This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
15a. Post Sec. 184, notes 40, 43, conveyance of the legal title, or if his right of enjoyment is postponed merely by reason of either a conflicting right of the same character in another21 or of a provision for accumulation for his benefit.22
15b. Mann, Crossman & Paulin, Ltd. v. Registrar, 117 Law Times Rep. (N. S.) 703.
15c. Redington v. Browne, L. R. 32 Ir. 347.
15d. Ante, Sec. 135.
15e. It is maintained by the learned scholar, Charles Sweet, Esq., in 30 Law Quart. Rev. 66 et seq.
15f. In reply to this question, as asked in an article by the present writer in 29 Law Quart.
Sec. 183 ]
Rights of Future Possession.
Although if, after creating by lease an estate for thirty years, the reversioner makes a lease by which he undertakes to limit an estate for, say, twenty years, commencing at the end of the thirty year period, the second lease is invalid, it is conceived, under the Rule against Perpetuities, this is not the case if the second lease limits an estate to commence immediately, to extend twenty years beyond the thirty-year period. In this latter case the second lease creates an estate, a vested interest, for fifty years, not a mere prospect of an estate.
- Contingent remainders. There has been much discussion as to whether the Rule against Perpetuities is applicable to contingent remainders. At the present time, the view that it is so applicable is the more prevRev. at p. 303, Mr. Charles Sweet, In the article referred to in the last preceeding note, says: "The answer Is that an estate of freehold is subject to the rules of the common law as to seisin, while an estate for years is not. If the difficulty as to seisin is obviated, an estate of freehold can be made to commence at a future date. Thus if land is conveyed by a proper assurance to A for thirty years, with remainder to B and his heirs, B has a vested remainder to commence thirty years hence." As to the latter clause of this answer, the present writer would say that B has a vested remainder which, like all other vested remainders, has already commenced, though B is for the time being excluded from possession by reason of the interposition of the estate in favor of A. The absurdity of making the application of the Rule against Perpetuities, a modern rule in origin and policy, dependent on
[Sec. 183 alent one, and it has been so decided.16 But a legal contingent remainder limited upon an estate for life in a living person is not within the rule, whatever the character of the condition precedent, in any jurisdiction in which the rule17 still obtains that a remainder must vest at or before the termination of the particular estate, since the remainder cannot possibly vest later than the period fixed by the rule.18 Thus, in the case of a devise to A, and, after his death, to his children who attain twenty-two, since only those can take who attain that age during A's life,-that is, within a life in being, -the limitation is valid.19
- Equitable interests. That a limitation by means of which an equitable estate may be caused to commence in the future is subject to the rule to the same extent as a legal limitation appears never to have been questioned.20 But what constitutes the commencement of an equitable estate for the purposes of the rule, or indeed for other purposes, in other words, what constitutes a vested equitable interest as distinct from an equitable interest which is not vested, is a question to which the courts give no satisfactory answer. Generally speaking, it appears, one has a vested equitable interest if he has a present right of enjoyment, or a present right to the the mediaeval conception of seisin, seems plainly apparent.
16. In re Frost, 43 Ch. Div. 246. See, also, Bowerman v. Taylor, 126 Md. 203, 94 Atl. 652; Wood v. Griffin, 46 N. H. 230; Lockridge v. Mace, 109 Mo. 162, 18 S. W. 1145; Re Ashforth, (1905) 1 Ch. 535; In re Koontz, 213 Pa. 319, 3 L. R. A. N. S. 639; Geissler v. Reading Trust Co. 257 Pa. 329, 101 Atl. 797; Gray, Perpetuities, Sec.Sec. 283-298; Lewis, Perpetuity, c. 16; Id. Supp. 97 et seq. Contra, Challis, Real Prop. (3rd Ed.) 213, and Mr. Sweet's note; Williams, Real Prop.
(13th Ed.) 274.
The question of the existence of another rule than that against perpetuities, restrictive of the time of vesting of a contingent remainder, has been before referred to. See ante Sec. 145.
17. Ante Sec. 140.
18. See Lewis, Perpetuity, 409 et seq.; Williams, Real Prop. (21st Ed..) 415, note b.; Abbiss v. Bur-ney, 17 Ch. D. 211.
19. 1 Jarman, Wills, 227.
20. Gray, Perpetuities, Sec. 323; Lewis, Perpetuity, 169, 174; 1 Perry, Trusts, Sec. 377.
- Option contract. It has in England been decided that a contract to convey land at any time in the future on the payment of a certain sum is invalid under the Rule against Perpetuities, on the theory, apparently, that by reason of the remedy of specific performance which accrues only when the option is accepted, such an option contract is in effect equivalent to a limitation of an equitable estate possibly to commence at an indefinite time in the future.23 And the doctrine of this decision has been occasionally asserted in this country.24 So long as the option is not exercised, the person to whom it has been given has merely a possibility of acquiring an equitable estate, while, so soon as it is accepted by him, he acquires such an estate, and the option provision is invalid if it makes feasible such acquisition of an estate after the period fixed by the rule.24a
21. Ante Sec. 144.
22. Post Sec. 188, note 72.
23. London & South Western R. Co. v. Gomm, 20 Ch. D. 421.
The subsequent case of South Eastern R. Co. v. Associated Portland Cement Manufacturers (1910) 1 Ch. 12 is perhaps not in entire harmony with the earlier case. For criticisms of the later case, see Gray, Perpetuities, (3rd Ed.) Sec.Sec. 330b, 330c; T. Cyprian Williams, Esq. in 54 Sol. Journ. 471, 501.