of this provision of my will, and by due enactment, locate upon my real estate *** some public educational or charitable institution, and build thereon suitable buildings for such purpose," otherwise to go to his grandson, the conditional devise, not being based upon lives at the time of its creation is invalid, for the suspension of the power of alienation of the estate must be based upon lives in being75. Again, where a testator gives his wife the use of the homestead and makes the taxes and repairs and an annuity payable to her during her natural life from his estate by the executors, and then devises and bequeaths all the rest, residue, and remainder of all goods, chattels, real and personal to his five children, it is manifest that his intention was to make the entire estate, real and personal, subject to these charges, and the executors may devote the income of the estate, both real and personal, to that purpose, and are required to do so if necessity therefor exists, but the attempted restraint on alienation is void. In a case where a bequest in a will gave a certain sum to the trustees of a cemetery, a voluntary association, as a perpetual fund to be kept at interest by the trustees, and the interest thereof to be used and applied to take care of the graves on testator's lot as well as the lot itself, the bequest was deemed void for the reason that it created a trust against the statute of perpetuities76a. §221. Invalid Provisions Cannot be Made Valid By Widow Exercising Her Election. Provisions incorporated in a will which are not valid when made and when the will takes effect, cannot be made 75. State V. Holmes, 115 Mich. 456, 74 N. W. 548; 102, 76. Dean V. Mumford, Mich. 510, 61 N. W. 7; valid by the widow exercising her right of election". If the exercise of this right were allowed under such circumstances, it would be equivalent to empowering the widow to execute a will by validating what was previously no will78. In a case79 the court said: "Accepting as correct the doctrine of the cases which hold that the widow becomes a purchaser of the legacy by releasing her dower, the contract is not a completed one until her acceptance of the provision of the will after her husband's decease. Had he purchased from his wife her dower, and given her his note therefor, upon his death such obligation if not paid would simply become a claim against the estate, and takes its place when proved against the estate with the other allowed claims. The husband during his lifetime, wishing to make arrangements to have his wife release her dower interest in the lands of which he should die seized, makes an offer therefor which is not to be submitted to her for acceptance until after his decease." §222. Effect of Violation of the Rule Under the Statute. It is manifest that a devise in violation of the rule against perpetuities is void, and if such be the case the property passes to the residuary devisees or legatees, if there are such; and if there are none, to their heirs or personal representatives. In such cases the effect is just as if the testator had not included such provision in his will, but had died intestate as to such propertys. v. Trustees of Square Lake 102 Mich. 510, 61 N. W. 7; 79. Tracy v. Murray, 44 Mich. 109, 6 N. W. 224; 80. State V. Holmes, Mich. 456, 73 N. W. 548; 115 $223. Effect of Partial Violation of the Rule Under The Statute. In a will having successive gifts, some of which are in violation of the rule against perpetuities and others of which are not, the question of the validity of the gifts which are not themselves in violation of the rule against perpetuities depends upon the closeness of the connection between the invalid gifts and the valid gifts. The rule is that if the gifts are consistent with the general scheme of the will, the valid gifts will be separated from the invalid, and the valid gifts will be sustained, while the invalid will be rejected81. §224. The Prevailing Question Under the Statute. It may be said that under the rule against perpetuities, as modified by modern statutes, the question is not primarily one of the vesting of the estate, but of the length of time during which the alienation of the fee is necessarily prohibited82. Thus a devise which is settled by trust or otherwise to last forever is clearly forbidden by the statutory rule83. So is a devise for a fixed term of years without any reference to a life in being84. Again where a devise is measured by lives so as to exceed the number of two lives in being permitted by statute, the devise is forbidden by the rules. §225. An Executory Devise Exceeding The Period of Limitation Set By Statute. The rule is well settled that an executory devise which 81. Palms v. Palms, 68 Mich. 355, 36 N. W. 419; 82. Farrand v. Petit, 84 Mich. 641, 48 N. W. 156; 83. Farrand v. Petit, 84 Mich. 641, 48 N. W. 156; 84. Farrand v. Petit, 84 Mich. 641, 48 N. W. 156; 85. Trufant v. Nunueley, 106 Mich. 554, 64 N. W. 469; exceeds the period allowed by statute is void, not only for the period within the law, but for the period in excess of that prescribed by statutes. $226. When The Power of Alienation Never Would Be Suspended. It is evident that, under the statute87, which provides that a remainder shall be limited to the heir, or heirs of the body of a person to whom a life estate in the same premises shall be given, the person or persons who, on the termination of life estate, shall be the heir or the heirs of the body of such tenants for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them. A remainder cannot be devised to one not in esse at the time of the creation of the estate. The rule is well established that an estate must go to persons in esse, and it is for that reason that the power of alienation would never be suspended because all the owners of the various estates could always join and convey the fee88. $227. Where a Contingent Remainder Vests as to Alienation. Contingent estates by statute are made to depend upon two conditions-one, is where the person to whom the estate is given remains uncertain, and the other, when the event upon which such estates are limited to take effect remains uncertain. A devise by a testator to his wife, for and during her natural life of all of his real estate, which was 86. St. Amour v. Rivard, 2 Mich. 294. 87. C. L. '97, §8810. 88. Torpy v. Betts, 123 Mich. 239, 81 N. W. 1094; particularly described in the will, and all that he might be seized of or possess at his decease, and all of his personal estate of every kind, with remainder over, after the determination of such life-estate, to his daughters, E., S. and El., to have and to hold the same to the said E., S. and El., their heirs and assigns, forever, and he making other dispositions of the remainder of other portions of his property, and further in the event that one or more of his children should survive him or his wife, he devised the share of each devisee or devisees in such case to be equally divided among the remaining children, and to their heirs, share and share alike, creates a vested future estate in E., S., and El. and is contingent and subject to be defeated by the death of E., S. and El. before the decease of the testator or of his wife and as to such the precedent estate in remainder terminated on the death of such child, and a contingent remainder was created in the surviving children, and the heirs of any deceased child, but such contingent remainder did not vest until the death of the wife89 for it is the event and not the time or period that controls in determining the question as to whether the remainder is contingent or vested90. §228. Avoiding the Statute In Restraint of Alienation By Clothing Trustees With Power of Sale. The principle may be stated that the absolute power of alienation is not suspended, where the instrument gives the trustees power to dispose of the property at their option91. Justice Champlin, who did not accede to this proposition, 89. L'Etourneau v. Henquenet, 89 Mich. 428, 28 Am. St. Rep. 310. 90. L'Etourneau v. Henquenet, 89 Mich. 428, 28 Am. St. Rep. 310. 91. Thatcher v. St. Andrews' Church, 37 Mich. 264. |