recovery by a tenant in tail, there would remain a term and a trust to be performed; a trust which could not be defeated, and a term which cannot be destroyed." [Of course it is not the mere limitation of an estate tail-as, to the first son of A, who never has a son, but the vesting of it in the devisee, which protects the trusts of the subsequent term. On the death of A without having had a son the trusts will be good or bad, or, (if severable) some good and some bad, according as they are within or without the limits set by the rule against perpetuity.] (k) limitation, whether pre cedent or The question, whether an executory limitation was precedent *or subsequent to an estate tail, was much discussed in Doe d. Executory Lumley v. Earl of Scarborough, () where lands were devised to A for life, with remainder to his first and other subsequent. sons in tail, remainders over, with a proviso, that if the earldom of S. should descend upon A or any of his sons, within the period of certain lives, or within the term of twenty-one years after the decease of the survivor, his or their estate should cease, and the lands remain over as if he or they were dead without issue. The eldest son of A suffered a common recovery, and A joined in the conveyance for the purpose of making a tenant to the præcipe. The earldom afterwards devolved upon A. It was held in the Exchequer Chamber (m) (reversing a decision in B. R.,) that the executory limitation was barred; the court being of opinion, that this was a mere proviso for the cesser of the old estates created by the will to which it applied, so as to accelerate and let in the enjoyment of the remainders over, and not (as had been considered in the court below) the creation of any new estate. The judges in B. R. were of opinion that the proviso operated, not by way of determining or defeating the estate tail of the son of A, but antecedently to that estate, by preventing the estate tail from ever taking effect; and that the persons entitled in remainder had two distinct estates, one of which was antecedent, and the other posterior to the estate tail, and consequently, that the former could not be affected by the recovery. (k) Tregonwell v. Sydenham, 3 Dow 194, where all the trusts were held void except the trust to raise the money, and the money was held to result to the heir. See as to the last point, ch. XVIII., ? 2. [*260] Whether a remainder, which is destructible, can be void for remoteness. The same species of reasoning by which a remainder or an executory limitation, to arise on the determination of an estate tail, is supported, might seem to have applied to a contingent remainder, which was formerly liable to be destroyed by the act of the owner of the preceding estate of freehold, no estate being interposed for its preservation; but the writer is not aware of any authority for the application of the doctrine to such cases. If therefore freehold lands, of which the legal inheritance was in the testator, were devised to A for life, with remainder to his eldest son who should be living at his decease, for life, with remainder in fee to the children of such eldest son who should be living at his (the son's) decease although A in his lifetime might have destroyed all the remainders, and the eldest son, after his (A's) decease, might have destroyed the ultimate remainder in fee devised to his children, without being amenable either at law or in equity to the persons whose estates were thus destroyed, such ultimate remainder would, nevertheless, have *been void for remoteness (n) on the ground that the destruction in these cases was effected by what the law called a tortious or wrongful act, (though it was wrong without a remedy,) the perpetration of which was not to be presumed. [And now the statute 8 and 9 Vict., c. 106, § 8, which has deprived the owner of the previous estate of freehold of the power of destroying the contingent remainders depending on it, has also deprived those remainders of any validity they might have derived from their destructibility. The devise of an estate in reversion may, it seems, be void for remoteness when a devise of an estate in remainder would not. A reversion is, in fact, a present interest, since it a similar devise carries the service and rent (if any) during the subsistence would be good. of the particular estate; (o) and a devise of it, therefore, contingently on a future event is, like a similar devise of any other estate in possession, an executory limitation which need not vest eo instanti that the particular estate determines, and is void if the event be too remote. Thus, in Bankes v. Holme, (p) where a settlor, having the reversion in fee expectant on a failure of issue male of his sons and issue general of his daughters, devised it on the contingency of Effect of 8 and 9 Vict., c. 106. A devise of a reversion may be void when of a remainder [(n) Or by the rule already noticed which forbids the giving of an estate for life to an unborn person, with remainder by purchase to his issue.] Lloyd, 1 Ld. Raym. 523; Bac. Uses 45, 46, cited Saud. Uses, ch. II., v. 2. (p) 1 Russ. 394, n.; Sugd. Law of Prop. 351; and see Doe v. Fonnereau, (0) Preston on Merger, 246; Badger v. Dougl. 486. there being no child or children of his wife by him begotten, or (as eventually happened) of there being such, but all of them dying without issue; it was held, that the devise was too remote and void. (q) If the devise in this case had been such as to create a remainder in fee, such remainder could only have taken effect in case the general failure of issue had happened simultaneously with the determination of the estates tail to the sons and daughters, (r) and up to that time would have been barrable, and therefore not too remote. The devise of the reversion on the other hand, though barrable during the subsistence of the estates tail, would not necessarily have always been barrable, since, taking effect as it did by way of executory devise, it must, if held valid, have awaited the time when the issue general failed; an indefinitely long period might thus elapse between the determination of the estates tail and the failure of issue general, during which the reversion would have descended in fee to the testator's heir, who could not have *barred the executory gift, and the rules against perpetuity would have been infringed. (8) How far same to copy holds. rule applicable Contingent remainders of copyholds were governed by the same rules as contingent remainders of freeholds, except that the former were not liable to destruction by the owner of the previous estate. (t) The statute 8 and 9 Vict., c. 106, by depriving the owner of a previous estate in freeholds of this power, has removed the only point of difference between contingent remainders in lands of those tenures. (u) applies to con A different rule tingent limitaof remainder interests. tions by way in equitable Contingent remainders (or, more properly, executory interests) of trust or equitable estates are not governed by the same rule as contingent remainders of legal estates; for they do not necessarily vest or fail upon the determination of the previous estate, but await the happening of the contingency on which they are limited, (x) and are therefore invalid if that contingency be too remote. (y) But, like executory devises, they are good after an estate tail, if limited on an event which must necessarily (q) But the devise might have been supported on a distinct ground; the testator referred to the settlement, and, though he mis-recited it, he manifestly intended to devise his reversion, whatever it was. See ch. XL., & III., 5. (r) The case would then have been similar to Cole v. Sewell. and see Morse v. Ormonde, 1 Russ. 382. (t) Pickersgill v. Grey, 30 Beav. 352; so of estates pur autre vie, Ib. (u) Fearne, C. R. 320. (x) Hopkins v. Hopkins, Cas. t. Talb. 44, 1 Atk. 581; Chapman v. Blisset, Cas. t. Talb. 150. (y) Moneypenny v. Dering, 8 Hare 568, [(s) Bristow v. Boothby, 2 S. & St. 465; 590. happen at or before the determination of that estate, e. g., a trust for a class to be ascertained at or before such determination. (z) What is the ground of the decision in Cole v. Sewell. These considerations bear upon an observation which has been made (a) on the doctrine advanced in Cole v. Sewell (and the same would apply to Doe v. Perratt,) to the effect that a contingent remainder limited after an estate tail is not void on account of the remoteness of the contingency on which it is to arise. It is said that it was not necessary to the decision to lay down any such rule, since the remainder was preceded by estates tail, the owners of which might have barred it, and remoteness was thus obviated. But supposing this to have been the ground of the decision, it must have applied equally had the contingent remainder, together with the estate tail, been equitable and not legal interests: for the remainder would then also have been barrable by the owners of the estates tail: and yet if those estates had determined without being barred, the contingent remainder, since it would not have failed, but would have waited for the happening of the event upon which, it was limited (a period of indefinite duration,)-must clearly have been obnoxious to the rule against perpetuities, and therefore void ab initio. It is absolutely necessary therefore to assign some reason for the *validity of the contingent remainders limited on a remote contingency in the cases of Cole v. Sewell and Doe v. Perratt, besides that of their being barrable along with the previous estates tail. The question whether a con tingent remain der is void is not affected by 8 and 9 Vict., o. 106, The validity of remainders limited on a remote contingency does not appear to be affected by the act 8 and 9 Vict., c. 106, § 8. Under that act contingent remainders which would previously have failed through the determination by forfeiture, surrender or merger of the previous vested estate of freehold by which they were supported, are to take effect, notwithstanding such determination, in the same manner in all respects as if such determination had not happened; that is to say, such remainders will still fail in any case where they would formerly have failed if the previous estate had determined by any other than one of the modes mentioned in the act; and consequently when the previous estate determines by any of these modes, the contingent remainders depending thereon will be preserved only until the time when the previous estate, if it had not been determined by one of these modes, would have determined (s) Heasman v. Pearse, L. R., 7 Ch. (a) See Appendix A. 275. then take nor by 40 and 41 Vict., c. 33. in any other manner, and the contingent remainder must effect or fail. Neither is a remainder limited on a remote contingency affected by the statute 40 and 41 Vict., c. 33, which enacts that every contingent remainder thereafter created, which would have been valid as a springing use or executory devise, had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect as if the remainder had originally been created as an executory devise: for if the remainder had been originally limited as an executory devise, to take effect on the remote contingency, it would not have been valid.] cases of remote The most frequent instances of the transgression of the rule against perpetuities occur in devises or bequests to classes, com- Most frequentprising either individuals who may not come into existence ly occurring at all during a life in being and twenty-one years after- gifts. wards, or persons who may not be in esse at the death of the testator, and the vesting of whose shares is postponed beyond majority. In the former case, the rule is fatally violated, even though the gift to the unborn objects is so framed as to confer on them vested interests immediately on their birth. Gifts to an to vest after majority. An example of the latter kind is supplied by Dodd v. Wake, (b) *where a testator bequeathed a sum of £3000 unto and amongst the children of his daughter M. M., "who shall unborn class, be living at the time the eldest shall live to attain the age of twenty-four years, and the issue of such of the children of his said daughter, as may then happen to be dead leaving issue," per stirpes. M. M. had three children living at the testator's death; but the question was, whether the bequest was not void for remoteness, inasmuch as all these children might die under twenty-four, and then the legacy could not vest in any child, until the expiration of twenty-four years and upwards after the testator's decease. Sir L. Shadwell said: "The testator appears clearly to have intended, that only those children of his daughter should take who should be alive when the eldest child for the time being should attain the age of twenty-four, and, therefore, the bequest is void for remoteness." (b) 8 Sim. 616; [and see Boughton v. James, 1 Coll. 26, 1 H. L. Cas. 406; Griffith v. Blunt, 4 Beav. 264. But a gift to a class at a prescribed age includes none born after the eldest has attained the age; if, therefore, he does so in testator's lifetime, the gift is good, whatever the age prescribed, Picken v. Matthews, 10 Ch. D. 264.] |