As to gifts in remainder expectant on estate for life to As a gift for life to an unborn person is valid, so it is clear is a remainder expectant on such gift, provided it be made totake effect in favor of persons who are competent objects unborn person. of gift; (c) though here also a fallacy prevails; for it is not uncommon to find it stated in unqualified terms, that, though you may give a life interest to an unborn person, every ulterior gift is necessarily and absolutely void; and some countenance to this doctrine is to be found in the judgment, as reported, of an able judge, (d) though the adjudication itself, rightly considered, lends no support to any such doctrine, as the ulterior gift, which was there pronounced to be void, was nothing more than a declaration that the property should go according to the statute of distribution; so that the claim. of the next of kin, who was held to be entitled, was perfectly consistent with the will, unless, indeed, it applied to the next of kin at the death of the unborn legatee for life, which would have been clearly void, as embracing persons who would not have been ascertainable until more than twenty-one years after a life in being; but for this construction there seems to have been no ground. 17 (c) Routledge v. Dorril, 2 Ves. Jr., 366; Evans v. Walker, 3 Ch. D. 211.] (d) See Cooke v. Bowler, 2 Kee. 53. 17. It has been held that a limitation over on the death of unborn children is too remote and void in Hannan v. Osborn, 4 Paige 336; so, too, Loring v. Blake, 98 Mass. 253; Stephens v. Evans, 30 Ind. 39; contra, Roberts v. West, 15 Ga. 123. But a gift over on the death of A's widow and unborn children, if he leave any, was held not to be too remote where A died unmarried before the testator. Hosea v. Jacobs, 98 Mass. 65. In Stuart v. Cockerell, 7 L. R., Eq. 368, Vice Chancellor Malins says of Avern v. Lloyd: "The words executors, administrators and assigns following a gift of a life estate are words of limitation. If the Vice Chancellor construed it thus, that it was a gift to all the children for life with a limitation to one of them absolutely, it may possibly be reconciled. But if he intended to decide that the vesting of any gift whatever can be postponed till after the expiration of lives not yet in being, then with every respect for the Vice Chancellor, I must differ from his opinion because nothing can be more clearly settled and it was finally settled by Cadell v. Palmer, 1 Cl. & Fin. 372, that you may postpone the vesting of property during a life or lives in being and the period of 21 years in gross afterwards; but that every gift which must not necessarily vest within that period is void. The Vice Chancellor, I see, uses this expression: 'Considering that this limitation to the executors, administrators and assigns must take effect in the lifetime of one of the unborn issue to whom a good estate for life is given, so as to give him an absolute estate in possession, when he becomes the survivor, it is not easy to see on what ground it can be considered as too remote.' It is clearly too remote, if the persons who were to take were not to be ascertained until all the unborn persons were dead. The gift to the executors, administrators and assigns of the surviving tenant for life attaches to the life estate, so as to give a contingent absolute An interest which does not vest within the though alien period is void, able. [But the absolute interest, however parceled out, must be so limited as necessarily to vest (if at all) within the legal period. Thus, if a devise be made to an unborn person for life, and in case he should die without issue living at his death, or under the age of twenty-one years, then to B, this remainder is void, since it depends on the termination of a particular estate by an event which may not happen within a life in being and twenty-one years. It has been suggested that an interest to arise on such an event in an ascertained person is now good, because by a modern statute (e) contingent interests may be disposed of at law; (f) and the suggestion finds support in principle in a decision of Sir J Stuart, who, in Avern v. Lloyd, (g)—where personalty was bequeathed to the issue of A, a living person, share and share alike, for their *lives, and for the survivors and survivor, and after the decease of the survivor, to the executors, administrators and assigns of the survivor,— held the ulterior limitation valid, on the ground that "each of the tenants for life had as much right to alien his contingent right to the absolute interest as to alien his life estate." Now the rule against perpetuity has always in terms required the vesting of estates within the prescribed limit. The first instance of an executory gift void for remoteness given by Mr. Fearne (h) is a devise to A and his heirs, and if A die without heir, then to B; which, according to the suggestion, would now be good. The rule as it affected equitable interests, whether in real or personal estate, was in corresponding terms: yet these were always alienable. It is submitted that the statute referred to has not made any change in the rule, and estate to each tenant for life.' That, I think, was the ground upon which the Vice Chancellor decided it and upon that ground it may be right; but if it was intended to say that you may postpone the gift until after the expiration of the lives of all those unborn persons, it is perfectly plain that that is in opposition to all the settled rules on the subject. But I do not think that Vice Chancellor Stuart intended to decide anything of the kind." It was held in this case of Stuart v. Cockerell, and affirmed 5 L. R., Ch. App. 713, that an ultimate remainder after a remainder for life to unborn children of A, was too remote. So, in Sayer's Trusts, 6 L. R., Eq. 319, where the gift was to a married woman, A, for life, with remainder to her children for life, and remainder over to her grandchildren, the last remainder was held too remote, and parol evidence was not admitted to show that unborn children of A were not intended, because she was past child-bearing age. To the same effect, see Heasman v. Pearse, 11 L. R., Eq. 522. [(e) 8 and 9 Vict., c. 106, 8 6. (g) L. R., 5 Eq. 383. that the law is as laid down by Sir R. Malins, V. C., in a case (1) where a testator having under his ante-nuptial settlement an exclusive power of appointing land to his issue, appointed it by his will to his son A in fee, but if the son should have no child who should attain twenty-one, then to the testator's grandson B in fee. The V. C. held that the gift over was void for remoteness. That the old rule is unchanged also as regards remainders is shown by the dictum already cited of Sir W. Wood, who long after the passing of the statute said that "a contingent remainder cannot be limited as depending on the termination of a particular estate whose determination will not necessarily take place within the period allowed by law." (k) Curtis v. Lukin. That the right of alienation is not sufficient of itself to exclude the rule is further shown by Curtis v. Lukin, (l) where certain property was bequeathed in trust to accumulate the income for sixty years, and to apply part of the fund so formed for the benefit of class A and pay the rest to class B; both classes would be ascertained within lawful limits, but the proportions in which the fund would be divisible between them depended on contingencies which could not be ascertained until the end of the term of sixty years. It was contended that, inasmuch as the beneficiaries as soon as ascertained had full power to dispose of the fund and stop further accumulation, the case was not ob*noxious to the rule against perpetuity; but Lord Langdale held that, although among themselves they might make a title to the fund, yet each of them would be uncertain as to the amount of his share, and therefore that the trust could not be sustained. And it was not suggested that the power which each undoubtedly possessed to alien his contingent share protected the case from the rule.] Limitations ulterior to Where a devise is void for remoteness, all limitations ulterior to or expectant on such remote devise are also void, though the remote devise, object of the prior devise should never come into existence. Thus, in the often-cited case of Proctor v. Bishop of Bath and Wells, (m) where there was a devise to the first or other son of T. P. that should be bred a clergyman and be in holy orders, void; (i) In re Brown & Sibly, 3 Ch. D. 156; see also observations by the same judge (L. R., 7 Eq. 369) on Avern v. Lloyd, sup., and on Ashley v. Ashley, 6 Sim. 358, where the question of remoteness was not mooted. (k) 11 Hare 374. (m) 2 H. Bl. 358; see also Palmer v. Holford, ante p. *253. and to his heirs and assigns; but if the said T. P. should have no such son, then to T. M. his heirs and assigns. T. P. died without ever having had any son. As by the canons of the church no person can be admitted into deacon's orders before the age of twenty-three, or be ordained priest before twenty-four, it was clear that this qualification postponed the devisee's interest until he attained the age of twentythree at the least. The Court of C. P., therefore, held the first devise to be void for remoteness, and that the devise over, as it depended on the same contingency, was also void; observing, that there was no instance of a limitation after a prior devise, which was void for the contingency's being too remote, being let in to take effect. mainder not So, in Robinson v. Hardcastle, (n) where, on the marriage of James Dunn with Dorothy Wright, lands were limited to himself ulterior refor life, remainder to such of the children of the marriage accelerated. and in such proportions as he should appoint, remainder to the first and other sons in tail, with remainders over. James Dunn, by will, appointed the estate to the eldest son of the marriage for life, remainder to trustees to preserve contingent remainders, remainder to his (the son's) first and other sons in tail, remainder to the daughters in tail, as tenants in common, remainder as to part, to testator's daughter in fee; and as to other part, to the use of another daughter in fee. The appointment to the children of the testator's son being clearly too remote, (the son being unborn at the time of the execution of the deed creating the power,) it was contended, that the effect was the same as if it had never been inserted in the will, and that the remainder in fee was accelerated: but Buller, J., observed, that if a subsequent limitation depended upon a prior estate which was void, the subsequent one must fall with it; to support the opposite argument, the testator must be considered as intending that if the first use was bad, the subsequent limitation should take place, which would be extraordinary indeed. The court accordingly certified (it being a case from chancery) that the devise over was void. The same principle was followed in Cambridge v. Rous, (o) where personal property was bequeathed to A for life, and after her decease to her children, when they should attain the age of twenty-seven, and in the event of her having no such children, over; and Sir W. Grant, (n) 2 B. C. C. 22, 2 T. R. 241, 380, 781. (0) 8 Ves. 12. The case is here stated without the alternative bequest. M. R., held the trust for the children to be too remote, and that the limitation over, therefore, was also void. cott. [Again, in Beard v. Westcott, (p) a testator devised lands to his Beard v. West- grandson, J. J. B., for 99 years, determinable with his life, remainder to his first son (unborn) for 99 years, determinable with his life, remainder (in effect) to his first son for a like term, and so on; and in case there should be no issue male of the said J. J. B., nor issue of such issue male at the time of his death, or in case there should be issue male at that time, and they should all die before they should respectively attain twenty-one without lawful issue male, then there were similar limitations over to X. and his issue. On a case from chancery the court of C. P. held that the several gifts after the gift to the unborn son of J. J. B. were void. They also held, that if the event mentioned (q) arose, the gift over would take effect, the event in question being (as it clearly was) within the legal limits of perpetuity. The decision on the latter point was not acquiesced in, and a case was sent to the Court of K. B., who held that the gift over was void, and Lord Eldon affirmed that decision. "Not," said Lord St. Leonards, (r) "because it was not within the line of perpetuity, but expressly on the ground that the limitation over was never intended by the testator to take effect, unless the persons whom he intended to take under the previous limitations would, if they had been alive, have been capable of enjoying the estate, and that he did not intend that the estate should wait for *persons to take in a given event, where the person to take (that is, to take in the interim) was actually in existence, but could not take. This shows," he continued, "that where there are gifts over which are void for perpetuity, and there is a subsequent and independent clause on a gift over which is within the line of perpetuities, effect cannot be given to such a clause unless it will dovetail in and accord with previous limitations which are valid."] But care should be taken to distinguish between cases such as the Distinction where the gift over is to arise on a double contingency. preceding, and those in which the gift over is to arise on an alternative event, one branch of which is within, and the other is not within, the prescribed limits; so that the [(p) 5 Taunt. 393, 5 B. & Ald. 801, T. thorities next stated, and, J. J. B. being & R. 25. (q) That is, the second event mentioned in the proviso. There could be no question as to the validity of the first event; that was clearly good within all the au still alive at the time, it had not become impossible, but the Court of K. B. seems to have altogether ignored it. (r) In Monypenny v. Dering, 2 D., M. & G. 182. And see Sug. Gil. Uses 270.] |