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 .
Limitations which are void for remoteness have ordinarily no effect upon estates previously limited to others. So, previous interests which were intended to be abridged by such limitations, continue unaffected by the void limitations. For instance, in the case of a devise in fee simple, with a limitation over to B at the termination of twenty-five years, the latter limitation being void, A has an indefeasible fee-simple estate.50 If how47. Lewis, Perpetuity, 186; Marsden, Perpetuities, c. 15; Pells v. Brown, Cro. Jac. 590; Duke of Norfolk's Case, 3 Ch. Cas. 1; Glover v. Condell, 163 111. 566, 35 L. R. A. 360, 45 N. E. 173. Pratt v. Alger, 136 Mass. 550; Lee v Oates, 171 N. Car. 717, 88 S. E. 889.
48. Hertz v. Abrahams, 110 Ga. 707, 50 L. R. A. 542, 36 S. E. 409; Huxford v. Milligan, 50 Ind. 542; Comegys v. Jones, 65 Md. 317, 4 Atl. 657; Lurman v. Hubner, 75 Md. 268, 23 Atl. 646; Riley v. Jaeger (Mo.) 189 S. W. 1168; Merrill v. American Baptist Missionary Union, 73 N. H. 416, 111 Am. St. Rep. 632. 62 Atl. 647, 3 L. R. A. N. S. 1143.
49. Lewis, Perpetuity, 318. et seq.; Marsden, Perpetuities, 183; Gray, Perpetuities, Sec. 212; Fearne, Cont. Rem. 485; Barlow v. Salter, 17 Ves. 479.
50. Gray, Perpetuities, Sec.Sec. 247-250; Watkins v. Quarles, 33 Ark. 179; Nevitt v. Woodburn, 190 111. 283; Johnson v. Preston, 226 111. 447, 10 L. R. A. (N. S.) 564, 80 N. E. 1001; Carpenter v. Hubbard, 263 111. 571, 105 N. E. 688; Gray v. Whittemore, 192 Mass. 367, 10 L. R. A. (N. S.) 1143, 116 Am. St.
In England it has been decided that any limitation expectant on a previous limitation which is void for remoteness is also void, on a presumption of intent to that effect;52 but, as shown by the distinguished writer to whom we have so often referred, there seems no reason for the adoption of such general rule as to intent, and a limitation of an interest which must vest within the legal period might well be sustained, though preceded by a limitation of an interest void for remoteness.53
If an estate is limited merely for life, the property will, in case of the remoteness of a subsequent limitation, ordinarily pass to such persons as would have taken if there had been no such subsequent limitation, these being usually the heirs or residuary devisees of the testator.54
Rep. 246, 78 N. E. 422; Wood v. Griffin, 46 N. H. 230; Stout v. Stout, 44 N. J. Eq. 479, 15 Atl. 843; In re Whitman's Estate, 248 Pa. 285, 93 Atl. 1062; Goffe v. Goffe, 37 R. I. 542, Ann. Cas. 1916B, 240, 94 Atl. 2.
51. Eldred v. Meek, 183 111. 26, 75 Am. St. Rep. 86, 55 N. E. 536; Barrett v. Barett, 255 111. 332, 99 N. E. 625; Thorndike v. Loring, 15 Gray, 391; Kountz's Estate, 213 Pa. 390, 3 L. R. A. N. S. 369, 5 A. & E. Ann. Cas. 427, 62 Atl. 1103; See Gray, Perpetuities, Sec.Sec. 247-249E.
52. Moneypenny v. Dering, 2 Gex M. & G. 145; In re Thatcher's Trusts, 26 Beav. 365; In re Hewitt's Settlement (1915), 1
53. Gray, Perpetuities, Sec.Sec. 251-257; See also editorial notes in 15 Columbia Law Rev. at p. 722, 29 Harv. Law Rev. at p. 341.
54. Gray, Perpetuities, Sec. 248; Lewis, Perpetuity, 420; Beers v. Narramore, 61 Conn. 13, 22 Atl. 1061; Goffe v. Goffe, 37 R. I. 542, Ann. Cas. 1916B, 240, 94 Atl. 2. In Lockridge v. Mace, 109 Mo. 162, 18 S. W. 1145, it was held that, where a remainder was void under the rule, the preceding life estates were also void, on the theory that the entire gift should stand or fall together. In Johnston's Estate, 185 Pa. St. 179, 64 Am. St. Rep. 621, 39 Atl. 879, a term in trustees preceding a remote limiSec. 186 ] tingencies by alternative limitations, if a gift over will, in certain circumstances, take effect as a contingent remainder, and in other circumstances as an executory-devise, it may be valid as creating a remainder, though, if it took effect as an executory devise, it would violate the rule.59
- Separation of limitations. When a limitation provides for the vesting of an estate on an event which may occur beyond the legal period, it will not be separated into two gifts by the court,-one in ease the event named occurs within the period, and the other in case it occurs thereafter, and upheld as to the former.55 Accordingly, the fact that the happening of the event named would necessarily involve another contingency which is not remote does not render the limitation over valid in the latter contingency, unless this latter contingency is named in the original limitation,-that is, unless the original settlor expressly so provides.56 Thus, if there is a gift to A for life, with a gift over in case he has no son who shall attain twenty-five years, the gift over is void, though the contingency named includes the contingency that A may have no children, which must occur during A's life. If, on the other hand, there is a gift over in case A has no son who shall attain twenty-five years, or "in case he has no son," while the gift over in the first alternative will be void, that in the second will be upheld.57 In the case of such alternative or separable limitations, it is well settled that one may be valid, though the other violates the rule;58 and it has been adjudged in England that, even when the settlor or testator has not in terms separated the contation was held to fail because created solely for the purpose of making the invalid gift over.
55. Lewis, Perpetuity, 465, 466; Gray, Perpetuities, Sec. 331; Post v. Rohrbach, 142 111. 600, 32 N. E. 687; Eldred v. Meek, 183 111. 26, 75 Am. St. Rep. 86, 55 N. E. 536.
56. Gray, Perpetuities, Sec.Sec. 332-337; Proctor v. Bishop of Bath & Wells, 2 H. Bl. 358.
57. See Miles v. Harford, 12 Ch. Div. 691.
58. Lewis, Perpetuity, c. 21; the corporation is never formed, the charitable purpose will be otherwise carried out under the doctrine of cy pres.70
Leake v. Robinson, 2 Mer. 363; Longhead v. Phelps, 2 W. Bl. 704; Halsey v. Goddard, 86 Fed. 25; Perkins v. Fisher, 8 C. C. A. 270, 59 Fed. 801; Quinlan v. Wickman, 233 111. 39, 84 N. E. 38, 122 Am. St. Rep. 144; Jackson v. Phillips, 14 Allen (Mass.) 572; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Gray v. Whittemore, 192 Mass. 367, 78 N. E. 422, 116 Am. St. Rep. 246; Walker v. Lewis, 90 Va. 573, 19 S. E. 258.
In the case of a gift to a class, the vesting of which is postponed till after the period allowed by the rule, the gift is void as to all members of the class. Thus, in the case of a gift to those of testator's grandchildren who reach the age of twenty-five, the share of each cannot be determined till the youngest reaches that age, and consequently the gift is void, even as to those who reach twenty-five within the legal period.60 If, however, the gifts to the members of a class are independent, so that the amount of the gift to each member is independent of the number of members, the gift to any one member is not invalidated by the fact that that to others may not vest within the legal period.61
59. Challis v. Doe, 18 Q. B. 231; Evers v. Challis, 7 H. L. Cas. 531; See note 11 Columbia Law Rev. at p. 271.
60. Gray, Perpetuities, Sec.Sec. 369-389; 1 Jarman, Wills, 229; Leake v. Robinson, 2 Mer. 363; Porter v. Fox, 6 Sim. 485; In re Moseley's Trusts, L. R. 11 Eq. 499, 11 Ch. Div. 555; Pearks v. Moseley, 5 App. Cas. 714; Sears v. Putnam, 102 Mass. 5; Coggins' Appeal, 124 Pa. St. 10; Eldred v. Meek, 183 111. 26, 75 Am. St. Rep. 86, 55 N. E. 536; Lawrence v. Smith, 163 111. 149, 45 N. E. 259.
In Edgerly v. Barker, 66 N. H. 434, 472, 31 Atl. 900, 28 L. R. A. 328, in the case of a devise to grandchildren on arrival at the age of forty, which is evidently too remote, the court held that the devise would be upheld so as to vest upon the arrival of the grandchildren at the age of twenty-one,-that is, within the legal period. This decision is search-ingly criticised by Professor Gray in 9 Harv. Law Rev. 242, Gray, Perpetuities, Sec. 857 et seq., where the uncertainty and confusion likely to arise from such attempts to mould the limitations in order to make them valid are clearly shown.
61. Gray, Perpetuities, Sec.Sec. 389-395; 1 Jarman, Wills, 229; Cattlin v. Brown, 11 Hare, 372; Storrs v. Benbow, 3 De Gex, M. & G. 390; Albert v. Albert, 68 Md. 352, Bowerman v. Taylor, 126 Md. 203, 94 Atl. 652. As supporting this view, Prof. Gray considers at length Lowry v. Muldrow, 8 Rich.
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Rights of Future Possession.