Pr. II. CH. 1, s. 5. apparently on surviving parents. is not to be attached to that which is supposed to be the testator's intention in favour of or against particular persons as his next of kin, as infinite variations may take place in that class between his will and his death (a). Limitations Again, although a portion or legacy may seem primâ facie dependent to depend upon the person interested surviving his parents, yet there is the strongest leaning against this construction, especially in the case of a marriage settlement. So that if it is possible to satisfy the words by putting a different construction upon them, the Court will generally do so. And hence, in the case of the expression "die before their shares shall become payable," the leaning is to construe "payable" as meaning "vested," unless the plain meaning Condition of the passage and context will not admit of it (b). So a preceding a condition precedent annexed to a preceding interest will not be applied to a subsequent interest, where it does not necessarily extend to it (c). 881. annexed to interest. Rule against perpetuities. Executory interests, other than those in remainder after or engrafted on an estate tail, must be so limited, that, (a) 2 Jarm. Wills, 2nd ed. 49, 69, 103-113; 1 Rop. Leg. by White, 123; Smith's Executory Interests annexed to Fearne, § 210, 211; Seifferth v. Badham, 9 Beav. 370; Gundry v. Pinniger, 14 Beav. 98; 1 D. M. & G. 502; Withy v. Mangles, 4 Beav. 358; 10 Cl. & F. 215; Lasbury v. Newport, 9 Beav. 376; Markham v. Iratt, 20 Beav. 579 ; Baker v. Gibson, 12 Beav. 101; Pearce v. Vincent, 1 Cr. & M. 598; 2 Bing. N. C. 328; 2 M. & K. 800; 2 Keen 230; Clapton v. BulMy. & Cr. 108; Jenkins v. Gower, 2 Coll. 537; Wilkinson v. Garrett, 2 Coll. 643; Smith v. Smith, 12 Sim. 317; Minter v Wraith, 13 Sim. 52; Urquhart v. Urquhart, 13 Sim. 613; Ware v. Rowland, 15 Sim. 587; 2 Phil. 635; Butler v. Bushnell, 3 My. & K. 232; In re mer, Trusts of Barber's Will, 1 S. & G. (b) See Smith's Executory terests annexed to Fearne, §: 222; Day v. Radcliffe, L. Ch. D. 654. (c) See Smith's Ex. Int. §: * CH. 1, s. 5. from the first moment of the instrument creating them PT. II. T. 9, taking effect (which, in the case of a deed, is the time of execution, and, in the case of a will, the death of the testator), it may be said that they will necessarily vest in right, if at all, within the period occupied by the life of a person in being, that is, already born, or in ventre matris, or the lives of any number of persons described and in being, "not exceeding that to which testimony can be applied to determine when the survivor of them drops," and by the infancy of any child born previously to the decease of such person or persons, or the gestation and infancy of any child in ventre matris at that time; or, within the period occupied by the life or lives of such person or persons in being, and an absolute term of twenty-one years afterwards, and no more, without reference to the infancy of any person; or, within the period of an absolute term of twenty-one years, without reference to any life (a). Thus, "if a limitation is to take effect on an indefinite failure of issue in general, or of issue male or female, or by a particular marriage, and not merely on a failure of issue within a life or lives in being and twentyone years and a few months afterwards; it is within the foregoing rule against perpetuities, and therefore void for remoteness; unless it is a remainder after, or a limitation engrafted on an estate tail; or a limitation of a sum of money to be raised by means of a term in remainder after an estate tail; or a limitation over of a term which is determinable on the dropping of a life or lives in being, where a tenant right of renewal does not exist (b). The L(a) Smith's Executory Interests Pearse, L. R. 11 Eq. 522; reversed, (b) Smith's Executory Interests CH. 1, s. 5. PT. II. T., reason why some kind of limit was prescribed for the vesting of such executory interests is, that executory interests (other than those which are in remainder after or engrafted upon an estate tail, and which were capable of being destroyed by the tenant in tail by means of a recovery) could not be destroyed by the prior devisees or legatees; and they therefore tended to a perpetuity, by being unalienable until the contingency happened on which they were to vest in right, which is inconsistent with the welfare of the state, and therefore contrary to the policy of the law. Nor have the particular limits so prescribed been arbitrarily adopted. The Courts, in setting the bounds they have to the suspension of the vesting, have been governed by analogy to the case of a strict entail, which could not be protected from fines and recoveries, longer than for the life of the tenant for life in possession, and the attainment of twenty-one by the first issue in tail (a). A contingent limitation over of property from one charity to another, in the event of the former neglecting for a year to observe the directions of the will by which the property was bequeathed, is not within the principle of the rule against perpetuities, and therefore not within the rule; because the property is neither more nor less alienable on account of such limitation over (b). 882. Stat. 45 & 46 [And now a further restriction is placed on executory Restriction limitations, contained in instruments coming into operalimitations. tion after the 31st day of December, 1882. For it is on executory enacted by stat. 45 & 46 Vict. c. 39, s. 10 (Appendix), that "Where there is a person entitled to land for an estate in fee, or for a term of years absolute or determinable on life, or for term of life, with an executory limitation over on (a) On the subject of remoteness, generally, see Mr. William David Lewis's learned and elaborate Treatise on the Law of Perpetuity. See also Smith's Executory Interests CH. 1, s. 5. default or failure of all or any of his issue, whether within PT. II. T. 9, or at any specified period of time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained the age of twenty-one years, of the class on default or failure whereof the limitation over was to take effect."] 882a. ment of ment till period of Where a person takes a vested interest at twenty-one, Postpone a direction that he shall not have the enjoyment of the the enjoy property until a later period is inoperative, unless the after the enjoyment thereof is given to some other person in the vesting. meantime, or the property is so clearly taken from the devisee or legatee in the meantime, that there is an intestacy for the intervening period (a). 883. mission of interests. "Executory interests in real property, which are not Transcontingent on account of the person, descend to the heirs executory of the persons to whom they are limited, and such executory interests in personal property pass to the executors or administrators of the persons to whom they are limited, where they die before the contingency happens on which such interests are to vest" (b). 884. of executory not limited remainder. Executory interests, not limited by way of remainder, Destruction if engrafted on an estate tail, might be destroyed by the interests tenant in tail by means of a common recovery. But such der interests cannot be prevented or destroyed by any alteration whatsoever in the estate out of which or after which they are limited (c). 885. (a) Gosling v. Gosling, 1 Johns. 265. (b) Smith's Executory Interests annexed to Fearne, § 743. T. 9, CH. 2. CHAPTER II. OF RIGHTS OF ENTRY OR ACTION, MERE POSSIBILITIES, PART II. IN consequence of modern enactments, which are noticed in other parts of this work, the subject of this chapter is now of comparatively little practical importance, and therefore a very little space will here be given to it, though points connected with it will be found in subsequent pages. Rights of entry. Rights of action. Present rights of entry are of three kinds : 1. The right of immediate entry incident to a present vested interest, where the actual seisin or possession has never been acquired; as in the case of an heir-at-law before entry, if the land is not out on lease for years (a). 886. 2. That right of immediate entry which is incident to a vested interest, where the actual seisin or possession has been lost by abatement, intrusion, or disseisin, but not the right of possession (b). 887. 3. That right of immediate entry which exists in favour of a person who has a present right to take advantage of a condition which has been broken, the breach of which does not ipso facto determine the estate which was subject to such condition (c). 888. A right of action for the recovery of an estate exists (as we shall see hereafter) in certain cases where there is originally no right of entry, or where the right of entry has ceased (d). 889. (a) 1 Cruise T. 1, § 20. (b) See Fearne, 286, and n. (e) ; 2 Bl. Com. c. 13; 3 Bl. Com. 168, 169; and Title on Adverse Possession, infra. (c) See Fearne, 381, n. (a) I. 1, and par. 191-7, supra. (d) See Part III. Tit. 6, (h. 1. infra. |