the children of A living at the time of A's death, with remainder over to their children.68 The ultimate class might include the children of children not in esse at the time of the testator's death. Or the gift may be to the children of A, a living person, who shall attain the age of thirty years, being beyond the age of majority.69 A gift to a class which is not to become effective and vest until a period subsequent to the testator's death, and which at such time may include members not in esse at the testator's demise, can not be construed as a disposition to become effective during the lives of those in being; but if the class be children of a female, her years as affecting child-bearing may be taken into consideration.70

Where a testamentary gift to a class fails because it violates the rule against perpetuities, it fails as a whole;71 but where each member of the class is to take a fixed sum as an individual irrespective of the number, then the gift is good as to those who are within the rule."2

App. Cas. 714; McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652; Dime Sav. Bank v. Watson, 254 Ill. 419, 98 N. E. 777. 68 Webster v. Boddington, 26 Beav. 128; Knapping v. Tomlinson, 10 Jur. N. S. 626; Stuart v. Cockerell, L. R. 5 Ch. App. 713. 69 Southern V. Wollaston, 16 Beav. 166; Rowland v. Tawney, 26 Beav. 67; Thomas v. Wilberforce, 31 Beav. 299; Blagrove v. Hancock, 16 Sim. 371; Smith v. Smith, I. R. 5 Ch. App. 342.

70 Cooper v. Laroche, 17 Ch. Div. 368.

With respect to the age of a woman as affecting child-bearing, see Gowen's Appeal, 106 Pa. St. 288.

71 Albert v. Albert, 68 Md. 352, 373, 12 Atl. 11; Bowerman v. Taylor, 126 Md. 203, 94 Atl. 652.

72 Wilkinson v. Duncan, 30 Beav. 111; Von Brockdorff v. Malcolm, L. R. 30 Ch, Div. 172; Alfred v. Marks, 49 Conn. 473; Bowerman v. Taylor, 126 Md. 203, 94 Atl. 652; Dorr v. Lovering, 147 Mass. 530, 18 N. E. 412; Denison v. Denison, 42 Misc. Rep. (N. Y.) 295, 86 N. Y. Supp. 604.

§ 1172. Accumulation Defined.

Accumulation, in a legal sense, is the adding of interest or income of property to the principal, pursuant to the provisions of a will or deed, treating such interest or income as capital and reinvesting it. The profits are withheld from present distribution for the purpose of creating a constantly increasing fund for distribution at a future time.73 The law imposes restrictions on the power of a testator or creator of a trust to prohibit the present beneficial enjoyment of a fund in order to increase it for a future generation." The purpose of such restrictions is not to defeat the intention of the testator as to who shall be entitled to his estate under his will, but to prevent indefinite accumulations of wealth.75

§ 1173. Common Law Rule as to Accumulation.

At common law the same period is allowed for the accumulation of income as is fixed by the rule against perpetuities regarding the postponement of the vesting of estates.76 A trust for the accumulation of income is valid if it does not violate the rule against perpetuities, but if

78 Fordyce v. Bridges, 2 Phillim. 497; Wharton v. Masterman, L. R. (1895) A. C. 186, 197; Estate of Steele, 124 Cal. 534, 57 Pac. 564; Hussey v. Sargent, 116 Ky. 53, 25 Ky. L. Rep. 315, 75 S. W. 211; Thorn v. De Breteuil, 86 App. Div. 405, 83 N. Y. Supp. 849; Hascall v. King, 162 N. Y. 134, 76 Am. St. Rep. 302, 56 N. E. 515; Wahl's Estate, 26 W. N. C. (Pa.) 249; Rogers' Estate, 179 Pa. St. 602, 36 Atl. 1130.

74 Hascall v. King, 162 N. Y.

134, 76 Am. St. Rep. 302, 56 N. E. 515.

75 French v. Calkins, 252 III. 243, 96 N. E. 877.

76 Kimball v. Crocker, 53 Me. 263; Fosdick v. Fosdick, 6 Allen (88 Mass.) 41, 43; Odell v. Odell, 10 Allen (92 Mass.) 1; Thorndike v. Loring, 15 Gray (81 Mass.) 391; Hooper v. Hooper, 9 Cush. (63 Mass.) 122; Lovering v. Worthington, 106 Mass. 86, 89; Killam v. Allen, 52 Barb. (N. Y.) 605; Hillyard v. Miller, 10 Pa. St. 326. See § 1158.

the trust is to continue for a longer period than that fixed by the rule, it is void." As to whether or not the rule is violated, the same principle applies as in a case where the vesting of an estate is postponed, namely, if the accumulation, by any possibility, may continue beyond a period allowed, it is void.78 If a term of years is prescribed without reference to the life or lives of persons in being, the time limited is then but twenty-one years.7

Where provisions to accumulation are void, the result is to make a present gift to the beneficiaries discharged of the trust, and not to admit the heirs or next of kin.80

§ 1174. The Thellusson Case.

The first mention in the law reports of perpetuities was in a case some three centuries agos1 which, with other old cases, form the foundation of the rule.82 Finally was

77 Von Brockdorff v. Malcolm, L. R. 30 Ch. Div. 172; Smith v. Cunningham, L. R. 13 Ir. 480; Hoadley v. Beardsley, 89 Conn. 270, 93 Atl. 535; Kimball V. Crocker, 53 Me. 263; Odell v. Odell, 10 Allen (92 Mass.) 1; Pray v. Hegeman, 92 N. Y. 508, 514; Philadelphia v. Girard's Heirs, 45 Pa. St. 1, 84 Am. Dec. 470.

78 Marshall V. Holloway, 2 Swanst. 432; Curtis v. Lukin, 5 Beav. 147.

See § 1163.

79 Lade v. Holford, 1 W. Bl. 428; Curtis v. Lukin, 5 Beav. 147; Kimball v. Crocker, 53 Me. 263; Thorndike v. Loring, 15 Gray (81 Mass.) 391.

Where a testatrix left to her executor an estate in trust to ac

cumulate for an absent son, "in case he can be found after diligent inquiry, correspondence, and publication for the space of twenty years," the direction for accumulation was not void, inasmuch as the trustee had active duties to perform.-Estate of Williams, 13 Phila. (Pa.) 325.

A direction to accumulate all the testator's estate for fifteen years by investment and reinvestment in bonds is valid in Illinois. Rhoads v. Rhoads, 43 Ill. 239.

80 Potter's Estate, 13 Phila. (Pa.) 293.

81 Chudleigh's Case, 1 Coke 120a, 76 Eng. Reprint 270.

82 Corbet's Case, 1 Coke 83b, 76 Eng. Reprint 187; Duke of Nor

presented the will of Peter Thellusson, who died in 1797, leaving a large estate. He willed that all his real and personal property should be converted into a common fund to be vested in trustees in fee, the rents and profits to accumulate during all the lives of all the testator's sons and of all of the testator's grandsons born in his lifetime and living at his death, or en ventre sa mere, and their issue. The profits were to accumulate and be reinvested. After the death of the last survivor of those mentioned, the estate was to be conveyed to the male heirs of his sons. The object was to protract the power of alienation by taking in the lives of persons who were mere nominees without any corresponding interests. The trust was upheld.83

§ 1175. The Thellusson Act.

Resulting largely from the situation presented by the Thellusson Case, there was enacted the statute of 39 and 40 Geo. III, ch. 98,84 usually known as the Thellusson Act. Many of the states of this country have passed laws based on this statute, such as New York and California.

The purpose of the statute, as the act recited, was that all dispositions of real or personal property whereby profits were to be accumulated and the beneficial enjoy

folk's Case, 3 Ch. Cas. 1, 22 Eng. Reprint 931; 2 Swanst. 454, 36 Eng. Reprint 690.

834 Kent Com. *285; Thellusson v. Woodford, 4 Ves. Jun. 227, 4 Rev. Rep. 205, 31 Eng. Reprint 117; affirmed in 11 Ves. Jun. 112, 8 Rev. Rep. 104, 32 Eng. Reprint 1030.

84 This statute, by its terms, did

not include Scotland, but was subsequently extended to Scotland by the statute of 11 and 12 Victoria, ch. 36, § 41. Neither did the act include Ireland, as it was passed before the union. See, also, Ellis v. Maxwell, 12 Beav. 104; Heywood v. Heywood, 29 Beav. 9.

The statute prevails in the province of Ontario, Canada. See Stat. 52 Vict., ch. 10, 1.

ment postponed, should be restricted. It prohibited any disposition by will, deed, or otherwise, of real or personal property under which the income or profits were to be accumulated, wholly or partially, for a longer period than the life of the settlor, or twenty-one years after his death, or during minority of any person or persons living or en ventre sa mere at the settlor's death, or during the minority of any person or persons who would, if of full age, be entitled to the income or profits under the trust. The statute provided that all directions for accumulation contrary to its provisions should be null and void, and that the income and profits directed to be accumulated should go to such person or persons as would have been entitled thereto if such accumulation had not been directed.

The statute fixed the limit beyond which accumulations could not extend, the time running from the testator's death, and such period could not be postponed by directing that the accumulation should begin at a date subsequent to the testator's demise.85

The effect of this statute is to enforce a more strict restraint upon the accumulation of income than is imposed against the vesting of an interest or estate in the property itself. Similar statutes have been enacted in a few of these United States, but in most jurisdictions the common law rule prevails.

§ 1176. Statutory Regulations Regarding Accumulations.

In a few states there are statutory restrictions upon accumulations of rents and profits of real estate, whether directed by deed or will, and in New York, Pennsyl

85 Webb v. Webb, 2 Beav. 493; Attorney General v. Poulden, 3 Hare