that the rule against perpetuities in the two
is not the same. Upon this subject the general rule, that personal
property is governed by the law of the owner's domicile, and real
property b^ the law of the state or country in which it is situ-
ated, prevails. Therefore, if a disposition of personal property, by will
or otherwise, does not conflict with the rule against perpetuities m the
state or country of the owner's domicile, it is valid, though such per-
sonalty is situated in another state, and the disposition could not be
sustained if the rule ai^ainst perpetuities there existing wore applicable



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