3 meant living at the time of distribution? An intention to violate the rule is not to be presumed, and when two constructions may be adopted the one which will prevent the application of the rule is to be preferred. The auditor destroyed the entire intention of the testator when it would have been just as easy to construe the word living as meaning living at the time of the death of the testator. Indeed, it seems that that is the more natural construction. It may be observed, however, that the auditor arrived at his conclusion on this point with great difficulty. The entire reasoning in this case is most unfortunate.5 Kountz's Estate 475. In Kountz's Estate, No. 1, the testatrix gave the residue of her estate to her husband in trust for her children and grandchildren, and then, after conferring certain active duties, directed him to pay the income as follows: (1) to her children while they should continue to live together, in equal shares, with certain immaterial discretionary power; (2) upon the death of a child leaving children but no husband or wife, such child's share of the income to be paid to his or her children; (3) should any child leave a husband or wife but no child, the share of the income to be paid to such husband or wife for life; (4) should any die leaving husband or wife and children, the share 3 If living meant living at the death of the testator, the limitation over would not be remote if the youngest grandchild then living was one year old. It does not appear whether such was the fact or not. Gray, Rule Perp., 2 ed. (1906), §633. 5 It would have been possible, in construing this will, to have made "and" read "or", and thus make the limitations "after the death of all my grandchildren or when the youngest grandchild living," etc. The suggestion of the auditor, that the limitations in items 2, 5, 6, and 7 conflict with the intention that the limitation over was on the death of all the grandchildren living at the death of the testator, is hardly sustained after a careful examination of the words of the to be paid to the husband or items. It appears as if the testator provided for the contingency of the beneficiaries of this particular trust dying before the arrival of the time for the final distribution of the estate. It does not necessarily follow from that that the substituted children or grandchildren were to be benefitted beyond that period. If they were, the case would be the same, as they would take in time, and the fact that their estates extended into the forbidden period would be immaterial. The will is conflicting, but it is submitted that the construction suggested brings it within the rule against perpetuities and is, therefore, to be adopted. No construction possible will harmonize all the provisions of the will. 6213 Pa. 390 (1906). 8 wife and children; (5) should any die without leaving spouse or child, such one's share of the income and principal to go to the surviving co-heirs; (6) after the decease of the last of the immediate children, and after ten years from the date when the youngest grandchild should become of age, the principal of the whole estate to be divided among the grandchildren. The court below held that each grandchild in esse at the death of the testatrix took a vested interest subject to open and let in after-born grandchildren, and that the gifts to the grandchildren were not remote. On appeal, the Supreme Court held that the remainders to the grandchildren were contingent, basing the conclusion on the sixth clause of the will, and that the limitations to them were remote. This is a close case on the question of construction, and although some of the reasons advanced for the contingency of the gifts are open to objection, the conclusion of the Supreme Court on this point may be accepted; the learned judge, Potter, J., however, went on to say: "This period" (the period fixed for distribution) "was too remote, and the gift made to take effect at that time is void under the rule against perpetuities. That being the case, the antecedent particular estate would fail also, and the heirs at law of the testator are entitled to immediate possession," citing Johnston's Estate. The decision is most extreme. While the point appears to have been argued by counsel for the appellant, the learned judge paid no attention to the argument in his opinion. The case is plainly distinguishable from even Johnston's Estate, extreme as that case is. The particular estates were valid and the gifts over were clearly separable. Summary of the Pennsylvania Cases 476. In these cases, from Johnston's Estate 10 to Kountz's 7 This is clear. Each grandchild must be born before or nine months after the death of the last child of the testatrix, and on the death of the surviving child, the interests of the grandchildren would be postponed in possession by the ten years clause which would be void, see $449, ante; and by the existing estates of any surviving husband or wife of a child, which estates would be valid, as they were vested within the period prescribed by the rule. See $343, 345, ante. 8 If contingent, the remoteness of the gifts is clear, as they will not vest until ten years after the coming of age of the youngest grandchild, which latter event might be more than twenty-one years after the death of the last surviving child. 185 Pa. 179 (1888), stated §472, ante, and Gerber's Est., 196 Pa. 366, (1900), stated $474, ante. 10 185 Pa. 179 (1898), stated §472, ante. Estate, the court has, it is submitted, overlooked the true application of the rule against perpetuities. The rule operates to destroy the intention, but is not to be applied to any greater extent than is absolutely necessary. The court should be astute to separate all limitations which can possibly be separated, and the question whether the testator deliberately intended to violate the rule can have no proper weight whatever. The court has, it is apprehended, made an unnecessarily harsh and severe application of the rule,2 and has probably been influenced by the fallacious notion that the rule against perpetuities applies to a trust, whereas it applies only to the interest of each separate cestui que trust.* 1213 Pa. 390 (1906), stated §475, ante. 2 The attitude of the court in these cases is in strange contrast to the line of decisions noted in Part II sustaining the validity of the clause against alienation and the line of decisions noted Chap. 22, tending to sustain the validity of the trust of a fee. In those cases the court has gone to the uttermost limit in sustaining the intention of the testator to an extent which, it is submitted, is against public 4 See $374, ante. |