gift over will be valid, or not, according to the event. (s)18 [Thus, in Longhead v. Phelps, (t) where trusts were declared of a term, in case of the death of A without leaving issue male, or in case such issue male should die without issue, the court held it clear that the first contingency having happened the trusts of the term were valid without reference to the other contingency.] Other instances of alternative limitations good or not In Leake v. Robinson, (u) too, certain stock and moneys were bequeathed to W. R. R. for life, and, after his decease, to the child or children of the said W. R. R. who, being a son or sons, should attain the age of twenty-five, or, being în event. a daughter or daughters, should attain that age or be married with consent; and in case the said W. R. R. should happen to die without leaving issue living at the time of his decease, or, leaving such, they should all die before any of them should attain twenty-five if sons, and if daughters, before they should attain such age or be married as (8) See same principle applied to a different species of case, Tregonwell v. Sydenham, 3 Dow 194; ante p. *276, n. 18. Thus, too, in Jackson v. Phillips, 14 Allen 572, Judge Gray says: But if the testator distinctly makes his gift over to depend upon what is sometimes called an alternative contingency, or upon either of two contingencies, one of which may be too remote and the other cannot be, its validity depends upon the event; or, in other words, if he gives the estate over on one contingency which must happen, if at all, within the limit of the rule, and that contingency does happen, the validity of the distinct gift over in that event will not be affected by the consideration that upon a different contingency, which might or might not happen within the lawful limit, he makes a disposition of his estate, which would be void for remoteness. The authorities upon this point are conclusive. Longhead v. Phelps, 2 W. Bl. 704; Sugden and Preston, arguendo, in Beard v. Westcott, 5 B. & Ald. 809, 813, 814; Minter v. Wraith, 13 Sim. 52; Evers v. Challis, 7 H. L. Cas. 531, Armstrong v. Armstrong, 14 B. Mon. 333; 1 Jarman on Wills 244; Lewis on Perp., c. 21; 2 Spence on Eq. 125, 126." So, too, Simp son, J., in Armstrong v. Armstrong, 14 B. Mon. 333, says, "where a limitation is made to take effect on two alternative events or contingencies with a double aspect one of which is too remote and the other valid as being within the prescribed limits, although it is void, so far as it depends upon the remote event, it will be allowed to take effect on the alternative one;" and to the same effect see Att.-Gen. v. Wallace, 7 B. Mon. 616; Schettler v. Smith, 41 N. Y. 328. [(t) 2 W. Bl. 704. Crompe v. Barrow, 4 Ves. 681, is commonly cited to the same point. But in that case there was no question of remoteness, the appointor's son C. B. being the child of a former marriage, i. e. born before the creation of the power. If otherwise, the alternative gift over, if C. B. should die and leave no child surviving him (which was held good), would in fact have been too remote; for the vesting would have been suspended until the death of an unborn person. It is probable that a similar explanation may be given of In re Lord Sondes' Will, 2 Sm. & Gif. 290, sc. that Charlotte Palmer was living at the creation of the powers.] (u) 2 Mer. 363. aforesaid, then to the brothers and sisters of W. R. R. on their attaining twenty-five if a brother or brothers, and if a sister or sisters, on such age or marriage as aforesaid. W. R. R. died without leaving issue, and it was not contended, that, in the circumstances which had happened, the bequest over to the brothers and sisters was void, in reference to the event on which it was limited; though it was held, that as the bequest to the brothers and sisters included all who were living at the death of *W. R. R., (x) it was clearly void from the remoteness of the bequest itself. Had W. R. R. left any issue, the event also would have been too remote. [In Goring v. Howard, (y) there was a bequest of personal property upon trust for the testator's grandson G. G., and his brothers and sisters equally for their lives, and after the decease of any of the grandchildren to pay his or her share to his or her issue, if any, till they attained the age of twenty-five, and then to transfer to them their parent's share equally; and in case any of the grandchildren should die without leaving issue at his or her decease and without having obtained a vested interest, then the share of the grandchild so dying to go to the survivor or survivors, and to be payable and transferable as before mentioned; G. G. died a bachelor, and his brothers and sisters were held entitled to his share of income for their lives, in the alternative that had happened of no child of G. G. being alive at his decease, though the gift to such a child, had there been one, would have been too remote. So in Monypenny v. Dering, (2) where there was a devise in trust for P. M. for life, and after his decease in trust for his first son for life, and after the decease of such first son, "upon trust for the first son of the body of such first son and the heirs male of his body, and in default of such issue upon trust for all and every other the son and sons of the body of the said P. M., severally and successively according to seniority of age, for the like interests and limitations as I have before directed respecting the first son and his issue, and in default of issue of the body of P. M., or in case of his not leaving any at his decease, upon trust for T. M. for life," with remainders over. Lord St. Leonards held that the limitation to the unborn son of an unborn son of P. M., being itself void, invalidated the remainders depending upon it; but that the remainder to T. M., and the subsequent remain(x) Vide ante p. *265. (z) 2 D., M. & G. 145. See also Cam[(y) 16 Sim. 395; and see Minter v. bridge v. Rous, 25 Beav. 409. Wraith, 13 Id. 52. ders, were good in the alternative event which had happened of P. M. not leaving any issue at his decease. limitations need not be separately And where the alternative limitations are distinct and separate in their nature, it makes no difference that they are not each Alternative separately expressed in different clauses, but involved in words which apply equally to, and include within them, expressed. both limitations. This point was decided in Doe v. Challis, (a) where J. D. *devised four houses in trust for his daughter Elizabeth for life, and after her decease to such of her children as being sons should attain the age of twenty-three years, or being daughters should attain the age of twenty-one years, equally as tenants in common in fee; and in case all the children of Elizabeth should die, if a son or sons, under the age of twenty-three years, or, if a daughter or daughters, under the age of twenty-one, or if she should have none, then he devised the property in trust for his son John and his daughters Sarah and Anne equally for their respective lives, and at their respective deaths he devised the share of the one dying to his or her children who being sons should attain twenty-three, or being daughters should attain twenty-one, as tenants in common in fee; and in case of the death of his son or either of his daughters without leaving a child who being a son should attain twenty-three, or being a daughter should attain twenty-one, he devised the third share of the one so dying to the children of the others in the same manner as before. Elizabeth died in 1838 without ever having had a child, and in 1847 Anne died without ever having had a child. Two questions were raised; first, whether the gift over on the death of Elizabeth was good; and, secondly, whether the gift over on the death of Anne was good. The Court of Q. B. decided both questions in the affirmative. As to the first, they held (in accordance with the authorities before stated,) that if Elizabeth had had a child, although he did not attain the prescribed age, the gift over would have been void for remoteness, but that in the event which happened of her never having had a child the gift took effect as an alternative contingent remainder. As to the second, the court decided that here also the gift over took effect, although the event of her never having had any children was not actually expressed, being of opinion, upon the authority of Jones v. Westcomb (b) and similar cases, that wherever there was a gift over on a class dying within a particular age, it took effect if that class never came into existence. In the (a) 18 Q. B. 224, 231. (b) Eq. Cas. Abr. 245. See ch. L. Exchequer Chamber the decision on the second point was reversed, the court, without denying the authority of Jones v. Westcomb, applying the same principle to the splitting of one set of words into two contingencies, that Sir W. Grant, in Leake v. Robinson, applied to the splitting of a class. Alderson, B., who delivered the judgment of the court, said, "The true meaning of the devise is, in every event which can happen in which Anne dies *leaving no children if male who attain twenty-three, or if female who attain twenty-one, I give the estate That is what he says, and that is what he means. He includes all those events in one clause. Some are legal, some are illegal. How is the court to sever these events, which the testator has expressly joined together, without making a new will? The principle seems, therefore, to be against splitting such a devise when we are considering the question whether it is a legal one. Now this question, it is conceded, must be determined as on reading the will at the instant of the testator's death. Do the cases cited affect this principle? On looking over them we find in all of them that the devise in any event was legal, and that it was competent for the testator to make it." over. Apart from the question of perpetuity, it was admitted that Jones e. Westcomb was full and sufficient authority for construing the will as was done in the Court of Q. B.; so that the sound rule which requires a will to be construed without reference to the consequences as regards remoteness was actually transgressed in order to defeat the intention. On appeal to D. P., the case of Leake v. Robinson was declared to be inapplicable, and the decision of the Exchequer Chamber was reversed. (c) "No case," said Wightman, J., "or authority has been cited to show that where a devise over includes two contingencies, which are in their nature divisible, and one of which can operate as a remainder, they may not be divided, though included in one expression; and our opinion does not at all conflict with the authority of Jee v. Audley, and Proctor v. Bishop of Bath and Wells, in neither of which cases was it possible for the limitation over to operate as a remainder."] As the law does not permit to be done indirectly what cannot be Clause empow effected in a direct manner, the rule which forbids the giving of an estate to the issue of an unborn person, [in remainder on the life of his parent,] equally invalidates ering trustees to postpone absolute ownership, void. [(c) Nom. Evers v. Challis, 7 H. L. Cas. 531. In re Thatcher's Trusts, 26 Beav. 365, appears to be contrary: but it was before the decision of D. P., in Doe v. Challis, and was decided on the authority of Beard v. Wescott.] a clause in a settlement or will, containing limitations to existing persons for life, with remainder to their issue in tail, empowering trustees, on the birth of each tenant in tail, to revoke the uses, and limit an estate for life to such infant, with remainder to his issue. (d) Appointee unpower must be der a special competent to immediately It has been already observed, that, in the case of appoint*ments, testamentary or otherwise, under powers of selection or distribution in favor of defined classes of objects, the appointees must be persons competent to have taken directly under the deed or will creating the power. (e) The test, therefore, by which the validity of every such gift must be tried is, to read it as have taken inserted in the deed or will creating the power, in the from the donor. place of the power. Attention is often called to this doctrine in practice, where a power having been reserved by an antenuptial settlement, to one or both of the marrying parties, to appoint an estate or fund among the issue generally of the marriage, the donee wishes to exercise it by making a settlement of the property on the children of the marriage for life, with remainder to their children or issue; this, it is obvious, cannot be done; for, as the grandchildren of the marrying persons could not have been made objects of gift immediately under the limitations of the settlement, since they do not (like children) necessarily come in esse during the lives of either of the parties then in being, they cannot take under the appointment founded on such settlement. (f) In order to bring the appointment within the pre may be accomplished, if the child is of age and the power authorizes an appointment by deed, by making an absolute appointment in favor of the child; who then, by the same (or more usually by a separate) deed, settles the appointed property upon the several objects of the intended marriage; and in such case it is (d) Duke of Marlborough v. Earl Godolphin, 1 Ed. 404. The author of this futile device for evading the rule against perpetuities, was no other than the great John Churchill, the first Duke of Marlborough. Lord Northington's judgment in this case well deserves the reader's perusal. (e) Robinson v. Hardcastle, 2 T. R. conceived, that, even if it could be shown 241, 380, 781. (f) Bristow v. Warde, 2 Ves., Jr. 336; see also Robinson v. Hardcastle, 2 T. R. 241, 380, 781; [In re Brown and Sibly, 3 Ch. D. 156.] It frequently happens, that a parent, having a power of appointment, is desirous, on the marriage of a child, one of the objects of the power, to make a settlement in favor of such child, and also of the intended husband or wife, and the issue of the marriage. The purpose that the appointment was made with the express previous understanding that it should be followed by such a settlement, the validity of the appointment would not be affected; though equity certainly is very jealous of all such transactions, and if there is any previous contract for benefiting the donee himself, even though only extending to a loan of the appointed sum, the appointment would clearly be bad. Suggestion as to settlement of |