The rule under discussion may be stated thus: all restraints imposed by a donor on the use and enjoyment of the property which he gives to the donee, are void. We shall consider later whether there are exceptions to this rule.

The Rule Forbidding the Imposition of Restraints on Enjoyment Distinguished From the Rule Forbidding Restraints on Alienation

486. Restraints on use and enjoyment have nothing to do with restraints on the right of alienation. It is true that property subject to such a restriction may be less marketable and bring a smaller price. It is, nevertheless, freely alienable in the absence of any restriction to the contrary. The right of alienation is the right to transfer property to another. The restrictions on use and enjoyment may apply without alienation by the donee. These several incidents of ownership must be carefully distinguished. As the restrictions are against the policy of the law they are to be strictly construed, and no case has been found deciding that a restraint on one incident has any effect on the other. The right of enjoyment has, however, been confused with the right of alienation.

5

The Rule Forbidding the Creation of Restraints on Enjoyment Distinguished From the Rule Against Perpetuities

487. It is perfectly clear that since the restraint must be aimed at the enjoyment of an interest which has already taken effect, no question can arise as to the application of the rule against perpetuities. A clause aimed at a restriction on the enjoyment of an interest not yet vested, would, of course, have no effect until the interest was vested, and the clause would fall with the interest if the latter violated the rule against perpetuities. When the interest has survived the rule against perpetuities, the question then arises, if there is such a clause, as to how far it is valid. The distinction between the two rules seems perfectly plain.'

5 See $4, ante.

7 See Gray, Rule Perp., 1 ed. (1886), §121, n. 1. In Smith v. Townsend, 32 Pa. 434 (1859), there was a devise of a lot, subject to the condition that the owner should not permit any building to be

erected on a certain part of the property or an alley to be opened through the court in which the dwelling-house was situate, with the proviso that in the event of failure to perform this condition, the premises were to go over to the trustees of a

Who May Invoke the Application of the Rule Forbidding Restraints on Enjoyment

9

488. Where there is a clause restraining the use and enjoyment the question as to its validity can be raised only by the party entitled to the interest to which the clause is attached. No one else has any concern in the matter. In this respect the rule differs from the rule against perpetuities. Where the latter rule applies it is the duty of the court to destroy the invalid interests whether anyone interested complains or not. This distinction is very clearly brought out by a consideration of the cases arising under the statute against accumulations. If there is a direction to accumulate and a gift of the accumulated fund, which is dependent on the accumulations, and under the rule against perpetuities the gift is void, it is the duty of the court to prevent the accumulations from taking place whether the parties entitled complain or not. If, however, there is a direction to accumulate engrafted on a vested interest, the direction violates the rule forbidding restraints on enjoyment and it is not proper for the court to stop the accumulations unless the party entitled to the income so requires.

Form in Which the Attempted Restraint May Appear

489. The attempted restraint on use and enjoyment appears in several forms, and they all express the thought common to many over-fond parents, that their offspring should be protected from themselves and the world even after reaching the age of discretion prescribed by the law. The parent seeks to prolong the infancy of his child and keep him in leadingstrings long after he is a man, and in order to accomplish this provides that the donee shall not come into the control or use of his property until he has reached some age beyond twenty-one, such, for instance, as twenty-five, twenty-eight, thirty, or the like. This is the clause postponing enjoyment and is discussed in Chapter 21. The donor may, in his endeavor

charity. The court held that the limitation over could only take effect as an executory devise, and was void as such because within the rule against perpetuities. This being a gift of property, it is apprehended that the restriction was

void within the rule forbidding the creation of restraints on enjoyments.

8 Dictum, Penrose, J., in Rhodes' Est., 147 Pa. 227 at 231 (1892); see this case stated in §344, ante.

See Chap. 25 on Accumulations.

to protect the donee from the consequences of his own stupidity and folly, put the property in the hands of trustees and endeavor to restrict the participation by the donee in the benefit of the property to the income which the trustees may pay him. This proviso presents the case of a trust of an absolute interest and is discussed in Chapter 22. An attempt may also be made in the case of a trust to limit the benefit which the cestui que trust may receive to such extent only as the trustees may, in the discretion vested in them, think fit to give him. This is a clause of discretion in the trustee and is discussed in Chapter 23.

Conditions in Restraint of Marriage

490. The case of a condition or clause of restraint on marriage depends on a somewhat different principle. The act sought to be restrained has nothing to do with the use and enjoyment of the property. The donor wishes to prevent the commission of a certain act, and in order to accomplish that purpose imposes on the gift a clause which deprives the donee of the property when the act specified takes place. The propriety of the restraint, from the point of view of public policy, depends, it is apprehended, on the nature of the act sought to be restrained.10

10 For a recent case involving a condition in restraint of marriage see Hol

brook's Est., 213 Pa. 93 (1905).

Summary of Pennsylvania decisions and statement of the law... §505

Gift contingent upon the arrival at a certain age.

$506

Postponement for a class......

$507

Consequences of upholding the clause of postponement.

$508

Preliminary Discussion

495. One of the most frequent forms in which the attempt to impose a restriction on the use and enjoyment of property appears, is the clause postponing the time of payment beyond the arrival of the donee at the age of twenty-one.1 Such a clause is utterly void at common law, and the donee can have the property upon arriving at twenty-one, notwithstanding the direction. While this is the admitted principle of the common law, the matter is in doubt in Pennsylvania. The cases will now be discussed.

1 See $489, ante.

2 Gray, Rule Perp., 2 ed. (1906), §118a,

et seq.; Restraints on Alien., 2 ed. (1895), §§112a-114.

4

Kay v. Scates

496. In Kay v. Scates the exact words of the will, unfortunately, are not given. The court expressly refused to decree a conveyance asked for by a cestui que trust who had not arrived at the age of twenty-five years. Mr. Justice Strong said, "It is true that two of the complainants have not yet arrived at the age of twenty-five, and until then the testator has postponed their full enjoyment of the income of the property. Until then a discretion is given to the trustees to determine what amount they shall receive. The full right to a present beneficial enjoyment is not yet theirs. But when they shall reach that age, they will stand in the same position with their brother, the other complainant." The remarks of the judge were dicta, as the two sons who had not reached twenty-five did not ask for a conveyance.

McCullough v. Fenton

497. In McCullough v. Fenton the testator gave all his real estate to his two sons, John and Elijah, "as hereafter limited, that is to say, as soon as Elijah arrives at twentytwo years, they shall have full possession and not sooner," with a further proviso that if John or Elijah should die without lawful issue before coming into possession of the land, then their share of the land should go to X., et al. Elijah died under twenty-two. It was held that he took a vested fee simple estate in the moiety of the land which was divested by his death under twenty-two without issue, and which went over to X., et al. in fee simple. This case, therefore, is not an authority for the validity of the clause.

Butler v. Butler

7

498. In Butler v. Butler there was a gift in trust to hold and invest until a son should arrive at the age of twentyeight years. The son attained the age of twenty-one, and

3 37 Pa. 31 (1860).

4 At p. 39; the reporter at top of p. 32 says the age specified was twenty-six.

5 It seems that the discretion was not as to payment at twenty-five but as to the amount to be advanced to each cestui que trust until reaching twenty

five. There were, therefore, in this case, two provisions restraining the absolute use of the property. As to the clause of discretion, see §537, post.

665 Pa. 418 (1870).

79 Phila. 269 (1873), Supreme Court at Nisi Prius.