Story Case

Mr. Arnold Bender admired an illustrious lineage, and boasted untiringly of the virtuous ancestry of the Bender family and portrayed its glorious future. His acquaintances were, therefore, not surprised to find, after his death, a provision in his will devising all his property to his son, John (then six years old) for life; remainder to John's children for life; remainder in fee to the first of John's grandchildren who should reach the age of twenty-five years. John tries to have the last devise to his grandchild set aside as invalid. Will he succeed?

Ruling Court Case. Johnson Vs. Preston, Volume 226 Illinois, Page 447

Jane Piatt, owner of certain real estate, by will, made the following devise:

"I give and bevise to my executor hereafter named (Preston) my farm of 120 acres in Willow Creek Township, to have and to hold for the space of twenty-five (25) years from and after the date of the probate of this will."

The foregoing paragraph was followed by other paragraphs intended to create a beneficial interest in certain of the grandchildren of Jane Piatt. This was a bill filed by the heirs-at-law of Jane to have the will declared void and for a partition of the property. The contention is that the language "from and after the probate of this will," since it represents an uncertain contingency upon which the estate of the executor shall come into being, which may not happen within the time prescribed by the rule against perpetuities, makes the denial void.

Mr. Justice Vickers said: "A perpetuity is denned to be a limitation taking the subject thereof out of commerce for a longer period of time than a life or lives in being and twenty-one years thereafter.

"No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the execution of the instrument, as in case of wills, at the death of the testator. It is not enough that a contingent event may happen or even that it will probably happen, within the limits of the rule against perpetuities. If it can possibly happen beyond those limits an interest conditioned on it is too remote.

"It is clear from the language of the will itself that whatever interest the executor took under it could not vest in him until the probate of the will, and while this event would, in the ordinary and usual course of events probably occur within a few months, or at most a few years, after the death of the testatrix, yet it cannot be said that it is a condition that must inevitably happen within twenty-one years from the death of the testatrix. Since a bare possibility that the condition upon which the estate is to vest may not happen within the prescribed limits, is all that is necessary to bring the devise in conflict with the rule. We see no escape from the conclusion that the devise to the executor offends the rule against perpetuities is therefore void." Judgment was given for Johnson.

Ruling Court Case. Brattle Square Church Vs. Grant, Volume 3 Gray Reports, Page 142; Volume 63 American Decisions, Page 425

The testatrix, by will, devised certain property to the deacons of the Brattle Square Church. The devise was made upon an express condition as follows:

"The minister, or oldest minister of said church shall constantly reside and dwell in said house during such time as he is minister of said church, and in case the same is not improved for that use only, I then declare the bequest to be void, and of no force, and order that said house and land shall revert to my estate, and I give the same to my nephew, John Hancock, and his heirs forever." This was a bill brought by the deacons of the Brattle Square Church, asking leave of the court to sell the house. They claimed that a sale was necessary because of the heavy expenditures necessary in paying taxes and other expenses incident thereto.

It was further contended that the limitation over to the heirs of Hancock was void for remoteness, and that, therefore, the estate vested in the deacons absolutely.

Mr. Justice Bigelow said: "It has long been the settled rule in England, and adopted as a part of the Common Law here, that all limitations, by way of executory devise which may not take effect within the term of a life or lives in being at the death of the testator, and twenty-one years afterwards, are void, as too remote and tending to create perpetuities."

"In the application of this rule, in order to list the legality of a limitation, it is not sufficient that it be capable of taking effect within the prescribed period; it must be so framed as ex necessitate to take effect, if at all, within that time. If, therefore, a limitation is made to depend upon an event which may happen immediately after the death of the testator, but which may not occur until after the lapse of the prescribed period, the limitation is void. If the event upon which the limitation is to take effect may, by possibility, not occur within the allowed period, the executory devise is too remote and cannot take effect.

"The devise over to the heirs of John Hancock is therefore void, as being too remote. The event upon which the prior estate was to determine, and the gift even to take effect, might or might not occur within a life or lives in being at the death of the testator.

"This limitation over to the heirs of John Hancock being void for remoteness, the estate vests absolutely in the deacons of the Brattle Square Church, and the same may be sold as requested." Judgment was given for the Brattle Square Church.

Ruling Law. Story Case Answer

It is said that the law abhors a perpetuity; that is, the policy of the law is against the creation of estates which continue for an indefinitely long time. The law deems it unwise for a man in one generation to accumulate property and direct its future devolution long after he has passed away. For that reason, the law created a rule against perpetuities, a rule which seeks to prevent the creation of future estates which will last too long.

The Rule Against Perpetuities declares that if it appear that an interest may not vest, that is, come into somebody's right, beyond the period of the life of one person named, and twenty-one years thereafter, it is a void conveyance. But, if it appears that it will vest, if at all, within the period, then it is good. This is done to avoid the conveyance of property in such a manner that the property is taken out of commerce longer than the prescribed period. A man may, by will, make an interest in land uncertain as to its owner for a life in being and twenty-one years thereafter. The law does not care how far in the future an interest may come to a man; it objects only to the uncertainty of its coming or vesting. Obviously, if such a rule did not exist, the large number of parents, who were solicitors for the welfare of their future descendants, would soon have lands so fettered as to put a stagnation on commerce and trade.

In the Story Case, the devise of the last remainder violates this rule, in that it attempts to keep property out of the market for a period longer than a life in being plus twenty-one years. John was the life in being, but the property would probably not vest in his children's children until more than twenty-one years after John's death. This devise is, therefore, void.