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 .
24. Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Barton v. Thaw, 246 Pa. 348, A. & E. Ann. Cas. 1916 D. 570, 92 Atl. 312; Starcher v. Duty, 61 W. Va. 373, 9 L. R. A. (N. S.) 913, 123 Am. St. Rep. 990, 56 S. E. 527; Woodall v. Bruen, 76
W Va. 193, 85 S. E. 170.
In any jurisdiction in which an interest, if transferable or releas-able, is not within the rule, or the statutory substitute for the rule, an option is not within the rule. Blakeman v. Miller, 136 Cal. 138, 68 Pac. 587; Mineral Land Inv. Co. v. Bishop Iron Co., 134 Minn. 412, L. R. A. 1917 D, 900, 159 N. W. 966.
24a. As to the application of the rule to the case of an option to purchase stock, in so far as this might be susceptible of specific enforcement, see 31 Harv. Law Rev. 660. The applicability of the Rule against Perpetuities to cases involving the creation of an option exercisable at a reReal Property.
[ Sec. 183
In England the view that an option contract is within the rule has been applied in connection with a covenant, in a lease for ninety-nine years, giving to the lessee an option to purchase, exercisable at any time during the life of the lease.25 A contrary view, that such a covenant is valid, has been asserted in one state,26 and, conceding that a covenant for perpetual renewal is valid,27 it is somewhat difficult to see how a covenant by which the lessee acquires an option of purchase can be invalid. One involves an option to acquire an estate in fee simple, and the other an option to acquire an estate for years.28
- Trusts. In so far as, by reason of the creation of a trust of a limited duration or character, or by reason of the invalidity of the trust sought to be created, there is a resulting trust in favor of the grantor or the testator's heirs,29 such resulting trust is not invalid under the Rule against Perpetuities.30 Even if not a vested interest,31 it being an interest recognized by the law rather than one voluntarily created, its validity is not open to question, irrespective of the remoteness of the right of enjoyment incident thereto.
Mote time is strongly questioned by Professor John R. Rood in 14 Mich. Law Rev. at p. 231, and 23 Case and Comment at p. 835. See also 15 Mich. Law Rev. 526.
25. Woodall v. Clifton, (1905) 2 Ch. 257, per Warrington, J.
26. Hollander v. Central Metal & Supply Co., 109 Md. 131, 23 L. R. A. (N. S.) 1135, 71 Atl. 442; See Blakeman v. Miller, 136 Cal. 138, 68 Pac. 587.
27. Post Sec. 184, note 40.
28. But that there is a distinction between the two cases is asserted by T. Cyprian Williams, Esq. See article 42 Sol. Jour. 628, referred to in Gray, Perpetuities, Sec.
29. Ante Sec. 107b.
30. Hopkins v. Grimshaw, 165 U. S. 342, 41 L. Ed. 739. See Schlessinger v. Mallard, 70 Cal., 326, 11 Pac. 728; Stone v. Fram-ingham, 109 Mass., 303; Daniel v. Jacoway, Freeman (Miss.), 39; Campbell v. City of Kansas, 102 Mo. 326, 10 L. R. A. 593, 13 S. W. 897; Jenkins v. Jenkins University, 17 Wash. 60, 49 Pac. 247, 50 Pac. 785.
31. It would seem, in view of its analogy to a reversion, to be a vested interest, an equitable estate.
In accordance with the view that the rule applies merely to the time of vesting, and not to the duration or an interest, it is not violated by a limitation of an estate in trust, because, by the terms of its creation, the trust may extend beyond a life or lives in being and twenty-one years thereafter, provided it commence within that time.32
As before stated,33 the view has been not infrequently asserted by the courts that when the creator of a trust has indicated an intention that the trust shall continue for a specified time, or that the trust res shall not be turned over to the beneficiary or beneficiaries until a time named, the beneficiary or beneficiaries, although of full age, cannot, prematurely, terminate the trust and demand a transfer of the res, in disregard of the creator's intention. The question then arises whether the Rule against Perpetuities can be regarded as applying to limit the period for which the termination of a trust can thus be postponed, and there are occasional cases in which the view is apparently adopted that a trust which is thus to endure beyond the period of the rule is invalid.34 It would seem however that the beneficiary has a vested interest, an "equitable estate," even though not entitled to terminate the trust,35 and that consequently a rule directed against remoteness of vesting has no application to a provision merely deferring the time for the termination of a trust. If such a provision is to be regarded as restricted to the period of
32. Gray, Perpetuities, Sec. 234; 36 Atl. 635, In re Johnston's Estate, 185 Pa. St. 179, 64 Am. St. Rep. 621, 39 Atl. 879; Pulitzer v. Livingston, 89 Me. 359, overruling Slade v. Patten, 68 Me. 380; Phillips v. Harrow, 93 Iowa, 92, 61 N. W. 434; Gambrill v. Gambrill, 122 Md. 563, 89 Atl. 1094, overruling several Maryland cases. See, also ante, note, Sec. 179, note 71a.
33. Ante 8 116(d).
34. Davis v. Williams, 85 Tenn. 646, 4 S. W. 8; Siedler v. Syms, 56 N. J. Eq. 275, 38 Atl. 424; Bigelow v. Cady, 171 111. 229, 63 Am. St. Rep. 230, 48 N. E. 974; Hart v. Seymour, 147 111. 598, 35 N. E. 246; Thomas v. Gregg, 76 Md. 169, 24 Atl. 418.
35. The contrary view, stated in the former edition of this book, is presumably erroneous.
R. P.-39 a life or lives in being and twenty-one years thereafter,36 it is, it would seem, by force not of the general rule against perpetuities, but by force of a special rule, framed by analogy to the general rule, but entirely distinct therefrom.37