testator's intent, for the court can not supply an intent not expressed by the testator. If the purpose of the testator is not charitable, or if the property is to be devoted to charity only in the discretion of the trustee appointed in the will, the trustee having authority to devote all the fund to purposes not charitable, the court can not control such discretion and create a charitable trust. Whenever action by the court depends upon its assuming ministerial functions as distinguished from judicial, the general American rule is that the court has no jurisdiction to administer the trust property and apply it to some charitable purpose which it may select.72 72 Fairfield v. Lawson, 50 Conn. 501, 47 Am. Rep. 669; Spalding v. St. Joseph's Industrial School, 107 Ky. 382, 54 S. W. 200; Holland v. Alcock, 108 N. Y. 312, 2 Am. St. Rep. 420, 16 N. E. 305; Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568; McAuley v. Wilson, 16 N. C. 276, 18 Am. Dec. 587; Johnson v. Johnson, 92 Tenn. 559, 36 Am. St. Rep. 104, 22 L. R. A. 179, 23 S. W. 114; Danforth v. City of Oshkosh, 119 Wis. 262, 97 N. W. 258. CHAPTER XLI. PERPETUITIES AND TRUSTS TO ACCUMULATE. § 1156. Perpetuities defined. § 1157. Development of the rule against perpetuities. § 1158. Statement of the rule against perpetuities. § 1159. The same subject. § 1160. To what interests the rule applies. § 1161. Contingent and vested interests distinguished. § 1162. Provisions construed as of date of testator's death. § 1163. A rule of law: Possibility of violation of rule the test. § 1164. Cases illustrating application of rule. § 1165. Time runs from date of testator's death. § 1166. Powers of appointment: Effect of, if void. § 1167. Private trusts subject to rule against perpetuities. § 1168. Effect of provisions violating rule against perpetuities. § 1169. The same subject: Effect on preceding estates. § 1170. The same subject: Effect on other estates. § 1171. Gifts to a class. § 1172. Accumulation defined. § 1173. Common law rule as to accumulation. § 1174. The Thellusson Case. $1175. The Thellusson Act. § 1176. Statutory regulations regarding accumulations. § 1177. The same subject: Charities. § 1178. Implied directions to accumulate. § 1179. Effect of trust to accumulate for longer period than allowed by rule or statute. § 1156. Perpetuities Defined. It has been said that a perfect definition of a perpetuity has never been given.1 It may be defined as a grant of property wherein the vesting of the estate or interest 1 Hillyard v. Miller, 10 Pa. 326, 334. is unlawfully postponed, and it is called a perpetuity not because the grant, as written, would make it perpetual, but because it transgresses the limit which the law has set in restraint of grants which tend to a perpetual suspense of the title or its vesting. It has also been defined as a limitation which takes the subject matter of the perpetuity out of commerce for a period of time greater than a life or lives in being and twenty-one years thereafter. The estate of the person who for the time being is entitled to the property must be indestructible.* § 1157. Development of the Rule Against Perpetuities. The common law did not permit an entire restraint upon alienation to be coupled with a grant in fee simple, the right of alienation being an incident of the estate and the restraint being void. The rule has been gradually established by judicial decisions in discussions of cases involving executory devises of chattels real. At first the contingent interests depended upon the nature of the contingency, remoteness not being in question. The courts at first allowed only those limitations which would take effect at the death of the testator; later this was changed 2 Philadelphia v. Girard's Heirs, 45 Pa. St. 9, 26, 84 Am. Dec. 470. See, also, Duke of Norfolk's Case, 2 Swanst. 454; Hollander v. Central Metal & Supply Co., 109 Md. 131, 23 L. R. A. (N. S.) 1135, 71 Atl. 442. A perpetuity is "an estate inalienable though all mankind join in the conveyance."-Scatterwood v. Edge, 1 Salk. 229. 3 Raymond v. Northern Trust Co., 150 Ill. App. 282; Bigelow v. Cady, 171 Ill. 229, 63 Am. St. Rep. 230, 48 N. E. 974; Kolb v. Landes, 277 Ill. 440, 115 N. E. 539, and Branson v. Bailey, 246 III. 490, 92 N. E. 940; Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635, 637; True Real Estate Co. v. True, (Me.) 99 Atl. 627; Anderson v. Menefee, (Tex. Civ. App.) 174 S. W. 904. 4 Hillyard v. Miller, 10 Pa. 326, 334; Mifflin's Appeal, 121 Pa. St. 205, 6 Am. St. Rep. 781, 1 L. R. A. 453, 15 Atl. 525. to include two or more lives in being at the same time. Then was added the time necessary for the birth of a posthumous child, then twenty-one years was included in the period allowed for the minority of children in esse at the expiration of the life estate. Minority, however, was lost sight of and the period of twenty-one years was allowed without reference to infancy." § 1158. Statement of the Rule Against Perpetuities. The common law rule, and it obtains in every American state except as it may have been modified by statute, is that the utmost period in which an executory devise or bequest can take effect is a life or lives in being and twenty-one years thereafter, together with the period of gestation. The number of lives is immaterial, but they must be in being so, as has been expressed, the candles are all burning at the same time, for the life of the longest liver is but a single day.' The rule allows the vesting of 6 5 Cadell v. Palmer, 1 Cl. & F. 372, 6 Eng. Reprint 956; Marks v. Marks, 10 Mod. 419; Loyd v. Carew, Prec. Ch. 72, 24 Eng. Reprint 35. See, also, Goring v. Bickerstaffe, 2 Freem. Ch. 163, 22 Eng. Reprint 1132; Love v. Windham, 1 Sid. 450, 82 Eng. Rep. 1211; Goldtree v. Thompson, 79 Cal. 613, 22 Pac. 50. 6 Cadell v. Palmer, 7 Bligh N. S. 202, 1 Cl. & F. 372, 6 Eng. Reprint 956; Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Towle v. Doe, 97 Me. 427, 54 Atl. 1072; In re Smisson, 79 N. J. Eq. 233, 82 Atl. 614. 7 Madison v. Larmon, 170 III. 65, 62 Am. St. Rep. 356, 48 N. E. 556; Smith's Appeal, 88 Pa. St. 492; Barton v. Thaw, 246 Pa. 348, Ann. Cas. 1916D, 570, 92 Atl. 312. In Scatterwood v. Edge, 1 Salk. 229, the court of common pleas is said to have agreed in holding that "the compass of a life or lives" was a reasonable time, "for let the lives be never so many, there must be a survivor, and so it is but the length of that life." Lord Hardwick in Hopkins v. Hopkins, 1 Atk. 580, said: "It is not (in my opinion) material to restrain it to the life of the tenant for life of the land, provided it be restrained to the life of a person in being." an estate or interest, or the power of alienation, to be postponed for such period only, and all restraints which may suspend the vesting of an estate or the power of alienation beyond such time are treated as perpetual and therefore void. But nothing is denounced by the law as a perpetuity which does not transgress this rule.8 To prevent estates from being locked up forever from commercial and social purposes, perpetuities are forbidden and a period fixed beyond which no one is allowed to direct how his estate shall devolve. That period is for a life or lives in being and twenty-one years thereafter with the period of gestation added. A testator therefore can not by devise or bequest limit an estate over to take effect after that period and, if he does so, the limitation over is void.9 In Arkansas, California, Nevada, New Mexico, North Carolina, Tennessee, and Texas perpetuities are forbidden by the constitution. In many of the states of this country the common law rule has become part of the statutory law. In others the statute declares that the absolute power of alienation of real estate shall not be suspended by any condition or limitation for a longer period than during the continuance of two lives in being at the creation of the estate; in others for a longer period than the duration of any number of lives in being; in still others the suspension must not be for longer than during three lives and ten years. Generally the period of the suspension of alienation must by express terms be mea 8 Barnum v. Barnum, 26 Md. 119, 90 Am. Dec. 88; Graham v. Whitridge, 99 Md. 248, 66 L. R. A. 408, 57 Atl. 609, 58 Atl. 36; Levenson v. Manly, 119 Md. 517, 87 Atl. 261; Philadelphia v. Girard's Heirs, 45 9 Moore's Trustees v. Howe's Heirs, 4 T. B. Mon. (20 Ky.) 199; Winsor v. Mills, 157 Mass. 362, 32 N. E. 352. |