8 at the date of the testator's death the class will close at a remote period. Mr. Gray says that as the gift to the class is consequently bad, there is no reason to sustain the clause of postponement, and that it will therefore be rejected, and all the great-grandchildren, if any, in esse at the time of the testator's death, even if under four years old, will take the whole gift. Mr. Kales 10 criticises this conclusion of Mr. Gray on the grounds (1) that it makes the question of construction turn on whether the rule applies, and (2) that it makes the invalidity of the clause of postponement rest on a principle of law which has never been judicially determined, and which, therefore, is not the subject of a valid conclusion. The question involved is this: did the testator intend to make a vested gift and include only the great-grandchildren living at the time of his decease, or did he intend to include all the greatgrandchildren born before the eldest reached or would have reached, if living, twenty-five years? If he intended an immediate gift only to those living at his death, the clause of postponement of payment is void as a restraint on enjoyment, and all those great-grandchildren ascertained can unite and compel an immediate distribution of the fund. If he intended a gift to a class composed of those living and to be born before the eldest reached or would have reached, if living, twenty-five, the rule against perpetuities is involved because there is a gift to a class which includes interests which may vest at a remote period, and as there can be no separation the gift to all the members of the class falls under the rule previously laid down. The gift to those in esse can be sustained only on the theory that they alone were intended to take, and that, therefore, the clause of postponement is void apart from the rule against perpetuities.2 The difficulty is 8 Rule Perp., 2 ed. (1906), §121b. 9 Mr. Kales, 19 Harv. Law Rev. 598, et seq. (1906), supposes that Mr. Gray means that there are two gifts, (1) a gift to the great-grandchildren living at the death of the testator, and (2) a gift to such great-grandchildren of the testator as may be born after his death and before the eldest great-grandchildren born at the testator's death actually reaches or would have reached, had he lived, the age of twenty-five; that the first is valid and the second void for remoteness and to be disregarded and the original gift sustained, which view, Mr. Gray, in a note to the same article, on p. 604, disclaims having entertained. 10 19 Harv. Law Rev. 598 et seq. (1906); 20 Harv. Law Rev. 201, (1907). 1 See §445, ante. 2 See Gray, Rule Perp., 2 ed. (1906), §§638-641; Oppenheim v. Henry, 10 Hare, 441 (1853); Gray's Cases on Property, Vol. 6, p. 132. caused by the failure to observe that if the clause of postponement operates only as to the time of payment, it is void, and the rule against perpetuities is not involved, and that it can have no effect to introduce other vested interests unless it is used as showing an intention to postpone the time of distribution until the period fixed. The intention on this point must first be ascertained and then the rule applied. Siddall's Estate 3 450. In Siddall's Estate there was a gift in trust to pay the income to A. and B., testator's children, during their natural lives, and at their decease, the principal to be equally divided among their children who may then be living, and the issue of any deceased child or children, whether therein named or not, as they arrived at legal age. It was argued that the clause as they arrived at legal age postponed the vesting until a remote period. The court below, in an opinion by Penrose, J., affirmed, on appeal, by the Supreme Court, said that the gift to the children and grandchildren was vested and restricted by the words at their decease and then living to those ascertained at the death of A. and B., and the clause as to payment at twenty-one operated as a postponement of enjoyment and did not affect the vesting. Consequently, as there must be either a grandchild or a great-grandchild living at the death of A. and B. who would reach the required age twentyone years after their death, the class would close in time and no grandchild or great-grandchild born after that period could participate. A grandchild or great-grandchild born during the twenty-one years after the death of A. and B., would reach twenty-one more than twenty-one years after their death, and such grandchild or great-grandchild would, at that time, take a share in the fund. As, however, his share would be vested and go to his executors if he died under twenty-one, there would be no possibility of any diminution of the fund. The fund, therefore, could be divided between the grandchildren and great-grandchildren living when the first grandchild or great-grandchild reached twenty-one, or would have reached twenty-one, if he had lived. 3 $180 Pa. 127 (1897). The twenty-one years clause would apply to both classes: Phillips' App., 93 Pa. 45 (1880). Shallcross's Estate 5 451. In Shallcross's Estate there was a clause postponing the payment of the gift to the grandchildren of the testator until they were twenty-five. The gift vested in the whole class of grandchildren, and could not be void as to anyone. The clause of postponement violated the rule forbidding restraints on enjoyment and not as was said by the court, the rule against perpetuities. McCullough v. Seitz 452. In McCullough v. Seitz there was a gift of real estate by deed in trust for the wife and children of John during his life, and after his death, for his widow for life, and after her death to the children of John then surviving, in equal shares. The case arose on an action of trespass by a son of John, the widow being dead. The court held that he was barred by the statute of limitations. The decision was correct but the reasoning open to objection. The plaintiff had no title at all, the entire title being in the grantor and his heirs by way of resulting trust, the limitations to the children being void under the rule against perpetuities. The gift over to the children was clearly contingent upon their surviving the death of the widow. That event might happen at a remote period, because John might leave as his widow a woman born after the date of the deed. This is one of the rare cases which come before the court after the period prescribed by the rule has elapsed. 5 200 Pa. 122 (1901), stated §503, post. 6 For further observations on this case see §443, ante, and §503, post. Where the valid and invalid limitations cannot be separated... Where the prior valid limitations exhaust the fee. Where the preceding valid limitations do not exhaust the $458 $459 $460 $461 $462 8463 $464 $465 $466 Preliminary Discussion 1 458. It may be pointed out in the beginning that the rule applies only to future interests which are remote, and has no further effect than is necessary to cut out the particular offending limitation. The rule, while severe, is practical, and violates the express intention no further than is necessary. Several cases may arise: (1) where the whole gift is void; (2) where there are valid and invalid limitations which cannot be separated; (3) where the prior limitations are void; (4) where the subsequent limitations are void; and, in each case, we must consider the disposition of the property embraced under the void limitations, and the question may arise in each case as to limitations under a deed or will, legal or equitable,2 and as to real estate or personal property.3 Where the Gift of the Entire Property by Deed at Law Violates the Rule 459. Where the gift by deed of the entire property at law violates the rule, the case stands as if the instrument had never been executed, and the property will remain in the grantor just as it was before, and the rule is the same whether the subject matter is real estate or personal property.* Where the Gift of the Entire Property at Law by Will Violates the Rule 460. Where the disposition is by will of a legal interest, and the entire gift violates the rule against perpetuities, the property attempted to be disposed of by the void limitation will, in the case of a specific bequest or specific devise, be included, as in other cases, in the residuary devise, if any; 1 For a discussion of the interests to which the rule applies, see Chap. 16, Summary, $382, ante. 2 Mr. Gray draws no distinction, in this connection, between gifts at law and gifts at equity. The distinction, it is submitted, is of great practical importance. 3 For a discussion of the cases where the limitations under powers are invalid under the rule, see §§392-394, ante. *No case has been found of a limitation at law where the whole gift violates the rule. An illustration will perhaps suffice: 5 a gift to B. thirty years after the death of A. would be void. As to the possibility of a limitation of future interests in personal property by deed inter vivos, see §§92, 95, ante. 5 As to personal property by the common law, see Gray, Rule Perp., 2 ed. (1906), $248, n. 5; Woolmer's Est., 3 Whart., 477 (1838). As to real estate, by the provisions of the Act of June 4, 1879, P. L. 88, §2. As to the law before the Act of 1879, see Massey's App., 88 Pa. 470 (1879). |