Example 2.—Gift to A. for life and after her decease upon trust for B., and his present or future issue as A. should appoint.

Appointment by A.'s will to B. for life and after his decease for all his children who had attained or should attain twentyfive if born in the lifetime of A. or twenty-one if born after the decease of A.

At A.'s death B. had some children the youngest of whom was more than four years old, so that, de facto, those children were bound to attain twenty-five (if at all) within twenty-one years from A.'s death. Again the children born after A.'s death were bound to attain twenty-one within twenty-one years after B.'s death, and he was alive at the date of the will creating the power. Held, therefore, that the whole gift was good.

If B. had had a child less than four years old at A.'s death, then, by killing off B. immediately after A.'s death, it will be seen that that child would not have attained twenty-five within twenty-one years from the death of A. or of B.

Again, if the appointment is read back into the will creating the power, it is obvious that the limitations could not have been made at that date. In re Thompson, above.

Neither a special nor a general power of appointment can be given to a person who is not necessarily ascertainable within a life or lives in being plus twenty-one years. In re Hargreaves (1884), 43 C. D. 401.

But where A. has a special power of appointment among his issue, he may appoint to a son who was unborn at the date of the creation of the power for life, and may give him a general power of appointment by deed or will, but not by will only. For, taking the latest period at which the property must vest absolutely as twenty-one years from the death of A., the son can by appointment by deed vest the property absolutely in any person he likes by deed (in himself for instance) at any moment after A.'s death,

but if he can only appoint by will the property cannot vest absolutely until his death, which might occur more than twenty-one years after A.'s death. See Wollaston v. King (1869), 8 Eq. 165.

Cy près Doctrine.

In certain cases where limitations are void for remoteness, a rule, sometimes called the doctrine of cy près, is applied, which has the effect of carrying out the testator's general intention and of causing the limitations to be good, though in a slightly different form.

The rule is a rule of construction, and is as follows:-Where a testator gives a life estate to an unborn person, with remainder to his first and other sons successively in tail male, the unborn person takes an estate tail male; and similarly, where a testator gives a life estate to an unborn person with remainder to his children successively in tail (i.e., including daughters), the unborn person takes an estate tail.

It will be noticed that all limitations after the life estate to the unborn person are primâ facie void for remoteness, but if the estate tail given to the unborn person by this rule happen to remain unbarred, the estate will descend successively to the same persons and in the same order as the testator has marked out for the devolution of the estate.

Practically speaking, the rule is only applied where the testator has given the estate successively in the exact course of an unbarred estate tail (male or general), but has continued his limitations beyond. the point at which the rule against perpetuities cuts

them short, and it cannot be applied where the testator has (wittingly or unwittingly) departed from the natural sequence of an unbarred estate tail.

For example, a testator devises land to the use of A. (living) for life, and after his decease to the use of the first son (unborn) of A. for life (all that follows is void for perpetuity), and after his decease to the use of the first son of the first son of A. [and every other son of the first son of A., severally and successively according to seniority] in tail male; and in default of such issue to the use of the second and every other son of A. severally and successively according to seniority for the like interests and limitations as directed respecting the first son of A. and his issue.

Trace these limitations by means of an imaginary pedigree, thus:—

(all limitations, except the life estate to the first son, are void for perpetuity).

Stopping at the end of the first paragraph of the limitations, and including the words within the brackets, a life estate is given to an unborn person (first SON) with remainder to the use of his sons successively in tail male; and this, according to the rule, would give the first son an estate in tail male; so with the limitations to the second and other sons of A., and the whole limitation would be an estate

for life to A. with remainder to his sons successively in tail, which is, of course, perfectly good.

But in the leading case of Monypenny v. Dering (1852), 2 D. M. & G. 145, the words in brackets in the above limitation (corresponding with the italics in the pedigree) were omitted, and it is obvious that the estates tail proposed to be substituted for the life estates would, if unbarred, carry the land to persons whom the testator had omitted. But the rule cannot be applied in such a case, for "neither by implication nor by the doctrine of cy près can an estate be carried to a class or a portion of a class for whom the testator never intended to provide." (Per Lord St. Leonards at p. 174.)

In the case of In re Mortimer, [1905] 2 Ch. 502, the testator introduced limitations to daughters of unborn sons of F. G. in such a way that neither an estate tail male nor an estate tail general implied in the unborn sons would carry the lands successively to the same persons and in the same order as the testator had pointed out.

The Court will not construe a will cy près if the result is to include as an object of the testator's bounty any person whom he intended to exclude, or to exclude any person whom he intended to include.

CHAPTER XXIV.

ACCUMULATION OF INCOME.

By the Act 39 & 40 Geo. III. c. 98 (Thellusson Act), any accumulation of income directed by a will (or deed) is limited to four alternative periods:

(1) The life of the grantor or settlor (not, therefore, applicable to wills).

(2) The term of twenty-one years from the death of the testator (grantor, &c.).

(3) During the minority or respective minorities of

any person or persons who shall be living or en ventre sa mère at the time of the death of the testator (grantor, &c.).

(4) During the minority or respective minorities only of any person who under the will, deed, &c., directing the accumulation, would for the time being, if of full age, be entitled to the income so directed to be accumulated.

These four periods are not cumulative but alternative, so that a testator cannot tack one period on to another.

The periods (1), (2) and (3) are sufficiently clear. The period (4) means that the testator can direct that accumulation shall begin at the birth (in the future) of a person who would, if born and of full age, be entitled to the income of the property, and that such accumulation shall continue during the minority of that person; but the testator must not have directed