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 .
86. Such as a power in A to appoint to all of his grandchildren who are living twenty-five years after his death. Gray, Perpetuities, Sec. 476.
Reasonable time.87 It must be exercised, if it is ever exercised, within the period of the rule.
A power of appointment which does not require an appointment violating the rule is not bad merely because it does not preclude such an appointment, since not the power alone, but the power in connection with the appointment, is what serves to create an estate.88
Powers given to a trustee to sell or lease land are not necessarily invalid merely because it is not expressly provided that the power shall be exercised within a life or lives in being and twenty-one years thereafter.89 Such powers, in the absence of language showing a contrary intention, will cease upon the termination of the trust, and if the trust is to terminate within the period of the rule, the power is valid.90 Moreover, so soon as the ultimate equitable owner is entitled to call for a conveyance of the legal title, the power is non existent for the purposes of the rule, since the equitable owner can at any time destroy it.91 In a considerable number of jurisdictions, however, the ultimate equitable owner cannot terminate the trust by calling for the legal title at a time previous to that at which the creator of the trust intended that it should come to an end,92 and in those jurisdictions the validity of such power cannot, it would seem, be supported on the theory that the right to call for a conveyance will accrue within the period of the rule. And even in jurisdictions in which, as in England, the right to call for a conveyance is independent of the intention of the creator of the trust, cases may readily occur in which such right will not necessarily accrue within the period of the rule, so as to prevent the failure of the power.93 the power is exercisable by will alone, is a question upon which conflicting views have been asserted.1
87. Gray. Rule against Perpetuities, Sec. 478; Re Sudeley (1894) 1 Ch. 334; Coopers Estate, 150 Pa. 576, 30 Am. St. Rep. 829, 24 Atl. 1057; Eary v. Raines, 73 W. Va. 513, 80 S. E. 806.
88. Gray, Perpetuities, Sec.Sec. 510-513; Lewis. Perpetuity, 487; Sug-den, Powers, 152; Routledge v. Dorrill, 2 Ves. Jr. 357; Lawrence's Estate, 136 Pa. 354, 11 L. R. A. 85, 20 Am. St. Rep. 925, 20 Atl. 521; Stone v. Forbes, 189 Mass. 163, 75 N. E. 141.
89. Gray, Perpetuities, Sec.Sec. 498, 499, 506; Sugden, Powers, 850;
Lantsbery v. Collier, 2 Kay & J. 709, Cresson v. Ferree, 70 Pa. St. 446; Pulitzer v. Livingston, 89 Me. 359.
90. Gray, Perpetuities, Sec. 493. See Heard v. Read, 171 Mass. 374, 50 N. E. 638; Cresson v. Ferree, 70 Pa. 446.
91. Gray, Perpetuities, Sec. 490; Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635; Cooper's Estate, 150 Pa. 576, 30 Am. St. Rep. 829, 24 Atl. 1057; In re Cotton's Trustees, 19 Ch. D. 624.
92. Ante, Sec. 116(d).
It has been forcibly argued,94 that a power of sale given to a trustee is entirely valid, without regard to the possible remoteness of the time of its exercise, upon approximately the following grounds: The trustee has the legal title and consequently has the right to dispose thereof, without regard to the power, the only effect of the power being to enable him to convey the legal title, even to a purchaser with notice, free of the trust.95 The power of sale is in effect merely a provision that, upon the sale of the land by the trustee, the trust shall cease as to the land sold, and there is no reason why such a provision as to the termination of the trust should restrict the termination to the period fixed by the Rule against Perpetuities. In so far as the sale may result in the fastening of a similar trust on the proceeds of the sale or on the land in which such proceeds are invested, this trust may properly be regarded as arising, or expected to arise, by operation of law, and as consequently not within the prohibition of the Rule against Perpetuities. And any subsequent sale of the land purchased with the proceeds of the first
93. See Goodier v. Johnson, 18 Ch. D. 441; Goodier v. Edmunds. (1893), 3 Ch. 455; In re Daveron (1893), 3 Ch. 421; In re Wood (1894), 2 Ch. 310. (1894) 3 Ch. 381; In re Appleby (1903), 1 Ch. 565; Re Bewick (1911), 1 Ch. 116; Gray, Perpetuities, Sec.Sec. 509a-509i.
94. In a suggestive article by
Roland R. Foulke, Esq., in 16 Columbia Law Rev., pp. 537, 627, where the whole subject of the effect of the Rule against Perpetuities in connection with powers is discussed, with a full citation of authorities. 95. Ante, Sec. 314, note 22.
- (b) As determined by language exercising the power. In determining the validity of limitations created by the exercise of a special power, that is, a power exercisable in favor of a limited class of persons only, the period allowed by the rule is computed from the time of the creation of the power, and not from the time of its execution.96 That this is so is generally agreed, but the authorities are not entirely explicit as to why it is so. The reason would seem to be that, in the case of such a power, the limitation by which an estate to arise in the future, or rather the possibility of such an estate, is sought to be created, is found in the gift of the power, and the mere fact that one or more terms of that limitation, the persons to take there under, for instance, and the interests they are to take, remain for subsequent ascertainment, is no reason for postponing the time at which the vesting must occur in order to satisfy the rule.97 But though the period
95a. But Mr. Foulke does not appear to recognize the applicability of such a theory to a power of leasing. See 16 Columbia. Law Rev. at p. 628.
96. Gray, Perpetuities, Sec.Sec. 514-523b; Sugden, Powers, 396; Bart-lett v. Sears, 81 Conn. 34, 70 Atl. 33; Thomas v. Gregg, 76 Md. 169,
24 Atl. 418; Stone v. Forbes. 189 Mass. 163, 75 N. E. 141; Law-lence's Estate, 136 Pa. 355, 11 L. R. A. 85, 20 Am. St. Rep. 925, 20 Atl. 521; In re Boyd's Estate, 199 Pa. 497, 49 Atl. 299.
97. See 16 Columbia Law Rev. at p. 364, article by Mr. Foulke.
[Sec. 334 allowed by the rule is to be computed from the time of the creation of the power, the language in the instrument executing the power is not to be read into the instrument by which the power was created, for the purpose of ascertaining the validity of the execution of the power. This is to be ascertained with reference to conditions existing at the time of the execution of the power, since it is at that time that the limitation involved in the gift of the power actually becomes complete and operative. If at that time, as things have turned out, it appears that the vesting will necessarily occur within the period of the rule, the fact that, if the language of the instrument executing the power had been inserted in the instrument creating the power, it would have been invalid, is immaterial. For instance, a devise to the grandchildren of a living person is invalid, but if a power of appointment is given by will to such person, he may execute it in favor of his grandchildren, provided it appears at the time of execution that no grandchild will be born more than twenty-one years after a life or lives in being at the time of the creation of the power, testator's death.98
A general power, not restricted as to the persons in favor of whom it may be exercised, whether it is exercisable by deed or will, or by deed alone, has been regarded by the courts, for the purpose of the Rule against Perpetuities, as equivalent to absolute ownership, and its exercise as on the same footing as an original conveyance, with the result that, in determining the validity of the exercise (execution) thereof, the period of the rule is computed from the time of its exercise, and not from the time of the creation of the power.99 Whether a like view is to be applied when
98. Gray, Perpetuities, Sec. 516 et seq.; Morgan v. Gronow, L. R. 16 Eq. 1; Wilkinson v. Duncan, 30 Brev. 111; In re Hallinan's Trusts (1904) 1 Ir. Rep. 452.
99. Gray, Perpetuities, Sec. 524; Lewis, Perpetuity, 483; Bray v. Bree, 2 Clark & F. 453; Mifflin's Appeal, 121 Pa. St. 205, 15 Atl. 525, 1 L. R. A. 436, 6 Am. St. Rep.
781; Lawrence's Estate, 136 Pa. St. 355, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925. "The appointment can be considered an appointment to the donee himself and then a settlement of his own property." Gray, Perpetuities, Sec. 524.
1. That a like view applies to a power exercisable by will alone, see Rous v. Jackson, 28 Ch. Div. 521; In re Flower, 55 Law J. Ch. 200; Stewart v. Babington, 27 L. R. Ir. 551; Articles, in 26 Harv. Law Rev. at p. 64, and in 27 Harv. Law Rev. at p. 709, by Messrs. A. M. Kales and J. L. Thorndike, respectively. But that a general power exercisable by will alone is within the Rule against Perpetuities, see In re Powell's Trusts, 39 Law J. Ch. 188; Gambrill v. Gambrill, 122 Md. 563, 89 Atl. 1094; Minot v. Paine, 230 Mass. 514, 120 N. E. 167; Genet v. Hunt, 113 N. Y. 158, 21 N. E. 91; Lawrence's Estate, 136 Pa. 355, 11 L. R. A. 85, 20 Am. St. Rep. 925, 20 Atl. 521; Cox v. Dickerson, 256 Pa. 510, 100 Atl. 947. And see citations in 16 Columbia Law Rev. at p. 639, and Mr. Foulke's remarks, at p. 643, in notes; Gray, Perpetuities, Sec.Sec. 526-526b, 948-969, and an excellent editorial note in 19 Columbia Law Rev. at p. 62.