the rule did not exist; and then to the provisions of the instrument as construed the rule is applied.35

In determining whether or not the provisions of a will violate the rule as to perpetuities, the court does not consider whether the estate or interest may vest within such time as not to violate the rule; the point is whether by any possibility the estate or interest may not vest until after the period prescribed by the rule.36 If so, the rule has been violated. A future estate or interest in

1679

property is invalid unless it is so limited that under all possible contingencies it must of necessity take effect within the legal period."

Some authorities, however, favor so construing a will as to avoid a conflict with the rule against perpetuities, if it consistently can be done. A testator is presumed to have knowledge of the law as to perpetuities3s and it will not be inferred that he knowingly inserted invalid provisions in his will. And such construction will be given as to uphold the will39 whenever by so doing the intention of the testator is not disappointed. 40

§ 1164. Cases Illustrating Application of Rule.

The rule against perpetuities is violated by a bequest in trust for a daughter for life, and after her death to pay

1083; Lawrence v. Smith, 163 Ill. 149, 45 N. E. 259; Nevitt v. Woodburn, 190 Ill. 283, 60 N. E. 500; Drury v. Drury, 271 Ill. 336, 111 N. E. 140.

37 Thomas v. Thomas, 87 L. T. V. Bradley, 58; Lyons N. S. 168 Ala. 505, 53 So. 244; Brown etc. Co., Finance V. Columbia 123 Ky. 775, 30 Ky. L. Rep. 110, 97 S. W. 421; United States Fidelity etc. Co. v. Douglas' Trustee, 134 Ky. 374, 20 Ann. Cas. 993, 120 S. W. 328; Tyler v. Fidelity etc. Trust Co., 158 Ky. 280, 164 S. W. 939; Schaefer v. Schaefer, 141 Ill. 337, 31 N. E. 136; Slade v. Patten, 68 Me. 380; Fosdick v. Fosdick, 6 Allen (88 Mass.) 41; Smith v. Edwards, 88 N. Y. 92, 104; Matter of O'Hara, 95 N. Y.

403, 417, 47 Am. Rep. 53; Smith's Appeal, 88 Pa. St. 492.

38 Van Riper v. Hilton, 78 N. J. Eq. 371, 78 Atl. 1055.

39 Martelli v. Holloway, L. R. 5 H. L. 532; Pease v. Cornell, 84 Conn. 391, 80 Atl. 86; Sumpter v. Carter, 115 Ga. 893, 60 L. R. A. 274, 42 S. E. 324; Henry v. Carr, 157 Ky. 552, 163 S. W. 756; Gray v. Whittemore, 192 Mass. 367, 116 Am. St. Rep. 246, 10 L. R. A. (N. S.) 1143, 78 N. E. 422; Towle v. Doe, 97 Me. 427, 54 Atl. 1072; Anderson v. Menefee, (Tex. Civ.. App.) 174 S. W. 904; Allison v.. Allison's Exrs., 101 Va. 537, 63 L. R. A. 920, 44 S. E. 904; Commonwealth v. Wellford, 114 Va. 372, 44 L. R. A. (N. S.) 419, 76 S. E. 917.

40 Towle v. Doe, 97 Me. 427, 54 Atl. 1072.

the income to her children, without right of alienation, except that at the death of any such grandchildren an aliquot part of the property shall pass to the grandchildren's descendants per stirpes, and in default of descendants living at the death of such grandchildren to pass according to the law of descent, the reason being that in legal contemplation the grandchildren entitled to take may be born after the testator's death, even though the daughter is fifty-five years old when the testator dies.41

The rule is also violated by a devise by which an estate is to be held in trust during the life of the testator's son, and after his death to be held in like trust until the death of the testator's last surviving grandchild, the fee to be then divided equally between the testator's great grandchildren or their descendants.42

A devise to heirs of a living person, unless it appears that his children are intended, violates the statute because until the death of such person his heirs can not be ascertained, and it is possible that they may be the issue of children yet unborn at the time of the testator's death.43

Where successive conditional devises are made to four nephews with limitations over upon failure of surviving descendants, and then to certain heirs, the limitations over to the latter are in contravention to the statute against perpetuities.**

States Fidelity

&

41 United Guaranty Co. v. Douglas' Trustee, 134 Ky. 374, 20 Ann. Cas. 993, 120 S. W. 328.

42 Tyler v. Fidelity etc. Trust Co., 158 Ky. 280, 164 S. W. 939.

43 Grant v. Stimpson, 79 Conn. 617, 66 Atl. 167; Pease v. Cornell, 84 Conn. 391, 80 Atl. 86.

44 Rudkin v. Rand, 88 Conn. 292, 91 Atl. 198.

A condition subsequent in a will requiring the children, or some of their issue, to reside on the land forever, is void, being indefinite and uncertain."

A bequest by which the absolute ownership is to be suspended for the lives of two persons and their children is within the rule because they may never have children.46

A will devising the income of certain real estate to testator's daughter for life, and on her death one-half of the income to go to her issue, if any, and the balance to the testator's surviving heirs, does not create a perpetuity, for the word "heirs" is used in the sense of children.47

A provision that the estate should be divided between the widow and the children of the testator "when my youngest child living at the time of my death shall arrive at the age of forty-five years," is not void as providing for a term beyond one life.48

A direction that no legacy, bequest or devise shall take effect until the building and improvements to a certain named memorial hall shall have been completed and paid for out of the estate does not violate the rule against perpetuities.19

§ 1165. Time Runs From Date of Testator's Death.

A will does not become effective until the death of the testator. Until then it is ambulatory in character and revocable at pleasure. No disposition by will can take

45 Reynolds v. Love, 191 Ala. 218, 68 So. 27.

46 Craig v. Hone, 2 Edw. Ch. (N. Y.) 554.

47 Guesnard V. Ala. 250, 55 So. 524.

Guesnard, 173

48 Appell v. Appell, 177 App. Div. 570, 164 N. Y. Supp. 246.

49 Jones v. Habersham, 107 U. S. 174, 27 L. Ed. 401, 2 Sup. Ct. 336.

II Com. on Wills-52

effect during the testator's lifetime. So with devises and bequests, in determining the time until which the vesting of an estate or interest in property may be postponed or its alienation restricted, the time is computed from the date of the death of the testator.50

§ 1166. Powers of Appointment: Effect of, if Void.

Where a power of appointment is given by will the rule against perpetuities applies as well to the power as to the appointment. If the power can be exercised at a time beyond the limits prescribed by the rule, it is void.51 If there be a gift over in the event of the power of appointment not being exercised, the power failing because contrary to the rule against perpetuities, the limitation over is good. It can be defeated only by the exercise of the power, and the power being void, it becomes a vested interest. The validity of the limitation over is not affected by the invalidity of a preceding interest or power.52

§ 1167. Private Trusts Subject to Rule Against Perpetuities. A private trust of unlimited duration, requiring the application of funds and fiduciary duties to that end be

50 Madison v. Larmon, 170 III. 65, 62 Am. St. Rep. 356, 48 N. E. 556; Dime Sav. Bank v. Watson, 254 Ill. 419, 98 N. E. 777; Murphey v. Brown, 159 Ind. 106, 68 N. E. 275; Hosea v. Jacobs, 98 Mass. 65; Bullard v. Shirley, 153 Mass. 559, 12 L. R. A. 110, 27 N. E. 766; Mullreed v. Clark, 110 Mich. 229, 68 N. W. 138, 989; Lang v. Ropke, 5 Sandf. (N. Y.) 363; Matter of Pilsbury, 50 Misc. Rep. 367, 99 N. Y. Supp. 62; affirmed in 186 N. Y. 545, 79 N. E. 1114; Morton

Trust Co. v. Sands, 122 App. Div. 691, 107 N. Y. Supp. 698; Simpson v. Trust Co. of America, 129 App. Div. 200, 113 N. Y. Supp. 370; affirmed in 197 N. Y. 586, 91 N. E. 1120; Penfield v. Tower, 1 N. D. 216, 46 N. W. 413; Johnston's Estate, 185 Pa. St. 179, 64 Am. St. Rep. 621, 39 Atl. 879.

51 Lawrence's Estate (Apple ton's Appeal), 136 Pa. St. 354, 20 Am. St. Rep. 925, 11 L. R. A. 85, 20 Atl. 521.

52 In re Abbott, (1893) 1 Ch. 34.