It is often stated that a contingent remainder cannot be limited to an unborn child of an unborn person. But this is believed to be inaccurate. It was founded on the exploded notion that there could not be a "possibility on a possibility."293 In the United States, rights of entry for condition broken are probably an exception to the rule against perpetuities, though no sufficient reason can be given for making the difference.294 The rule against per petuities applies to equitable as well as to legal estates. If they are vested they are not subject to the rule; otherwise they are.295 The rule in fact has principally to do with cases of future uses and executory devises. A trust does not violate the rule against perpetuities because it is to continue indefinitely, if it vests within the time required, because, as has been seen, the rule against perpetuities is concerned with the vesting of estates, not with their duration.296 The question of remoteness in connection with mortgages does not seem to have been raised, but Mr. Gray thinks that no good reason can be assigned why it should not apply.297 Under limitations to a class which are void because some of the persons who are to take cannot be ascertained within the time required by the rule against perpetuities, the limitations are void as to all of the class, unless so made that the amount one is to receive is not affected by the existence of the other limitations. In the latter case those limitations will be good which can vest within the required time, and the others will be bad.298 Under limitations to a series of persons, the limitation to the first one of the series will not be rendered void by the fact that the limitations to the others are too remote.299
1 Kay & J. 74; Trotter v. Oswald, 1 Cox, Ch. 317; Ex parte Davies, 2 Sim. (N. S.) 114; Roe v. Jeffery, 7 Term R. 589; Barlow v. Salter, 17 Ves. 479.
288 1 Stim. Am. St Law, § 1415.
289 Sanders v. Cornish, Cro. Car. 230; Love v. Wyndham, 1 Mod. 50.
290 Tatton v. Mollineux, Moore, 809; Retherick v. Chappel, 2 Bulst 28.
291 Gray, Perp. §§ 155-158; Davenport v. Kirkland, 156 111. 169, 40 N. E. 304; Terrell v. Reeves, 103 Ala. 264, 16 South. 54. But, contra, Child v. Baylie, Cro. Jac. 459.
292 Allyn v. Mather, 9 Conn. 114; Vanderplank v. King, 3 Hare, 1; Parfitt v. Hember, L. R. 4 Eq. 443; Humberston v. Humberston, 1 P. Wins. 332; Elliott v. Elliott, 12 Sim. 276; Kevern v. Williams, 5 Sim. 171. Cf. Hampton v. Holman, 5 Ch. Div. 183; Routledge v. Dorril, 2 Ves. Jr. 358; Hale v. Pew, 25 Beav. 335. But see St. Amour v. Rivard, 2 Mich. 294.
293 see Gray, Perp. §§ 287-294. Contra, that they are void, Whitby v. Mitchell, 44 Ch. Div. 85.
294 Brattle Square Church v. Grant, 3 Gray (Mass.) 142; Hunt v. Wright, 47 N. H. 396. Contra, Dunn v. Flood, 25 Ch. Div. 629. See, however, Lon don & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 562.
The application of the rule against perpetuities to powers is stated by Mr. Gray as follows: "(1) If a power can be exercised at a time beyond the limits of the rule against perpetuities it is bad. (2) A power which cannot be exercised beyond the limits of the rule against perpetuities is not rendered bad by the fact that within its terms an appointment could be made which would be too remote. (3) The remoteness of an appointment depends upon its distance from its creation, and not from the exercise of the power."300 The effect of appointments under powers which are too remote is the same as for estates limited in violation of the rule.301
295 See Abbiss v. Burney, 17 Cb. Div. 211; Bull v. Pritchard, 5 Hare, 567; Blagrove v. Hancock, 16 Sim. 371.
296 rbiladelpbia v. Girard's Heirs, 45 Pa. St 9; Yard's Appeal, 64 Pa. St. 95. Contra, Slade v. Patten, 68 Me. 380.
297 Gray, Perp. §§ 562-571.
298 Lovvry v. Muldrovv, 8 Rlcb. Eq. (S. C.) 241; Hills v. Simonds, 125 Mass. 536; Boughton v. Bougbton, 1 H. L. Cas. 406; Storrs v. Benbow, 3 De Gex, M. & G. 390; Wilkinson v. Duncan, 30 Beav. Ill; Elliott v. Elliott, 12 Sim. 276.
299 Goldsborough v. Martin, 41 Md. 488; Caldwell v. Willis, 57 Miss. 555; Dillon v. Reilly, Ir. R. 10 Eq. 152; Liley v. Hey, 1 Hare, 580; Wainman v. Field, Kay, 507.
Gifts to Injuirities.
The rule against perpetuities also applies to gifts to charities in nearly all their forms. For instance, where there is a gift to a charity with a gift over to an individual, whether in trust for him or not, the gift over is void if it violates the rule.302 So with a gift to an individual followed by a remote gift over to a charity.303 Again, property may be held in trust for an individual, to be held, on the happening of a contingency, for a charity. If the contingency is too remote, the gift to the charity is void.304 In the case, however, of a gift to one charity, with a gift over to another, the rule against perpetuities has been held not to apply.305 But Mr. Gray doubts the correctness of such a holding.306 It has also been held that a gift which could not take effect at the testator's death would be held by the court a reasonable time, at least, for the benefit of the charity.307
300 Gray, Perp. § 473; Hillen v. Iselln, 144 N. Y. 865, 39 N. E. 368; In re Powell's Trusts, 39 Law J. Ch. 188. Contra, Rous v. Jackson, 29 Ch. Div. 521.
301 Morgan v. Gronon. L. R. 16 Eq. 1. The appointment is bad if it might vest at a too remote period, though it does not. Smith's Appeal, 88 Pa. St. 492. An appointment over on a contingency after an appointment whicb violates the rule is void also. Routledge v. Dorril, 2 Ves. Jr. 357. A power collateral to an estate tail is not void, since the tenant in tail may bar it at any time. Lantsbery v. Collier, 2 Kay & J. 709. A void clause may be rejected, and the rest of the appointment stand. In re Teague's Settlement, L. R. 10 Eq. 564.
302 Gray, Perp. § 593; Brattle Square Church v. Grant, 3 Gray (Mass.) 142; Wells v. Heath, 10 Gray (Mass.) 17; Society for Promoting Theological Education v. Attorney General, 135 Mass. 285; Palmer v. Bank, 17 R. I. 627, 24 Atl. 109.
303 Gray, Perp. § 594; Leonard v. Burr, 18 N. Y. 96; Smith v. Townsend, 82 Pa. St. 434; Commissioners of Charitable Donations & Bequests v. De Clifford, 1 Dru. & War. 245; Attorney General v. Gill, 2 P. Wms. 3G9; In re Johnson's Trusts, L. R. 2 Eq. 716.
304 Gray, Perp. §§ 595, 596.
305 Christ's Hospital v. Grainger, 16 Sim. 83, 1 Mcn. & G. 460, approved Odell v. Odell, 10 Allen (Mass.) 1, 9; Jones v. Habersham, 107 U. S. 174, 185, 2 Sup. Ct. 336; Chamberlayne v. Brockett, 8 Ch. App. 206.
306 Gray, Perp. §§ 597-603.
307 Sinnett v. Herbert, 7 Ch. App. 232.
204. In the United States the rule against perpetuities exists as at common law, except: Exception-in some states it is provided by statute that all future estates must vest -within two lives in being.
As has been stated, the rule against perpetuities was established by construction of the courts. In most American states the rule has been adopted as part of the common law. In some there are statutes which are merely declaratory of the common-law rule. In others a different rule has been provided,-notably, in New York, Michigan, Wisconsin, and Minnesota,-and the time is limited to the duration of two lives in being.308