If the failure of issue referred to is not an indefinite failure of issue, but a failure upon the death of a living person, the limitation over is upon a contingency within the period prescribed by the rule, and consequently is valid.338

In jurisdictions where a fee tail is changed to a fee simple, the limitation over after an indefinite failure of issue cannot be defeated by a conveyance by the first taker, and consequently it is void as violating the rule.339

When one who has a term of years devises it to A. with a limitation over on the indefinite failure of issue of A., there cannot be an estate tail in A., since an estate tail in a term for years is not recognized, and consequently the limitation over on failure of issue is invalid, as being too remote,340

$157. Effect of remoteness of contingency.

Limitations which are void for remoteness have no effect upon estates previously limited to others.341 So, previous interests which were intended to be abridged by such limitations will continue unaffected by the void limitations. For instance, in the case of a devise in fee simple, with a limitation over to B. at the termination of twenty-five years, the latter limitation being void, A. has an indefeasible fee-simple estate.342

nite failure of issue is void. There was no rule against remoteness in the time of the Year Books.

338 Lewis, Perpetuity, 186; Marsden, Perpetuities, c. 15; Pells v. Brown, Cro. Jac. 590, 5 Gray's Cas. 163; Duke of Norfolk's Case, 3 Ch. Cas. 1, 5 Gray's Cas. 498; Glover v. Condell, 163 Ill. 566; Pratt v. Alger, 136 Mass. 550.

339 Hackney v. Tracy, 137 Pa. St. 53; Lurman v. Hubner, 75 Md. 268; Comegys v. Jones, 65 Md. 317.

340 Lewis, Perpetuity, 318, et seq.; Marsden, Perpetuities, 183; Gray, Perpetuities, § 212; Fearne, Cont. Rem. 485; Barlow v. Salter, 17 Ven.

4.9.

841 Gray, Perpetuities, §§ 247-250.

342 Gray, Perpetuities, §§ 247, 250; Brattle Square Church v. Grant, 3 Gray (Mass.) 142; Howe v. Hodge, 152 Ill. 252; Post v. Rohrbach,

In England there are a number of decisions to the effect that any limitation.expectant on a previous limitation which is void for remoteness is also void on a presumption of intent to that effect;343 but, as shown by the distinguished writer to whom we have so often referred, there seems no reason for the adoption of any such general rule as to intent, and a limitation of an interest which must vest within the legal period might well be sustained, though preceded by a limitation of an interest void for remoteness.844

If the previous estate is merely for life, the property will, in case of the remoteness of the future limitation, pass to such persons as would have taken if there had been no future limitation, these being usually the heirs or residuary devisees of the testator.845

Separation of limitations.

When a limitation, provides for the vesting of an estate or interest at a time which may occur beyond the legal period, it will not be separated into two gifts by the court,-one in case the contingency occurs within the period, and the other in case it occurs thereafter, and upheld as to the former.846 Accordingly, the fact that the happening of the contingency

142 Ill. 600; Nevitt v. Woodburn, 190 Ill. 283; Watkins v. Quarles, 23 Ark. 179.

348 Marsden, Perpetuities, c. 15; Mony penny v. Dering, 2 De Gex, M. & G. 145.

344 Gray, Perpetuities, §§ 251-257.

945 Gray, Perpetuities, § 248; Lewis, Perpetuity, 420; Beers v. Narramore, 61 Conn. 13. In Lockridge v. Mace, 109 Mo. 162, it was held that, where a remainder was void under the rule, the preceding life estates were also void, on the theory that the entire gift should stand or fall together. In Johnston's Estate, 185 Pa. St. 179, a term in trustees preceding a remote limitation was held to fail because created solely for the purpose of making the invalid gift over.

846 Lewis, Perpetuity, 465, 466; Gray, Perpetuities, § 331; Post v. Rohrbach, 142 Ill 600; Eldred v. Meek, 183 Ill. 26.

named would necessarily involve another contingency which is not remote does not render the limitation over valid in the latter contingency, unless this latter contingency is named in the original limitation,—that is, unless the original settlor expressly so provide.847 Thus, if there is a gift to A. for life, with a gift over in case he has no son who shall attain twenty-five years, the gift over is void, though the contingency named includes the contingency that A. may have no children, which must occur during A.'s life. If, on the other hand, there is a gift over in case A. has no son who shall attain twenty-five years, or "in case he has no son," while the gift over in the first alternative will be void, that in the second will be upheld.348 In the case of such alternative or separable limitations, it is well settled that one may be valid, though the other violates the rule;349 and it has been adjudged in England that, even when the settlor or testator has not in terms separated the contingencies by alternative limitations, if a gift over will, in certain circumstances, take effect as a contingent remainder, and in other circumstances as an executory devise, it may be valid as creating a remainder, though, if it took effect as an executory devise, it would violate the rule.3

350

In the case of a gift to a class, the vesting of which is postponed till after the period allowed by the rule, the gift is void as to all members of the class. Thus, in the case of a gift to those of testator's grandchildren who reach the age of twenty

847 Gray, Perpetuities, § 332-337; Proctor v. Bishop of Bath & Wells, 2 H. Bl. 358, 5 Gray's Cas. 620.

348 See Miles v. Harford, 12 Ch. Div. 691, 5 Gray's Cas. 622.

349 Lewis, Perpetuity, c. 21; Leake v. Robinson, 2 Mer. 363, 5 Gray's Cas. 622; Longhead v. Phelps, 2 W. Bl. 704, 5 Gray's Cas. 619; Halsey ▼. Goddard, 86 Fed. 25; Perkins v. Fisher, 8 C. C. A. 270, 59 Fed. 801; Jackson v. Phillips, 14 Allen (Mass.) 572; Seaver v. Fitzgerald, 141 Mass. 401; Walker v. Lewis, 90 Va. 578.

350 Challis v. Doe, 18 Q. B. 231; Evers v. Challis, 7 H. L. Cas. 531, 5 Gray's Cas. 637.

five, the share of each cannot be determined till the youngest reaches that age, and consequently the gift is void even as to those who reach twenty-five within the legal period.35 If, however, the gifts to the members of a class are independent, so that the amount of the gift to each member may be determined within the legal period, the gift to any one member is not invalidated by the fact that that to others may not vest within the legal period.352

158. Charities.

When it is said, as is frequently done, that the rule against perpetuities does not apply to charitable trusts, the word "perpetuity" is used in its primary sense, and the statement merely means that the trust is not invalid, though it is indestructible,

351 Gray, Perpetuities, §§ 369-389; 1 Jarman, Wills, 229; Leake v. Robinson, 2 Mer. 363, 5 Gray's Cas. 622; Porter v. Fox, 6 Sim. 485, 5 Gray's Cas. 634; In re Moseley's Trusts, L. R. 11 Eq. 499, 11 Ch. Div. 555; Pearks v. Moseley, 5 App. Cas. 714, 5 Gray's Cas. 667; Sears v. Putnam, 102 Mass. 5; Coggins' Appeal, 124 Pa. St. 10; Eldred v. Meek, 183 Ill. 26; Lawrence v. Smith, 163 Ill. 149.

In Edgerly v. Barker, 66 N. H. 434, in the case of a devise to grandchildren on arrival at the age of forty, which is evidently too remote, the court held that the devise would be upheld so as to vest upon the arrival of the grandchildren at the age of twenty-one,—that is, within the legal period. This decision stands alone. It is searchingly criti cised by Mr. Gray in 9 Harv. Law Rev. 242, where the uncertainty and confusion likely to arise from such attempts to mould the limita tions in order to make them valid are clearly shown.

852 Gray, Perpetuities, §§ 389-395; 1 Jarman, Wills, 229; Cattlin v. Brown, 11 Hare, 372, 5 Gray's Cas. 651; Storrs v. Benbow, 3 De Gex, M. & G. 390, 5 Gray's Cas. 649; Albert v. Albert, 68 Md. 352. As sup porting this view, Prof. Gray considers at length Lowry v. Muldrow, 8 Rich. Eq. (S. C.) 241, and Hills v. Simonds, 125 Mass. 536, and criticises Sears v. Russell, 8 Gray (Mass.) 86, Lovering v. Lovering. 129 Mass. 97, and Smith's Appeal, 88 Pa. St. 492, which cases, without considering the question from this point of view, held that gifts which might thus be regarded as independent were all invalid together. Lovering v. Lovering has since been overruled by Dorr v. Lovering, 147 Mass. 530.

and though, since there are usually no definite cestuis que trust to alien it, it is inalienable.333 A charitable trust may, however, be invalid under the rule against remoteness.

If, after a gift to A., there is a limitation over to B. in trust for a charity on a certain event, the limitation over is void if this event may occur beyond the statutory period.354 Likewise, if, after a gift in trust for a charity, there is a limitation over to an individual, the limitation over is void if on a remote contingency. If, however, there is a gift to a charity with a limitation over to another charity, the limitation over is not invalid, even though it is to vest at a period beyond that named in the rule.356

In the case of a gift to a charity which is not to take effect until the happening of a contingency which may not occur within the period of the rule, if there is no preceding gift to

ana Gray, Perpetuities, §§ 589, 590; Brooks v. City of Belfast, 90 Me. 318. See Russell v. Allen, 107 U. S. 163; Jackson v. Phillips, 14 Allen (Mass.) 539; Hartson v. Elden, 50 N. J. Eq. 522; Alden v. St. Peter's Parish, 158 Ill. 631; Troutman v. De Boissiere Odd Fellows' Orphans' Home & Industrial School Ass'n (Kan.) 64 Pac. 33; Yeap Cheah Neo v. Ong Cheng Neo, L. R. 6 P. C. 381.

884 Gray, Perpetuities, §§ 594-596; Attorney General v. Gill, 2 P. Wms. 369; Commissioners of Charitable Donations & Bequests v. De Clifford, 1 Dru. & War. 245, 5 Gray's Cas. 740; Smith v. Townsend, 32 Pa. St. 434; Leonard v. Burr, 18 N. Y. 96; Merritt v. Bucknam, 77 Me. 253; Brattle Square Church v. Grant, 3 Gray (Mass.) 154; Village of Brattleboro v. Mead, 43 Vt. 556.

ass Phillips v. Davis [1893] 2 Ch. 491; First Universalist Soc. v. Boland, 155 Mass. 171, Finch's Cas. 525; Society for Promotion of Theological Education v. Attorney General, 135 Mass. 285; Hopkins v. Grimshaw, 165 U. S. 342; Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238; In re Bowen [1893] 2 Ch. 491; Palmer v. Union Bank, 17 R. I. 627.

ase Christ's Hospital v. Grainger, 1 Macn. & G. 460, 5 Gray's Cas. 745; Webster v. Wiggin, 19 R. I. 73; In re John's Will, 30 Or. 494; Lennig's Estate, 154 Pa. St. 209; Hopkins v. Grimshaw, 165 U. S. 342; Odell v. Odell, 10 Allen (Mass.) 1; In re Tyler [1891] 3 Ch. 252. See Gray, Perpetulties, §§ 599-602, for a criticism of this rule.