and where the gift is of the residue or there is no residuary devise, there is an intestacy as to both real and personal property.

Gift of the Entire Property by Deed of Trust Violating the Rule

461. Where there is a deed of trust in which there is only one limitation of the entire equitable estate, and that limitation is void, under the rule it is clear that the invalidity of the interest will destroy the whole equitable gift and produce a resulting trust to the grantor and his heirs or next of kin, according to the nature of the property.

Gift of the Entire Property by Will in Trust Violating the Rule

462. Where there is a gift in trust by will, and the entire equitable limitation violates the rule, there is a resulting trust to the residuary devisee or legatee in the case of a specific bequest or specific devise, and to the heir at law or next of kin, according to the nature of the property, if there is no residuary devise or if the trust is of the residue. The usual example of such a trust is a direction to accumulate income and pay the same, with the principal, at a remote period."

Where Valid and Invalid Limitations Cannot be Separated

463. Where there are two or more interests, one of which is void and the other valid, and they are so limited that they cannot be separated, they will both fall together. The question of separability, however, more accurately speaking, relates to the property covered by the limitations, and the difficulty is rather in apportioning the property between the limitations than in the separation of the limitations on the face of the gift. Where the donor fails to make any indication of how the property is to be apportioned between the void and valid limitations, the court will declare the whole gift void, as it cannot say what the testator would have done if his attention.

6 Equity following the law, as to which see §460, ante. It is sometimes said that there is an intestacy: this is a fallacy; see $151, ante.

7 For an excellent illustration of such

a direction, see Hillyard v. Miller, 10 Pa. 326 (1849). The subject matter was real estate, and the heir recovered in an action of ejectment on his equitable title. See Chap. 25 on Accumulations.

had been called to the invalidity of one of the limitations, and the rule is the same whether the interests are legal or equitable. The court should be astute to separate the limitations, as the rule against perpetuities is not to be applied except where absolutely necessary."

Where the Prior Limitations are Void

8

464. Where, however, there is an ultimate vested interest the case is different; the preceding contingent interests, if void, are cut out and the vested interest remains. There seems to be no reason to destroy it because of the invalid preceding interests.10

Where the Subsequent Limitations are Void-Preliminary Discussion

465. Where the subsequent limitations are void we may distinguish two cases: (1) where the prior valid limitations exhaust the entire interest; (2) where the prior valid limitations do not exhaust the entire interest; and in the latter case there is an important distinction between a gift at law and a gift in equity by deed or by will. Furthermore, the subsequent void limitations do not carry down the preceding valid ones unless they are inseparable.1 Cases of such inseparability will be extremely rare.

Where the Prior Valid Limitations Exhaust the Fee

466. When the prior valid limitations exhaust the fee the subsequent void limitations drop, and the case stands as if they had never been inserted in the instrument. The preceding estates remain intact, and the result is the same either at law or in equity, with respect to a gift by deed inter vivos

8 For a discussion of this principle with respect to gifts to a class, see §445, ante.

This principle was overlooked in Johnston's Est., 185 Pa. 179 (1898), for a discussion of which, see §472, post. Where the testator has given fixed charges out of income and made a void disposition of the balance the limitations are clearly separable, which was overlooked by the

court, in Gerber's App., 196 Pa. 366 (1900), stated §474, post.

10

Gray, Rule Perp., 2 ed. (1906), §§251257; dictum, Penrose, J., in Boyd's Est., 199 Pa. 487 at 493 (1901), stated §398, ante; Chambers v. Wilson, 2 Watts, 495 (1834), stated §347, ante.

1 See remarks of Clark J., in Lawrence's Est., 136 Pa. 354 at 365 (1890), stated §396, ante, semble. See $463, ante.

as to realty or personalty,2 or a gift by will. In either case the future interests are cut out and the prior gifts remain.3

Where There is a Gift by Deed at Law and the Preceding Valid Estates Do Not Exhaust the Fee

467. In the case of a limitation by deed inter vivos of real estate where the preceding valid limitations do not exhaust the fee, it seems very clear that there is a reversion of the undisposed of residue. Where there is a limitation of personal property by deed inter vivos, the case is not so clear. It is assumed, for the present, that future legal interests in personal property can be created by deed inter vivos.5 There can, however, be no reversion of personal property. If the future interests are treated as remainders, there would be no way of getting the undisposed of residue back to the donor. If the future interest is an executory bequest, it seems that the same result would follow, and the first taker would have the whole property. No cases on this point have been found, and the question is open. It is probable, however, that the Supreme Court will find some way of getting the undisposed of residue back to the grantor.

Gift by Will Where the Preceding Valid Legal Limitations do Not Exhaust the Fee

468. If the gift is by will, at law, and the preceding valid legal limitations do not exhaust the fee, the balance of property, whether realty or personalty, attempted to be disposed of by the void limitations passes to the residuary legatee, in the case of a specific bequest or devise, and if there is no residu

2 If there can be no future legal interests in personal property created by deed inter vivos, as to which see, §§92, 95, ante, the result is the same. The limitations are void, not because of the rule against perpetuities, but because they cannot be created in the method which has been attempted.

3 For an illustration of a common case of the application of this principle at law, see Smith v. Townsend, 32 Pa. 434 (1859).

No case in equity has been found in Pennsylvania. An example will illustrate the point: suppose a gift to A. in trust for X. and his heirs, and if he dies without issue to C. If dying without issue means indefinite failure of issue, the gift over is void and the whole interest remains in X. and his heirs.

4 No case on this point has been found. 5 For a discussion as to whether they can be created, see §§92, 95, ante.

ary devise or the gift is of a residue, there will be an intestacy."

Gift by Deed Where the Preceding Equitable Limitations do Not Exhaust the Entire Property Transferred

469. Where the gift is by way of deed of trust, and the preceding valid equitable limitations do not exhaust the entire beneficial interest, and there is a subsequent remote limitation which is destroyed by the rule, there is a resulting trust of the undisposed of residue to the donor, his heir at law or next of kin as the case may be, according to the nature of the property. The rule only operates on the limitations which are void; it does not affect the trust.

Gift by Will Where the Preceding Valid Equitable Limitations Do Not Exhaust the Entire Property Bequeathed

470. When the disposition is by will, and the preceding valid equitable limitations do not exhaust the entire beneficial interest, there is a resulting trust of the property embraced in the void limitations to the residuary legatee, in the case of a trust of a specific bequest or devise, and where the trust is of a residue or there is no residue, there will be a resulting trust to the heir at law or next of kin, according to the nature of the property."

Coggins' Appeal

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471. In Coggins' Appeal there was a gift of the residue in trust for certain life cestuis que trustent, with gifts over, which the Supreme Court held were void under the rule against perpetuities. The auditing judge held that the property embraced in these future interests should be distributed under the intestate laws. On appeal, the Supreme Court said that

the estate must be distributed to the children having life estates, and then reinstated the decree of the auditing judge. The question as to the disposition of the property covered by the void limitation was not argued nor discussed. It is to be remarked that the heirs of the testator were also the life tenants, and whichever principle was adopted, the result would be the same. This is the first case on the point which has been found and the opinion of the Supreme Court is far from clear.

Johnston's Estate

472. In Johnston's Estate 10 there was a devise to trustees for seventy-five years to pay the income subject to debts and legacies, on the first of each May during the period, among the children of the testator and children of a deceased child, and descendants of a more remote degree, in equal shares, per stirpes, and, at the end of seventy-five years, to sell the land and divide the proceeds among the children then living, and the issue of a deceased child. The court below, Stewart, P. J., affirmed; on appeal, and said that the limitation after seventyfive years was contingent and remote. As to this there can be no difference of opinion. The learned judge, however, concluded that the whole gift was void and distributed the estate under the intestate law. His reasons appear to be as follows:" that the only purpose which the testator had was to make an invalid gift; and his object was to control the disposition of his property beyond the period that the law allows, and for that reason, the whole scheme should fail; that it should also fail because of the circumstances that the two estates were not separable.1 were not separable.12 "That is to say, they are so related that upholding the one and avoiding the other would clearly defeat the main, if not the only, purpose of the testator in making the devise." It is not permissible, it is submitted, to say that because there is one invalid gift, that therefore another separable valid gift is to be destroyed.

10 185 Pa. 179 (1898).

11 See page 191.

12 The position that the two limitations were inseparable will not be easily admitted, and it is difficult to see how the learned judge reached such a conclusion. His remarks on this subject are still more

inexplicable, in view of the opening sentences of his opinion, on p. 183, where he considers that there are two separate and distinct estates given, the terms of seventyfive years and the remainder, and that to determine the application of the rule they must be considered separately.