It was, however, settled at a comparatively early day that trusts, as well as future estates, which occasion a suspension of the power of alienation, are violations of the rule.1 These decisions are justified, because the interest of a cestui que trust in a trust created under subdivision 3 of section 55 being inalienable, such a trust involves a suspension of the power of alienation. By the terms of subdivision 3 such a trust is made "subject to the rules prescribed in the First Article," and among these rules are those contained in section 14 and section 15. Hence, a trust which suspends the power of alienation is void in like manner as a future estate.

We may say, therefore, that the Rule against Perpetuities, stated in section 14 and section 15, as interpreted by the courts in connection with subdivision 3 of section 55, was aimed simply at restraints upon alienation. The rule is violated whenever there is a suspension of the power of alienation, no matter whether this is occasioned by future contingent interests or present trust estates, and the rule is not violated whenever there is no suspension of the power of alienation, no matter what may be the limitations of contingent future interests or when these contingent interests may vest.2

There are, however, as we have shown, other provisions than those contained in section 14 and section 15 (sections 16, 20, 23, 24), and these have raised the question whether there are or not two distinct rules, the one aimed at restraints on alienation and the other aimed at remote vesting. We submit, however, that none of the provisions above cited contain any other rule than that stated in section 14 and section 15.

3

Section 16 provides that a contingent remainder in fee may be created on a prior remainder in fee, if limited to take effect as prescribed in that section, and it may be

1" Coster v. Lorillard, 14 Wend., 265; Hawley v. James, 16 Wend., 61. 2 The Real Property Law, curiously enough, combines sections 14, 15 and 16, so that, according to the letter of the law as now written, only future estates are void, but the courts will, doubtless, interpret this new section as embodying the terms of the old law,

3 See especially Chaplin on Suspension of the Power of Alienation, pp. I, 2, 184 ff.

argued that a contingent remainder not so limited would be void, whether it involved a suspension of the power of alienation or not. But read in connection with section 15, as it must be, such an inference in regard to the meaning of section 16 is not justified. Section 15 says that the power of alienation shall not be suspended by any limitation or condition for a longer period than two lives except in the single case in the next section. The next section is section 16 and the single case is that of the contingent remainder therein mentioned. The section must therefore be interpreted as if it read: "A contingent remainder in fee, which involves the suspension of the power of alienation may be created," etc. Therefore a contingent remainder in fee which does not involve such a suspension could, so far as section 16 is concerned, be limited so as to take effect after any number of lives. As, according to section 25, contingent interests are alienable, if there is any person in existence to alienate them, the only contingent interests which can occasion a suspension of the power of alienation are those limited in favor of persons or corporations not in existence, and it is therefore only such interests that violate the rule.

Section 23 provides that limitations of chattels real are subject to the same rules as the limitations of real estate, so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee. This, so far from supporting any different rule, emphasizes the fact that what the revisers had in mind was simply to prevent restraints upon alienation, and that the only limitations of future interests which are objectionable are those which restrain alienation.

Section 24 provides that "a fee may be limited upon a fee upon a contingency, which, if it should occur, must happen within the period prescribed in this Article." This, it must be conceded, is ambiguous, and it may be claimed that it means that a fee may be limited upon a fee, provided that it must vest within the statutory period; but the word "vest" is not used; the section is, in fact, a repetition of the provisions of section 16, and should be construed in conformity with them, and in connection with section 23, which

immediately precedes it, it would seem that it must be interpreted as if it read, "a fee may be limited upon a fee, provided that it does not occasion a suspension of the power of alienation beyond the period prescribed in this Article."

Section 20, however, does in terms provide that a contingent remainder limited on a term of years is void unless it must vest in interest during the continuance, or at the termination of two lives; but there is no sufficient reason for supposing that the revisers intended in this section to state a separate and exclusive rule in regard to contingent remainders limited after terms of years. Read in connection with the other sections and with due regard to the avowed purposes of the revisers, as stated in their notes the words "vest in interest," in this section must be understood as having a different meaning than the common law meaning. They must be understood as meaning "vest in some person having the power of alienation." That they are often understood in this sense is clear from many cases 2.

The foregoing views are suppported by the great weight of authority. 3

It must be conceded, however, that there are decisions and statements in the text-books and cases which cannot be reconciled with them.

Hannan v. Osborn, 4 Paige, 336. Here was a devise to testator's sister, Mary, for life, remainder to her children, "but in case my said sister shall die, and all her children shall die, leaving no children," then to his brother John and sisters Juliana and Amelia. Held, that this limitation over was void, because it was not to take effect until after the possible termination of many lives. But, although it was not to take effect, John, Juliana and Amelia could alienate their contingent interests, and so the existence of these contingent interests did not restrain alienation. "The

1See especially 3 R. S., 2d Ed., p. 573 supra, p. 227, note 2),

2 Leonard v. Burr, 18 N. Y., at p. 107; Mott v. Ackermann, 92 N. Y., at 550; Henderson v. Henderson, 113 N. Y., at p. 15 and cases infra, 2, note 3).

3 Robert v. Corning, 89 N. Y. 225; Beardsley v. Hotchkiss, 96 N. Y. 201; Nellis v. Nellis, 99 N. Y. 505, Murphy v. Whitney, 140 N. Y. 541; Sawyer v. Cubby, 146 N. Y. 192; Williams v. Montgomery, 148 N. Y. 519; Mills v. Mills, 50 App. Div. 221.

mistake of the decision," to quote the language of the Court in Sawyer v. Cubby, 146 N. Y., at page 199, "is in construing a contingency dependent upon a future event which may or may not occur as necessarily making the legacy inalienable. It does not do so. The contingency which works that result is one relating to the persons who shall take, and who either may not come into being or gain capacity to take and hold within the prescribed two lives, whereby it happens that there is no one who can alienate."

McSorley v. Wilson, 4 Sandf. Ch., 515. This was a devise in trust for A for life, for B for life, then for C for life, but the trustees had an uncontrollable discretion at any time to sell the land, and in case of sale C had the right to demand and receive the proceeds as his absolute property, and thereupon the trust was to cease. Held, that this was void because the trust might continue through three lives. It is true that the trust might continue, but there is no provision in the statute declaring that trusts shall not continue for any number of lives, but only a provision declaring that trusts cannot be constituted which will involve a suspension of the power of alienation for more than two lives. In this case the power of alienation was not suspended for a single day, because the trustee and cestui que trust by uniting at any time could convey an absolute title. The reasoning upon this point of the majority of the Court in Mills v. Mills, 50 App. Div., 221, is unanswerable. And since the legislation of 1893 providing for the termination of trusts it would seem that now no trust, however long it may endure, can violate the rule, if it is followed by a vested remainder. For the only reason why a trust did violate the rule before 1893 was because it involved a restraint upon alienation. But now that trusts followed by vested remainders are terminable (Laws of 1893, Chap. 452; Laws of 1896, Chap. 547, and Laws of 1897, Chap. 417), the power of alienation is not suspended, and hence there is no violation of the rule. In constituting, however, a trust such as was considered in Mills v. Mills (supra), care must be taken not to violate other provisions of law. An estate vested in trustees to hold during the lives of three other persons would be an estate pour autre vie under the English law. It is doubtful how such an estate is to be regarded under

the Revised Statutes. If it is an estate pour autre vie, then sections 18 and 192 apply. According to section 18, no remainder can be created after an estate pour autre vie, unless such remainder be in fee, and according to section 19, a remainder limited after an estate pour autre vie, where more than two persons are named during whose lives the estate is to continue, takes effect upon the death of the two persons first named in the same manner as if no other lives had been introduced. These difficulties may be avoided by expressly giving the trustee a fee, with power of sale, or an estate for a long number of years, and providing for a vested remainder after that. According to the very extraordinary provisions of section 173, only two successive life estates can be created under our law, and a vested remainder after more than two successive life estates takes effect after the termination of the first two life estates, and all the other life estates are void. This curious bit of legislation, however, is held to apply only to legal estates, and therefore, does not stand in the way of creating a vested remainder to take effect after the termination of any number of equitable life estates.

Underwood v. Curtis, 127 N. Y. 523. This was in effect a gift of real and personal property to pay the rents and income to A, B and C during the life of A, and upon A's death, if the real estate was then sold, if not, then upon the sale of the real estate, to divide the estate into four parts and to transfer two of them to B and C absolutely, and the other two separate parts to hold in trust for one more life respectively. The trustees were authorized to sell the real estate at any time, and were obliged to sell it before the expiration of ten years. Held, that the trust was void, because it might continue for a fixed period of ten years. "The fact that the trust as to the entire property may, by the action of the executrices, be terminated on the death of the widow, is of no moment, if events may happen so that such estate may be extended beyond the statutory limitation." (P. 540). This is the same fallacy as in Mc

1 Fowler's Real Property Law, pp. 180-1, 274-5.

21 R. S.,

I

724.

I R. S., 723.

Amory v. Lord, 9 N. Y., 403. Woodruff v. Cook, 61 N. Y., 638.