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But after a while a settled rule was laid down. This is founded on an analogy to the rule of law relating to remainders which forbids the gift of land to an unborn person for life, followed by any estate to the issue of such unborn person. Under this rule, there can be no greater restraint on alienation than that which may be effected by means of a settlement limiting one or more life estates to a person or persons in being, followed by one or more estates tail expectant on the expiration of the preceding estate for life. And since the estate tail can be barred by the tenant in tail as soon as he has attained his majority, the utmost restraint on alienation possible by limitations of remainders, is for a life or lives in being and twenty-one years afterwards. The full extent of this period as that within which property might be rendered incapable of alienation, was, in the case of executory limitations, at first allowed only where the limitation was to take effect in favor of an infant. But this was afterwards extended to all cases, and it is now clearly settled that every executory limitation is well created, which must either take effect, or fail to take effect, within the period of a life or lives in being, with an extension of a few months in favor of a limitation to a person who is en ventre sa mère at the expiration of the twenty-one years. It is to be remembered, however, that the event, or events, on which the limitation depends must be such as will necessarily take effect, or fail, within the period fixed by the rule. Thus, in one case, leasehold estate
4 was given by will to trustees upon trust for A for life, and after his death upon trust, in effect, for the first heir male of A who should attain the age of twentyone. At the death of A, his heir male by descent had already attained that age, but, nevertheless, the House of Lords held that the limitation to him was void. For it was said that the fact of his being both heir male and having attained his inajority at the time of A's death was merely an accident, and that the events on which the limitation depended (namely, that A should have an heir male, and that such heir should attain the age of twenty-one) might not have happened in conjunction for many generations.
1 Fearne, C. R. 562n-9 n.
2 Taylor v. Biddall, 2 Mod. 289 ; Stephens v. Stephens, Ca. t. Talb. 228.
3 Beard v. Westcot, 5 Taunt. 393; Cadell v. Palmer, 1 Cl. & F. 372, 421, and, with notes, Tu. R. P. 360.
4 Dungannon v. Smith, 12 Cl. & F. 546, 622. (See Christie v. Gosling, L. R. 1 H. L. 279.)
Accumulation It was at one time possible for a settlor to direct of income.
that the income derived from land should be accumulated for a period of time equal to that within which
alienation of land itself might be restrained. But 39 & 40 Geo. it is now enacted by the 39 & 40 Geo. III. c. 98, that 3 III. c. 98.
no person shall, after the passing of the act, settle, or dispose of, any real or personal property, so that the rents or produce thereof shall be wholly, or partially, accumulated for any longer term than the life of such settlor; or for the term of twenty-one years from the death of such settlor ; or during the minority, or respective minorities, of any person or persons, who shall be living, or en ventre sa mère, at the death of such settlor; or during the minority, or respective minorities only, of any person or persons, who, under the uses or trusts of the instrument directing the accumulation, would, for the time being, if of full age, be entitled to the rents or produce so directed to be accumulated. And that in every case where such accumulations shall be directed otherwise than as aforesaid, such direction shall be null and void, and the rents of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of the act, go to, and be received by, such person, or persons, as would have been entitled thereto had such accumulation not been directed. But nothing in the act is to extend to any provision for the payment of the debts of the settlor ;2 or to any provision for raising portions for any child or children of the settlor, or for any child or children of any person taking any interest under the instrument; or to any direction touching the produce of timber or woods upon any lands or tenements. An attempt at undue accumulation, unlike an excessive restraint on alienation, is not void altogether, but only so far as it exceeds the time allowed by the act. If, for instance, there is a direction to accumulate income during the life of some person other than the settlor, it is evident that this period of accumulation may happen to exceed the period of twenty-one years permitted by statute. But it is, nevertheless, good for twenty-one years, provided the person named lives so long; and will be only void for such further time as he may continue to live beyond the twenty-one years.3
1 And see Gosling v. Gosling, 1 N. R. 36; Harrington v. Harrington, L. R. 5 H. L. 87. 2 Thellusson v. Woodford, 4 Ves. 227.
3 S. 1.
The alienation of executory interests is governed Alienation by the same statutory enactments as those already off executory mentioned in the case of contingent remainders. It will be enough, therefore, to refer the reader to what has been said on this point in the previous chapter ; and we conclude the present with some remarks on the subject of powers of appointment.
A springing or shifting use may be created, not Powers of only by the settlor or devisor of land, but also by any
1 S. 2. 8 See Tewart v. Lawson, W. N. (1874), 140.
other person to whom he has given a power to create it. For such a person may have a power of appointing that land shall thenceforth be held, wholly or partially, to a use different from that to which it has been hitherto subject. As in the ordinary case of a power of sale, which is nothing more than a power to appoint the property which is sold to the use of the purchaser. Powers of this kind may be classified in two ways, according as it is wished to regard them with reference to their exercise, or to their destruction and alienation.
In the first case, they may be divided into Particube Particular lar Powers and General Powers. A particular power or General.
is one which the donee of the power can only exercise in favor of particular objects; as, for instance, a power to appoint land amongst the children of A. A general power is one which may be exercised in favor of any person whom the donee may select, including himself.
Powers Col. The other division of powers is into powers Collateral, and Not simply
lateral, and Powers Not simply Collateral. Powers Collateral. of the first kind are those given to a person who has
no interest in the property settled, as where an estate is limited to the use of A, with power to B to revoke that use, and limit the property to the use of C. Powers not simply collateral are those which are given to some person who has an interest in the property subject to the power. These powers may be subdivided
. Powers into Powers Appendant and Powers in Gross. A Appendant and in Gross. power appendant is one which is strictly dependent gross is one which enables the donee to create such estates only as will not attach on the interest limited to him; as where a power is given to a tenant for life to create a term of years which is to commence after his death.1
upon the estate limited to the person to whom the power is given, and the exercise of which will affect his interest; as where a power is given to a tenant for life to make leases in possession. A power in
i Sug. Pow. 46.
Powers may be created by any words which clearly Creation of indicate an intention to that effect. Trustees of set- Powers. tlements and mortgagees have also had various powers of sale and exchange conferred on them by statute, but to these we shall refer more fully in a later part of this work. We pass on therefore to consider, 1st, How powers may be exercised. 2d, How they may be destroyed, or alienated.
to create a
It will be remembered that, for the purpose of the Exercise of first question to be considered, powers are divided Powers. into those which are particular, and those which are general. The first point to be noticed as to their Must not tend exercise, is that it must not tend to create a per- perpetuity. petuity. The application of this principle differs according to the class of the power. For as to particular powers, the rule is that, when the power is exercised, the limitation thus created is to be read as if it had been inserted in the instrument creating the power, at the time when that instrument came into operation ; 3 and then the validity of the execution of the power will turn upon the question whether the limitation, so read, sins against the rule against perpetuities. It will be seen from this statement that the power is not bad because the exercise of it might have tended to a perpetuity. It is the actual, and not the hypothetical, exercise of the power, which
1 Sug. Pow. 47.
2 23 & 24 Vict. c. 145. 8 See Doe v. Cavendish, 4 T. R. 741 n.
4 Spencer v. Marlborough, 3 Bro. P. C. 232; Jones v. Winwood, 3 Mee. & W. 653; Massey v. Barton, 7 Ir. Eq. Rep. 95.