8 also the fallacy that a perpetual trust violates the rule against perpetuities. It seems perfectly clear that the rule applies to the vesting of the particular equitable interests, and that the creation of the trust does not violate the rule against perpetuities in any way. If it violates anything, it violates the rule forbidding restraints on enjoyment." 1 10 Clause Against Anticipation 376. Mr. Gray says that where the clause against anticipation is considered valid it may violate the rule against perpetuities. The clause is properly attached only to a married woman's trust and can never violate the rule against perpetuities in Pennsylvania in the case of a trust for a married woman, because no sole and separate use is valid unless for a living cestui que trust, and in no case can it last longer than her life.2 Equitable Interests Implied by Law 377. A resulting equitable interest is not subject to the rule, because it is an interest arising by operation of law, and, consequently, not created by the donor of the trust." Furthermore, a resulting trust is a present interest and arises immediately upon the settlement by the donor. For the same reason a constructive trust is not subject to the rule. The court might raise a constructive trust at a period beyond tator, upon which, it may be observed, that the rule against perpetuities has nothing to do with the time of the continuance of the trust. See also remarks of Penrose, J., in Richardson's Est., 16 Phila. 326 at 327 (1884). See cases in next note. 8 E. g., Briggs v. Davis, 81 Pa. 470 (1875); Ashman, J., in Cooper's Est., 9 Pa. C. C. 606 at 608 (1891); Allison, J., in Penna. Co. v. Price, 7 Phila. 465 (1870). See Chap. 22, on Trust of Absolute Interest. The word "trust" seems to have been used by many Pennsylvania judges as meaning the equitable interest of the cestui que trust, a loose and very inaccurate use of the term which may be responsible for the fallacy which ap pears in a number of cases, that the rule applies to the trust. As the trust is the equitable relation existing between the trustee and the cestui que trust and trust res, it is difficult to see how the rule applies. This loose use of the term is, perhaps, responsible for the unfortunate decision in Johnston's Est., 185 Pa. 179 (1898); see $472, post. 10 Restraints on Alien., 2 ed. (1895), $8272a-272g. 1 See §§596, 597, post. 2 See Chap. 24 on married women's trusts. 3 Gray, Rule Perp., 2 ed. (1906), §327a. * See $380, post, as to non-application of the rule to interests arising by operation of law. from the happening of the circumstances giving rise to the construction of the trust. Destructible Interests 378. A future interest destructible by the owner of the preceding estate, it is said, is not within the rule against perpetuities. The subject is involved in some obscurity. Mr. Gray's position appears to amount to this: when the destructible interest violates the rule, the rule, nevertheless, does not apply, because the owner of the preceding estate can destroy the interest. Mr. Gray instances as illustrations of these interests, the cases of a limitation after an estate tail, a limitation under a general power of appointment,' possibilty of reverter after a conditional fee, and a power in a trustee. The case of a limitation after The cases of a power 8 3 an estate tail is obsolete in Pennsylvania. in a trustee and a general power of appointment are discussed at another point, and the principle laid down that the question is as to the time from which the period prescribed by the rule against perpetuities begins to run. All of these cases, therefore, are to be explained on other grounds, at least so far as Pennsylvania law is concerned. The principle to be applied to a destructible interest is, it is apprehended, as follows: the holder of the estate can destroy the interest-he can give himself the fee-and then he can create the same interest again. Therefore, the interest exists by his sufferance and is considered as having been created by him. Consequently the period prescribed by the rule begins to run from the time he can destroy the interest. If judging from that time the interest is remote, then, of course, it is void because the holder cannot recreate it even if he gives himself the fee.* Where the Interest Cannot Take Effect Apart From the Rule 379. If an interest cannot take effect because of the application of some other principle of law, the rule against per 5 Gray, Rule Perp., 2 ed. (1906), §§203, 443, says that an interest which is at all times in the control of the present owner until it vests is, for every purpose of conveyance, a present estate. He gives no reason for his statement. Gray, Rule Perp., 2 ed. (1906), §§203, 443. 7 Gray, Rule Perp., 2 ed. (1906), §526b. 8 Gray, Rule Perp., 2 ed. (1906), §313. 1 Gray, Rule Perp., 2 ed. (1906), §490. 2 See §23, ante. 3 See Chap. 17, on Powers. This principle was misunderstood by the court in Mifflins' App., 121 Pa. 205 (1888), stated §401, post. 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 distinc-. tion between the rule against perpetuities and the rule forbidding restraints on alienation. 7 See §§1-5, ante. Interests Arising by Contract 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 4 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 reversion2 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, possibilities of reverter 10 and executory devises " 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 8 9 3 Interests arising by operation of law, those arising out of contract,2 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. |