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 .
The Rule against Perpetuities is directed against the vesting of interests at a remote time in the" future, and has consequently no application to an interest which is already vested. That is, a limitation creating an estate, as distinct from the prospect of an estate, is not within the operation of the rule.5 And the fact that the possession or enjoyment of such vested interest may be deferred until a time beyond that fixed by the rule does not affect the validity of the limitation.6 Accordingly the limitation of an estate in fee simple in favor of B is not invalid because, by the same instrument, there is created a prior particular estate in favor of A, as a result of which B's right of possession is postponed for more than a life or lives in being and twenty-one years thereafter.7 In other words, the Rule against Perpetuities has no application in the case of a vested remainder.8 There the law recognizes one's right to create a determinable fee, the rule cannot intervene to exclude a necessary result thereof.15 is, however, one case of what is known as a vested remainder to which the rule may apply, that is, the case of a remainder in favor of a class, which is vested in one or more members of the class, subject to open and lot in other members, subsequently born or answering the description of the class.9 If such a remainder may open at a time subsequent to the period fixed by the rule, it is invalid.10
4. Southern v. Wollaston, 16 Beav. 276.
5. Gray, Perpetuites, Sec.Sec. 205-210; Lewis, Perpetuity, 164, 511. See authorities ante, Sec. 177, note 71.
6. Gray, Perpetuities, Sec. 209; Lewis, Perpetuity, c. 22; Marsden. Perpetuities, c. 11; Loring v. Blake. 98 Mass. 253; Otis v. McLellan, 13 Allen (Mass.) 339; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Siddall's Estate, 180 Pa. St. 127, 36 Atl. 570.
7. Gray, Perpetuities, Sec. 209; Madison v. Larmon, 170 111. 65,
62 Am. St. Rep. 356, 48, N. E. 556; Brown v. Brown, 247 111. 528, 93 N. E. 357; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Gates v. Seibert, 157 Mo. 254, 80 Am. St. Rep. 625, 57 S. W. 1065; Lawrence's Estate, 136 Pa. 354, 11 L. R. A. 85, 20 Am. St. Rep. 925, 20 Atl. 521.
8. So it has been decided that the limitation of a vested remainder upon a term for 999 years is not invalid. Todhunter v. Des Moines, I. & M. R. Co., 58 Iowa, 205, 12 N. W. 267.
In this country it has been decided, and generally recognized, that the rule does not apply to the contingent right of entry for breach of a condition, even though annexed to an estate in fee simple.11 In England a different, and perhaps, on principle, a sounder, view has been asserted in the case of a condition annexed to a fee simple estate.12 A condition of re-entry inserted in a lease for years has invariably been assumed to be valid, and that it is so is conceded even by writers who deny the validity of such a condition annexed to a fee simple.13
The Rule against Perpetuities does not invalidate the possibility of reverter upon a determinable fee,14 for the reason that such an interest is merely the legal result of the creation of the estate named. So long as
9. Ante Sec. 139.
10. Gray, Perpetuities, Sec.Sec. 110, 110a, 205a. But the contrary appears to be assumed in He Edward's Estate, 255 Pa. 358, 99 Atl. 1010.
11. Hopkins v. Grimshaw, 165 U. S. 342, 41 L. Ed. 739; Cowell v. Colorado Springs Co., 100 U. S. 55, 25 L. Ed. 547; In re Stickney's Will, 85 Md. 79, 103, 35 L. R. A. 693, 60 Am. St. Rep. 308, 36 Atl. 654; Tobey v. Moore, 130 Mass.
448; French v. Old South Soc, 106 Mass. 479; Palmer v. Union Bank, 17 R. I. 627, 24 Atl. 109; See Gray, Perpetuities, Sec.Sec. 304-311.
12. In re Hollis's Hospital (1809) 2 Ch. 540, per Byrne, J. In re Da Costa (1912) 1 Ch. 337. per Eve J. And see Dunn v. Flood, 25 Ch. D. 629; contra Atty. Gen. Cummins (1906) 1 I. R. 406. And see Challis, Real Prop. (3rd Ed.) 187, 210.
13. Gray, Perpetuities, Sec. 303; Lewis, Perpetuity, 619. See post Sec. 185, note 44.
14. Hopkins v. Grimshaw, 165 U. S. 342, 41 L. Ed. 739; First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, 15 L. R. A. 231, 29 N. E. 524.
- Leases. A covenant for renewal, in an instrument of lease, exercisable after the period named by the Rule against Perpetuities, is to be supported, it is conceived, on the ground that being merely an incident to the estate for years created by the lease, and in the exclusive control of the tenant thereunder, it does not operate as a clog upon the alienation of the land, and an option of purchase in the lessee may, it is submitted, though exercisable after the period of the rule, be supported on a like ground.15a mence in the future, regardless of the Rule against Perpetuities, an obvious method of avoiding the application of the rule to executory limitations is suggested. It is necessary only that the executory limitation be of an estate, not in fee simple or for life, hut for years only, say for nine hundred and ninety-nine years. No distinction, it is conceived, can be asserted between a limitation of an estate for years by a lease, and a limi-tation by will. If the one creates a vested interest for the purpose of the rule, although the estate is to commence in the future, the other does likewise.
Whether a lease of an estate for years, expressed to commence at a definite time in the future, more remote than the period of the rule, is invalid under the rule, is a question which has been the subject of considerable discussion. In an English15b and also in an Irish decision,15c each by a single judge, such a lease has been regarded as valid, apparently on the ground that such a lease creates an interesse termini and that an interesse termini is a vested interest. The view that an interesse termini, in the sense of the interest of one in favor of whom there exists a limitation of an estate for years to commence in futuro, is a vested interest,15d does not commend itself to the present writer, and is, it is conceived, difficult to maintain.15e If, by giving A an estate for years to commence thirty years hence, I give him a vested interest, why do I not give him the same by the limitation of an estate in fee simple then to commence.15f If an estate for years can be limited to com15. See Atty. Gen. v. Cummins, (1906) 1 Ir. 406.