Sale or mortgage for payment of debts.
Of the Time within which Executory Interests must arise.
Secondly, as to the time within which an executory estate or interest must arise. It is evident that some limit must be fixed; for if an unlimited time were allowed for the creation of these future and indestructible estates, the alienation of lands might be henceforward for ever prevented by the innumerable future estates which the caprice or vanity of some owners would prompt them to create. A limit has, therefore, been fixed on for the creation of executory interests; and every executory interest which might, under any circumstances, transgress this limit, is void altogether. With regard to future estates of a destructible kind, namely, contingent remainders, Ave have seen (f) that a limit to their creation is contained in the maxim, that no remainder can be given to the unborn child of a living person for his life, followed by a remainder to any of the issue of such unborn person: - the latter of such remainders being absolutely void. This maxim, it is evident, in effect, forbids the tying up of lands for a longer period than can elapse until the unborn child of some living person shall come of age; that is, for the life of a party now in being, and for twenty-one years after, - with a further period of a few months during gestation, supposing the child should be of posthumous birth. In analogy, therefore, to the restriction thus imposed on the creation of contingent remainders (g), the law has fixed the following limit to the creation of executory interests; - it will allow any executory estate to commence within the period of any fixed number of now existing lives, and an additional term of twenty-one years; allowing further for the period of gestation, should gestation actually exist (h). This additional term of twenty-one years may be independent or not of the minority of any person to be entitled (i); and if no lives are fixed on, then the term of twenty-one years only is allowed (k). But every executory estate which might, in any event, transgress this limit, will from its commencement be absolutely void. For instance, a gift to the first son of A., a living person, who shall attain the age of twenty-four years, is a void gift (l). For if A. were to die, leaving a son a few months old, the estate of the son would arise, under such a gift, at a time exceeding the period of twenty-one years from the expiration of the life of A., which, in this case, is the life fixed on. But a gift to the first son of A. who shall attain the age of twenty-one years will be valid, as necessarily falling within the allowed period. When a gift is infected with the vice of its possibly exceeding the prescribed limit, it is at once and altogether void both at law and in equity. And even if, in its actual event, it should fall greatly within such limit, yet it is still as absolutely void as if the event had occurred which would have taken it beyond the boundary. If, however, the executory limitation should be in defeaz-ance of, or immediately preceded by, an estate tail, then, as the estate tail and all subsequent estates may be barred by the tenant in tail, the remoteness of the event on which the executory limitation is to arise will not affect its validity (m).
The time within which an executory interest must arise.
(c), Ante, p. 267.
(d), Stat. 11 Geo. IV. & 1 Will.
IV. c. 47, s. 12; 2 & 3 Vict. c. 60. (e) Stat. 11 & 12 Vict. c.87.
Limit to the creation of executory interests.
(f) Ante, p. 263.
(g) Per Lord Kenyon, in Long v. Blackall, 7 T. Rep. 102. See also 1 Sand. Uses, 197 (205, 5th ed.)
(h) Fearne, Cont. Rem. 430 et seq.
(i) Cadell v. Palmer, 7 Bligh, N. S. 202.
In addition to the limit already mentioned, a further restriction has been imposed by a modern act of parliament (n), on attempts to accumulate the income of property for the benefit of some future owner. This act was occasioned by the extraordinary will of the late Mr. Thellusson, who directed the income of his property to be accumulated during the lives of all his children, grandchildren and great-grandchildren who were living at the time of his death, for the benefit of some future descendants to be living at the decease of the survivor (o); thus keeping strictly within the rule which allowed any number of existing lives to be taken as the period for an executory interest. To prevent the repetition of such a cruel absurdity, the act forbids the accumulation of income for any longer term than the life of the grantor or settlor, or twenty-one years from the death of any such grantor, settlor, devisor or testator, or during the minority of any person living, or in ventre sa mere at the death of the grantor, devisor or testator, or during the minority only of any person who, under the settlement or will, would for the time being, if of full age, be entitled to the income so directed to be accumulated (p). But the act does not extend (q) to any provision for payment of debts, or for raising portions for children (r), or to any direction touching the produce of timber or wood. Any direction to accumulate income, which may exceed the period thus allowed, is valid to the extent of the time allowed by the act, but void so far as this time may be exceeded (s). And if the direction to accumulate should exceed the limits allowed by law for the creation of executory interests, it will be void altogether, independently of the above act (t).
Exception where preceded by an estate tail.
Restriction on accumulation.
(k) 1 Jarm. Wills, 230, 1st ed.; 205, 2nd ed.; 229, 3rd ed.; Lewis on Perpetuities, 172.
(l) Newman v. Newman, 10 Sim. 51; 1 Jarm. Wills, 227, 1st ed.; 208, 2nd ed.; 233, 3rd ed.; Griffith v. Blunt, 4 Beav. 248.
(m ) Butler's note (h) to Fearne, Cont. Rem. 562; Lewis on Perpetuities, 669. Soc ante, p. 277, n. (b).