common law principle for the first time in Hallowell's Estate." In this condition of the authorities, particularly in view of the earlier decisions, it is impossible to venture any definite statement as to the law. On principle the clause is unquestionably

void.

Gift Over Contingent Upon Arrival at a Certain Age

9

506. If the gift is contingent upon the arrival of the donee or a third person at the required age the rule does not apply. The proviso in such case is not a postponement of the enjoyment by the donee of his interest because he has no interest until the condition precedent has been fulfilled. It is often a difficult question of construction to determine whether there is a vested or a contingent gift. A proviso divesting the estate upon the arrival of the donee or a third person at a certain age is valid.10 In like manner, the testator may make a legacy payable at a certain time in the future, and if the gift is contingent, on the arrival of the time it is valid, providing it does not violate the rule against perpetuities, even though the devisee reaches twenty-one before the time fixed.1 This is the same as the case of a gift of the whole property upon arriving at a certain age. Such cases are rare, except when the subject matter is personal property.

Postponement for a Class

507. The donee must have the sole interest in the property in order that he may disregard the clause of postponement. It is a principle of the common law that any clause of postponement is valid when the clause is in favor of another interest. It may be that this idea was introduced into the law by the peculiar doctrines which governed the vested remainder. A vested remainder is an interest vested in prae

7 33 Pa. C. C. 596 (1906); s. c. 16 D. R. 17, stated $504, ante

8 For example, a gift to A. when B., a living person, shall arrive at the age of twenty-five; item 5, of will in Conrow's App., 3 Penny. 356 at 357 (1883).

9 The provisions of the will and codicil in Hallowell's Est., 33 Pa. C. C. R. 596 (1906), s. c. 16 D. R. 17, illustrate this

question of construction.

10 For example, a gift to A. in fee, and when B., a living person, shall arrive at twenty-five years, to X. in fee. To A. until he shall arrive at twenty-five years, then to C. and his heirs.

1 Hemphill v. Hurford, 3 W. & S. 216 (1842).

senti, but with the right of enjoyment postponed until the termination of the preceding estate. The common case of a remainder to a class is another instance of the application of this principle. The gift to each member of the class is postponed in enjoyment until the class closes, which postponement is valid, as the class may increase, and thus other interests may be introduced.2

Consequences of Upholding the Validity Clause of Postponement

508. If the Supreme Court should ignore the dictum in Shallcross's Estate, and revert to the law laid down in Butler v. Butler, several questions will arise. For how long is the clause of postponement valid? Will the court adopt the period prescribed by the rule against perpetuities, and, if they do, from what time will the period begin to run,-from the time of the creation of the interest, or from the time of the arrival of the donee at twenty-one, or from the time fixed for the payment? This involves the same question discussed at another point.5

2 For a consideration of this doctrine in connection with the application of the rule against perpetuities, see §449, ante.

3 200 Pa. 122 (1903), stated §503, ante. 19 Phila. 269 (1873), stated §498, ante. 5 See §526, post.

Statement of real question involved in the cases. Consequences of upholding the trust of an absolute interest.

$525

$526

Preliminary Discussion

515. In this chapter we shall discuss the second form in which the attempted restraint on enjoyment appears.1 This is the case where the donor creates a trust of the absolute interest which he gives the donee, the intention apparently being to prevent the donee from having full control and use of the property. If the trust can remain against the will of the cestui que trust it is a restraint on his use and enjoyment.

General Principle as to Validity of the Trust of an Absolute Interest

516. The general principle is that a donor may not fetter an absolute gift with a trust.2 Such a trust is a restraint on personal property. No distinction is drawn in this chapter between the two kinds of property

2

1 See §489, ante.

By absolute gift is meant a fee simple in real estate or an absolute interest in

the donee's use and enjoyment of his property, because he is thereby deprived of the use and enjoyment of the legal title, and since the property is his absolutely he is entitled to the whole, legal as well as equitable. The cestui que trust may terminate the trust and have a conveyance of the legal title at his pleasure, and it is entirely inadmissible to rely on the intention of the donor, because that intention is against the law and cannot be carried out against the objection of the cestui que trust.*

Preliminary Discussion of Law in Pennsylvania as to Trust of an Absolute Interest

517. There is a great weight of authority in Pennsylvania in favor of the right of the cestui que trust to terminate the trust. There are, however, a number of recent cases which seem to countenance the proposition that a trust of an absolute interest is valid even against the objection of the cestui que trust. These cases will now be examined."