The rule is to be ap if the contingency happens during the subsistence of the particular estate. For instance, a devise to trustees on trust for A. for life and then for the first son of B. who attains twenty-five is void, though a son of B. attains twenty-five in A.'s lifetime. In re Finch; Abbiss v. Burney, 28 W. R. 903; 29 W. R. 449. In applying the rule against perpetuities, the state of plied to the things existing at the testator's death, and not at the date of the will, is to be looked at. Vanderplank v. King, existing at 3 Ha. 17; Cattlin v. Brown, 11 Ha. 382; Peard v. Keke state of things the testa tor's death. wich, 15 B. 173. Possible not actual to be considered. But possible and not actual events are to be considered, events are and, therefore, if at the testator's death a gift might possibly not have vested within the proper time, it will not be good, because, as a matter of fact, it did so vest. Lord Dungannon v. Smith, 12 Cl. & F. 546; see In re Roberts; Repington v. Roberts, 50 L. J. Ch. 265. That a woman inay have The fact that a woman is past the age of child-bearing past child- at the date of the will or death, is not to be considered, bearing and the chance of such a woman having children is a children is possible event for the purposes of determining whether a event gift is void for perpetuity or not. Jee v. Audley, 1 Cox, 324; In re Sayer's Trusts, 6 Eq. 319; see Cooper v. Laroche, 43 L. T. N. S. 794; 29 W. R. 438. a possible within the rule. Gift tending to tie up pro perty for an in definite time is void. Any gift not being charitable, the object of which is to tie up property for an indefinite time, is void; as, for instance, a devise of land to the trustees of the Penzance Library, to hold to them and their successors for ever, for the maintenance and support of the library. Carne v. Long, 2 D. F. & J. 75; Thompson v. Shakespear, 1 D. F. & J. 399; Neo v. Neo, L. R. 6 P. C. 381; In re Clark's Trust, 1 Ch. D. 497; Re Dutton, 4 Ex. D. 54. So, too, a restriction upon alienation beyond lives in being and twenty-one years after, is bad. Armitage v. Coates, 35 B. 1; In re Teague's Settlement, 10 Eq. 564; In re Cunninghame's Settlement, 11 Eq. 324; In re upon tion. It has been suggested that a restraint upon anticipation Restraint in the case of a married woman ought to be treated as an anticipaexception to the rule against perpetuity, as the object of the restraint is to preserve for the married woman the beneficial enjoyment of her property. In re Ridley; Buckton v. Hay, 11 Ch. D. 645. to lease for A direction that lands devised by the testator shall be Direction leased for ever at an undervalue to his wives' kindred is ever at low void. A.-G. v. Greenhill, 33 B. 193; see, too, Hope v. Cor- rent. poration of Gloucest、., 7 D. M. & G. 647; Pollock v. Booth, I. R. 9 Eq. 229, 607. So, too, a direction not to raise the rent of lands devised Direction is invalid. 4.-G. v. Catherine Hall, Jac. 381. not to raise rents. upon re event. It is clear that a devise of property to a named person to Devise take effect upon a remote event is void. See Bankes v. mote Holme, 1 Russ. 394 n.; Lewis v. Templer, 33 B. 625; Commissioners of Donations v. De Clifford, 1 Dr. & War. 245, 254. Where a lease for fifty-four years was bequeathed for life with remainders, followed by a direction upon the expiration of the lease to convey freeholds of the testator upon the same trusts, it was held that the direction was not void for perpetuity. Wood v. Drew, 33 B. 610. limitations estate tail No questions with regard to remoteness can arise on Whether limitations subsequent to an estate tail, provided the sub- subsequent sequent limitations must take effect, either during the to an existence of the estate tail or at the moment of its deter- can be too mination. Cole v. Sewell, 4 Dr. & War. 1; 2 H. L. 186; Doe d. Winter v. Perratt, 9 Cl. & F. 606; Heasman v. Pearse, 7 Ch. 275. remote. The foundation of this rule is, that if the subsequent The test is limitations are such, that they must take effect during the existence of the estate tail, or at the moment of its that they must be barrable as long as sist. they sub- determination, or not at all, they are always barrable, and therefore do not tend to restrain the free disposal of property. The trusts of a term precedent to an And the converse follows, that, if the subsequent limitations are not always barrable, they will be subject to the rules of remoteness. The rule is sometimes laid down absolutely, that no limitations after estates tail are too remote, but it can only be accepted with the qualification above laid down. Otherwise, by means of limitations of equitable remainders which do not fail by failure of the prior estates, and are not barrable after the estate tail has determined, property might possibly be tied up for an almost indefinite time. There seems to be no express decision on the point, but the rule as above laid down is involved in the decisions in Lady Lanesborough v. Fox, Ca. temp. Talbot, 262; Tregonwell v. Sydenham, 3 Dow. 194. of Where interests are precedent to estates tail, they are, course, not barrable, and the ordinary rules of perpetuity talestate apply. Therefore, where a term precedent to estates tail is limited to trustees, upon trusts which are too remote, the trusts are void. Case v. Drosier, 2 Kee. 764; 5 M. & Cr. 246. void for remoteness. Concur rent terms. And where the term is precedent this will be the case, even though the event in which the trusts are to be executed would become impossible if the subsequent estates tail were barred. Sykes v. Sykes, 13 Eq. 56. Similarly, powers not strictly precedent to, but concurrent with, an estate tail, for instance, powers to accumulate, during the minorities of any persons entitled under the limitations of the will, whether the accumulations are expressly carried over or not, or to enter and manage the property, are void. Marshall v. Holloway, 2 Sw. 432; Lord Southampton v. Marquis of Hertford, 2 V. & B. 54; Browne v. Stoughton, 14 Sim. 369; Turrin v. Newcome, 3 K. & J. 16; Floyer v. Banks, 8 Eq. 114. accumula But a trust for accumulation for the purpose of paying Trust for off debts or incumbrances upon the estate of the testator tion to pay is valid. Lord Southampton v. Marquis of Hertford, 2 debts is V. & B. 54, 65; Bateman v. Hotchkin, 10 B. 426; Briggs v. Earl of Oxford, 1 D. M. & G. 363. good. to accumu fund reaches a And a direction to accumulate a fund till it reaches a Adirection certain amount, and then to apply it for the benefit of late till a certain named persons for their lives, and the life of the survivor, is not void for perpetuity, if the fund, whether it certain has reached the amount directed or not, is to be divided at the death of the survivor. Oddie v. Brown, 4 De G. & J. 179. sum. sale and No doubt powers of sale and leasing would be void, if Power of the testator clearly shows that he intended them to subsist, leasing. or to arise beyond the limits of perpetuity: see Ware v. Polhill, 11 Ves. 257; Hale v. Pew, 25 B. 335. But powers of sale, whether collateral or subsequent, though given in general terms in a settlement containing limitations for life, with remainders in fee or in tail, with an ultimate remainder in fee, are good, because the power is spent as soon as the object of the settlement is at an end by the absolute interest vesting in possession. Biddle v. Perkins, 4 Sim. 135; Nelson v. Callow, 15 Sim. 353; Waring v. Coventry, 1 M. & K. 249; Lantsbery v. Collier, 2 K. & J. 709; Taite v. Swinstead, 26 B. 525. the testa and at the The vesting of property may be postponed for any Gift to length of time, provided it must ultimately vest, if at all, persons in persons born at the death of the testator, and living at be living at the time of vesting, since in such a case it must vest tor's death absolutely within lives in being. Lachlan v. Reynolds, 9 time of Ha. 796. But the gift is void for perpetuity, though it must vest too remoto in persons born within lives in being at the testator's FF vesting cannot be Avern v. Gift for life to unborn children of a tenant for life is good. Cross limitation between unborn tenants for life. death, and living when the event happens, if it may not so vest within lives in being and twenty-one years afterwards. Jee v. Audley, 1 Cox, 324; see Garland v. Brown, 10 L. T. N. S. 292. It has been held, that in a gift to A. and B. for life, remainder to their issue for life, and after the decease of the survivor to the executors and administrators of the survivor of A. and B. or their issue, who should happen to be such survivor, the last remainder is not void for perpetuity. Avern v. Lloyd, 5 Eq. 383. It seems clear that if the gift in remainder were construed to be to such one of the class composed of A. and B., and the issue living at their respective deaths, as should be the longest liver, it would be void for remoteness, since, though the class to take would be fixed within lives in being, the absolute vesting might be postponed till the death of all the issue but one. On the other hand, if the gift could be construed to be to the issue living at the death of A. and B., or to the survivor of A. and B., if there are no issue to take, it would be good, since it must vest absolutely on the death of A. and B. But the case is doubtful. See Stuart v. Cockerell, 7 Eq. 363. A limitation for life to the unborn children of a tenant for life is good. Avern v. Lloyd, 5 Eq. 383; Stuart v. Cockerell, 7 Eq. 363; see 5 Ch. 713; Hampton v. Holman, 5 Ch. D. 183, overruling Hayes v. Hayes, 4 Russ. 311, There appears to be no doubt that cross limitations for life between unborn tenants for life would be valid, and moreover, that limitations for life to successive generations to come into being within the bounds of perpetuity are also valid. Ashley v. Ashley, 6 Sim. 358; Cadell v. Palmer, 1 Cl. & F. 372; see, however, Stuart v. Cockerell, 7 Eq. 363, p. 370. |