1 N. Y. P. L. §§ 36, 37. - Ed.

1 N. Y. R. P. L. § 46. - Ed.

2. Executory Future Estates, Subject to a Condition Precedent, Must Obey in their Creation the "Rule Against Perpetuities."1

First Universalist Society V. Boland

155 Massachusetts, 171. - 1892. [Reported herein at p. 525. ]2

3. In New York and a Few Other States3 Two Other Rules are Substituted for the Rule Against Perpetuities.

a. "Every future estate shall be void in its creation which shall suspend the absolute power of alienation., by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate; except that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty-one years, or on any other contingency by which the estate of such persons may be determined before they attain full age.''4

(1.) Estates Subject to a Condition Precedent Come Naturally

Within this Rule.

Haynes V. Sherman

117 New York, 433. - 1889.

[Reported herein at p. 922.]

1 This rule, in general terms, is that "no interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life [or lives] in being at the creation of the interest." Gray, Rule Against Perpetuities, §§ 201, 214. Periods of gestation, if they occur, will be included. § 220, Gray. Some of our States have rejected the absolute term, allowing an actual minority. This is not a rule against the suspension of the power of alienation. It applies even though the interest be alienable. Gray's Rule against Perpetuities, § 268. A "perpetuity" in the sense of the rule is not "an inalienable, indestructible interest." but "an interest which will not vest till a remote period." Id., § 140. - Ed.

2 See Leonard v. Burr, p. 521, supra. Sears v. Russell, infra, p. 1134. - Ed.

3 See note p. 867, supra. - Ed.

4§ 32, N. Y. R. P. L. "The absolute power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed." Id. - Ed.

(2.) By Construction of the Courts and Within the Spirit of the Rule a Spendthrift Trust May Violate the Rule.1

Haynes V. Sherman

117 New York, 433. - 1889.

Earl, J. - Elijah T. Sherman died in the city of New York in October, 1886, leaving his wife and six children, him surviving, three of them minors, and leaving a will in which he disposed of his estate as follows: "After paying my just debts I give, devise and bequeath all my estate, real and personal and mixed, and wherever situate, to my wife Catharine M. Sherman, in trust, nevertheless, to have and to hold the same and use so much of the income and principal as she may deem necessary for her support and the support of our children until our youngest child now living shall arrive at the age of twenty-one years or would arrive at that age if living, and at that time I order and direct my said estate to be divided among my legal heirs then living in such manner and proportion as they and each of them would be entitled under the laws of the State of New York if I had died intestate." And he appointed his wife sole executrix and empowered her to sell and convey all or any portion of his estate at such prices and upon such terms as she might elect.

The plaintiff contends that this disposition of his estate by the testator is invalid because it offends against the statutes which prohibit perpetuities, and that, therefore, the estate has passed as if he had died intestate; and we are of that opinion. The youngest child of the testator living at the date of his will was born December 10, 1872, and will not, therefore, attain the age of twenty-one years until the 10th day of December, 1893.

The defendants contend that the words "or would arrive at that age. if living," may be disregarded, and that the trust would be simply for the minority of the youngest child, would terminate at his death if he died before twenty-one, and hence that it could not extend beyond his life, and is, therefore, valid. When a will contains separate trusts, some of which are legal and some illegal, or various limitations of estates not dependent upon each other or essentially connected, some of which are legal and some illegal, the illegal portions may be stricken out and the other portions permitted to stand; and the books are full of illustrations of such cases. The courts will strive to uphold so much of a will as they can without frustrating the main intention of the testator or violating any rule of law. Here it is clear that the testator meant that the trust should last, not only during the life of his grandchild if he should die before twenty-one, but until the time he would reach twenty-one if living. It is the same as if he had in terms created a trust to last until the 10th day of December, 1893. It was then, and not till then, that he meant his estate should be divided among his legal heirs living at that time. There are not two trust terms, but one, and there is but one trust, and hence no part of the trust term can be cut off and no part of the trust can be disregarded for the purpose of rendering the remainder of the term and trust valid. It matters not that the youngest child might live until he should be twenty-one. He might not live so long, and that is enough to condemn the trust. In determining the validity of limitations of estate under the Revised Statutes, I R. S. 723, § 15;1 Id. 773, § I2, as said by Grover, J., in Schettler v. Smith, 41 N. Y. 328, " It is not sufficient that the estates attempted to be created may, by the happening of subsequent events, be terminated within the prescribed period if such events might so happen that such estates might extend beyond such period. In other words, to render such future estates valid, they must be so limited that in every possible contingency they will absolutely terminate at such period, or such estates will be held void.