268 Beard v. Westcott, 5 Taunt. 393; Cadell v. Palmer, 1 Clark & F. 372. But see Mayor, etc., of New York v. Stuyvesant's Heirs, 17 N. Y. 34.
269 Gray, Perp. § 225; Low v. Burron, 3 P. Wms. 262. See Stephens v. Stephens, Cas. t. Talb. 228; Avern v. Lloyd, L. R. 5 Eq. 3S3.
270 Gray, Perp. § 294; Cattlin v. Brown, 11 Hare, 372.
271 Southern v. Wollaston, 16 Beav. 270.
272 Mcarthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652.
273 Otis v. Mclellan, 13 Allen (Mass.) 339; Minot v. Taylor, 129 Mass. 160; Heald v. Heald, 56 Md. 300. But see Slade v. Patten, 68 Me. 380.
274 Gray, Perp. § 629; Maule, J., in Dungannon v. Smith, 12 Clark & F. 546; James, L. J., in Heasman v. Pearse, 7 Ch. App. 275.
275 Post v. Hover, 33 N. Y. 593; Du Bois v. Ray, 35 N. Y. 162.
Effect of Limitations too Remote.
When the limitation of a future estate is void on account of the rule against perpetuities, the prior estates take effect, as if there had been no subsequent limitations.276 But estates which are to take effect after limitations that are too remote, if vested, or if they become vested within the time prescribed by the rule, will not be affected by the void limitations.277 In cases where a good limitation of an estate is made, and a subsequent modification is added which would make the estate void for remoteness, the modification will be rejected, and the estate will stand as under the original limitation.278 When there is no disposition in a will, except the void limitation, the heirs take.279
(a) Vested interests.
(b) Present interests.
(a) Rights of entry for condition broken.
(b) Gifts to a charity, with a remote gift over to another charity.
276 Proprietors of Church in Brattle Square v. Grant, 3 Gray (Mass.) 142.
277 Gray, Perp. § 251. But see Proctor v. Bishop of Bath & Wells. 2 H Bl. 358. So some of the limitations may vest in time, and be valid though others fail. Wilkinson v. Duncan, 30 Beav. Ill; Cattlin v. Brown, 11 Hare, 372; Picken v. Matthews, 10 Ch. Div. 264; Hills v. Simonds, 125 Mass. 533. But see Pearks v. Moseley, 5 App. Cas. 714.
278 Slade v. Patten, 68 Me. 380; Ring v. Hardwick, 2 Beav. 352; Gove v. Gove, 2 P. Wms. 28. Otherwise when the first limitation is not absolute. Whitehead v. Bennett, 22 Law J. Ch. 1020.
279 Fosdick v. Fosdick, 6 Allen (Mass.) 41; Wainman v. Field, Kay. 507.
The rule against perpetuities does not apply to vested interests, but only to those which are contingent.280 Covenants running with the land are present interests, and therefore do not violate the rule.281 If property is vested absolutely in a person, and a condition is added postponing his enjoyment, such condition will be void for repugnancy if for a longer period than the minority of the person entitled to the property. Such cases have nothing to do with the rule against perpetuities.282 We have already seen that reversions and vested remainders are vested interests, and therefore they are not within the rale against perpetuities.283 There is considerable conflict as to whether contingent remainders are within the rule. It is argued that they are not within the rule, because they may be destroyed by the tenant of the preceding estate. But the better opinion is that they are subject to the rule. This is the case under statutes which prevent the destruction of such remainders by acts of the tenant of the particular estate.284 Remainders after estates tail are not too remote, because they may be barred by the tenant in tail at any time.285
A great many cases have arisen where there were limitations over "on failure of issue." At common law the words are held to mean an indefinite failure of issue, and not a failure at the death of the person named.286 The tendency of the later cases is away from this rule,287 and in some states it has been changed by stat280 Gray, Perp. § 205.
281 Tobey v. Moore, 130 Mass. 448; Ex parte Ralph, 1 De Gex, 219.
282 Daniels v. Eldredge, 125 Mass. 356; Josselyn v. Josselyn, 9 Sim. 63; Saunders v. Vautier, 4 Beav. 115. In re Ridley, 11 Ch. Div. 645. But sec Herbert v. Webster, 15 Ch. Div. 610. See Leake v. Robinson. 2 Mer. 363.
283 Gray, Perp. § 205.
284 Gray, Perp. §§ 284-286, and see ante, p. 294.
285 Goodwin v. Clark, 1 Lev. 35; Nlcolls v. Sheffield, 2 Brown, Ch. 215. See Duke of Norfolk's Case, 3 Ch. Cas. L And cf. Bristow v. Boothby, 2 Sim. & S. 465.
286 Chadock v. Cowley, Cro. Jac. 695; Burrough v. Foster, 6 R. I. 534; Cf. Ashley v. Ashley, 6 Sim. 358. But otherwise as to leaseholds, Forth v. Chapman, 1 P. Wms. 663; or legacies, Nichols v. Hoopor, Id. l98. And see Hughes v. Sayer, Id. 534.
287 Anderson v. Jackson, 16 Johns. (N. Y.) 382; Benson v. Corbin, 145 N. Y. 351, 40 N. E. 11; Abbott v. Essex Co., 18 How. 202; Greenwood v. Verdon,
§ 203) ute.288 When the failure is of the issue of some other person than the holder of the estate, the limitation over is an executory devise, and so void in cases of indefinite failure.289 But, if the remainder is given to another on the failure of issue of the first taker, a limitation after an indefinite failure is construed to give him an estate tail, and the remainder after it therefore does not violate the rule against perpetuities.290 In any case where a definite failure of issue of a living person is meant, limitations over are hot within the rule, because they must take effect at the end of a life in being.291
When a remainder limited in a will is void on account of this rule, it will, if possible, be construed to give an estate tail in the first taker, as being as near the testator's real intention as possible. This is called the cy-pres doctrine of construction.292