202. "No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within 21 years after some life in being at the creation of the interest."259
It has already been stated that at common law freeholds could not be created to commence in futuro, and the exceptions to this rule which have grown up have been discussed;260 but some forms of such limitations are invalid if made to commence at a too remote period. This is called the rule against perpetuities, but unfortunately so, for a better designation would be the rule "against remoteness." The misnomer has in all probability given rise to much of the confusion which exists in relation to the rule. What is known as the rule against perpetuities has nothing to do with restraints on alienation, as might be supposed, though many statutes and cases hare so treated it. It is based entirely on public policy, and its only object is to prevent the creation of estates which are to vest in interest at a remote time. That this is true will be seen from the fact that interests may be too remote, though they are capable of a present, alienation.261
254 l Sugd. Powers, 85; Maundrell v. Maundrell, 10 Ves. 246b. But see Doe v. Britain, 2 Barn. & Aid. 93.
255 a power simply collateral is "a power to a person not having any interest in the land, and to whom no estate is given, to dispose of, or charge the estate in favor of some other person." 1 Sudg. Powers, 45. See West v. Berney, 1 Russ. & M. 431.
256 D'wolf v. Gardiner, 9 R. I. 145; Grosvenor v. Bowen, 15 R. I. 549, 10 Atl. 589; Albany's Case, 1 Coke, 110b.
257 Beneseh v. Clark, 49 Md. 497; Henderson v. Vaulx, 10 Yerk. (Tenn.) 30.
258 Hetzel v. Barber, 69 N. Y. 1; Sharpsteen v. Tillou, 3 Cow. (N. Y.) 651; Smith's Lessee v. Folwell, 1 Bin. (Pa.) 546; Bates v. Bates, 134 Mass. 110. But see Ely v. Dix, 118 111. 477, 9 N. E. 62 (a partial failure).
259 Gray, Perp. 144; Paxson, J., in Smith's Appeal, 88 Pa. St. 493. For the origin and history of the rule against perpetuities, see Gray, Perp. c. 5.
260 See ante, pp. 133, 284.
The rule against perpetuities applies only to estates which are limited to vest on the happening of a contingency. This contingency must happen, if at all, within the prescribed period, or the estate so limited is void.262 The fact that it may and does happen within such time is not sufficient to make the limitation valid, if it might have happened beyond the prescribed time.263 An estate may be limited, according to this rule, after any number of lives in being.264 The only restriction suggested is that the number must not be so great that evidence of the termination of the lives cannot be obtained.265 In the usual form in which the rule is stated, the period of gestation is added to 21 years, but this is not strictly accurate. The same effect is reached by holding that a child in ventre sa mere is in being, so as that an estate can vest in it.266 In this way it is possible that three periods of gestation may occur in a limitation which does not violate the-rule.267 The term of 21 years after the dropping of a life which is allowed by the rule may be in gross without reference to the
261 Gray, Perp. § 140.
262 Jee v. Audley, 1 Cox, Ch. 324; Abbiss v. Burney, 17 Ch. Div. 211; In re Frost, 43 Ch. Div. 246; In re Hargreaves, Id. 401; Porter v. Fox, 6 Sim. 485; Doe v. Challis, 18 Q. B. 224, 231. See Sawyer v. Cubby, 146 N. Y. 102, 40 N. E. 860; Lloyd v. Carew, Show. Parl. Cas. 137. For a longer period made possible under statutes affecting estates tail, see 1 Dembitz, Land Tit. 118.
263 Stephens v. Evans' Adm'x, 30 Ind. 39; Jee v. Audley, 1 Cox, Ch. 324; Lett v. Randall, 3 Smale & G. 83. Contra, Longhead v. Phelps, 2 W. Bl. 704.
264 Or after the lives of unborn persons, if the vesting is during the lives of persons in being. Evans v. Walker, 3 Ch. Div. 211.
265 Thellusson v. Woodford, 11 Ves. 112; Low v. Burron, 3 P. Wms. 262. See Scatterwood v. Edge, 1 Salk. 220.
266 Gray, Perp. § 220; Storrs v. Benbow, 3 De Gex, M. & G. 300; Long v. Blackall, 7 Term R. 100.
267 "Suppose, for instance, a devise to testator's children for life, on their death to be accumulated till the youngest grandchild reaches twenty-one, minority of any person.268 Therefore a limitation of an estate after a term of 21 years is good.269 In cases of contingent remainders, however, the time within which they must vest is limited to the duration of lives in being, and the period of 21 years additional is not allowed.270 The time within which an estate limited must vest under the rule is computed from the death of the testator, when the limitation is by will,271 and, when by deed, from the execution of the deed.272 The rule is satisfied if the estate vests within this time, though the interest so created does not terminate until a later time.273
The rule against perpetuities is not one of construction, but it is applied to a devise or a deed after the instrument limiting the estates is construed, and is applied regardless of the intention; for the rule is not intended to effect the intention, but more often defeats it.274 It is only in cases of ambiguous construction that it is presumed that the intention was to limit an estate which would not be void as contravening the rule.275 and then to be divided among all the grandchildren then living, and the issue then living of any deceased grandchild. The testator leaves a posthumous child, who dies, leaving one child, A., born, and another, B., en ventre sa mere. B. is born, and reaches twenty-one, but before he does so A. dies, leaving his wife enceinte, who gives birth to a child after B. reaches twenty-one. Here we have (1) the period until the testator's child is born; (2) the life of such child; (3) the period after the death of such child until B. is born; (4) the minority of B.; (5) the period from the time when B. reaches twenty-one until A.'s child is born. Here we have a life, a minority of twenty-one years, and three periods of gestation." Gray, Perp. § 222. And compare Long v. Blackall, 7 Term R. 100; Thellusson v. Woodford, 11 Ves. 112.