wife might be a person not born at the *testator's death, and might survive the child more than twenty-one years, and the gift over would thus take effect after the expiration of a life and twenty-one years. sonal property given in strict settlement ferred till any tenant in tail attains twenty one. one years, Again, where freehold lands are limited in strict settlement, and Vesting of per- leasehold or other personal property is vested in trustees, upon corresponding trusts, but so as not to vest absolutely must not be de- in any tenant in tail till he shall attain the age of twentybut on his death under age to devolve as the freeholds, this trust, so far as it is limited in favor of tenants in tail, is void, since by the death of successive tenants in tail under age and leaving issue the vesting of the leaseholds might be deferred beyond the period allowed by law. Care should therefore be taken that the vesting is only deferred till some tenant in tail by purchase attains the age of twenty-one years. (d) Similarly in all cases where under a deed or will a strict settlement is created, and (as is usually done) power is given to the trustees during the minority of any person entitled under the settlement to manage and let the property and receive the rents and profits, (e) or to cut timber and sell it, (ƒ) and invest the moneys arising thereby in the purchase of other lands to be settled to the same uses, the exercise of these powers must be carefully restricted to the period of the minorities of tenants in tail by purchase, else the powers will be altogether void. (g) [(d) This is the common form, Davidson's Common Forms, p. 216. If the clause stops short with the proviso against absolute vesting, and omits the concluding gift over, remoteness is avoided without help of the words "by purchase." For then there is no gift of the personalty except in the primary trust, and under this trust it vests absolutely in the first tenant in tail by purchase: and the proviso, being but an accessory to that, must be construed also to relate only to tenant in tail by purchase, Christie v. Gosling, L. R., 1 H. L. 279; Martelli v. Holloway, L. R., 5 H L. 532. According to this construction, however, the intention to keep the two species of property together as long as possible, fails. The concluding gift over is required to effectuate this intention, and as this gift contains trusts for tenants in tail taking by descent, the rule of construction established in Christie v. Gosling is inapplicable, and the words "by purchase" are needed to obviate remoteness; see Gosling v. Gosling, 1 D., J. & S. 16. See further on this subject, post ch. XLIV., § 3. (e) Lade v. Holford, 1 W. Bl. 428, Amb. 479, Fearne C. R. 530, n.; Browne v. Stoughton, 14 Sim. 369; Scarisbrick v. Skelmersdale, 17 Sim. 187; Turvin v. Newcombe, 3 K. & J. 16; Floyer v. Bankes, L. R., 8 Eq. 115 (where, however, the powers were annexed to an anterior term). (ƒ) Ferrand v. Wilson, 4 Hare 373. (g) Observations on Browne v. Stoughton. Mr. Lewis, in the supplement to his work on perpetuities, doubts the correctness of the decision in Browne v. Stoughton, conceiving that such trusts are, like executory limitations engrafted perpetuities *The invalidity of such trusts admits, however, of one exception, namely, where the fund arising therefrom is to be applied in discharge of encumbrances affecting the estate, (h) for then they only prescribe a particular mode of paying the on an estate tail, barrable along with the estate tail, and therefore not void for remotemess. But the trustees clearly have an actual estate in the lands, which estate is not subsequent or collateral, but anterior to the estate tail, and the trusts declared cannot therefore be affected by any act of the tenant in tail. This is clear from Marshall v. Holloway, where there was no term anterior to the estate tail, nor was the destination of the accumulated fund (if made) too remote, being identical with that of the general personalty, the gift of which was held good. The sole ground of the determination therefore was, that the trust for accumulation could not be split or severed, so as to place part before the first estate tail (which would be neither too remote nor barrable), and part after (which would be too remote if it were not barrable). The whole was an entire limitation, and must stand or fall together. "The other was the better view, but the point is now well settled," Sug. Law of Prop. 349. If in Browne v. Stoughton the trust had been barrable along with the estate tail some startling results would follow. Suppose, for instance, that instead of an accumulation being directed during minority, it had been directed during the first twenty-one years after the testator's death to raise money for payment of legacies, it must follow that the tenant in tail, if of full age, could bar the trust, and deprive the legatees of their legacies. Browne v. Stoughton, cannot therefore be distin (h) Lord Southampton v. Marquis of Hertford, 2 Ves. & B. 54, see p. 65; Bateman v. Hotchkin, 10 Beav. 426; Briggs v. Earl of Oxford, 1 D., M. & G. 363, and see Bacon v. Proctor, T. & R. 40. In the Rule against does not apply tions for pay to accumula ment guished from Lord Southampton v. Marquis of Hertford, 2 Ves. & B. 54, on the ground that, in the latter, a term was created anterior to the estate tail; indeed Lord Eldon, in Marshall v. Holloway, 2 Sw. 445, expressly said that that made no difference. See also 3 Jur. (N. S.), pt. II., 181. Mr. Sanders went even further than Mr. Lewis; in an opinion-Sanders on Uses, (5th ed.) p. 203, n.-he says, with respect to Lord Southampton v. Marquis of Hertford, "It is not easy to discover the ground of the decision, but it is to be observed that the term of 1000 years preceded the limitations in tail; and it seems to be inferred that a recovery by tenant in tail, subject to the term, did not destroy the preceding trusts of the term. If this be the case, there is a great fallacy in the inference; for the trusts of a term created for the purposes of a settlement, must follow the ultimate devolution of the inheritance, and not the inheritance the trusts of the term. A recovery by tenant in tail would acquire the fee simple, and render the term attendant on the inheritance discharged of the trusts for accumulation." But Case v. Drosier (ante p. 259) shows that Mr. Sanders' opinion does not represent the accepted view of the law on this point. In Meller v. Stanley, 2 D., J. & S. 183, where one having freeholds for lives devised his real and personal estate to trustees, and directed them to keep up the policies on the existing lives (which he had insured), and from time to time to renew the lease and insure the new lives; and subject as two first-cited cases there was a preceding term, so that it is absolutely necessary to refer them to this special ground. See also Gilbertson v. Richards, 5 H. & N 453. encumbrances, which in case of a mortgage, the encumbrancer himself might adopt by entering into receipt of the rents and profits, and may at any time be put an end to, either by the owner paying the encumbrance, or the encumbrancer enforcing his claim against the corpus of the property; thus there is no restraint on alienation. As the payment of all the debts of a testator can now be enforced out of his real as well as his personal estate, there seems, on the principle above noticed, no reason at the present day to doubt the validity of a trust for the accumulation for any period, however long, of the income of all or any part of a testator's property, whether real or personal, for the purpose of paying his debts.] (i) for grandchil dren. *A testator is in less danger of transgressing the perpetuity-rule, As to provisions whilst providing for his own children and grandchildren, than when the objects of his bounty are the children and grandchildren of another, since, in the former case, he has only to avoid postponing the vesting of the grandchildren's shares beyond their ages of twenty-one years, and then the fact of the gift extending to after-born grandchildren would not invalidate it, because all the children of the testator must be in esse at his decease, and their children must be born in their lifetime, so that they necessarily come into existence during a life in being. On the other hand, a gift embracing the whole range of the unborn grandchildren of another living person would be clearly void, though the shares should be made to vest at majority or even at birth, for the grandfather might have children born after the testator's decease; and as the gift would extend to the children of such after-born children, it would be absolutely void for remoteness, and that, too, acording to the principle already laid down, without regard to the fact of there being any such child or not. Testator may mould his dis Of course a testator may so frame and mould his disposition as to make its validity depend on subsequent events; or, in position accord- other words, avail himself of the course of circumstances ing to subsequent events. posterior to the making of his will, in order to get as wide a range of postponement as possible; for instance, he may convert the aforesaid he gave the property to A for life, remainder to his first and other sons in tail, &c.: Turner, L. J., said he was not satisfied that the trust could (as was contended) be held valid as to renewal on the dropping of existing lives, and invalid (for remoteness) as to others; he thought, however, it was valid as to all, Earl of Coven Devise to a pernot answer a cation within son who might certain qualifi allowed period, intended estate tail of a person then unborn, into an estate for life in case of his happening to come in esse in his (the testator's) lifetime. In all cases of failure under circumstances of this nature, the deficiency is one not of power but of expression; and the question in every instance is, whether the testator has clearly shown an intention to take the most ample range or period of postponement, which subsequent circumstances admit of. A point of this kind was much Tollemache v. canvassed under the will of Lord Vere, (k) *who be- try. queathed to trustees all his household goods, furniture, pictures, books, linen, &c., upon trust to permit his wife to have the use of them during her life, and, upon her death, to permit his son A B to have the use of the same goods, &c., for his life, and, upon the decease of the survivor of his (the testator's) wife and son, in trust for such person as should from time to time be Lord Vere, it being his will that the goods, &c., after the decease of his wife, should from time to time go and be held and enjoyed with the title of the family, as far as the rules of law and equity would permit. At the death of the testator, the title of Lord Vere descended upon his son, the legatee for life, upon whose decease it descended to his son, (the testator's grandson, who was also living at the death of the testator,) and, upon the death of the grandson, it descended to the testator's great grandson, who was born after the death of the testator. The chief struggle was between the personal representatives of the grandson and those of the great grandson. As (k) Lord Deerhurst v. Duke of St. Albans, 5 Mad. 232; S. C. in D. P., nom. Tollemache v. Earl of Coventry, 2 Cl. & Fin. 611, 8 Bli. 547; compare this case with Tregonwell v. Sydenham, 3 Dow 194, where a testator, after devising lands (subject to certain terms for years which he created for the purposes thereinafter mentioned) to A for life, remainder to his first and other sons in tail male, with remainder to the eldest daughter of A in tail general, with remainders over, directed that when a certain sum of Inoney should be raised out of the rents of his lands under a term of sixty years,* the same should be settled to the use for life of the person who happened then to held void, irre spectively of event. be entitled in possession under the limitation in his will, with remainder (in effect) to his issue in strict settlement. When the time arrived for laying out the money, it happened that the person entitled in possession under the limitation in question was not in esse at the testator's death, and therefore could not be made tenant for life with remainder to his issue; but the grounds on which Lords Redesdale and Eldon rested the decision of the house show that if the person entitled in possession had happened to be a person in esse at the testator's death, the trust for laying out the money would in their opinion have been legal. See the will stated at length, post ch. XVIII., 8 2. *This was before the Tellusson act, post 3. the former was born in the testator's lifetime, it was clear, that he might 16 have been made legatee for life, with remainder absolutely to the person next in succession, and the question, therefore, was, whether * * * 16. Mr. Lewis, in his work on perpetuities, (pp. 478-481,) says: "The rule requiring all future limitations to be such as, if they take effect at all, will necessarily operate within the period of lives in being and 21 years, obviously condemns as invalid every gift of a future interest in property made to depend on an event which, although it may possibly happen within the allowed period, may possibly also not happen until after the expiration of such period. Let the event contemplated be what it may and the probability of its early occurrence as great as it may be, it will in every case be of too remote expectancy, and a limitation upon it will therefore always be void unless, either from the nature or internal quality of the contingency or from express provision and restriction, it be certain that the event, which is to give effect to the limitation, will happen if at all within the period of lives in being and 21 years." See, too, the remarks of Gray, J., in Jackson v. Phillips, 14 Allen (Mass.) 572: "The general rule is that if any estate, legal or equitable, is given by deed or will to any person in the first instance, and then over to another person, or even to a public charity, upon the happening of a contingency which may by possibility not take place within a life or lives in being (treating a child in its mother's womb as in being) and twentyone years afterwards, the gift over is void, as tending to create a perpetuity by making the estate inalienable; for the title of those taking the previous interests would not be perfect, and until the happening of the contingency it could not be ascertained who were entitled. Brattle Square Church v. Grant, 3 Gray, 142. Odell v. Odell, 10 Allen, 5, 7. If therefore the gift over is limited upon a single event which may or may not happen within the prescribed period, it is void, and cannot be made good by the actual happening of the event within that period." To make a gift valid as regards the laws of perpetuity it must be such that it not only may but must take effect within the prescribed period. Gifts, therefore, which seem to contemplate, and may involve, a longer suspension, are void. Thus in general gifts to a secular corporation not authorized by law to take property by devise see Andrew v. New York Bible Soc., 4 Sandf. S. C. (N. Y.) 156; Theol. Sem. v. Childs, 4 Paige Ch. 419; King v. Rundle, 15 Barb. 139; Wetmore v. Parker, 52 N. Y. 450; Adams v. Perry, 43 N. Y. 487; Needles . Martin, 33 Md. 609; Clark's Trust, 24 W. R. 233; 1 L. R., Ch. Div. 497; Cocks v. Manners, 12 L. R., Eq. 574. So, where the object of the gift involves a perpetuity, as a scheme for an agricultural school, Levy v. Levy, 33 N. Y. 97, reversing 40 Barb. 585; or for a village library, Leonard v. Burr, 18 N. Y. 96; or a subscription library, Caine v. Long, 2 De G., F. & J. 75; or for keeping up tombs and burying grounds, McLeod . Dell, 9 Fla. 427; Richard v. Robson, 31 Beav. 244; Fowler v. Fowler, 10 Jur. (N. S.) 648; Neo v. Neo, 6 L. R., P. C. 381-in this case there was a house also to be kept up for a residence for testator's family, also a perpetuity; or to manage property until certain mortgages can be paid off out of the rents, Killam v. Allen, 52 Barb. 605; or a devise on condition that the minister reside on the property with executory devise over on breachthe devise over being held too remote, Church in Brattle Square v. Grant, 3 Gray (Mass.) 142; or a conveyance not to take effect "until the mill pond shall cease to be used for the purpose of carrying any two mill wheels," Welsh v. Fos |