(To see that this is so, imagine that A. or B. has an infant child soon after the death of the testator, kill off all the other children, together with A. and B., and it is obvious that that particular child certainly will not attain twenty-five within twenty-one years from the death of any person living at the testator's death; such a supposition is quite justifiable for the purpose of applying the doctrine.)

Perpetuity after an Estate Tail.

A reference to the definition quoted from Lewis on Perpetuity at the beginning of this chapter shows that the limitation made void by the rule is one "which is not destructible by the persons for the time being entitled to the property subject to the future. limitation, except with the concurrence of the individuals interested under that limitation."

Now all limitations subsequent to an estate tail are destructible by the tenant in tail without any such concurrence; so that the rule does not apply to such subsequent limitations, and if the tenant in tail chooses to leave them in existence and the estate tail happens to determine, they are good, although limited to take effect after the indefinite failure of issue of the tenant in tail.

Such subsequent limitations must, however, be limited to take effect not later than the moment of the determination of the estate tail, and if they may by any possibility not take effect at that instant they are void for remoteness. See Cole v. Sewell (1842), 4 Dr. & War. 28, and the numerous decisions commenting upon that case.

The Perpetuity Rule in Connection with Legal Contingent Remainders.

It was formerly thought that a legal contingent

remainder which was ready to take effect upon the determination of the preceding particular estates of freehold was unaffected by the perpetuity rule, but it has been decided that a legal contingent remainder is void for remoteness if it is limited to take effect upon an event which is beyond the ordinary limits of the rule. In re Ashforth, [1905] 1 Ch. 535.

Example.-Legal devise to A., a spinster, for life, with remainder to any husband she may marry for life (this person is not necessarily in existence, and must, therefore, be considered as unborn at the testator's death), with remainder to the children of A. and her (future) husband who should be living at the death of the survivor.

The life estate to the future husband is of course good, for a life estate can be given to an unborn person; but it was held that the limitation to the children was subject to the ordinary perpetuity rule, and, since the particular children to take are not ascertainable until the death of a person (the husband) who was unborn at the testator's death and might survive his wife by more than twenty-one years, the limitation was void. In re Frost (1884), 43 C. D. 246; (1890) 45 C. D. 85.

Gift upon trust for A., B. and C. equally for life, with remainder to the survivors and survivor for life, with remainder equally for life to such of the children of A., B. and C. born within twenty-one years after the death of the testatrix as should (in effect) be living from time to time, with remainder (in the form of a legal devise) to the survivor of such children in tail. The last devise is a legal contingent remainder, and the person to take under it was to be the survivor of a class of persons to be born within twenty-one years from the decease of the testatrix, so that the whole class would have been within the limits of the rule, and a remainder limited to the whole class equally would have been good. But by killing off A., B. and C., together with all their children except two, it is obvious that the survivor of those two cannot necessarily be ascertained within twenty-one years after the death of any person alive at the testator's death, and accordingly the limitation to the survivor in tail is void for perpetuity. In re Ashforth, [1905] 1 Ch. 535.

It is not sufficient that the interest must vest in one of two ascertained persons when it is uncertain in which of the two it may vest. The actual person must be ascertained within the proper limits. Whitby v. Von Luedecke, [1906] 1 Ch. 783.

Rule against Double Possibilities.

A rule which is independent of the rule against perpetuities may be mentioned here; it is sometimes. called the "rule against double possibilities," and the principle involved is sometimes called a "possibility upon a possibility."

It may be stated thus: Although an estate may be limited to an unborn person for life, yet a remainder cannot be limited to the children of that unborn person, even although it is expressed that such children must be born within a period (defined by reference to other lives) which would bring them within the ordinary rule. See Monypenny v. Dering (1852), 2 D. M. & G. 145; Whitby v. Mitchell (1889), 42 C. D. 494; (1890), 44 C. D. 85; In re Frost (1889), 43 C. D. 246. The rule, however, only applies to legal devises of realty and not to equitable devises of realty or to personalty. In re Bowles, [1902] 2 Ch. 650.

Personalty was settled after life interests to a husband and wife and the survivor, upon trust for children or issue as they should jointly appoint; they appointed in equal thirds to the three children of the marriage for life and after their respective deaths to such of the children of those children born in the lifetime of the husband and wife as should attain twenty-one. It is obvious that the words "born in the lifetime of the husband and wife" properly restrict the gift within the ordinary limits, and it was held to be good although a limitation to the unborn child of an unborn person.

But real property may be given to an unborn person for life or to several unborn persons successively for

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life with remainders over (to persons other than issues of such unborn persons) provided that such remainders be indefeasibly vested in persons ascertained or necessarily ascertainable within the limits prescribed by the rule against perpetuities. In re Hargreaves (1890), 43 C. D. 401; Evans v. Walker (1876), 3 C. D. 211; In re Ashforth, [1905] 1 Ch. p. 540.

Charities.

The rule against perpetuities is relaxed in favour of a charity in certain respects. See under "Charity," p. 272.

The Doctrine Applied to Gifts made under a Power of Appointment.

It is no objection to the validity of a power of appointment that it purports to give a person power to appoint to too wide a class, for instance to issue generally, provided that the person making the appointment restricts the exercise of it to persons within the proper limits. 10 Ch. 35.

Slark v. Dakyns (1874),

I. Appointment made in exercise of a general power. The doctrine applies as if the property appointed is the absolute property of the appointor, i.e. in the case of the exercise of a general power by will, the period within which the property must vest absolutely is a life or lives in being at the death of the appointor plus twenty-one years.

II. Appointment made in exercise of a special power. It was at one time thought that the limitations actually made under a special power of appointment must be read into the document creating the power in

order to ascertain whether those limitations could have been validly made at that date, and that if they could not, they transgressed the rule against perpetuities.

The effect of recent cases, however, especially the cases of Von Brockdorff v. Malcolm (1885), 30 C. D. 172, and In re Thompson, [1906] 2 Ch. 199, has qualified the above very considerably, and the rule may be stated thus :-If, in the circumstances existing at the death of the appointor, the property is bound, under the limitations made by the appointor's will, to vest absolutely within twenty-one years after the death of the appointor or any other person whose life is necessarily included in the limitations (the appointor or such person having been alive at the date of the creation of the power), the appointment will be good although the limitations if read back into the instrument creating the power would be bad.

In other words, actual events up to the death of the appointor are to be considered, and possible events afterwards.

Example 1.-Gift to A. for life and after his death upon trust for his children, grandchildren or other issue as he should appoint.

Appointment by A. 's will to his daughters who should survive him and attain twenty-four equally.

A.'s youngest daughter at the time of his death was more than three years old, so that, de facto, the property was bound to vest absolutely within twenty-one years from A.'s death. Held, not void for perpetuity.

The appointment if read back into the instrument would have been obviously bad.

Thus gift to A. for life and after his death on trust for his daughters who should survive him and attain twenty-four equally. Von Brockdorff v. Malcolm, supra.