to be that," as the rule governs all contingent equitable limitations of real estate, and all contingent limitations, legal and equitable, of personal property, whether in the form of remainders or not, it is very desirable that legal contingent remainders of real estate should be subjected to the rule also." Suppose, then, the limitations are to A for life, then to the unborn son of A for life, remainder to B and his heirs, but if B or his issue do not survive the termination of the unborn son's life estate, then to C for life. Here the remainder in B is by the common law definition vested, yet it is in fact subject to a condition precedent to its taking effect in possession which may occur at too remote a time. It is a future interest which is both vested and contingent. Does the rule apply? If it does, then under Moneypenny v. Dering1

C's life estate will fail. If it does not, then C's life estate is valid. If the reason why the rule applies to contingent remainders be sound, then the same reason will cause it to apply to vested remainders which are in fact subject to a condition precedent, and the learned author should have given us some further exposition of the vested remainders which are subject to the rule against perpetuities and those which are not. The fair inference is that he would say that the rule would not apply to the vested remainder in the case put, simply because it was vested. The only distinction, however, between the vested-contingent remainder and an executory interest is the purely historical one, that by the common law or feudal system of land law the future interest of the vested-contingent remainder type was valid and recognized as such long before any rule against perpetuities arose. That is the accident which caused the rule not to apply. Whether this reasoning be progressive or unprogressive, logical or illogical, it is exactly the same reasoning, exactly the same accident, which enables one to say that the rule against perpetuities does not apply to contingent remainders. It is believed, therefore, that the learned author's statement that the rule does not apply to vested remainders and that it does apply to legal contingent remainders, while in a sense, perhaps, correct, since contingent remainders have become indestructible, is susceptible of some further elucidation.

1 2 De G. M. & G. 145.

VESTED GIFTS TO A CLASS AND THE RULE AGAINST

PERPETUITIES.

In § 121 b is supposed the case of an immediate vested bequest to the grandchildren of A, a living person, to be paid them at twenty-five. A has one grandchild in esse at the testator's death, who is three years old. Is there a valid gift to that grandchild? The learned author answers this question in the affirmative, but upon what ground is still far from clear.

The actual language used to explain the result was this: "Here the number of the class may not be determined till too remote a period, the rule against perpetuities will be violated, and the gift to a class which may be so constituted will be bad; there is, then, no reason for sustaining the direction to postpone in the interest of increasing the class, and the provision [for postponement] is inoperative." This language on its face seems an indefensible violation of the rule of § 629 that "every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied." Whatever the character of the rules in regard to the determination of classes may be, they are certainly applied remorselessly without any reference to whether such application will cause the gift to be void for remoteness or not. There is no more reason in the case under consideration for changing the usual rule for the determination of classes, because otherwise the whole gift would be void for remoteness, than there was in Leake v. Robinson.1

It seemed so improbable that Mr. Gray had really meant what he appeared to say that the writer was driven to invent some other meaning for this language. He conceived that what the learned author meant was that there were two separately expressed gifts, one to the grandchildren of A in esse at the testator's death, by the words" to the grandchildren of A," and the other to the after-born grandchildren of A, by the words "to be paid at twenty-five"; that the latter being too remote, but separable, may be rejected, leaving the gift to the grandchildren of A to stand. This view seemed to receive some confirmation from what appeared in § 442 a. This explanation the learned author has now so warmly condemned that it hardly seems open to further consideration.2 This leaves in support of Mr. Gray's conclusion only the sugges

1 2 Meriv. 363.

2

19 HARV. L. REV. 604.

tion that the postponement clause is void, not because it violates the rule against perpetuities, but because it attempts the creation of an indestructible trust which may last too long a time, so that by the rejection of that clause as void we have a straight gift to the grandchildren of A.1 Whether the learned author accepts this or not I do not venture to say.

On the whole, then, Mr. Gray's solution of the problem under discussion seems to rest only upon the reasoning adduced by one of his recent pupils, which in turn rests upon a principle never judicially applied in any case and only hinted at in cases like Claflin v. Claflin where there was a gift to an individual and not to a class. Somehow one does not accord to the writer of a book so much latitude in promulgating new results without good reasons, as a court, which has to decide whether it wants to or not, is indulged in.

POSTPONED ENJOYMENT CLAUSES VOID APART FROM THE
RULE AGAINST PERPETUITIES.

Mr. Gray concedes that the postponed enjoyment of a vested and indefeasible equitable interest is valid everywhere if the gift is to a class. If the gift is to an individual, it is valid only in Massachusetts and perhaps Illinois, under what is now known as the rule of Claflin v. Claflin. In §§ 121 h and 121 i he suggests, however, that there must be some limits to the length of time the postponement will be allowed to continue, and the time in the future that it will be allowed to operate. In a note in a recent number of the HARVARD LAW REVIEW 5 he admits that (in accordance with the language of several cases) the period will very likely be copied from that adopted for the rule against perpetuities, that is to say, a life or lives in being and twenty-one years. He seems to think, however, that there is still a question as to whether the period of a life or lives in being and twenty-one years will begin to run from the time the trust is created or from the time the postponement

1 19 HARV. L. REV. 598, 602-604.

2 149 Mass. 19.

3 Oppenheim v. Henry, 10 Hare 449; Gray, Rule Perp., 2 ed., § 121 a.

4 149 Mass. 19; Lunt v. Lunt, 108 Ill. 307; Gray, Rule Perp., 2 ed., § 121 c.

5 Vol. 19, p. 604.

6 Sadler v. Pratt, 5 Sim. 632; Jackson v. Marjoribanks, 12 Sim. 93; Shallcross's Estate, 200 Pa. St. 122; Winsor v. Mills, 157 Mass. 362; Kohtz v. Eldred, 208 Ill. 60, 72. In Kentucky there is a statutory provision to the same effect: Ky. Stat. 1903, § 2360; Johnson's Trustee v. Johnson, 79 S. W. Rep. 293 (Ky., 1904).

begins to operate. He even ventures an ambulatory guess (that is, I suppose, one subject to be revoked) that it will be the latter. Thus, suppose a legacy be devised to the first-born son of A, a bachelor, contingent upon his reaching the age of twenty-one, but with a proviso that the legacy is not to be paid to him until twentyone years after he reaches the age of twenty-one. Here, if the time at which the postponement will be effective be measured from the testator's death, it is void in toto, but if it be calculated from the time the postponement commences to operate, it is valid.1

If Mr. Gray were deciding the question instead of guessing about it, there ought to be but little doubt as to what result he would choose. One who has expressed such abhorrence of the whole doctrine of Claflin v. Claflin as he has, would certainly be expected to choose the shorter period for the existence of the postponement. It is difficult to see upon what ground any other result could be reached.

Such authority as exists is in favor of the shorter period. Thus, the English cases which have had to deal with the time within which clauses against anticipation of a married woman's property must be operative to be valid, have settled it that the clause against anticipation is wholly void if it may possibly be in operation at a period beyond a life or lives in being and twenty-one years from the time of the testator's death or the date of the settlement. In the case of In re Ridley2 the limitations were in substance to A for life and then to A's children living at her death, and the issue of any child then dead in equal shares per stirpes. Then there was the general clause that any legatees being females were to take their shares subject to a clause against anticipation. It is clear that the gift after the life estate vested in time, namely, at A's death. If, then, the validity of the clause. against anticipation be determined by reckoning the life or lives.

1 It should be observed that the case put by Mr. Gray in his note in 19 HARV. L. REV. 604 to raise this question, does not do it. He supposes in a Claflin state that a legacy is given "to the first-born son of A to be paid him when he reaches twenty-five," A being at present a bachelor. Under both views the postponement in such a case would last too long and therefore be void. If you measure the postponement from the time of the death of the testator, it will clearly last too long, but it will equally do so if you measure the length of time the postponement is to last from the beginning of the unborn child's interest that is, from the moment of his birth, because the time of payment comes, as Mr. Gray himself asserts (Rule Perp., 2 ed., § 121 b), not when the child reaches twenty-five or dies, whichever happens first, but when he would have reached, had he lived, the age of twenty-five.

2 11 Ch. D. 645.

in being and twenty-one years from the time the future interest vested, it must have been valid, because it would be operative only during lives in being from the time of vesting of the interests after the life estate. It was held void, however, because it might be effective at a time beyond a life or lives in being and twentyone years from the testator's death.

It is submitted that sound public policy requires such a result. So long as the rule against perpetuities compels future interests to take effect in possession or to vest (in the feudal sense of that term) not later than twenty-one years after some life in being at the creation of the interest, it would seem inconvenient to allow trusts of interests which vest in time to be continued far beyond that period. The public policy of which the rule against perpetuities is in part an expression, is that the testator or settlor's control over his property shall cease at least at the end of a period of a life in being and twenty-one years from the death of the testator or the date of the settlement. To allow him to create an indestructible trust to last during a life or lives in being and twenty-one years after a life or lives in being and twenty-one years, will not, it is submitted, be tolerated.

NORTHWESTERN UNIVERSITY LAW SCHOOL.

Albert Martin Kales.