that prescribed by the rule against perpetuities, measuring petuities does not apply. The interest in such a case is void, even if it must vest within the period prescribed by the rule, and it is apprehended that it is void under the other principle even if it may vest beyond the period. Thus, suppose the case of a gift to A. in fee, and when C. murders B., or any of his heirs, then to the eldest grandchild of X., a living person, and his heirs. The event here will happen, if it happens at all, within the period prescribed by the rule. It is, however, unlawful, and the interest limited to take effect thereon can never vest. If the same interest were limited to take effect upon a similar event at a period beyond that prescribed by the rule, it would, in like manner, be void, not under the rule against perpetuities, but because it would be unlawful apart from the rule. There may be an unlawful limitation upon a lawful event which may be void apart from the rule, such as a gift over on alienation by a tenant in fee. An alienation by a tenant in fee is a perfectly lawful and proper event. The limitation over upon that event is void because it tends to restrain the tenant from making the alienation, and the rule forbidding restraints on alienation prohibits such a limitation. As, therefore, the interest is void under another rule, it can never take effect at a remote period, and the rule against perpetuities will never have a chance to affect it." Interests Arising by Operation of Law 7 380. It has already been pointed out that the rule against perpetuities is aimed at the control of the dominion which an owner may exercise over his property. It, therefore, applies only to the interests created by the voluntary act of the party. The rule against perpetuities in like manner does not apply to an interest arising by operation of law, such, for instance, as dower, curtesy, escheat, and resulting trust. 5 Such a gift was said to be too remote in the case of the Appeal of St. Luke's Church, 1 Walker, 283 (1863). While the event was remote, it is submitted that the gift over was void first, apart from the rule. 6 See also §338, ante, on the distinction between the rule against perpetuities and the rule forbidding restraints on alienation. 7 See §§1-5, ante. Interests Arising by Contract 8 381. An interest arising out of a contract is not within the scope of this book, which discusses solely the cases of gifts of property. Mr. Gray instances several cases of rights arising by contract, and discusses the application of the rule against perpetuities to them. It is apprehended, although with some hesitation, that the rule against perpetuities is not properly applicable to any of these cases. It is a rule which has been evolved solely to restrain the exercise of the power of dominion in making gifts. Summary of the Law as to Interests Subject to the Rule Against Perpetuities 3 382. The rule against perpetuities prevents an interest from vesting at a remote period. Consequently an interest which is vested or must vest within the period prescribed by the rule, does not come within its destroying effect. A vested legal remainder1 and a reversion 2 are such interests. It is doubtful whether a contingent legal remainder which is limited upon a preceding estate which may not terminate until a remote period, is subject to the rule. There is no question that the rule applies to future legal interests in a chattel real when created by will, but it is doubtful whether it applies to a future legal interest in chattels personal when created by will.5 It is uncertain whether a future legal interest in either a chattel real or a chattel personal can be created by deed inter vivos in Pennsylvania. It cannot be known, therefore, whether such an interest, if it can be created, is subject to the rule. Easements, rights of entry for condition broken,9 possibilities of reverter 10 and executory devises 11 are plainly subject to the application of the rule. In like manner, all equitable interests, such as shifting and springing uses 12 and the interest of the cestui que trust,13 are subject to the rule; but an equitable interest implied by law is not subject.14 7 8 12 3 Interests arising by operation of law,' those arising out of contract, and destructible interests are, in like manner, exempt from the rule against perpetuities. Where the interest cannot take effect apart from the rule, although it is void, it is not void under the rule against perpetuities.* 1 See $380, ante. 2 See §381, ante. 3 See $378, ante. * See $379, ante. CHAPTER 17 POWERS AND THE RULE AGAINST PERPETUITIES PRELIMINARY Rule applies to the future interest and not to the power.... §386 General application of the rule to limitations under a special Power exercisable only within the period... Pennsylvania cases on special powers of appointment $394 Summary of law as to the application of the rule to limita tions under special powers of appointment.. $399 General powers of appointment Application of the rule to limitations under a general power of appointment. $400 Mifflin's Appeal.. $401 POWERS IN TRUST Definition of a power in trust... Application of the rule against perpetuities.. Dawson v. Lancaster.... $402 $403 $404 Direction to sell with no disposition of the proceeds.. ... 8405 Preliminary discussion as to application of the rule....... §415 Power of sale Preliminary discussion of application of the rule where $416 Legal reasons why the period begins to run from the time of the exercise of the power... $417 Equitable reasons why the period begins to run from the Pennsylvania cases and law on power of sale in a trustee |