5

twenty-one years may be taken without being preceded by a life or lives in being. It seems to have been assumed that such is the law, although the books are not very clear on the subject. Mr. Gray does not refer to the point. Mr. Lewis says that the term of twenty-one years is an integral part of the period of remoteness and not supplemental to it, and that a limitation to take effect within twenty-one years would be good. No decision on the point has been found in Pennsylvania, although there are a number of cases in which this appears to have been assumed as the law. The term of twenty-one years, however, it seems, cannot be made to precede a life in being. If it is taken as a term in gross, it must constitute the entire period and no life can be added after twenty-one years. No case has been found as to this point either.

The Period of Gestation

8

341. Mr. Gray lays down two rules: 10 (1) Every life is to be considered as beginning from the time of conception. (2) A future interest to begin when or before a person reaches twenty-one is not too remote if such person must be begotten, though not born, within a life in being at the creation of the interest. The period must refer to an actual gestation, and there may, as Mr. Gray points out, be two or three periods of gestation. No case on this point has been found in Pennsylvania.

1

When the Period Prescribed by the Rule Begins to Run 342. The period prescribed by the rule begins to run from

5 Thus, in the case of a gift to A. for twenty years and then to B. and his heirs, or, to B. and his heirs twenty-one years after the testator's decease, the limitation to B. is void.

Lewis, Perp., p. 560 (1843).

7 See also, Perry, Trusts, Vol. 1, $380, 5 ed. (1899); Fearne, Remainders, p. 500, Butler's note. Stewart, P. J., in the court below in Johnston's Est., 185 Pa. 179 at 184 (1898).

8 Thus, a gift to a class which of itself will close at a remote period, will be made valid by a direction to distribute at the termination of a period of years less than twenty-one; Williamson's Est., 143 Pa.

the date of the creation of the interest, and is to be computed from the date of the testator's death, in the case of wills, and from the date of the deed, in the case of a gift inter vivos. No case on this point has been found in Pennsylvania. The law is so plain and easy of application that no controversy appears to have ever arisen as to it. There are several corollaries of the rule, which will be discussed in the ensuing sections.

Rule Does Not Affect the Right to Possession

343. We have seen that an interest may be vested according to the common law notion, even though there is no present right to enjoyment. Such an interest may be called a quasi future interest. As it is this vesting according to the common law idea which fulfills the requirements of the rule against perpetuities, it follows that the circumstance that the right to possession or enjoyment of a vested interest will not accrue until after the period prescribed by the rule has elapsed is of no consequence. This may happen when the preceding estates extend into the forbidden period, and when the fee is subject to à term of years. A clause, therefore, postponing the enjoyment of a vested absolute interest does not come within the purview of the rule against perpetuities. This principle is clearly illustrated by a Pennsylvania case which will now be discussed.

5

Rhodes' Estate

8

344. In Rhodes' Estate, the testator gave his estate in trust for his wife and daughter for life, and, after their death,

2 Gray, Rule Perp., 2 ed. (1906), §§231, 232. As to the case of a deed, see Lewis, Perp., p. 172 (1843), and Mifflin's App., 121 Pa. 205 (1888), stated §401, post, semble. Mr. Gray makes no observations as to settlements by deed.

3 For the application of the principle to powers of appointment, see §§388-401, post, and for the erroneous application thereof to the case of powers in a trustee, see §§410-436, post. For the case of a settlement by deed where the limitations violated the rule, computing the period from the date of the deed, see McCullough

after providing for certain annuities, the residue was to be equally divided among his nieces and nephews then living. He then, by codicil, directed that if his daughter should die leaving a child or children surviving under the age of twentyfive, that his trustees should pay to each of said children $350 a year until they were twenty-five years of age, when such payment should cease, and that his estate should not be divided until after all the children of the daughter had arrived at twenty-five. At the audit of the trustees' account, the daughter, presumably, although not so stated, as his next of kin, claimed the whole estate on the ground that the gifts in the codicil violated the rule against perpetuities. The auditing judge, Hanna, P. J., decided that the limitations were valid and dismissed the claim of the daughter, which decision was sustained by the court in banc and by the Supreme Court, on appeal. As was pointed out by the auditing judge, these annuities each vested immediately upon the death of the daughter, no matter what age her children were under twenty-five, and the fact, therefore, that the payment might continue to a period beyond the rule did not affect the validity of the limitations." The gift to the nieces and nephews was plainly contingent but valid, as it must vest in time, to wit, at the death of the daughter.10 Although vested then, there was a possibility that the possession thereof might be postponed to a future time, because of the presence of the vested interests in the children of the daughter. They were vested in time, but continued to exist after the expiration of the period. The enjoyment, therefore, of the valid contingent interests was postponed to a period beyond that prescribed by the rule, because of the presence of prior interests in the children of the daughter. That, however, did not invalidate the contingent interests, because the rule has to do only with the vesting, and not with the time of coming into enjoyment.1

9 Where the interest takes effect in time the fact that it extends beyond the period is immaterial. See §345, post.

10 On this point overruling Donohue v. McNichol, 61 Pa. 73 (1869), stated §348, post.

1 See also Hubley v. Long, 2 Grant's Cases, 268 (1852), where the interest

might have vested in a minor within the period, and the minor might not arrive at twenty-one until some years after the expiration of the period and the gift was nevertheless valid. See also Barclay v. Lewis, 67 Pa. 316 (1871) semble, stated §339a, ante.

Continuation of a Vested Interest Into the Remote Period Valid

345. When an interest must vest within the period prescribed by the rule, it is saved, and the circumstance that it may not terminate after the period prescribed by the rule has passed, is of no consequence.2 If this were not so, no future interest could be remote. It is only by the circumstance of a particular estate extending into the remote period that there is a possibility of an interest violating the rule against perpetuities.

Preliminary Discussion of Pennsylvania Cases on the Rule

346. There are very few cases in Pennsylvania involving the application of the rule against perpetuities which are open to objection or call for any discussion. These cases will now be noticed.3

Chambers v. Wilson

347. In Chambers v. Wilson the testator devised certain real estate "to any one of my brothers' or sisters' children that shall or may come from Ireland first. If so be

they shall or do come within the term of six years, after they shall get lawful word hereof by writing, for which cause I do enjoin upon my aforesaid wife Martha, her heirs and assigns, to use all possible diligence to communicate unto all my aforesaid brothers' and sisters' children the import of this my will, as soon as a declaration of peace shall be between Europe and America," with a gift over to A., B. and C., in equal shares, if none of the brothers' or sisters' children came

2 Lewis, Perp., p. 173 (1843); Gray, Rule Perp., 2 ed. (1906), §§232-246; Stewart, P. J., in Johnston's Est., 185 Pa. 179 at 185 (1898), stated $472, post; Penna. Co. v. Price, 7 Phila. 465 (1870); unfortunate language in this case criticised by Gray, ubi supra §237a. In Brisben's App. 70 Pa. 405 (1872), there was a direction to sell a certain tract of land, and a gift of the proceeds of the sale to a daughter. The testator then provided for an annuity to be paid to his daughter until she should receive the proceeds of the sale of said tract of land. That conceivably might not be

until a remote period. The annuity, however, vested in time, so the remoteness of its termination was immaterial. Lakey's Est., 30 Pa. C. C. 287 (1904); Rhodes' Est., 147 Pa. 227 (1892), stated $344, ante; Lennig's Est., 154 Pa. 209 (1893); Ronckendorff's Est., 1 D. R. 258, s. c. 11 Pa. C. C. 447 (1892), stated $397, post; Lawrence's Est., 136 Pa. 354 (1890), stated §396, post; Owens' Pet., 3 D. R. 328 (1894), in which case the ultimate limitation was void, see $452, post. 3 See also cases discussed in Chaps. 1619, post.

42 Watts, 495 (1834).

within the time specified. The action was ejectment by the heirs of A. against one claiming under the executrix. The report is obscure, and the chief attention of the court and counsel seems to have been directed to the question whether the direction as to giving notice had been properly fulfilled, without observing that the limitation violated the rule against perpetuities, and was therefore void anyhow. The gift was to such one of a class composed of the brothers' and sisters' children who should come upon a certain contingency. A niece or nephew of the testator born more than twenty-one years after the testator's death might come from Ireland at a remote period. The notice was to be given by Martha, her heirs and assigns, and might, therefore, be given at any time in the future. If the giving of the notice had been limited to the life of Martha, the limitation would have been valid, and in that case the circumstance that a child born after the death of the testator would be the first to take advantage of the notice, would be immaterial. The remainders to A., B. and C. were vested and valid.

Donohue v. McNichol

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348. In Donohue v. McNichol the testatrix gave her estate in trust for her son John for life, and upon his death, leaving issue, in trust for such issue, and after the death of the issue, in trust for the use of her lawful heirs, and on the death of John without issue, to her lawful heirs, their heirs and assigns." John died without issue and his widow filed a bill in equity for a conveyance of a half interest in the real estate for life. The court said that John took a fee. Williams, J., in the Supreme Court said that if the testatrix meant her heirs at her death, the limitation was valid, but that if she meant her heirs at John's death or at the death of his issue, the limitation over was void for remoteness. Since John was the heir of his mother, at her death it was immaterial to the decision of the case whether the limitation to the heirs at her death was remote or not, as he would take anyhow as pur

561 Pa. 73 (1869).

As to the trust for life, see §542, post, on Discretion.

7 The two contingencies, the death of John leaving issue, and the death of John without issue, were clearly separable,

and the two gifts over, therefore, were distinct and could take effect independently of each other; see Gray, Rule Perp., 2 ed. (1906), §353a; see $337, ante, §463, post.