for the sudden contingencies for private life for which property was at first established10 "

§196. Origin of the Rule.

The courts in their application of the common law rule which forbade the limitation of a contingent remainder upon a remote possibility soon established by analogy a rule applicable to the limitation of the vesting of future estates and thus the rule against perpetuities became a regula juris11. It was by judicial decisions that this result was finally accomplished. The rule finds application both in law and equity, and it is frequently spoken of as the rule of remoteness.

§197. The Rule at Common Law.

The period within which a contingent estate or interest must vest under the rule against perpetuities is a life or lives in being, and twenty-one years thereafter, with the addition of the period of gestation of a child en ventra sa mere12. An analysis of this rule will show:

First, that the period of vesting the estate is measured by the number of lives upon which it is created, and the number of lives is of no consequence as long as they are

10. Bl. Com. Bk. II, 174. "The rule of the common law against perpetuities is one of the instances wherein the living principles of the unwritten common law of England, through the forming power of an independent judiciary, have gradually shaped themselves into an essential muniment and safeguard of social life and of successful industry, in not allowing the conceits or fancies of dying men, unwilling to lose

their hold upon the brief empire which property allows the living to embarrass and control the generations still possessing the functions of active life, by the tightening grasp of exclusive self-love." 1 Jarman, 226 and 227.

11. 2 Bl. Com. 170; In re Ridley, 11 Ch. D. 645; Goldtree v. Thompson, 79 Cal. 613.

12. Thellusson V. Woodford, 11 Ves. Jr. 112; Haroley v. Northampton, 3 Mass. 3, 5 Am. Dec.

in being when the contingent estate or interest is created, "for they must be all in esse during the life of the first devisee and it is 'for them all that the candles are lighted and are consuming together,' and the ultimate remainder is in reality only to that remainderman who happens to survive the rest, and it is also settled that such remainder may so be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first devisee13." Thus in reality the period is measured by the life of the longest liver of those to whom the estate is limited.

Second, that the term of twenty-one years may be added without any reference to the infancy of any person11.

Third, that the period for gestation can be allowed only where gestation actually exists in fact15.

The rule is one of property and not of interpretation, for the document is to be interpreted independently of any rule against perpetuities and its intention ascertained before the rule is applied1o.

$198. The Nature of the Contingency.

The nature of the contingency on which the estate or interest is limited is of no consequence, for it is not the nature or character of the contingency that enters into the rule17, but the period within which the contingency or event must happen18.

66; Barnum v. Barnum, 26 Md. 119, 90 Am. Dec. 88.

13. 2 Bl. Com. 175.

14. Barnitz v. Casey, 7 Cranch

(U. S.) 456.

15. Thellusson V. Woodford, 11 Ves. jr. 112; Goldtree

V.

Thompson, 79 Cal. 613.

16. Van Nostrand v. Moore, 52 N. Y. 12.

17. Lang v. Ropke, 5 Sandf. (N. Y.) 363.

18. McSorley V. Wilson, 4 Sandf. (N. Y.) 515.

§199. Actual As Well As Possible Events Considered.

The general rule is that the event must happen within the period limited by the rule19. The possible events as well as the actual events are to be taken into account20, and a remote possibility which is not likely to happen will be eliminated from the limitation and it will not be affected thereby 21. It is evident that any future estate in order to be valid must be limited in such a manner that under every possible contingency they vest within the period prescribed or at the termination of that period.

$200. Alternative Limitations.

Alternative limitations may be valid or invalid according to the event happening within the period prescribed upon which they are constructed, but where one of two contingencies is valid and the other invalid on account of remoteness, the estate will vest22.

$201. To What Estates and Rights the Rule is Applied.

The rule against perpetuities applies to future estates or interests in both real and personal property23, including legal and equitable estates24 and all property rights, excepting vested estates or interests25. It applies to a contingent

19. Matter of O'Hara, 95 N. Y. 417, 47 Am. Rep. 53.

20. Coggins' Appeal, 124 Pa. St. 10, 10 Am. St. Rep. 565.

21. Palms v. Palms, 68 Mich. 353, 36 N. W. 419.

22. Scheltter v. Smith, 41 N. Y. 328; Palms v. Palms, 68 Mich.

353, 36 N. W. 419.

V.

23. Battle Square Church Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725.

24. Booth v. Baptist Church, 126 N. Y. 215.

25. Terrell v. Reeves, 103 Ala. 264; Lawrence's Estate, 136 Pa. St. 354, 20 Am. St. Rep. 925.

remainder26, to an executory devise27, and further it finds application to all conveyances or devises of whatsoever kind and to every form of limitation or condition by which such future estate or interest may be created28.

§202. To What Estates and Rights the Rule Is Not Applied.

It being manifest that the rule is limited in its application against future contingent estates only, no vested estate or interest comes within its purview, because it cannot be subject to a condition precedent29, neither does a common law remainder30, or a lease for a term of years31. The question always to be considered is whether the estate or interest is vested or contingent32.

$203. The Common Law Rule Modified By Statute.

The common law rule against perpetuities has been modified by statute to the extent that it prohibits restraint upon alienation. The effect of the modification is that every future estate is void in its creation which, by reason of its limitation or condition, extends the power of alienation beyond the period prescribed by statute. Thus the question. under the statute is whether the power of alienation is within the period prescribed by statute or not. The doc

26. Madison v. Larmon, 170 Ill. 65.

27. Carney v. Kain, 40 W. Va.

785.

28. Battle Square Church v. Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725.

29. Johnstone's Estate, 185 Pa. St. 179, 64 Am. St. Rep. 621;

Lawrence's Estate, 136 Pa. St. 354, 20 Am. St. Rep. 925.

30. Cole v. Sewell, 2 H. L. Cases 186.

31. Toms v. Williams, 41 Mich. 553, 2 N. W. 814.

32. Toms v. Williams, 41 Mich. 553; 2 N. W. 814.

trine of remoteness is of no further consequence in so far as the question of the vesting of estates is concerned. $204. Statute.

A perpetuity under a statute may be defined to be a limitation taking the subject thereof out of commerce for a longer period than prescribed by law. Thus, the absolute power of alienation shall not be suspended by any limitation or condition whatsoever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next paragraph; that is,

A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age34.

§205. The Object of the Statute.

It has been said that the object of the statute is to prohibit the suspension of the absolute power of alienation for a longer period than during the continuance of two lives in being at the creation of the estate, was to prevent the accumulation of large landed estates to be held in perpetuity, or for a long series of years35, and the statutes restricting alienation are confined to avoiding future estates that are made more remote in their vesting than two lives in being, and such arrangements as serve to postpone them3.

33. C. L. '97, §8797.

34. C. L. '97, §8798.

35.

Ford v. Ford, 80 Mich. 42,

44 N. W. 1057.

36. Toms v. Williams, 41 Mich. 553, 2 N. W. 814.