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 a number of states, the common law Rule against Perpetuities has been more or less modified by statute. In New York, and in Michigan, Minnesota, and Wisconsin, which have to a considerable extent adopted the New York legislation in this regard, it is provided that every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than during the continuance of two lives in being at the creation of the estate, and that such suspension occurs when there are no persons in being by whom an absolute fee in possession can be conveyed.81 lives of his children, grandchildren and great grand children living at the time of his death, was sustained as not violating the rule against perpetuities, in consequence of which decision the act was passed. Thellusson v. Woodford, 4 Ves. 227, 11 Ves. 112. 78. Marsden, Perpetuities, c. 17; Gray, Perpetuities, Appendix B; 1 Jarman, Wills, 271 et seq.
79. Act April 18, 1853, Sec. 9; 2 Pepper & Lewis' Digest, 4055. The act and the decisions thereunder are considered in Gray, Perpetuities, Sec.Sec. 715-725.
80. See New York Real Property Law, Sec. 51; Chaplin, Susp Alien. Sec. 252 et seq.; 1 Stimson, Am. St. Law, Sec. 1443.
81. See 1 Stimson Am. St. Law, Sec. 1440 (A), 1 Rev. St. N. Y. pt.
Such provisions would seem on their face to represent a rule entirely different from that which we have been considering, as being directed, not against remoteness of vesting, by which the title is kept in a condition of uncertainty, but merely against a suspension of the power of alienation. It appears to have been settled, in New York, however, by a decision rendered within the last ten years, and about eighty years after the adoption of the legislation referred to,82 that the statute is directed against remoteness of vesting as well as against a suspension of the power of alienation, a view which is not in accord with the trend of previous non judicial discussion of the statute.83
In California, Idaho, North Dakota, and South Dakota the provision is against restraint of alienation as in New York, except that it is not limited to a particular number of lives in being.84 In Indiana there is a peculiar provision, based in part on the New York statute;85 and in Georgia, Iowa, and Kentucky there are provisions wihch were probably intended to declare the common-law rule, but which are unhappily expressed.86 In Ohio, an estate in land cannot be limited except to a person or persons in being, or to their immediate issue or descendants.87 A similar provision in f 190. General nature of co-ownership.
2 C. 1 tit. 2, Sec.Sec. 14, 15; Mich. Comp. Laws 1915, Sec.Sec. 11532, 11533, Minn. Gen. St. 1913, Sec.Sec. 6664, 6665. Wis. Stat. 1913, Sec.Sec. 2038, 2039.
82. In re Wilcox, 194 N. Y. 288, 87 N. E. 497, criticised, 9 Columbia Law Rev. at p. 338.
83. See 2 Reeves, Real Prop. p. 1269; 1 Columbia Law Rev. 224, article by George F. Canfield, Esq.; 30 Cyclopedia Law & Proc. 1501, article by Professor Edward H. Warren. The view adopted in In Re Wilcox, 194 N. Y. 288, 87 N. E. 497, is that presented in Chaplin, Suspension of the Power of Alienation, the leading work upon the New York statute.
84. California Civ. Code, Sec.Sec. 715, 716; Idaho Civ. Code Sec. 3067; North Dak. Comp. Laws 1913, Sec.Sec. 5287, 5288; South Dak. Comp. Laws 1910, Sec.Sec. 225, 226.
85. Burns Ann. St. 1913, Sec. 3998. See Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623.
86. Gray, Perpetuities, Sec. 735; Stevens v. Stevens, 21 Ky. Law Rep. 1315, 54 S. W. 835.
87. Page & A. Gen. Code, Sec. 8622; See Turley v. Turley, 11 Ohio St. 173.
Sec. 189 ]
Rights of Future Possession.
Connecticut has been repealed, and there the common-law rule alone now exists.88 In Alabama, it is provided that conveyances, except to one's wife, or wife and children, cannot extend beyond three lives in being.89 And in Mississippi, a conveyance or devise may bo made to a succession of donees then living, not exceeding two; and to the heirs of the body of the remainderman, and, in default thereof, to the right heirs of the donor, in fee simple.90
88. Tingier v. Chamberlin, 71 Conn. 466, 42 Atl. 718; Healy v. Healy, 70 Conn. 467, 39 Atl. 793.
89. Civ. Code 1907, Sec. 3417.
90. Ann. Code 1917, Sec. 2269; Cannon v. Barry, 59 Miss. 289; Beeks v. Rye, 77 Miss. 358, 27 So. 635.