WHAT RULE OBTAINS UNDER THE STATUTES $207

Again, the statute is aimed solely at the alienation of land and does not apply where the trustees are given the power to sell, although they are given the power to tie up the proceeds of the sale beyond the time fixed by the statute37. Its object does not cover accumulations38.

§206. The Application of The Doctrine of Perpetuities Under the Statutes.

The rule finds application in whatever way the testator attempts to create a perpetuity, whether,

1. By devising successive estates for life to persons unborn, or,

2. By limiting an executory devise which is not to take effect within the period prescribed by law, or,

3. By means of a power, or,

4. By a devise in trust which would make the estate inalienable longer than the law permits39.

$207. What Rules Obtain Under the Statute.

There are two rules regulating the disposition of property, first, the statute applying to real property; and second, the common law rule applying to the creation of future estates or interests in the disposition of personal property40. The difference between the two rules is material in that by the statute, future estates in land, to be good, must take effect, if at all, within or at the expiration of the two lives in being at the creation thereof, with a single exception,

37. Thatcher v. St. Andrews' Church, 37 Mich. 264.

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

39. St. Amour v. Rivard, 2 Mich. 294.

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

while by the common law rule no future interest, subject to a condition precedent, is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest. The rules that obtain under the statute are as follows:

First, The period within which a contingent estate must be subject to alienation is during the continuance of two lives in being at the creation of the estate, i. e., the absolute power of alienation cannot be suspended for a longer period. This rule applies to real property.

Second, The period within which the contingent estate or interest must vest is a life or lives in being, and twentyone years thereafter, with the addition of the period of gestation of a child en ventre sa mere 2. This rule applies to

personal property.

Third, The period for the accumulation of the income on personal property is for any number of lives in being, and for twenty-one years longer, the same as the second rule13.

Fourth, The periods for the accumulation of rents and profits from real property are not longer than during the minority of the persons intended to be benefited thereby11.

$208. The Effect of The Rule.

It may be stated that the effect of the rule against perpetuity under the statute is that a suspension of the period of alienation is void, unless based on lives45.

41. C. L. '97, §8797. Palms v. Palms, 68 Mich. 353, 36 N. W. 419.

42. Fitzgerald v. City of Big Rapids, 123 Mich. 281, 82 N. W.

56.

43. Toms v. Williams, 41 Mich. 552, 2 N. W. 814.

44. Toms v. Williams, 41 Mich. 552, 2 N. W. 814.

45. Toms v. Williams, 41 Mich. 552, 2 N. W. 814.

§209. When Power of Alienation is Suspended.

The power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed, and it is apparent that the period of suspension of alienation cannot be measured by time alone, that life must, in some form, be the measure of the period of suspension16.

§210. When Power of Alienation is Not Suspended.

The absolute power of alienation is not suspended when there are at all times persons in being who can convey an absolute estate in possession17.

$211. The Test of What Constitutes Suspension of

Alienation.

The statutory test of what constitutes a suspension of the power of alienation as to real estate, and of absolute ownership as to personal property is that it occurs only when there are no persons in being by whom an absolute estate in possession can be conveyed18.

§212. Restraints Upon Alienation Are Not Favored in Law.

Many restrictions or qualifications upon the rights of the devisee or grantee may be made effectual by making the estate itself dependent upon such condition; but where the

46. Casgrain v. Hammond, 134 Mich. 419, 96 N. W. 510, 104 Am. St. Rep. 610.

47. Torpy v. Betts, 123 Mich.

239, 81 N. W. 1004.

48. Torpy v. Betts, 123 Mich. 239, 81 N. W. 1004.

estate granted is absolute, such restriction can impose no legal obligation upon the devisees, or limit their power over the estate, when the observance or violation of the restriction can neither promote nor prejudice any interest but their Own49.

§213. All Rights of Property Alienable.

The principle is well established that all rights of property are alienable, and that a condition or restriction which would suspend all power of alienation for any length of time is inconsistent with the estate granted, and therefore void as against public policy.

§214. To What Estates the Rule Relating To The Power of Alienation is Applied.

The chief inquiry when applying the rule, is whether the estate or interest passing is vested or contingent51.

§215. Creation of Future Estates.

A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination by lapse of time or otherwise, of a precedent estate, created at the same time52.

A remainder is an estate which comes into existence when a future estate is dependent upon a precedent estate53.

49. Bennett v. Chapin, 77 Mich. 526, 7 L. R. A. 377, 43 N. W. 893. 50. Bennett v. Chapin, 77 Mich. 526, 7 L. R. A. 377, 43 N. W. 893. 51. Toms v. Williams, 41 Mich. 552, 2 N. W. 814.

52. C. L. '97, §8792. McIntyre v. McIntyre's Estate, 156 Mich. 240; State v. Holmes, 115 Mich. 458; Lariverre v. Rains, 112 Mich. 276; L'Etourneau v. Henquenet, 89 Mich. 432. State v.

53. C. L. '97, §8793.

A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised54.

Future estates are either vested or contingent:

They are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate;

They are contingent whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain55.

Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed by law; such power of alienation is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed56.

A future estate is created within the rule against perpetuities where a testator disposes of the residue of his estate by vesting the title in his two grandchildren, and providing that the residue shall be paid to them by the

Holmes, 115 Mich. 458, 73 N. W. 548; Lariverre V. Rains, 112 Mich. 276, 70 N. W. 583; L'Etourneau v. Henguenet, 89 Mich. 432, 50 N. W. 1077.

Case v. Green, 78 Mich. 544; See v. Deer, 57 Mich. 369, 24 N. W. 108.

54. C. L. '97, §8794. State v. Holmes, 115 Mich. 458, 73 N. W. 548.

55. C. L. '97, §8795. McIntyre v. McIntyre's Estate, 156 Mich. 242, 120 N. W. 587; Fullager v. Stockdale, 138 Mich. 366, 101 N. W. 576; Porter v. Osmun, 135

Mich. 361, 98 N. W. 859; Casgrain v. Hammond, 134 Mich. 419, 96 N. W. 510; State v. Holmes, 115 Mich. 158, 73 N. W. 548; Lariverre v. Rains, 112 Mich. 276, 70 N. W. 583; Hitchcock v. Simpkins, 99 Mich. 203, 58 N. W. 47; Hovey v. Nellis, 98 Mich. 379, 57 N. W. 255; Mutual Ass'n. v. Montgomery, 70 Mich. 595; Chambers v. Shaw, 52 Mich. 21, 17 N. W. 223; Rood v. Hovey, 50 Mich. 399, 15 N. W. 525; Goodell v. Hibbard, 32 Mich. 56.

56. C. L. '97, §8796. Casgrain v. Hammond, 134 Mich. 419, 96