As before stated, in order that the limitation may not be invalid under the rule, the vesting must be certain not to occur later than a life or lives in being, and twenty-one years thereafter. That the limitation is valid if the vesting cannot occur later than a life or lives in being was settled in the Duke of Norfolk's Case,93 which in fact established the rule against perpetuities. This period was subsequently extended by decisions that, if the person to take such interest was an infant, either born or begotten during a life in being, the time might be extended till the termination of such infant's minority, thus extending the possible time of vesting to twenty-one years and the period of gestation after a life or lives in being.94 To what extent, in cases other than those of infancy, a period longer than a life or lives in being would be allowed, was for many years undecided, it being usually stated that the time for vesting might be "within a reasonable time" after lives in being;95 and it was not till towards the middle of the nineteenth century that it was settled that the period of twenty-one years could be added to the life or lives in being even in cases where the person to take is not an infant.96

120. See article by Charles Sweet, Esq. in 29 Law Quart. Rev. 304 et seq.

92. Gray, Perpetuities, Sec. 2.

93. 3 Ch. Cas. 1; Gray, Perpetuities, Sec.Sec. 169, 170.

94. Stephens v. Stephens, cas.

95. See Lloyd v. Carew, Show. Parl. Cas. 137; Gray, Perpetuities. Sec.Sec. 180-182.

96. Cadell v. Palmer, 1 Clark & F. 372.

The persons in being by whose lives the period is in part measured may be indefinite in number, provided it is possible to ascertain as a fact the termination of the life of the last survivor, so as to determine when the period of twenty-one years is to commence. Nor need these persons have any connection whatever with the property,-that is, they need not be persons taking prior estates therein,-nor need they even be relatives of persons given interests in the property.97 The life or lives may, on the other hand, be the lives of the donee or donees under the executory limitation. For instance, a devise to A and his heirs to take effect upon A's attainment of an age named is valid, since he must attain that age within his own life, a life in being, as would be a devise to the children of a person deceased, upon their attainment of a particular age.

A life is "in being," within the rule, even though it be that of a person not yet born, but who is en ventre sa mere at the date of the creation of the interest, as in the case of a limitation which takes effect in favor of the child of testator's posthumous son; such son being regarded as in being at the time of the creation of the interest,-that is, testator's death,-and consequently the limitation to his child necessarily taking effect within a life or lives in being.98 Furthermore, an interest which is to vest only upon the attainment of twenty-one by one or all of a class of persons named is not too remote because such person, or one of such persons, not being actually born at the termination of a life or lives in being, but merely en ventre sa mere, may not attain twenty-one until a few months, the period of gestation, in addition to twenty-one years after a life or lives in being. For instance, a limitation in favor of the first son of A who attains twenty-one is valid although it may occur that the first son of A who attains that age fails to do so until a few months more than twenty-one years after the death of his father, a life in being.99 Two periods of gestation may accordingly be allowable in particular cases, that is, one period as regards the person "in being" at the date of the testator's death or execution of the conveyance, and the other as regards to the person who is to take on attaining twenty-one. So, a gift to testator's grandchildren who attain the age of twenty-one will be good, although the only grandchild who does attain such age may be the posthumous son of testator's posthumous son.1 since in that case there may be children born after testator's death who might attain that age more than twenty-one years after the death of A, or of any other life in being that can be pointed out, while it is valid if the testator survives A, since all A's children must be born at testator's death and those who attain the age named must do so within their own lives.4

97. Thellusson v. Woodford, 11 Ves. 112; Cadell v. Palmer, 1 Clark & F. 372. And see Scatter-wood v. Edge, 1 Salk. 229; Low v. Burron, 3 P. Wms. 262; Marsden, Perpetuities, Sec.Sec. 190, 216-219; editorial note in 20 Harv. Law

Rev. at p. 220. But see Overby v. Scarborough, 145 Ga. 875, 90 S. E. 67.

98. Long v. Blackhall, 7 Term R. 100; Thellusson v. Woodford, 11 Ves. 112; Marsden, Perpetuities, 35; Lewis, Perpetuity, 148.

If the time named for the vesting is not measured by lives, but is merely a definite number of years, it is necessary that this be twenty-one years or less, in order that the limitation be valid.2 For instance, a devise of an estate to commence twenty-five years after testator's death is invalid, since no life or lives can be pointed out within twenty-one years after the termination of which the vesting will necessarily occur, if it ever occurs.

In the case of wills, the time at which the validity of the limitation is to be ascertained is the time of the testator's death, that being the time at which the will goes into effect, and not the time of its execution.3 Accordingly a devise to such of A's children as attain the age of twenty-five is invalid if testator dies before A,

99. Cadell v. Palmer, 1 Clark & F. 372.

1. Thellusson v. Woodford 11 Ves. 112; Gray, Perpetuities, Sec. 221; Lewis, Perpetuity, 147.

2. Marsden, Perpetuities, 34; Leake, Prop. in Land, 441; Palmer v. Holford, 4 Russ. 403; Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238, 45 Atl.

1087; Andrews v. Lincoln, 95 Me. 541, 56 L. R. A. 103, 50 Atl. 898; Woodall v. Bruen, 76 W. Va. 193, 85 S. E. 170.

3. Cattlin v. Brown, 11 Hare, 372; Murphey v. Brown, 159 Ind. 106, 62 N. E. 275; Mullreed v. Clark, 110 Mich. 229, 68 N. W. 138, 989.