Term of twenty-one years allowed absolutely, not merely in Bayley, B., after an elaborate examination of the authorities, declared the unanimous opinion of the judges to be, that the true limit of the rule against perpetuities was "a life or lives in being, and twenty-one years, without reference to the infancy of any person whatever." 14 This important case, reference to infancy; from the bulk of the estate, and vested in the trustees appointed to receive it, as soon as the payment is made, and before the intended accumulation of the interest upon it begins. Even a gift to an individual, which on a fair construction vests within the period allowed by law, is held valid, although accompanied by a void direction for accumulation. Josselyn v. Josselyn, 9 Sim. 63. Blease v. Burgh, 2 Beav. 221. Saunders v. Vautier, 4 Beav. 115; S. C. Craig & Phillips, 248. Peard v. Kekewich, 15 Beav. 166. Lane v. Lane, 8 Allen, 350. The reasons are much stronger for not allowing illegal directions for the accumulation or management of a fund, devoted to charitable purposes, to defeat the gift, and for carrying out the scheme of the testator as far as the law will allow, if it cannot be followed to its full extent. Atty. Genl. v. Caius College, 2 Keen, 163. Martin v. Margham, 14 Sim. 230. Thompson v. Thompson, 1 Colly. R. 888, 400. Atty. Genl. v. Greenhill, 33 Beav. 193. Atty. Genl. v. Pyle, 1 Atk. 435. Atty. Genl. v. Catharine Hall, Jacob, 395. Magistrates of Dundee v. Morris, 3 Macq. 134. Baker v. Smith, 13 Met. 41. Drury v. Natick, post, 169. It is generally stated in the English books that a direction to accumulate income for a period beyond that allowed by the common law is wholly void. 2 Spence on Eq. 181, 182. Lewin on Trusts (3d ed.) 111, and cases cited. But perhaps, in the case of property set apart in the hands of trustees for a charitable purpose, each annual addition of the income to the principal might be treated as distinct, and the accumulation held good for twenty-one years at least, if not beyond that time. And see Phipps v. Kelynge, 2 Ves. & B. 57 n., 62, 63 n." See, too, Hornberger v. Hornberger, 12 Heisk. 635, where a devise was made in trust to keep up a flower garden and burying ground, to be kept up out of the fund, and never sold, and this was held to be a valid charity, but the proviso was held to be void as a perpetuity. 14. The reader will have observed that the time, beyond which a limitation becomes a perpetuity, is fixed by the New York statute at two lives in being-differing from the common law and perhaps from the statute law of all the other states in this, that no term of years is to be super-added to the two lives for a minority or otherwise. Under this statute it is held in New York that every suspension of the power of alienation for a gross term of years, however short, irrespective of lives in being, is void as a perpetuity. See Tucker v. Tucker, 5 N. Y. 408, where the suspension was to be but one year after the death of testator's widow; Converse v. Kellogg, 7 Barb. 590, where the will provided for sale and division of the property ten years after testator's death; DeKay v. Irving, 5 Denio 646, affirming 9 Paige 521. In this case the income was to be paid to the testator's widow for the maintenance of testator's family until February, 1840, and in case of her death before that time to be applied by the executor until that date for the same purpose, and the limitation beyond the widow's death was held to be void. See also Morgan v. Masterton, 4 Sandf. 442; Hawley v. James, 16 Wend. 61, reversing 5 Paige 318; Hone v. Van Schaick, 20 Wend. 564, affirming 7 Paige 221; Burrill v. Boardman, 43 N. Y. 254; however, would still have left a subject for controversy, if the house had contented itself with simply adjudicating in the case before it; but, with a laudable anxiety to close the door to all future discussion, * * * Phelps. Pond, 23 N. Y. 69, where the gift was to found a charity when certain other funds should be subscribed. And in the Rose Will Case-Rose v. Rose, 4 Abb. App. 108-the gift of moneys to be expended in a certain charity contingent upon the subscription of further funds thereto, within five years, was held to be void as a perpetuity. In the words of Wright, J.: "Estates, though given to charitable uses must vest within the term prescribed by law. This is no vested gift but on the contrary a perpetuity, because the vesting of the gift is not made to depend on a life or two lives in being, but on an uncertain event which may not happen within five years-a period which cannot be substituted for lives." The language of Bronson, J., in Hone v. Van Schaick, ubi supra, is to the same effect: "No absolute term however short, can be maintained. Every estate is void in its creation, which is so limited that the absolute power of alienation may be suspended for more than two lives in being at the creation of the estate. The lives must be designated and life must in some form enter into the limitation." In the cases of Burrill v. Boardman, Phelps v. Pond and Rose v. Rose, above cited, the gift was not to take effect until certain subscriptions should be made and the donees be incorporated, the time remaining in these cases wholly uncertain or being restricted to some absolute period other than lives in being. Where, however, the incorporation on which the gift takes effect is to take place, if at all, within two lives in being, there is no such objection to the gift, Literary Fund v. Dawson, 10 Leigh 147, 1 Rob. (Va.) 402; Kinnaird v. Kinnaird, 25 Gratt. 107. And it was held in Chamberlayne r. Brockett, 8 L. R., Ch. App. 206, (1872,) that a money legacy for the erection of almshouses, when land should be given for the purpose, was not too remote. On the other hand the following gifts have all been held to be too remote: a devise to trustees to convey to a church, if any congregation should desire to erect a church and be able in the judgment of the trustee to do it, Jocelyn v Nott, 44 Conn. 55; to trustees to be appointed by the Supreme Court to found an institution, Bascom v. Albertson, 34 N. Y. 584, affirming 5 Redf. 340; to trustees for village library when village incorporated, Leonard v. Burr, 18 N. Y. 96; for a seminary to be incorporated, Leonard v. Bell, 1 T. & C. (N. Y. Sup. Ct.) 608. But where the power to alienate is not suspended during the term of years there is no perpetuity. Thus in Persons v. Snooks, 40 Barb. 44, where there was a term for three years given to A in certain real estate, with a remainder over, and power to executors meanwhile to make sale. So, where the gift is one of income merely, there is no suspension nor perpetuity, although the income was given to the legatee for fifty years, Matteson v. Matteson, 51 How. Pr. 276. See also Clason V. Clason, 18 Wend. 369. And in New York a suspension of alienation, until A's youngest child attain a certain age, has been held to indicate a gross term-until a fixed time, that is, irrespective of the life of A-and therefore to be void, Butler v. Butler, 1 Hoffm. Ch. 344; Boynton v. Hoyt, 1 Denio 53. The latter case, however, really turned on the fact that there were several, children during whose minorities the suspension must continue. In the former case a gift of income was made in trust for A until his eldest child should attain the age of twenty-one, and then to be divided among his children, and this was held to involve a suspen it was proposed to the judges to consider, whether a limitation by way of executory devise is void as too remote, or otherwise, if it is not to take effect until after the determination of a life or lives in being, sion for the absolute term of twelve years at least until the eldest child at testator's death should become twenty-one. In many similar cases, however, the courts have held that there was neither suspension nor perpetuity. Thus in Everitt v. Everitt, 29 N. Y. 39, reversing 29 Barb. 112, a gift to be accumulated until the youngest of three children named attain twenty-one, and then to those children, was held to vest separate shares in them at testator's death as tenants in common, and therefore to constitute no suspension, as a joint estate would have done. In Emmons v. Cairns, 3 Barb. 243, reversing 2 Sandf. Ch. 369, a legacy to A on her arriving at the age of twenty-one, was held to be contingent on her arriving at that age, and alienable, and therefore valid. In Burrill v. Shiel, 2 Barb. 457, a devise in trust for A for her lifetime-then for B for her lifetime, and then for B's surviving issue, "to be at their own disposal as soon as they arrive at 25 years," and if B should die before A, to B's issue in the same manner, was held to vest in B's issue at the death of the survivor of A and B, and therefore to require no suspension beyond their two lives. So in Morton v. Morton, 8 Barb. 18, A's children took a vested and valid interest at his death in a gift made to A for his life, then to A's widow until A's children should attain the age of twenty-one, and then to A's children, to be paid them at the age of twenty-one. In Titus v. Weeks, 37 Barb. 136, where the trust was to pay the income to designated persons during the minority of A, then to B for life, with remainder to B's children, A's minority was held to be an absolute term, (until he should have become twenty-one,) and though he died under age, the first donees took for the full term intended, and the last remainder was upheld as vested at the testator's death, and therefore involving no suspension. In Burke v. Valentine, 52 Barb. 412, an estate was to remain in the hands of the executors for the use of testator's wife and children, while under age, and to be divided after the youngest child attain twenty-one. This was held to vest in the children as tenants in common as each attained twenty-one, and therefore to be valid and not a perpetuity. In Levy v. Hart, 54 Barb. 248, where the trustee was to hold for testator's widow and five minor children, and to convey to the children, when the youngest attains the age of twenty-one, or on the death of A and B, (the youngest children,) if they die before attaining twentyone, the last clause was held to reduce the limitation to one for two lives in being. In Butler v. Butler, 2 Barb. Ch. 304, a trust to pay the income to A until her oldest child attain the age of twenty-one, and then to divide among her children, was held to mean the oldest at the date of testator's will, and not to require a suspension beyond one life in being. In Eells v. Lynch, 8 Bosw. 465, the gift was to children, to be divided when the youngest attain twentyone, and this was held to be a vested gift, with no suspension of alienation. In McGowan v. McGowan, 2 Duer 57, the property was to be divided among seven children by name, when the oldest attains twenty-one, which was held to be at most a suspension for one life. In Am. Bible Soc. v. Stark, 45 How. Pr. 160, the property was given to the widow for life, the principal to remain entire until testator's oldest son attain the age of forty years, or, if both sons die before the widow, to be sold and divided at her death. Here the suspen and upon the expiration of a term of twenty-one years afterwards, together with the number of months equal to the ordinary or longest period of gestation; but the whole of such years and months to be taken as sion depended on the son's living so long, and was held not to be a perpetuity. In Stevenson v. Lesley, 49 How. Pr. 229, where there was a trust for the children of A and the survivors of them, and the children of B and the survivors of them, to be paid to each at the age of twenty-one, in equal shares, the income to be applied in the meantime to their maintenance, the children took per capita as tenants in common, and there was held to be no perpetuity. In Scott v. Monell, 1 Redf. 431, a trust for the maintenance of testator's widow for life, and her two children until they attain the age of twenty-one, the property to fall into the residue at the widow's death, was held to be a perpetuity, as it might possibly extend over more than two lives (if the children died first). In Thompson v. Clendening, 1 Sandf. 387, a trust for the maintenance of four children during their minority, with power to trustee to sell, after the oldest child attain the age of twenty-one, and duty laid on him to do so, at latest, when the youngest child attain that age, was held to be a suspension for more than two lives, and void. In Field v. Field, 4 Sandf. Ch. 528, a trust to pay annuity to testator's widow, and for the maintenance of testator's children until they attain the age of twenty-two, and then to divide part and pay the income of the remainder to them until the sons respectively attain the age of thirty, and then divide the balance, to each his separate share, was held to be an undue suspension and void. So in Jennings v. Jennings, 5 Sandf. 174, a trust for the maintenance of three children until they attain the age of twenty-one, and then to divide— or until the youngest attain the age of twenty-one, and then divide, Lang v. Ropke, 5 Sandf. 363; see Ruppert's Estate, 1 Tucker 480. But a gift to A and B provided they attain twenty-one, and if both die without issue, over, is valid. Maurice v. Graham, 8 Paige 483. In Tucker v. Bishop, 16 N. Y. 402, a gift to testator's grandchildren—the income to be applied to their maintenance during their minority, and the principal to be paid them in equal shares at the age of twenty-one-was held to vest at testator's death, and not to be too remote; so, too, Savage v. Burnham, 17 N. Y. 561, but in this case a limitation over on their death before twenty-one, was held too remote; and see, too, Ludwig v. Combe, 1 Metc. (Ky.) 128, where a deed of emancipation of a five-year-old slave, to take effect at the age of twenty-five, both as to her and such children as she might have, was held to be too remote as to children, since she might have died more than twenty-one years before such child became twentyfive, although in fact she lived after her child was nineteen years of age. See, too, Dyson v. Ropp, 29 Ind. 482, where the will directed that the property be sold and the interest accumulated and paid to the heirs of the testator's children at the age of twenty-one years, and this was held to be a vested gift at the testator's death, and valid. But in Sears v. Putnam, 102 Mass. 5, a gift to A for twenty-five years, and then to his children, was held void as a perpetuity. In Fosdick v. Fosdick, 6 Allen 41, a trust to invest and accumulate until testator's youngest grandchild should attain the age of twenty-one, then to pay the income to them for the life of the longest liver of them, with remainder to their heirs, was held to be a perpetuity. In Thorndike v. Loring, 15 Gray 391, an accumulation for fifty years was held void as a perpetuity. also In Davenport v. Harris, 3 Grant 164, a term in gross, and without reference to the infancy of any person whatever, born or en ventre sa mere. The judges declared their unanimous opinion on this point to be, that such a limitation would be void as too remote, they considering twenty-one -but not the period of gestation. a gift for maintenance of testator's children until the youngest attain the age of twenty-one, was held to be void as a perpetuity. And in Taylor v. Mason, 9 Wheat. 325, where there was a gift to A on condition that he change his name to B within twelve months after attaining the age of twenty-one, and a limitation over on breach of condition, the limitation failed for remoteness. In Wilkinson v. Duncan, 30 Beav. 111, a trust to pay to testator's sons and daughters, each as he or she attains the age of twenty-four years, is valid as to those only who are three years of age at testator's death. In Smith v. Smith, 5 L. R., Ch. App. 342, a gift to testator's children and grandchildren living at the death of his widow, as they shall attain the age of twenty-three, was held too remote, because some members of the class might not be in esse within the legal period of lives in being and twenty-one years; so, too, Hale v. Hale, 3 L. R., Ch. Div. 643, disapproving of Mosley's Trusts, 11 L. R., Eq. 499. In Edmonson's Estate, 5 L. R., Eq. 389, a remainder to children of the life tenant, "not to be vested in them until they attain the age of 25," was held to vest in such children as were living at testator's death, defeasible as to those who died under twenty-five, and subject to open for children born after testator's death, and was not within the rule against perpetuities. In Ashmore's Trusts, 9 L. R., Eq. 99, where a life estate was given to A, with remainder to be paid to such of her children as should be living at her death, and should have then attained, or should afterwards live to attain, the age of twenty-one, with provision for their maintenance out of the income in the meantime, it was held that the gift of the fund vested as the children attained the required age, with a gift of income only in the meantime. But this case was not followed in Fox v. Fox, 19 L. R., Eq. 286 (1875), where the age fixed for payment was twenty-five, and would have been too remote. See also Peek's Trusts, 16 L. R., Eq. 221 (1873). Attention is called to the following remarks of Judge Duer, in Andrew v. Bible Soc., 4 Sandf. 156: "The distinction between 8 bequest of a sum of money at a particular specified time and a similar bequest payable or to be paid at the same time is somewhat refined and, it is probable, seldom exists in the mind of a testator; but it is established by so long a series of decisions that it must now be regarded as a constituent part of the law, which it is our province and duty to administer. In the second case the gift is reserved and only its payment postponed. In the first the gift itself is postponed. In the language of the books, the time in the second case is annexed to the payment, in the first to the substance, of the gift. The first is a contingent, the second, a vested, legacy. A vested legacy, where the legatee dies before the time fixed for its payment, passes to his personal representatives, or if it has been previously assigned by him, to his assignee. A contingent, upon the happening of the same event, is wholly extinguished and sinks into the residuum for the benefit of the residuary legatees or next of kin and a previous assignment is necessarily defeated, since every such assignment, if otherwise valid, is subject to the same contingency as the gift itself. There is however an exception from the general rule that a gift to take effect at the decease of a particular person is contingent during his life. If during his life a beneficial interest is given to him or to any |