interest may be apportioned, because it is regarded as earned from day to day, even though the interest be expressly made payable half yearly. Large accumulations of profits extending over a number of years have been held in this country to be apportionable. Where the life-tenant of real estate dies, his rent is almost universally apportionable, under both English and American statutes. As to annuities, equity will sometimes presume, from the necessities of the case, that apportionment was intended, and make its decree accordingly. And recent statutes are to be found, which extend this same reasonable doctrine of apportionment to persons entitled to the income for life of any property, whether real or personal, as against remainder-men.5 Yet we must remember that, at the common law, neither rents nor annuities could be apportioned. And, independently of local legislation, there is no apportionment of dividends; so that if stock be settled in trust for one person during life, with remainder to another, the remainder-man is entitled to the whole of the dividend which falls due next after the decease of the person entitled for life." The remainder-man is entitled to the fund upon the death of the owner of the life estate; income or interest as from such date is due him, and no deduction should be made from the fund for administering on the life-beneficiary's estate.7 § 146. Rule against Perpetuities. The rule against perpetuities is applicable to limitations of personal as well as of real property. In order to prevent the fancies and conceits of dying men from embarrassing their successors, the 1 Edwards v. Countess of Warwick, 2 P. Wms. 176; Sherrard v. Sherrard, 3 Atk. 502. 2 Earp's Appeal, 28 Penn. St. 368. 3 3 Kent Com. 471 and n.; Stat. 11 Geo. II. c. 19, § 15; Perry Trusts, § 556. Hay v. Palmer, 2 P. Wms. 501; Howell v. Hanforth, 2 Bl. 843; 3 Kent Com. 471. 5 See Stat. 4 & 5 Will. IV. c. 22, § 2; Wms. Pers. Prop. 5th Eng. ed. VOL. I. 12 240. Why such legislation is not common in the United States is doubtless because there is less occasion to apply for it; the policy is manifestly just. See Mass. Pub. Stats. c. 136,. § 25; Sohier v. Eldredge, 103 Mass. 345. • Pearly v. Smith, 3 Atk. 260; Sherrard v. Sherrard, 3 Atk. 502; 65 N. H. 8. See Paton v. Sheppard, 10 Sim. 186; Granger v. Bassett, 98 Mass. 462; Perry Trusts, § 556. 7 Reiff's Appeal, 124 Penn. St. 145. 177 courts long ago decided that the vesting of a devise should not be postponed beyond a certain reasonable period; and the same holds good of a bequest. That period, as finally fixed upon, is the period of a life or lives in being at the death of the testator, and the term of twenty-one years more; to which is added the period of gestation in case of a devisee en ventre sa mère.1 Hence, an executory devise or bequest, limited to take effect after the indefinite failure of issue of a person living or deceased, creates a perpetuity, and is void for remoteness. And where one sets apart by his will a certain sum of money, directing that the interest be applied in keeping up repairs on a family tomb, this is likewise void. But charitable trusts are an exception to the rule against perpetuities; for it is of the essence of charity to be never failing. Hence, some difficulty might be experienced in a case where a bequest of personal property verged very closely upon the nature of a charitable trust, as if one made a gift of income for repairing the tombs of his distant kindred. Sometimes, too, a bequest which is too remote of itself is accompanied by a charitable bequest; and here the English decisions appear to have established the proposition that where a sum of money is given, part of which is to be applied to a purpose too remote, and the rest for charitable purposes, the whole gift must fail.5 But still there is considerable conflict in the English cases as to how far a gift to persons within the allowed limits fails in general by being mixed up with others which come within the prohibition against perpetuities. 11 Jarm. Wills, 226, 227; 2 Redf. Wills, 1st ed. 845, 846; Cadell v. Palmer, 1 Cl. & Fin. 372. 2 Ib.; Wms. Pers. Prop. 5th Eng. ed. 245; Bengough v. Edridge, 7 Sim. 173; 7 Bligh, 202. Of two possible constructions of a will, that seems to be preferred which would avoid violating the rule against perpetuities. Rand v. Butler, 48 Conn. 293. 3 Rickard v. Robson, 31 Beav. 244. See Hunter v. Bullock, L. R. 14 Eq. 45. 4 See 2 Redf. Wills, 821; Williams And the New York rule v. Williams, 4 Sel. 525; White v. White, 7 Ves. 423; Odell v. Odell, 10 Allen, 1; Schoul. Ex'rs, § 464. 5 Fowler v. Fowler, 10 Jur. N. s. 648; Chapman v. Brown, 6 Ves. 404 ; Cramp v. Playfoot, 4 Kay & J. 479. 6 Arnold v. Congreve, 1 Russ. & My. 209; Lord Dungannon v. Smith, 12 Cl. & Fin. 546; Webster v. Boddington, 26 Beav. 128; Wilson v. Wilson, 4 Jur. N. s. 1076, and other cases cited in 2 Redf. Wills, 849; 23 Hun, 223; Schoul. Ex'rs, § 465. is a reasonable one, that if some gifts are valid per se, and others void, the court will sustain the former if they can be separated from the latter.1 As a testator cannot postpone the vesting of an executory devise or bequest for a longer term than twenty-one years, besides the lives in being already mentioned, so he cannot extend that term even where he does not avail himself of the privilege of lives in being. Where, for instance, the testator directed a postponement of the vesting for twenty-eight years after his death, the limitation was held void; and there being other limitations dependent upon this, they fell through in consequence. But this rule does not prevent one from postponing the vesting for thirty, or any number of years, provided the property be ultimately to vest in persons who are living both at the time of the testator's death and at the time of the vesting, since that renders it impossible for the term to extend beyond the period of an existing life. The question of remoteness, it must, however, be borne in mind, is to be determined by reference to possible events, and not to those which actually occur; and a limitation to such persons or upon such events that it may lead to a perpetuity under the rule is void, whatever might be found to be the facts if one waited long enough to ascertain them. And, of course, the reckoning of all such limitations is from the date of the testator's death, and not from the date of his will.5 The rule against perpetuities is most frequently violated by a devise or bequest to classes, individuals of which may not come into existence during the prescribed period; or to persons whose interest is deferred beyond the period of reaching the age of twenty-one years; the question being here, as always, not whether the estate actually vests within the time, but whether it may not. 1 Van Vechten v. Van Veghten, 8 Paige, 105. 2 Palmer v. Holford, 4 Russ. 403; Speakman v. Speakman, 8 Hare, 180. Lochlan v. Reynolds, 9 Hare, 796; 1 Jarm. Wills (ed. 1861), 230; 2 Redf. Wills, 1st ed. 846. 4 Church, &c. v. Grant, 3 Gray, 142, passim; Hodson v. Ball, 14 Sim. 558. 52 Redf. Wills, 850; 2 Jarm. Wills (ed. 1861), 257 and note; Tregonwell v. Sydenham, 3 Dow. 194, 215. 61 Jarm. Wills (ed. 1861), 233; 2 This whole doctrine of perpetuities is of more interest to English than American students. But it may be laid down that limitations of personal property, so far as the doctrine has been developed in our own courts, follow the English decisions in the main. The statutes of some States are explicit against permitting the suspension of ownership in property for long periods. Thus, in New York, the legislature has forbidden limitations or conditions, as to personal property, for a longer period than two lives in being at the date of the instrument creating it, or, if by will, in being at the death of the testator.1 § 147. Limits to Accumulations of Income; Thellusson Act. A kindred doctrine to perpetuities is that of the period during which income may be accumulated under an executory devise or bequest. The English statute which now controls this rule is that of 39 & 40 Geo. III. c. 98, familiarly known as the Thellusson Act. This statute restricts the term for accumulation to the life of the grantor or settlor of property and twenty-one years after his death, or during the minority of such person or persons as would otherwise be entitled under the will.2 The object here is to prevent an avaricious and unfeeling ancestor from locking up his treasures altogether, principal and income alike, for the full period permitted in the rule against perpetuities which we have just considered. A Mr. Thellusson, whose memory is thus consigned by legislative enactment to an unenviable notoriety, had made an extraordinary will, by which he virtually disinherited his own offspring in favor of an unborn distant posterity, in directing the income of his property to be accumulated during the lives of all his children, grandchildren, and great-grandchildren, who were living at the time of his death, for the purpose of creating a princely fortune to be Redf. Wills, 1st ed. 847; Boughton v. James, 1 Coll. 26; s. c. 1 H. L. Cas. 406. 11 N. Y. Rev. Stats. 773, §§ 1-5; 2 Kent Com. 353, n. See Dodge v. Pond, 23 N. Y. 69; Odell v. Odell, 10 Allen, 1; Perry Trusts, §§ 377-390; Schouler Ex'rs, § 465; and in general, John C. Gray on Perpetuities. 2 See Wms. Real Prop. 6th ed. 286; 2 Redf. Wills, 1st ed. c. 16, passim; Thellusson v. Woodford, 4 Ves. 221; 11 ib. 112; Schouler Ex'rs, § 465; Perry Trusts, §§ 393-399. spent by the later descendants of his family; and although keeping within the strict letter of that rule which permits an executory devise or bequest to be so long suspended, —a rule which in strictness would include both capital and income, - he so moved his fellow-countrymen to indignation that it was determined to prevent by act of Parliament the possible repetition of any such exhibition of family pride at the expense of family affection. Similar legislation may be found in some of the United States, as in New York and Pennsylvania. But where no such statute is found, the usual rule against perpetuities furnishes the only limitation.1 Under the Thellusson Act, it is held that directions for accumulating income beyond the period allowed are good for that portion of time which comes within the act, and are only void as to the remainder.2 But, independently of statutes, any trust for accumulation which transcends the rule against perpetuities would be void in toto, and the estate would vest in the same manner as if the entire direction with regard to accumulation had been omitted. And this is the New York rule; the income going as in case of intestacy.* 1 In New York, the period for accumulation must be during the minority of the persons to be benefited, and terminate at the expiration of their minority; and the statute of this State is, in many respects, like the Thellusson Act. All directions for accumulation contrary to or in excess of the rule as defined by the legislature are so far void; and if a minor for whose benefit a valid accumulation of interest or profits is directed be destitute, the court may apply a suitable sum from the accumulated moneys for his relief, as to support and education. 1 N. Y. Rev. Stats. 773, §§ 1-5; 2 Kent Com. 353, n. See Dodge v. Pond, 23 N. Y. 69; Kane v. Gott, 24 Wend. 641; Gott v. Cook, 7 Paige, 534; Penn. Stats. April 18, 1853, Purd. Dig. 853. 2 Wms. Real Prop. 4th Am. ed. 306; 2 Redf. Wills, 838, 839; 1 Jarm. Wills, 286, 287; Rosslyn's Trust, 16 3 Boughton v. James, 1 Coll. 26; s. c. 1 H. L. Cas. 406; Scarisbrick v. Skelmersdale, 17 Sim. 187. 4 Hull v. Hull, 24 N. Y. 647. See Phelps's Executor v. Pond, 23 N. Y. 83, commenting upon Kilpatrick v. Tolinson, 15 N. Y. 322; 1 N. Y. Rev. Stats. 726, § 40; ib. 773, § 2; Williams v. Williams, 8 N. Y. 525; also Odell v. Odell, 10 Allen, 1. For cases arising under the Thellusson Act, as to disposition, and the principles they establish, see 2 Redf. Wills, 839, 840; 1 Jarm. Wills, 292. The Thellusson Act applies to the income of both personal and real estate. Wms. Pers. Prop. 245. But it does not extend to funds which were provided for the payment of debts, or for raising portions for children. See Wms. Real Prop. 4th Am. ed. 306; 2 Redf. Wills, 838, 839; 1 Jarm. Wills, 286, 287. |