subject to a condition precedent;818 and the fact that the right to possession or enjoyment of a vested interest is deferred till a remote time does not bring it within the operation of the rule.319 Accordingly, a vested remainder is valid, although the remainderman does not come into possession until after the period of the rule.820

In this country it has been decided, and generally recognized, that the rule does not apply to the contingent right of entry for breach of a condition, even though annexed to a fee.321 In England a different, and perhaps, on principle, a sounder, view has prevailed.322 Likewise, in this country, the rule has not been applied to a possibility of reverter after a determinable fee.323 It has been held to apply to a covenant to convey land at any time in the future on the payment of a certain sum, since this creates an interest in land of a contingent character.824

A right to re-enter for breach of a covenant in a lease for years has never been regarded as within the rule, since it is

318 Gray, Perpetuities, §§ 205-210; Lewis, Perpetuity, 164, 511. See authorities ante, note 288.

819 Gray, Perpetuities, § 209; Lewis, Perpetuity, c. 22; Marsden, Per petuities, c. 11; Loring v. Blake, 98 Mass. 253; Otis v. McLellan, 13 Allen (Mass.) 339; Seaver v. Fitzgerald, 141 Mass. 401; Siddall's Es tate, 180 Pa. St. 127.

320 Gray, Perpetuities, § 209; Gates v. Seibert, 157 Mo. 254; Madison v. Larmon, 170 Ill. 65. So it has been decided that a vested remainder after a lease for 999 years is not invalid. Todhunter v. Des Moines, I. & M. R. Co., 58 Iowa, 205.

321 Hopkins v. Grimshaw, 165 U. S. 342; Cowell v. Colorado Springs Co., 100 U. S. 55; In re Stickney's Will, 85 Md. 79, 103; Tobey v. Moore, 130 Mass. 448; French v. Old South Soc., 106 Mass. 479. See Gray, Perpetuities, §§ 304-311.

322 In re Trustees of Hollis' Hospital & Hague's Contract [1899] 2 Ch. 540. And see Dunn v. Flood, 25 Ch. Div. 629, 5 Gray's Cas. 593, 323 Hopkins v. Grimshaw, 165 U. S. 342; First Universalist Soc. v. Boland, 155 Mass. 171, Finch's Cas. 525.

#24 London & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 562, 5 Gray's Cas. 579; Winsor v. Mills, 157 Mass. 362.

(853)

merely an incident of the reversion, which is a vested interest;325 and, on the same principle, the lessee's right to perpetual renewal of his lease under a covenant by the lessor therefor, being incident to his vested interest, is not invalid under the rule.326

Equitable interests.

That future equitable interests which are not vested are subject to the rule to the same extent as legal interests has never been questioned.327

In accordance with the view that the rule applies merely to the time of vesting, and not to the duration of an interest, it is not violated by a limitation of an estate in trust, because, by the terms of its creation, the trust may extend beyond a life or lives in being and twenty-one years thereafter, provided it commence within that time.328

325 Gray, Perpetuities, § 303; Lewis, Perpetuity, 619.

326 Gray, Perpetuities, § 230; Marsden, Perpetuities, 15; Hare v. Burges, 4 Kay & J. 45. Contra, Blackmore v. Boardman, 28 Mo. 420; Diffenderfer v. St. Louis Public Schools, 120 Mo. 447.

827 Gray, Perpetuities, § 323; Lewis, Perpetuity, 169, 574; 1 Perry, Trusts, 377.

138 Gray, Perpetuities, § 234; Johnston's Estate, 185 Pa. St. 179; Pulitzer v. Livingston, 89 Me. 359, overruling Slade v. Patten, 68 Me. 380; Phillips v. Harrow, 93 Iowa, 92. See, also, ante, note 288.

In Barnum v. Barnum, 26 Md. 119, it seems to have been held that a trust for a person and his heirs is void under the rule, which would be equivalent to a decision that an equitable fee simple is necessarily invalid. This case is in terms approved in the later cases of Deford v. Deford, 36 Md. 168, Goldsborough v. Martin, 41 Md. 488, and Missionary Soc. v. Humphreys, 91 Md. 131, though these cases did not involve a like state of facts. The only other case in which there has ever been a suggestion that an equitable estate given to a person and his heirs contravenes the rule against perpetuities is Slade v. Patten, 68 Me. 380, which has been expressly overruled in this regard by Pulitzer v. Livingston, 89 Me. 359. That such an equitable estate is valid has been recognized in numberless decisions. Indeed, if an equitable fee simple were invalid, the same would be

In the case of a gift to a person in trust for another, if there are specific and effectual directions that the trust shall continue for a specified time, and that the trust res or principal shall not be turned over to the beneficiary or beneficiaries until a certain time named, the cestui que trust cannot be considered as having a vested interest therein until the arrival of the time named; and consequently, it would seem, if the time named is more remote than the period allowed by the rule, the gift would be void. It has been so decided in a number of decisions in this country.329 In England, however, such a direction postponing the conveyance of the corpus of the fund does not invalidate the gift, since the beneficiary or beneficiaries, if their interests are absolute, are entitled to demand a conveyance by the trustee, in spite of a direction to the contrary in the instrument creating the trust, such direction being regarded as nugatory.880 In some cases in this country, as before stated,331 the courts have refused to follow the English rule that such direction for postponement is void, holding, on the contrary, that a conveyance by the trustee cannot be demanded if this would be contrary to the intention of the creator of the trust; and such a departure from the English rule seems to be, apparently, the only justification for the decisions above referred to holding a trust void if intended to endure beyond the period of the rule.882

In the case of a conveyance in trust, the trust resulting to

true of a legal fee simple, since the rule against perpetuities is the same in equity as at law.

826 Winsor v. Mills, 157 Mass. 362; Davis v. Williams, 85 Tenn. 646; Siedler v. Syms, 56 N. J. Eq. 275; Bigelow v. Cady, 171 Ill. 229; Hart v. Seymour, 147 Ill. 598; Thomas v. Gregg, 76 Md. 169. See, also, Potter v. Couch, 141 U. S. 296, 314.

830 Gray, Perpetuities, § 121; Marsden, Perpetuities, c. 11; Lewis, Perpetuity, c. 22; Fox v. Fox, L. R. 19 Eq. 286; Tatham v. Vernon, 29 Beav. 604.

381 See ante, § 101.

132 See Gray, Perpetuities, § 120, note.

the grantor or his heirs upon the failure of the trust named, though dependent on a contingency which may not happen. within the period prescribed by the rule against perpetuities, is not invalid under the rule.883

Contingent remainders.

There has been much discussion as to whether the rule against perpetuities is applicable to contingent remainders. At the present time, the view that it is so applicable is the more prevalent one, and it has been so decided judicially."

The question of the existence of another rule than that, against perpetuities, restricting remoteness of vesting of contingent remainders, has been previously considered.335

§ 156. Limitations after estates tail.

Limitations which are to vest in the future immediately after or in derogation of an estate tail are not subject to the rule, since, owing to the power of the tenant in tail to convey a fee simple, either by a common recovery or by a conveyance, the future limitations are, as to him, practically nonexistent until their time of vesting, and consequently do not clog the title, though they are invalid if they may not vest till after the termination of the estate tail, since, if not barred by the tenant in tail before his estate ends, they become indestructible."

as Hopkins v. Grimshaw, 165 U. B. 342; In re Randell, 88 Ch. Div. 213.

384 In re Frost, 43 Ch. Div. 246, 5 Gray's Cas. 598. See, also, Wood v. Griffin, 46 N. H. 230; Lockridge v. Mace, 109 Mo. 162; Gray, Perpetuities, §§ 283-298; Lewis, Perpetuity, c. 16; Id. Supp. 97 et seq. Contra, Challis, Real Prop. (2d Ed.) 183; Williams, Real Prop. (13th Ed.) 274.

335 See ante, § 127.

836 Lewis, Perpetuity, 664; Gray, Perpetuities, §§ 443-453; Marsden, Perpetuities, c. 7; 1 Jarman, Wills, 217; Cole v. Sewell, 4 Dru. & War. 1, 2 H. L. Cas. 186; Goodwin v. Clark, 1 Lev. 35, 5 Gray's Cas. 698; Nicholls v. Sheffield, 2 Browne, Ch. 215, 5 Gray's Cas. 699; Bris

Consequently, in the case of a devise to A., or to A. and his heirs, and, upon the (indefinite) failure of the issue of A., then over to another or others, since A. takes an estate tail, the limitation over after such estate tail is not within the rule, and is valid. The case is, however, different if there is a limitation over on the failure of issue, not of the first taker, but of some third person, as if, for instance, the limitation over in the above case were on the failure of the issue of "B." The limitation over is then, as in the first case, presumptively on an indefinite failure of issue, and this is liable to occur at a time in the future indefinitely remote. In this case there is not, as in the other, an estate tail in the first taker to save the limitation over from the operation of the rule, and it is consequently void.837

tow v. Boothby, 2 Sim. & S. 465, 5 Gray's Cas. 702; Barber ▼. Pittsburgh, Ft. W. & C. Ry. Co., 166 U. S. 83.

Such a limitation is, however, void in jurisdictions where the tenant in tail has no power to convey the fee, the reason for the rule being nonexistent. St. John v. Dann, 66 Conn. 401.

327 Gray, Perpetuities, §§ 212, 213; Marsden, Perpetuities, 183; Lewis, Perpetuity, c. 15; 1 Jarman, Wills, 217; Barber v. Pittsburgh, Ft. W. & C. Ry. Co., 166 U. S. 83; Taylor v. Taylor, 63 Pa. St. 481. And see cases cited ante, note 336.

In 4 Kent's Comm. 276, the author says: "The series of cases in the English law have been uniform, from the time of the Year Books down to the present day, in the recognition of the rule of law that a devise in fee, with a remainder over if the devisee dies without issue or heirs of the body, is a fee cut down to an estate tail; and the limitation over is void, by way of executory devise, as being too remote, and founded on an indefinite failure of issue." The first clause of this statement is correct if restricted to cases in which a "definite" failure is not intended (see ante, § 25); but the second clause 18 singularly incorrect, since the presence of the estate tail prevents invalidity for remoteness. Of the numerous authorities cited by the learned chancellor, all but two support merely the statement that an estate tail is created by such a devise. Of these two, one (Doe d. Fonnereau v. Fonnereau, 2 Doug, 504) decided that a limitation after an estate tail so created is valid, and the other (Barlow v. Salter, 17 Ves. 479) decided that a limitation over of personalty after an indefi