The effect of the rule may be illustrated as follows: The contingency upon which the future interest is to vest may be the ascertainment of the person who is to take in accordance with some characteristic or qualification named, as in the case of a devise to such son of A. (A. having no son at the time of testator's death) as should be in holy orders, which devise is void, since the son of A., even though he took orders, might not do so till over twenty-one years of age.208 So, a devise to the first son of A. who attains twenty-five (A. having no son of that age at testator's death) is void, since no son of A. may attain that age during A.'s life, or within twenty-one years after A.'s death.299 But a devise to the first son of A. who attains twenty-one is valid, since he must attain this age within twenty-one years after the death of A.,-that is, within that number of years after a life in being.3

300

The rule is perhaps most frequently applied in the case of limitations to a class, in which case the members of the class must be ascertained within the time allowed by the rule. Thus, in the case of a devise to those of testator's grandchildren (testator leaving children living), or to those of the children of A., who may attain twenty-one, the devise is valid, since they must be ascertained within twenty-one years after the death of their parent; but if the devise is to those who may attain twentytwo, the devise is void, since only those born after testator's death may reach twenty-two, in which case the vesting would be more than twenty-one years after a life in being.301

298 Proctor v. Bishop of Bath & Wells, 2 H. Bl. 358, 5 Gray's Cas. 620.

299 Abbiss v. Burney, 17 Ch. Div. 211, 5 Gray's Cas. 575. 300 Woodruff v. Pleasants, 81 Va. 37.

301 Gray, Perpetuities, c. 10; 1 Jarman, Wills, 226 et seq.: Leake v. Robinson, 2 Mer. 363, 5 Gray's Cas. 622; In re Moseley's Trusts, L. R. 11 Eq. 499; Pearks v. Moseley, 5 App. Cas. 714, 5 Gray's Cas. 667; Lawrence v. Smith, 163 Ill. 149; Eldred v. Meek, 183 Ill. 26; Coggins'

In the case, however, of a legal limitation to a class, which can be regarded as a remainder after a life estate, since the members of the class must be ascertained before the termination of the particular estate, the limitation cannot be too remote, though it would be remote if it were an executory devise. Thus, in the case of a devise to A., and, after his death, to his children who attain twenty-two, since only those can take who attain that age during A.'s life, that is, within a life in being, the limitation is valid. This exemption from the rule does not, however, apply to so-called equitable remainders, since they need not vest during or at the termination of the previous life estate.802

In the case of a devise to testator's child for life, and then to his or her wife or husband for life, and then to the children of such child, the latter limitation is void, since testator's child may possibly marry one not in being at the time of testator's death, in which case the interest of the children might not vest till after a life not in being,-that of the surviving wife or husband. 803

§ 154. The period allowed for vesting.

As before stated, in order not to be invalid under the rule, the future interest must vest within a life or lives in being, and twenty-one years thereafter. That the estate need not vest during a life or lives in being was settled in the Duke of Norfolk's Case,304 which in fact established the rule against perpetuities. This period was subsequently extended by decisions that, if the person to take such interest was an infant, either born or

Appeal, 124 Pa. St. 10; Gerber's Estate, 196 Pa. St. 366; Otterback v. Bohrer, 87 Va. 548; Woodruff v. Pleasants, 81 Va. 37.

302 1 Jarman, Wills, 227; Gray, Perpetuities, § 325; Abbiss v. Burney, 17 Ch. Div. 211, 5 Gray's Cas. 575. See Lovering v. Lovering, 129 Mass. 97.

308 Loring v. Blake, 98 Mass. 253; Hodson v. Ball, 14 Sim. 558. 304 8 Ch. Cas. 1, 5 Gray's Cas. 498; Gray, Perpetuities, §§ 169, 170.

begotten during a life in being, the time might be extended till the termination of such infant's minority, thus extending the possible time of vesting to twenty-one years and the period of gestation after a life or lives in being.305 To what extent, in cases other than those of infancy, a period longer than a life or lives in being would be allowed, was for many years undecided, it being usually stated that the time of vesting might be "within a reasonable time" after lives in being;306 and it was not till towards the middle of the nineteenth century that it was settled that the period of twenty-one years could be added to the life or lives in being in cases where the person to take is not an infant.807

The persons in being by whose lives the period is in part measured may be indefinite in number, provided it is possible to ascertain as a fact the termination of the life of the last survivor, so as to determine when the period of twenty-one years is to commence. Nor need these persons have any connection whatever with the property, that is, they need not be persons taking prior estates therein,-nor need they even be relatives of persons given interests in the property.

308

A life is "in being," within the rule, even though it be that of a person not yet born, but who is en ventre sa mere at the date of the creation of the interest, as in the case of a limitation to the child of testator's posthumous son; such son being regarded as in being at the time of the creation of the inter

305 Stephens v. Stephens, cas. temp. Talb. 228, 5 Gray's Cas. 522; Gray, Perpetuities, § 175.

806 See Lloyd v. Carew, Show. Parl. Cas. 137, 5 Gray's Cas. 515; Gray, Perpetuities, §§ 180-182.

807 Cadell v. Palmer, 1 Clark & F. 872, 5 Gray's Cas. 555.

808 Thellusson v. Woodford, 11 Ves. 112, 5 Gray's Cas. 530; Cadell ▼. Palmer, 1 Clark & F. 372, 5 Gray, Cas. 555. And see Scatterwood v. Edge, 1 Salk. 229, 5 Gray's Cas. 518; Low v. Burron, 3 P. Wms. 262, 5 Gray's Cas. 520; Marsden, Perpetuities, 32; Gray, Perpetuities, §§ 190, 216-219.

est, that is, testator's death, and consequently the limitation to his child necessarily taking effect within a life or lives in being.309 Furthermore, a future interest which is to vest upon the attainment of the age of twenty-one by a person not yet born is within the period allowed by the rule if such person is en ventre sa mere at the termination of the life or lives in being. For instance, a limitation to a grandson of testator who attains twenty-one is valid, though he is not born until after his father's death, the vesting consequently being deferred for a life in being, and twenty-one years thereafter, and also the period of gestation.310

Two periods of gestation may accordingly be allowable in particular cases,—that is, one period in the case of the person "in being" at the date of the testator's death or execution of the conveyance, and the other in the case of the person who is to take the future estate. So, a gift to testator's grandchildren who attain the age of twenty-one will be good, although the only grandchild who does attain such age is the posthumous son of testator's posthumous son.'11

If the time named for the vesting of the future interest is not measured by lives, but is merely a definite number of years, it is necessary that this be less than twenty-one years, in order that the limitation be valid.812

In the case of wills, the validity of the limitation is to be determined as of the time of the testator's death,-—that is, at the time at which the will goes into effect, and not at the time of its execution.313 Accordingly, in the case of a devise to A

309 Long v. Blackhall, 7 Term R. 100, 5 Gray's Cas. 528; Thellusson v. Woodford, 11 Ves. 112, 5 Gray's Cas. 530; Marsden, Perpetuities, 35; Lewis, Perpetuity, 148.

810 Cadell v. Palmer, 1 Clark & F. 372, 5 Gray's Cas. 555.

#11 Thellusson v. Woodford, 11 Ves. 112, 5 Gray's Cas. 530; Gray, Perpetuities, § 221; Lewis, Perpetuity, 147.

312 Marsden, Perpetuities, 34; 1 Leake, 441; Palmer v. Holford, 4 Russ. 403; Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238.

313 Lewis, Perpetuity, Supp. 30-65; Gray, Perpetuities, § 281; Mc

for life, and, after his death, to such of his children as attain the age of twenty-five, while the limitation to the children would be void if the testator died before A., since there might be a child born thereafter, on the other hand, if the testator died after A., there would be no possibility of the birth of other children, and none of the living children could possibly attain the age of twenty-five at a period later than that allowed by the rule.814

The requirement that the contingency on which the estate is to vest shall occur within the time named by the rule is absolute, and the mere improbability of its occurrence after that time is immaterial.315 Nor is a limitation not in compliance with the rule rendered valid by the fact that subsequent events cause the contingency to occur within the legal period.3

316

A gift to such children of a living person as may be living at a time too remote under the rule is void, though the age of such person is such that it is morally certain that there will be no such children who are not living at the time of the testator's death.317

§ 155. Interests subject to the rule.

The rule against perpetuities, since its object is merely to restrict the time of vesting, cannot apply to vested interests,that is, to interests in favor of ascertained persons in being not

Arthur v. Scott, 113 U. S. 340; Cattlin v. Brown, 11 Hare, 372, 5 Gray's Cas. 651; Brown v. Brown, 86 Tenn. 277; Hall v. Hall, 123 Mass, 120. 814 Southern v. Wollaston, 16 Beav. 276, 5 Gray's Cas. 569.

315 Gray, Perpetuities, § 214; Lewis, Perpetuity, 170; Lawrence v. Smith, 163 Ill. 149.

816 Lewis, Perpetuity, 170; Challis, Real Prop. 155; Jee v. Audley, 1 Cox, 324, 5 Gray's Cas. 525; In re Wood [1894] 3 Ch. 381; Smith's Appeal, 88 Pa. St. 492, 5 Gray's Cas. 737; Coggins' Appeal, 124 Pa. St. 10.

317 Jee v. Audley, 1 Cox, 324, 5 Gray's Cas. 525; Gray, Perpetuities, §§ 215, 215a; Marsden, Perpetuities, 68, 69; In re Dawson, 39 Ch.

Div. 155.