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 .
In determining whether a particular limitation is invalid as violating the rule, is "within the rule" as it is ordinarily ex269; Lewis, Perpetuity, 129, Supp. 16-19; Marsden, Perpetuities 2; 1 Jarman, Wills, 213; T. Cyprian Williams, Esq. in 14 Law Quart. Rev. p. 240, note.
74. Gray, Perpetuities, Sec.Sec. 268, 603f.
75. Lewis, Perpetuity, 170; Jea v. Audley, 1 Cox, 324; In re Wood,  3 Ch. 381; Heald v. Heald, ceived, subject to an exception in case he leaves no children and no widow. In that case all his grandchildren are necessarily born at the time of his death, and if they ever attain the age named they must do so within their own lives, lives in being. But although he leaves no children, nevertheless if he leaves a widow, there is a possibility, not legally open to question,82 that there may be a posthumous child, and a child of such posthumous child might attain the age named more than twenty-one years after any life in being which can be pointed out at the time of testator's death.
56 Md. 300; Ortman v. Dugan, 130 Md. 121, 101 Atl. 82; Dodge v. Bennett, 215 Mass. 545, 102 N. E. 916; Brown v. Brown, 86 Tenn.
277, 6 S. W. 869; 7 S. W. 640;
But in New Hampshire a different view appears to have been adopted, that the limitation will be sustained in so far as subsequent events cause a vesting within the period of the rule. Wentworth v. Wentworth, 77 N. H. 400, 92 Atl. 92 Atl. 733.
76. Hoadley v. Beardsley, 89 Conn. 270, 93 Atl. 535; O'Hare v. Johnson, 273 111. 458. 113 N. E. 127; Loring v. Blake, 98 Mass 253; Gray v. Whittemore, 192
R. P. 38 pressed, one must look for a life or lives within twenty-one years after the expiration of which the estate must commence, if it ever commences. In other words, one must look for a life which, or several lives one of which, will necessarily extend up to within twenty-one years of the commencement of the estate which the limitation seeks to create. If one can find such life or lives, the limitation is not invalid under the rule. If one cannot find such life or lives, the limitation is invalid. The mere fact that the estate may never commence, owing to the non satisfaction of the condition precedent, obviously does not affect the validity of the limitation. The rule is concerned only with the possible time of the commencement of the estate, assuming that it will some time commence.
The event on which the estate is limited to commence, to vest, as it would ordinarily be expressed, may be the ascertainment of the person who is to take in accordance with some characteristic or qualification named, as in the case of a devise to such son of A as may enter into holy orders, which devise is void, since, if a son of A does enter into holy orders, there is no certainty that he will do so within twenty-one years after the death of A, or of any other person who can be pointed out.77 So a devise to the first son of A who attains the age of twenty-five, (A having no son of that age at the time of testator's death) is void, since one cannot say that any son who may attain that age will do so within twenty-one years after the death of A or of any other person, whom one can point out.78 That is, there is a possibility that the vesting will occur more than twenty-one years after a life or lives in being. But a devise to the first son of A who attains the age of twenty-one is valid, if A
Mass. 367, 116 Am. St. Rep. 246, 78 N. E. 422; Siddall's Estate, 180 Pa. 127, 36 Atl. 570. 77. Proctor v. Bishop of Bath & the rule if there are persons in being who, by joining in a conveyance, could make a perfect title, and these, though now overruled, have exerted an unfortunate influence in obscuring the real nature of the rule.87
Wells, 2 H. Bl. 358.
78. Abbiss v. Burney, 17 Ch. Div. 211.
The rule is perhaps most frequently applied in the case of a limitation in favor of a class, in which ease the members of the class must be ascertainable within the time allowed by the rule. Thus in the case of a devise to those of testator's grandchildren (testator leaving children living) who may attain twenty-one, the devise is valid, since who of testator's grandchildren will attain that age must be ascertained within twenty-one years after the death of their parent, or of the last survivor of their various parents, testator's children, lives in being, while if the devise is to those grandchildren who may attain twenty-two, it is invalid, since you cannot say that any grandchildren who attain twenty-two will necessarily do so within twenty-one years after the death of the last survivor of testator's children, or of any other person whom you can designate.80
The statement frequently made that a devise to such grandchildren of testator as attain an age greater than twenty-one is invalid,81 is properly, it is con79. Woodruff v. Pleasants, 81 Va. 37.
80. Gray, Perpetuities, c. 10; 1 Jarman, Wills, 226 et seq.; Leake v. Robinson, 2 Mer. 3C3. In re Moseley's Trusts. L. R. 11 Eq. 499; Pearks v. Moseley, 5 App. Cas. 714, Lawrence v. Smith, 163 111. 149, 45 N. E. 259; Eldred v. Meek, 183 111. 26, 75 Am. St. Rep. 86, 55 N. E. 536; Coggins' Appeal, 124 Pa. St. 10, 10 Am. St. Rep. 565, 16 Atl. 579; In re Gerber's Estate, 196 Pa. St. 366, 46 Atl. 497; Otterback v. Bohrer, 12 S. E. 1013, 87 Va. 548; Woodruff v. Pleasants, 81 Va. 37.
But if any grandchild has, at the time of testator's death, reached the age of twenty two, the devise is valid, since by a rule of construction, those only can be regarded as within the class who are born at the time of the attainment by one of the grandchildren of the age named. See Gray, Perpetuities, Sec. 379; Jarman, Wills, (5th Ed.) 226, 1018; Underbill, Wills, Sec. 554.
81. See Leake, Prop, in Land, 444; Gray, Perpetuities, Sec. 374; Marsden, Perpetuities, 87; 30 Cyclopedia Law & Proc. 1488.
While an unqualified devise to the children of A, a living person, is valid, a devise to such children of A as may attain twenty-two or more is invalid, since all A's children who attain that age may not do so within twenty-one years after the life of A or of any other person who may be pointed out. A devise to the grandchildren of A is void if A is living at the time of testator's death, since you cannot then say that all his grandchildren will be born within twenty-one years after the death of a particular person, or of the last survivor of several particular persons, living at the time of testator's death. A may have grandchildren by children subsequently born to him, and such grandchildren might not be born until more than twenty-one years after the death of the last child of A living at the time of testator's death.
The requirement that the event on which the estate is to vest shall occur within the time named by the rule is absolute, and the mere improbability of its occurrence after that time is immaterial.83 So in the case of a devise to testator's child for life, and then to his or her wife or husband for life, and then to the surviving children of such child, the latter limitation is void, since testator's child may possibly marry a person not in being at the time of testator's death.84
82. See Platt v. Powles, 2 Mau. & Sel. 65.
83. Gray, Perpetuities, Sec. 214; Lewis, Perpetuity, 170; Johnson v. Preston, 226 111. 447, 10 L. R. A. (N. S.) 564, 80 N. E. 1001; Andrews v. Lincoln, 95 Me. 541, 56 L. R. A. 103, 50 Atl. 898.
A gift to such children of a living person as may be living at a time too remote under the rule is void, though the age of such person is such that it is morally certain that there will be no such children who are not living at the time of the testator's death.85