twenty-one, thereafter the income to be paid over annually to her grandchildren in equal shares. She was survived by one daughter. The gift to the grandchildren, vesting in them on the youngest attaining twenty-one, was bound to vest within twenty-one years after the daughter's death, and was therefore valid. The court, however, held that it was void, since the grandchildren would not be entitled to receive the first installment of income until the end of the first year after the youngest had attained twenty-one, the additional year being required in order that the income might accrue, which would be a year over the limits fixed by the rule. Of course the grandchildren's interest would be vested as soon as the youngest attained twenty-one, and there would be no further possible suspension. The decision is clearly wrong. § 270. Interests Affected by the Rule.-(a) Executory Interests. The rule grew up as a direct result of the Statute of Uses and the Statute of Wills, and of executory future interests by way of springing and shifting use and executory devise which were provided for and permitted by these statutes.1 Such interests in nearly all cases depend on some future contingency as a condition precedent which makes them uncertain and indefinite. In some cases, however, they may be as certain and definite as any vested. remainder, such as an estate granted to X to take effect in possession on the death of the grantor, or ten years from date, or on any other event sure to happen. Nevertheless, even in such cases, they were not regarded as vested interests; the entire fee remained in the grantor until the day arrived on which the future interest was to take effect, on which day the future estate was said to be "executed" and to go over for the first time from the grantor to the grantee." It is, of course, perfectly clear that the rule applies to all future executory interests depending on a future contingency. As we have seen, the possibility of tying up property for hundreds of years by creating future executory interests of this nature dependent on contingencies which might not happen until the remote future was the immediate cause of the development of the rule. Therefore every future interest to spring up in another on 1. See 268, ante. 2. See § 258, notes 13 and 14, ante. 5 the happening of some contingency, every fee upon a fee to take effect on a contingency, and each of the other executory interests as discussed in the last chapter, must be so limited that the contingency on which they depend must happen within a life or lives in being at the time the deed or will creating them takes effect, and twenty-one years and a possible nine months thereafter, otherwise they are void. This seems to have been the law also as to executory interests which were sure to take effect, as above explained, depending on no contingency, following logically from the rule that these interests were purely executory, the entire fee remaining during the interval in the grantor or heirs of the devisor. But, as we have already seen, all difference and distinction between executory interests and remainders have been swept away by statute in many states, and in other states by decision, the courts recognizing that the ancient feudal reasons for such distinctions having ceased to exist, the distinctions themselves should be disregarded. On principle there is no reason whatever why these distinctions should be longer recognized anywhere, and every consideration of good policy, clearness and simplicity of the law, as well as of good sense would seem to require that remainders and executory interests be treated in exactly the same way. In those states in which these distinctions have been abolished future executory interests that depend on no contingency are vested, and in no way violate the rule. The other states may be expected to take the same position eventually." 3. Gray Perp. (2d ed.), § 317; Proprietors of Church in Brattle Sq. v. Grant, 3 Gray (Mass.) 142; Society for Theolog. Education v. A. G., 135 Mass. 285; Winsor v. Mills, 157 Mass. 362; Brown & Sibley's Contr., 3 Ch. Div. 156. In above cases the limitation over was to a living person who could release it, so that the absolute power of alienation was not suspended. It is quite immaterial whether the person to whom the limitation over is made is ascertained or not for the purposes of the rule. 4. Gray Perp. (2d ed.), § 114, the author stating that future executory 6. In New York and several of the other states the matter is complicated by the fact that suspension of These executory interests could not be conveyed at common law, but they could always be released, and therefore they never caused a suspension of the absolute power of alienation when limited to ascertained persons, because by joint action of all parties interested the entire fee in possession could be conveyed. The only case in which the absolute power of alienation was suspended by these interests was where the person to take was not ascertained so that he could not release his interest. As we saw in the last chapter, these interests may now be freely conveyed. It is very clear, therefore, that undue remoteness of vesting, and not undue suspension of the absolute power of alienation was the object of the common law rule. Though these interests may now be freely conveyed, and therefore in no way suspend the absolute power of alienation, except in the case where the person or persons to take remain unascertained, they are void unless they must vest within the limits fixed by the rule.8 (b) Remainders and Reversions. Vested remainders, and reversions which are always necessarily vested are in no way affected by the rule. No matter how long actual enjoyment of the property may be postponed, if the interest of the remainderman is vested it may be readily conveyed and its value may be readily ascertained, so that it does not tend to tie up the property. Thus where a vested remainder follows contingent remainders to unborn persons, it is valid because vested, though it would be void if contingent since it might not vest within lives in being and twentyone years." the absolute power of alienation rather than remoteness of vesting is regarded as the basis of the rule. Of course there is no suspension caused by a certain and definite future executory interest such as those referred to in the text. Not only may they be freely conveyed, but their value may be fixed with the same certainty as the value of a vested remainder, and, therefore, they do not tend to discourage alienation any more than do vested remainders. No reason whatever can be given for treating these interests as subject to the rule. See discussion of statutory 9. Evans v. Walker, 3 Ch. Div. 211; Johnston's Est., 185 Pa. St. 179; Gray Perp. (2d ed.), § 205. A case of a vested remainder which may nevertheless violate the rule is given by Prof. Gray, § 205a, of his work on Perpetuities (2d ed.). If a devise is made to A for life, remainder to the children of B who attain the age of twenty-five, and at the testator's death B is living and On the other hand contingent remainders come directly within the rule. It is true that the rule developed in connection with executory estates, the need for it being much greater as a result of the statutes permitting the creation of these interests. But contingent remainders, particularly after the laws affecting them were changed so that they could no longer be defeated by fine or recovery or by the destruction or termination of the prior life estate, came directly within the mischief sought to be prevented by the rule, and it is now universally the law in common law states, that a contingent remainder is void which will not certainly vest within the period fixed by the rule.10 In New York and those has a son, C, who is twenty-five years old, the remainder vests in such son, and the class is closed, so that children of B subsequently born will not be admitted to the class. But if B has other children who are under the age of four at the testator's death, their interests will not vest and the maximum amount of C's share cannot be determined until more than twenty-one years after B's death. But is this material? Since C has attained the age of twenty-five at the testator's death, only those of B's children then in being can take as members of the class. Their interest must vest and the maximum share of each must be determined within their lives, and therefore within lives in being. C has a vested remainder in an undivided share of the balance of the fee. The other children have a contingent remainder in the balance of the fee, contingent because it depends upon their attaining the age of twenty-five. This must happen, if ever, within their lives and the gift to them does not violate the rule. The testator undoubtedly intended that if these children should die before attaining the age of twenty-five the entire estate in remainder should vest in C. This also must happen during the lives of the other children, lives in being at the testator's death. It would seem clear, therefore, that these remainders are valid since children subsequently born to B must be excluded from the class, and the gifts to the then living children of B must vest, if ever, within their lives. See Gray Perp., § 379. It is difficult to imagine a case of a remainder to a class vested in a member thereof which can violate the rule, because if the limitation is to children of a living person the children will be ascertained during a life in being, and if an additional precedent contingency is provided, such as their attaining the age of twenty-five, or other contingency to happen after they attain twenty-one, the contingency must have happened as to one of the class at the time of the testator's death, in order that the interest of one of the class may be vested, in which case the class is closed and subsequently born children cannot be admitted. 10. Abbiss v. Burney, 17 Ch. Div. 211; In re Frost, 43 Ch. Div. 246; London & S. W. R. Co. v. Gomm, 20 Ch. Div. 562; Lewis Perp., ch. 16; Winsor v. Mills, 157 Mass. 362; Madison v. Larmon, 170 Ill. 65; Wood v. states which have adopted the New York statutory scheme the law is different, as will be explained hereafter.11 A remainder in fee after an estate tail is vested, and therefore does not violate the rule. It is not the remainder in this case that ties up the property, but the prior estate tail. The law provided against this by permitting the tenant in tail to bar the entail by a fine or recovery, changing the estate tail into a fee simple, and thereby defeating the remainder. At the present time in jurisdictions in which estates tail still exist, they may be changed into estates in fee simple, defeating the remainder, by a simple conveyance in fee. In such case the property is in no sense tied up.12 (c) Possible Rights of Reverter and of Entry for Breach of Condition. That such possible rights of entry to enforce a forfeiture of estates in fee for breach of condition are within the mischief Griffin, 46 N. H. 230; Fosdick v. It has been urged that contingent remainders do not come within the rule because they were valid at common law before the enactment of the Statute of Uses and the Statute of Wills, the rule having been developed to restrain the creation of executory interests under these statutes only, they being indestructible while contingent remainders were destructible at any time by fine or recovery or the destruction of the precedent estate on which the contingent remainder depended by merger, forfeiture, etc. Prof. Gray establishes beyond question that this argument is not sound historically because the rule was developed in the applying of it to future interests in personal property, chattels and chattels real, which could always be limited by will or inter vivos before these statutes in any of the ways in which executory interests could be created after these statutes were en 12 acted. Furthermore, the rule has been always held to apply to equit able executory interests which were just as valid before these statutes as after. There can be no question that the rule was developed as a general rule of public policy to limit the crea tion of all future contingent interests to those which would certainly vest within lives in being and twentyone years, whether they happened to be interests made possible by the statutes above referred to, or were interests recognized as valid before these statutes were enacted. Gray Perp. (2d ed.), §§ 296-298. The argument that contingent remainders were destructible and therefore did not violate the rule, no longer has any application as by statute in England and generally in the United States, they are now indestructible and come within the reason of the rule to exactly the same extent as executory interests. Gray Perp. (2d ed.), 286. See § 250, ante. 11. See Ch. XVII, post. 12. Gray Perpetuities, §§ 443, 447, and cases there cited. |