CHAPTER 10

The Period of the Rule

A. COMMENCEMENT OF THE PERIOD

HE RULE Against Perpetuities was developed to

T restrict the creation of remote future interests
which were not destructible by the holder of the
present interest. The Rule makes void any limitation
of a future interest unless, at the moment when the inter-
est becomes indestructible, it is certain that it must vest,
if at all, within the period of the Rule.il 2 That period is,
speaking generally, lives in being and twenty-one years.
Ordinarily a future interest is indestructible from the
time of its creation. Consequently the period of the Rule
is normally computed from the time when the instrument
creating the interest becomes effective. In the case of
a deed, this is the time of delivery; in the case of a will,
the death of the testator. 68 If John Stiles transfers prop-
&2 Gray, RuLE AGAINST PERPETUITIES, 3rd ed., §214 (1915); 2 Simes,
LAW OF FUTURE INTERESTS, §496 (1936); PROPERTY RESTATEMENT, §370,
Comment k. (1944). The meaning of the requirement of certainty of
vesting will be discussed in the next chapter.
&s Gray, RuLE AGAINST PERPETUITIEs, 3rd ed., §231 (1915); 2 Simes,
LAW OF FUTURE INTERESTS, §494 (1936); PROPERTY RESTATEMENT, §374,
Comment b. (1944); Michigan Trust Co. v. Baker, 226 Mich. 72,
196 N.W. 976 (1924); Gardner v. City National Bank & Trust Co.,
267 Mich. 270, 255 N.W. 587 (1934). A deed delivered in escrow
does not operate as a conveyance until the occurrence of the condi-
tion of the escrow, but when that condition occurs its effectiveness
dates back, for some purposes, to the time of the delivery in escrow.
Sheppard, ToucHSTONE OF CoMMON AssURANCES 58-59 (1648). See:
Butler and Baker's Case, 3 Co. Rep. 25a at 35b, 76 Eng. Rep. 684
at 707 (1591). Cf. Avery v. Consumers Power Co., 265 Mich. 696 at
700, 253 N.W. 189 (1934). The Restatement of Property takes no
position as to the time from which the permissible period under the
Rule Against Perpetuities is to be computed in the case of a deed
delivered in escrow. §374, Comment b, Caveat (1944).
280
 THE PERIOD OF THE RULE 281

erty by deed to James Thorpe upon trust to pay the

income to John for life, then to pay the income to John's
youngest son for life, and then to transfer the property
to the youngest grandson of John, the equitable con-
tingent remainder of the grandson is void under the rule.
John's youngest grandchild cannot be ascertained until
the death of the last of John's children which, since John
may have children after the delivery of the deed to James
Thorpe, may not occur within lives in being and twenty-
one years. 64 The same limitation would, however, be
valid in a will, because all of John's children must neces-
sarily come into being before the death of John, and
the youngest of their children will certainly be ascer-
tainable and in being before the death of the last of
John's children.65
Future interests limited to follow, or in defeasance
of, an estate tail are destructible by the tenant in tail.66
Because of this, the English courts held that contingent
remainders on estates tail and executory interests limited
in defeasance of estates tail need not comply with the
Rule Against Perpetuities.67 Andrew Baker could con-
vey land to James Thorpe and the heirs of his body, re-
mainder to the youngest descendant of John Stiles in
being at the death of the last descendant of James. Like-
wise, Andrew Baker could convey land to James Thorpe

64 2 Simes, LAW oF FUTURE INTERESTS, §494 (1936).

65 See: Wilson v. Odell, 58 Mich. 533, 25 N.W. 506 (1885).
66 Capel's Case, 1 Co. Rep. 61b, 76 Eng. Rep. 134 (1593); Benson
v. Hodson, 1 Mod. 108, 86 Eng. Rep. 768 (1674).
67 Nicholls v. Sheffield, 2 Bro. C. C. 215, 20 Eng. Rep. 121 (1787):
Carr v. Earl of Erroll, 6 East 58, 102 Eng. Rep. 1209 (1805); Harrison
v. Round, 2 De G., M. & G. 190, 42 Eng. Rep. 844 (1852); Portman
v. Viscount Portman, [1922] 2 A. C. 473 (H.L.); Gray, RuLE AGAINST
PERPETUITIES, 3rd ed., §§446-449 (1915); 2 Simes, LAw oF FUTURE
INTERESTS, §517 (1936); PROPERTY RESTATEMENT, §373, Comment b.
(1944). It should. be remembered that estates for years and other
personalty could not be entailed.
282 PERPETUITIES AND OTHER RESTRAINTS
and the heirs of his body, but if any tenant in tail fail
to bear the name and arms of the grantor, then to John
Stiles and his heirs. Michigan abolished estates tail in
1821,68 but the principle that destructible future inter-
ests are not restricted by the Rule Against Perpetuities,
although established by cases involving estates tail, is
not limited to them.
It is clear from the cases involving estates tail that, if
a future interest will be destructible at all times until it
vests, the Rule Against Perpetuities has no application
to it.69 It would seem, moreover, that if a future interest
is so limited as to be destructible for a time and then
indestructible for a time before it vests, the Rule does
apply to it, but the period of the Rule does not com-
mence until the interest becomes indestructible. 70 In
jurisdictions where estates tail are permitted, an interest
which follows an interest limited on or in defeasance of
an estate tail would fall into this category. Andrew
Baker might convey land to James Thorpe and the heirs
of his body, remainder to Lucy Baker and her heirs, but
if Lucy dies unmarried, to the youngest descendant of
John Stiles in being at the expiration of the estate tail.
In such a case the final executory interest would be de-

68 Act. Mar. 2, 1821, 1 Terr. Laws 815, Part One, note 82 supra;
superseded by Rev. Stat. 1838, p. 258; superseded by Rev. Stat. 1846,
c. 62, §§3, 4; Comp. Laws (1857) §§2587, 2588; Comp. Laws (1871)
§§4070, 4071; Comp. Laws (1897) "§§8785, 8786; How Stat., §§5519,
5520; Comp. Laws (1915) §§11521, 11522; Comp. Laws
(1929) §§12923, 12924; Mich. Stat. Ann., §§26.3, 26.4; Comp. Laws
(1948) §§554.3, 554.4; Part One, note 84 supra.
69 Part Two, note 67 supra.
7 0PRoPERTY RESTATEMENT, §373. (1944); 2 Simes, LAW OF FUTURE

INTERESTS, §§516, 517 (1936). Contra: Gray, RuLE AGAINST PER·

PETUITIES, 3rd ed., §446 (1915). Professor Gray appears to have thought
that if, in the absence of destructibility, the future interest would be
void under the Rule, destructibility would not save it unless it was
certain to vest at or before the termination of the period of destruc-
tibility. No Michigan authority on the point has been found.
 THE PERIOD OF THE RULE 283
structible during the continuance of the estate tail but
indestructible thereafter during the life of Lucy. In all
jurisdictions, including Michigan, a future interest may
be destructible because of the existence of an unlimited
power of appointment or of revocation. 71 Andrew Baker
might transfer property by deed to John Stiles for life,
remainder to the youngest son of John Stiles for life,
remainder as John may by will or deed appoint and, in
default of appointment, to the youngest grandson of
John. John Stiles might transfer property by deed to
James Thorpe upon trust to pay the income to John
for life, then to pay the income to the youngest son of
John for life, then to transfer the property to the young-
est grandson of John, reserving to the settlor an un-
limited power to revoke the trust. 72 In each of these
examples, in the absence of the power, the period of the
Rule Against Perpetuities would commence with the
delivery of the deed and the ultimate remainder to the
youngest grandson of John Stiles would, accordingly, be
void. In each example, however, the presence of the
power enables John Stiles to destroy the ultimate re-
mainder during his lifetime. This being so, it would
seem that the period of the Rule Against Perpetuities

n A power unlimited as to objects is ordinarily referred to as a

general power. However, as the Michigan statutes confine the term
"general power" over land to powers to appoint the full fee, it is
best to avoid use of the term "general power" in Michigan when con-
sidering the question under discussion. Rev. Stat. 1846, c. 64, §6;
Comp. Laws (1857) §2663; Comp. Laws (1871) §4146; Comp. Laws
(1897) §8861; How. Stat., §5595; Comp. Laws (1915) §11597; Comp.
Laws (1929) §13000; Mich. Stat. Ann., §26.96; Comp. Laws (1948)
§556.6.
12 A similar type of destructibility would exist if John Stiles in-
sured his life and designated James Thorpe as beneficiary of the
policy, upon the trusts described in the text, reserving power to
change the designation of beneficiary. PROPERTY REsTATEMENT, §373,
Comment e. (1944); Smith, PERSONAL LIFE INsuRANcE TRUSTS, §34.2
(1950).
284 PERPETUITIES AND OTHER RESTRAINTS
should be calculated from the death of John Stiles, in
which case the ultimate remainder to the youngest grand-
son of John would be valid. 78
It would seem that a future interest is destructible
for purposes of the Rule Against Perpetuities only while
some living person has unlimited and unconditional
power to vest it in himself for his own exclusive bene-
fit. 74 In jurisdictions where estates tail still exist with
the incidents they had in seventeenth-century England, a
tenant in tail has such power over the future interests
limited to follow, or in defeasance of, the estate tail.
The holder of such an unlimited power of appointment
or of revocation as those involved in the examples in
the preceding paragraph does also. But a future interest
is not destructible for the purpose under discussion
merely because some living person may defeat it by
the exercise of a power of appointment if the power may
be exercised only by will, 75 if it may be exercised only

1a PROPERTY REsTATEMENT, §373, Comment c. (1944); 2 Simes,

LAW OF FUTURE INTERESTS, §516 (1936). Another possible situation is
that of a future interest which is so limited as to be indestructible for
a period, then destructible for a period, then indestructible again
for a period before it vests. Andrew Baker might transfer property
by deed to John Stiles for life, remainder to the youngest son of John
Stiles for life, remainder as the youngest son of John may, by deed
or will becoming effective within twenty years after the death of
John, appoint and, in default of appointment, to the youngest grand-
child of John. In such a case the Restatement takes the position that
the period of the Rule Against Perpetuities is to be computed from
the end of the period of destructibility, i.e., twenty years after the
death of John or upon the earlier death of John's youngest son. §373,
Comment d. (1944).
74 PROPERTY RESTATEMENT, §373, Comment d. (1944). Professor
Simes thinks that it is sufficient if a group of cotenants have jointly,
as co-owners, such a power, 2 LAw OF FUTURE INTERESTS, §515 (1936).
75 PROPERTY RESTATEMENT, §373, Comment d. (1944). Cf. 2 Simes,
LAw OF FuTURE INTERESTS, §§516, 538 (1936); 3 Walsh, CoMMENTARIES
oN THE LAw oF REAL PRoPERTY, §340 (1947). But Rev. Stat. 1846,
c. 64, §12, Comp. Laws (1857) §2669, Comp. Laws (1871) §4152, Comp.
Laws (1897) §8867, How. Stat., §5601, Comp. Laws (1915) §11603,
Comp. Laws (1929) §13006, Mich. Stat. Ann., §26.102, Comp. Laws
 THE PERIOD OF THE RULE 285
upon performance of a condition precedent, such as the
payment of money, 76 or if the exercise of the power is
restricted to objects other than the holder of the power. 77
If Andrew Baker transfers property to John Stiles for
life, remainder to the youngest son of John for life, re-
mainder as John may by will appoint and, in default
of appointment, to the youngest grandson of John, the
ultimate remainder is void under the Rule Against
Perpetuities. If Andrew Baker transfers property to
John Stiles for life, remainder to the youngest son of
John for life, remainder as John may by will or deed
appoint after paying $1,000 to St. Paul's Cathedral and,
in default of appointment, to the youngest grandson of
John, the ultimate remainder is likewise void. The same
is true if Andrew Baker transfers property to John Stiles
for life, remainder to the youngest son of John for life,
remainder to such descendant of John as John may
appoint and, in default of appointment, to the youngest
grandson of John.
A future interest is not destructible for this purpose

(1948) §556.12, provides: "When a general and beneficial power to

devise the inheritance, shall be given to a tenant for life or years, such
tenant shall be deemed to possess an absolute power of disposition,
within the meaning, and subject to the provisions of the last three
preceding sections." It would seem that future interests subject to
such a power are destructible for purposes of the Rule Against Per-
petuities. See Part Two, notes 293, 304, 305, 321 infra.
76 PROPERTY RESTATEMENT, §373, Comment e. (1944); 2 Simes, LAw
oF FuTURE INTERESTS, §518 (1936). An option to purchase would be
such a power. In Michigan Trust Co. v. Baker, 226 Mich. 72, 196
N.W. 976 (1924) a testatrix devised land to her husband until his
death or remarriage, "with right to spend the income and so much
of the principal as he might desire for his support and comfort, and
with power to sell and give conveyance," remainder to a trustee to
convert into personalty and hold on trust for successive beneficiaries.
The Court held that the period of the Rule Against Perpetuities com-
menced at the death of the testatrix rather than at the death of the
husband.
11 PRoPERTY REsTATEMENT, §373, Comment d. (1944); 2 Simes, LAW
OF FUTURE INTERESTS, §516 (1936).
286 PERPETUITIES AND OTHER RESTRAINTS
merely because its owner is in being and ascertained and
so can release or convey it. If Andrew Baker conveys
land "to James Thorpe and his heirs so long as the
Penobscot Building shall stand and then to John Stiles
and his heirs," the executory interest of John Stiles is
void under the Rule although John could at any time
release it to James Thorpe or unite with James to con-
vey an absolute fee simple. 78 Neither is a future interest
destructible for this purpose merely because some living
person has power to sell the property involved free of
the future interest if the proceeds of the sale will be
subject to the future interest. A trustee can defeat fu-
ture interests in the trust property by selling it wrong-
fully to a bona fide purchaser or by selling it rightfully
for reinvestment purposes under a power conferred by
the trust instrument or an order of a court of equity,
but he cannot do so for his own exclusive benefit be-
cause the proceeds of such a sale are subject to the future
interest in trust/ 9 Statutes of many jurisdictions, in-
cluding Michigan, so authorize sale of property in which
future interests exist, free of such interests, on petition

1s Grey v. Montagu, 2 Eden 205, 28 Eng. Rep. 876 (1764); affd.,

3 Brown 314, 1 Eng. Rep. 1341 (H.L.1770); In re Johnson's Trusts, L.R.
2 Eq. 716 (1866); In re Hargreaves, 43 Ch. Div. 401 (C.A. 1890);
PROPERTY REsTATEMENT, §373, Comment e. (1944); 2 Simes, LAW OF
FuTuRE INTERESTS, §514 (1936); 3 Walsh, CoMMENTARIES ON THE LAw
OF REAL PROPERTY, §§336 '(1947). Contra: Avern v. Lloyd, L.R. 5 Eq.
383 (1868) (overruled by In re Hargreaves, supra).
79 2 Simes, LAW OF FUTURE INTERESTS, §518 (1936); Michigan Trust
Co. v. Baker, 226 Mich. 72, 196 N.W. 976 (1924); Gettins v. Grand
Rapids Trust Co., 249 Mich. 238, 228 N.W. 703 (1930); Gardner v.
City National Bank & Trust Co., 267 Mich. 270; 255 N.W. 587 (1934).
so Act 314, P.A. 1915, c. 19, §§62 to 70; Comp. Laws (1915) §§12716
to 12724; Comp. Laws (1929) §§14404 to 14412; Mich. Stat. Ann.,
§§27.1188 to 27.1196; Comp. Laws (1948) §§619.62 to 619.70. This is
a reenactment of Act 233, P.A. 1887, as amended, Comp. Laws (1897)
§§9234 to 9242. See: PRoPERTY REsTATEMENT, §124, Comment i.; §179,
note (1936); Garrison v. Hecker, 128 Mich. 539, 87 N.W. 642 (1901);
Young v. Young, 255 Mich. 173, 237 N.W. 535, 77 A.L.R. 963 (1931).
 THE PERIOD OF THE RULE 287
of the owner of the present interest and judicial order.
But such statutes provide that the proceeds of the sale
shall be subject to the future interests, so the owner of
the present interest does not have unlimited and un-
conditional power to destroy the future interest for his
own exclusive benefit. 81
The application of the Rule Against Perpetuities to
future interests which are subject to destruction by the
exercise of a power of appointment has been touched
upon. The Rule also applies· to powers of appointment
themselves and to future interests created by their exer-
cise. In the application of the Rule to future interests
created by the exercise of a power of appointment, the
period of the Rule is in some cases computed from the
effective date of the instrument creating the power and
in others from the effective date of the instrument exer-
cising the power. 82 The commencement of the period
of the Rule Against Perpetuities in cases involving future
interests created by the exercise of a power of appoint-
ment will be discussed in a later chapter in connection
with the application of the Rule to such powers them-
selves.83

B. COMPUTATION OF THE PERIOD

In St. Amour v. Rivard 84 the Supreme Court of Mich-

igan held that an attempt to create a "perpetual free-
81 2 Simes, LAw OF FUTURE INTERESTS, §519 (1936). Cf. Michigan
Trust Co. v. Baker, 226 Mich. 72, 196 N.W. 976 (1924).
82 PROPERTY REsTATEMENT, §§390-392 (1944); Gray, RuLE AGAINST
PERPETUITIES, 3rd ed., §§514, 524 (1915); 2 Simes, LAW OF FUTURE
INTERESTS, §§534-539 (1936); 3 Walsh, CoMMENTARIES ON THE LAW OF
REAL PROPERTY, §§340, 349 (1947). See: Gardner v. City National
Bank & Trust Co., 267 Mich. 270 at 285, 255 N.W. 587 (1934).
ss Chapter 13, Section C, infra.
84 2 Mich. 294 (1852), discussed above at Part One, notes 258-259
and Part Two, note 39. Cf. Brush v. Beecher, llO Mich. 597, 68 N.W.
420, 64 Am. St. Rep. 373 (1896), indicating that an endless series of
five-year terms, each limited on a condition precedent, would be void.
288 PERPETUITIES AND OTHER RESTRAINTS
hold" or endless series of life estates in successive genera-
tions was void because it violated the common-law Rule
Against Perpetuities. With respect to the period of the
Rule, the Court said:
"At first it was held that the contingency upon which
the estate was to vest must happen within the compass of
a life or lives in being, or a reasonable number of years;
afterwards it was further extended to a child en ventre sa
mere, at the time of the death of the father; subsequently
it was extended to twenty-one years after the death of a
person in being. * * * The period of limitation as now
recognized is that laid down. by Lord Kenyon, in Long
v. Blackall,85 7 T.R., 102, and is stated in these words: 'It
is an established rule that an executory devise is good if
it must necessarily happen within a life or lives in being,
and twenty-one years and the fraction of another year,
allowing for the time of gestation.' In an opinion distin-
guished for its learning and careful research, delivered
by the Judges of England upon questions submitted to
them by the House of Lords, in 1833, it was considered
that twenty-one years was the limit, and that the period
of gestation was to be allowed in those cases only in
which gestation existed. Cadell v. Palmer}ro 10 Bing.,
140." 87
Gardner v. City National Bank & Trust Co. 88 was a
suit to construe a will which created two trusts. The in-
come from each trust was to be paid to a named daughter
of the testator for life. On the death of each life bene-
ficiary, the corpus of the trust was to be divided into
equal parts, one for each of her children. Each child was

ss 101 Eng. Rep. 875 at 877 (1797).

sG 131 Eng. Rep. 859, 1 Cl. & F. 372, 6 Eng. Rep. 956 (1833).
s1 2 Mich. 294 at 297.
88 267 Mich. 270, 255 N.W. 587 (1934). As the testator died in
1931 and the trusts included both land and other property, compliance
with both the statute prohibiting the suspension of the absolute power
of alienation and the common-law Rule Against Perpetuities was
required. Part Two, note 53 supra.
 THE PERIOD OF THE RULE 289
to receive the income from his part until twenty-five,
then half the corpus, the income from the other half until
thirty, and then the balance of the corpus. If any child
died under thirty leaving issue, his share was to pass to
his issue, subject to trust during minority. If any child
died under thirty without surviving issue, his share was
to pass to the trusts for the surviving children of the life
beneficiary or, if there were none, to the trust for the
other daughter of the testator. As the testator's daughters
might have children after his death and the takers of the
ultimate remainders could not be ascertained until the
youngest of their children reached the age of thirty, the
vesting of these remainders might not occur for lives in
being (those of the two daughters) and thirty years. The
Court accordingly held that they violated the common-
law Rule Against Perpetuities, quoting the following
from Halsbury's Laws of England as to the period of the
Rule:
" 'The rule stated more fully is as follows:
" 'First, subject to the exceptions hereafter mentioned
every future estate or interest in any kind of property,
the rights in which are governed by the law of England,
must be such that, at the time when the instrument creat-
ing it comes into operation, it can be predicated that, if
the estate or interest vests at all, it must necessarily vest
not later than at the end of a certain period.
" 'Secondly, this period is the life of a person or the
survivor of any number of persons in being at the time of
creation of such future estate or interest, and ascertained
for that purpose by the instrument creating the same, and
21 years to be computed from the dropping of such life;
but if no such person or persons are ascertained by the
instrument, the period is 21 years computed from the
time of creation of the future estate or interest.
290 PERPETUITIES AND OTHER RESTRAINTS
" 'In the following paragraphs this period is called
"the perpetuity period.
" 'Thirdly, a child who is en ventre sa mere at the time
of creation of an estate or interest, and is afterwards born
alive, is deemed to be a person in being for the purposes
both of the vesting of the estate or interest in him, and
of being a life chosen to form the perpetuity period. The
perpetuity period may, therefore, be apparently extended
by a period or periods for gestation, but only in those
cases where gestation actually exists. This branch of the
rule is applied whether it is for the advantage of the
unborn child or not. * * *
" 'Fifthly, any estate or interest which does not neces-
sarily satisfy the above rule is void from its creation, and
events, subsequent to the date of the instrument which,
or subsequent to the death of the testator whose 'Will,
created the estate or interest, which in fact make the
vesting take place within the perpetuity period, have no
effect so as to make the estate or interest valid.' " 89
As the passage quoted by our Supreme Court from
Halsbury's Laws of England indicates, the measuring
lives in being must be those of persons "ascertained for
that purpose by the instrument creating" the future in-
terest. This does not mean either that the persons whose
lives are to be used as a measure must be named in the
instrument or that the instrument must manifest an
intention that the lives of particular persons should be
used for that purpose; it means only that it must appear
from the instrument that the future interest thereby
limited must vest, if at all, within twenty-one years after
ascertainable lives.90 Thus if John Stiles devises property
to James Thorpe and his heirs "until my youngest grand-

89 267 Mich. 270 at 284-285, quoting from 22 Ha1sbury, LAws OF

ENGLAND, §641, p. 302 (1912).
9o PROPERTY REsTATEMENT, §374, Comment j. (1944); 2 Simes, LAw
OF FUTURE INTERESTS, §491 (1936).
 THE PERIOD OF THE RULE 291

son reaches twenty-one and then to such grandson and his

heirs," the measuring lives are those of John's children,
although they are not mentioned in the instrument and
John may never have heard of the Rule Against Perpetu-
ities. Even if the grantor or testator expressly manifests
an intention to suspend vesting for a period in excess of
that permitted by the Rule, a future interest is valid if
it must vest within the permissible period. If John Stiles
devises property to James Thorpe upon trust to pay the
income to John's children during their lives, then to pay
the income to John's grandchildren until the youngest
reaches twenty-five, then to transfer the property to the
youngest grandson, "it being my intention to suspend
the vesting of the ultimate remainder until twenty-five
years after the death of the survivor of my children," the
ultimate remainder will be valid if all of John's children
predecease him because, in that event, the measuring
lives in being will be those of John's grandchildren. 91
The measuring lives in being must be those of human
beings; lives of animals, regardless of their life expect-
ancies/2 or of corporations 93 will not do. Although the
measuring lives are usually those of persons who take
something under the instrument creating the future in-
terest or their ancestors, and all of the reported Michigan
cases involve measurement by the lives of such persons,

91. PROPERTY REsTATEMENT, §374, Comment k. (1944); Gray, RuLE

AGAINST PERPETUITIES, 3rd ed., §231 (1915).
92 In re Estate of Kelly, [1932] I.R. 255; Gray, RuLE AGAINST PER-
PETUITIES, 3rd ed., §§228a, 906 (1915); 2 Simes, LAw oF FuTuRE IN-
TERESTS, §491 (1936); PROPERTY RESTATEMENT, §374, Comment h.
(1944). See: Matter of Howells, 145 Misc. 557, 260 N.Y. Supp. 598
(1932); Clark, "Unenforcible Trusts and the Rule Against Perpetui-
ties," 10 MICH L. REv. 31 at 40 (1911). Cf. In re Dean, 41 Ch. D.
552 (1889).
93 Fitchie v. Brown, 211 U.S. 321 (1908); PROPERTY REsTATEMENT,
§374, Comment h. (1944); 2 Simes, LAw OF FUTURE INTERESTS, §491
(1936).
292 PERPETUITIES AND OTHER RESTRAINTS
the instrument may by apt language designate as meas-
uring lives those of persons who take nothing under it
and are not related to persons who do. 94 John Stiles may
devise property to James Thorpe and his heirs "until
the death of the survivor of the present members of the
Supreme Court of Michigan and then to my youngest
male descendant living at the time of such death." Al-
though there is no definite limit to the number of meas-
uring lives in being which is permissible, they must be
the live:s of persons who are not so numerous or so situ-
ated that evidence of their deaths is likely to be unreason-
ably difficult to obtain. 95 John Stiles may devise property
94 In re Villar, [1928] Ch. 471, aff'd., [1929] 1 Ch. 243 (C.A.);
PROPERTY REsTATEMENT, §374, Comment l. (1944); Gray, RULE
AGAINST PERPETUITIES, 3rd ed., §216 (1915); 2 Simes, tAW OF FUTURE
INTERESTS, §491 (1936).
95 Thellusson v. Woodford, 11 Ves. Jr. 112, 32 Eng. Rep. 1030
(H.L. 1805). In his opinion in this case, the Lord Chancellor (Lord
Eldon) made the classic statement of the rule: "The language of all
the cases is, that property may be so limited as to make it unalienable
during any number of lives, not exceeding that, to which testimony
can be applied, to determine, when the survivor of them drops." 11
Ves. Jr. at 146, 32 Eng. Rep. at 1043. Gray, RuLE AGAINST PERPETUI·
TIES, 3rd ed., §216 (1915); 2 Simes, LAw oF FuTURE INTERESTS, §491
(I936). In Cadell v. Palmer, I CI. & F. 372, 6 Eng. Rep. 956 (I833),
twenty-eight lives, and in Fitchie v. Brown, 211 U.S. 32I (1908), forty-
odd lives, were held not too numerous, but in In re Moore, [I901]
I Ch. 936, measurement by the lives of "all persons who shall be
living at my death" was held to be too indefinite. In re Villar,
[I928] Ch. 471, affd., [I929] I Ch. 243 (C.A.), involved measure-
ment by the lives of the descendants of Queen Victoria living
in 1926, of whom there were some 120. It was held valid. Accord: In re
Khoo Cheng Teow, [1932.] Straits Settlements L.R. 226; In re Lever-
hulme, [1943] 2 All Eng. L.R. 274, 169 L.T. 294. PROPERTY RESTATE-
MENT, §374, Comment l. (1944) takes the position that the lives of
the descendants of Queen Victoria living in 1941 would be too numer-
ous. Cf. In re Leverhulme, [1943] 2 All Eng. L.R. 274 at 280-281,
169 L.T. 294 at 298. As the Restatement points out, the obscurity of
the persons whose lives are involved has a bearing on the difficulty
of proving their deaths. It is interesting to note that the future
interests involved in Cadell v. Palmer, supra, created by the will of
a testator who died in 1818, did not vest until I918. [1928] Ch. 478,
note. In Hay v. Hay, 3I7 Mich. 370, 26 N.W. (2d) 908 (I947), per-
sonalty was bequeathed to a trustee to pay certain annuities and
accumulate the rest of the income "for 2I years after the death of
 THE PERIOD OF THE RULE 293
to James Thorpe and his heirs "until the death of the
survivor of my fourteen law partners and then to my
youngest male descendant living at the time of such
death." But the executory interest of John's youngest
living male descendant would be void if he is to be as-
certained on the death of the survivor of "the persons
listed in the Lansing City Directory on January I, 1954"
or "those persons who crossed the Ambassador Bridge
from Detroit to Canada on July 4, 1954," because these
groups are too large and, in the case of the last example,
too difficult to identify, to make proof of the deaths in-
cluded reasonably convenient.
The Rule Against Perpetuities permits suspension of
vesting until the expiration of a life or lives in being. In
Palms v. Palms 96 property was bequeathed to trustees to
pay half the income to the testator's son and half to his
daughter for life. On the death of either, half the prin-
cipal was to be paid to the children of the deceased child,
if any. If the child who first died had no surviving issue,
the entire income was to be paid to the surviving child
for life and, on his death, the principal was to go to his
children. As all interests would necessarily vest on the

my last surviving grandchild that shall be living at the time of my

death," then to distribute the accumulated fund to the testator's
heirs to be determined at that time. There were seven grandchildren
living when the testator died. The bequest was treated as valid.
1!6 68 Mich. 355, 36 N.W. 419 (1888). This case involved a dis-
position which included both land and personalty and so was subject
to the common-law Rule Against Perpetuities. Part Two, note 53
supra. In Michigan Trust Co. v. Baker, 226 Mich. 72, 196 N.W. 976
(1924), a silver tea set was bequeathed to the testatrix's husband for
life. The will further provided, "The Baker silver tea set shall go· to
my son Stuart for his use only for his life, at his death it is to go to
his child or children, if any, if none, to his brother Looe, if living,
if not to his child or children, if any, and if none, to the said Marie
Grampp." If Marie and her children were dead on the death of
Stuart, the set was to go to two other named persons. These pro-
visions were held valid because vesting was not postponed beyond the
lives of the husband and Stuart.
294 PERPETUITIES AND OTHER RESTRAINTS
death of the surviving child, it was held that the limita-
tions did not violate the Rule Against Perpetuities. In
McLain v. Howald 97 a bequest to grandchildren of the
testator to be ascertained on the death or remarriage of
his wife was held valid. In Floyd v. Smith 98 property was
bequeathed to a trustee to pay the income to four named
children of the testator's sister and their issue until the
death of the survivor of the four, and then to transfer the
principal to the issue of the four living at the time of
such death. A codicil transferred the interest of one of
the four to his children. The Court held that the codicil
was not intended to change the measuring lives, which
were those of the four children of the sister and that, as
the interests would all vest on the death of the survivor
of these four, they were valid under the Rule.
The Rule Against Perpetuities permits suspension of
vesting for part or parts of a life or lives in being at the
commencement of the period. Thus in Walton v. Tor-
rey 99 a devise to descendants of the testator to be ascer-
tained when the youngest of his children reached twenty-
one was treated as valid. So, likewise, in In re Dingler's

97 120 Mich. 274, 79 N.W. 182, 77 Am. St. Rep. 597 (1899). In
Cheever v. Washtenaw Circuit Judge, 45 Mich. 6, 7 N.W. 186 (1880),
a bequest to a daughter for life, remainder to her children and grand-
children, was treated as valid, it being construed to be to children
and grandchildren in being at the death of the daughter.
98 303 Mich. 137, 5 N.W. (2d) 695 (1942). Both land and personalty
were involved but, as the will contained a mandatory direction for
conversion of land into personalty, the common-law Rule Against
Perpetuities was alone applicable. Part Two, notes 59, 60 supra.
99 Harr. Ch. 259 (Mich. circa 1840). The limitation was of land, but,
as the testator died in 1825, its validity was governed by the common-
law Rule Against Perpetuities. Similarly, in Toms v. Williams, 41
Mich. 552, 2 N.W. 814 (1879) the vesting of property bequeathed by
a will was validly suspended until "the expiration of the minority of
the youngest of the said children of my deceased brother, Gen. Thomas
Williams." There were three such children, one of whom was of age
when the testatrix died.
 THE PERIOD OF THE RULE 295
Estate 100 a bequest to descendants of the testatrix to be
ascertained when two granddaughters, who were named
in the will and alive when it took effect, reached the age
of thirty, was held good. The Rule also permits suspen-
sion of vesting for lives in being at the commencement
of the period plus part or parts of a life or lives not then
in being which cannot exceed twenty-one years. Thus
in Wilson v. Odell~ 101 a bequest to grandchildren of the
testator to be determined after the death of the survivor
of his children and on the majority of his youngest grand-
child was held valid under the Rule.
The Rule Against Perpetuities does not permit sus-
pension of vesting for lives in being plus part or parts of
a life or lives not in being which may exceed twenty-one
years. This is one of the commonest types of violation
of the Rule. In Michigan Trust Co. v. Baker~ u 2 testatrix
devised land to her husband until death or remarriage,
then to a trustee to sell the land and hold the proceeds
in trust to pay half the income to a son, Stuart, for life.
The will, as construed by the Court, gave the remainder
in half the corpus, after the death of Stuart, to those
daughters of Stuart who reached twenty-five and those
sons of Stuart who reached thirty. It was held that this

1oo 319 Mich. 189, 29 N.W. (2d) 108 (1947). The disposition was
in a residuary clause which included both land and personalty and
so was subject to the common-law Rule Against Perpetuities. Part
Two, note 53 supra. In Post v. Grand Rapids Trust Co., 255 Mich.
436, 238 N.W. 206 (1931), a bequest of personalty to issue of a daugh-
ter to be determined when the youngest issue of the daughter in being
at the death of the testatrix reached twenty-five was treated as valid.
101 58 Mich. 533, 25 N.W. 506 (1885).
102 226 Mich. 72, 196 N.W. 976 (1924). This was a devise of land,
but the will contained a mandatory direction to convert into money
upon the death or remarriage of the testatrix's husband. It was held
that this direction worked an equitable conversion to personalty,
effective upon the death of the husband, so that the common-law
Rule Against Perpetuities governed the validity of the subsequent
limitations. See Part Two, notes 59, 60 supra.
296 PERPETUITIES AND OTHER RESTRAINTS
disposition violated the Rule because Stuart might have
children who would not reach the stipulated ages within
twenty-one years after his death. In Gettins v. Grand
Rapids Trust Co.,103 property was bequeathed to a trus-
tee to pay the income to the testatrix's daughter Belle for
life and thereafter to her children, and to transfer a share
in the corpus to each child of Belle on reaching twenty-
five, with limitations over in the event of any child dying
under twenty-five. The limitations over on death under
twenty-five were held void because they might postpone
vesting until more than twenty-one years after Belle's
death. Gardner v. City National Bank & Trust Co./ 0 '
which has already been discussed, involved the same type
of violation of the Rule Against Perpetuities.
As the English authorities quoted by our Supreme
Court indicate/05 the period of the Rule Against Per-
petuities may include any period or periods of gestation
involved in the situation to which the limitation applies.
That is, a child en ventre sa mere who is subsequently
born alive is treated as a life in being under the Rule,

1oa 249 Mich. 238, 228 N.W. 703 (1930). The will contained a man-
datory direction to convert land into personalty. The same result
was reached on similar facts in Burke v. Central Trust Co., 258 Mich.
588, 242 N.W. 760 (1932). Because the trust there included both land
and personalty and there was no direction to convert, the Court based
its decision on the statute forbidding suspension of the absolute power
of alienation, saying that it was unnecessary to consider the application
of the common-law Rule Against Perpetuities.
104 267 Mich. 270, 255 N.W. 587 (1934), discussed above at Part Two,
note 88. This aspect of the Rule has been modified in England by
Stat. 15 Geo. V, c. 20, §163 (1925), which provides that any gift
contingent upon a beneficiary or class of beneficiaries attaining or not
attaining an age over twenty-one, and for that reason too remote,
is to take effect by substituting twenty-one for the age stated.
W5 St. Amour v. Rivard, 2. Mich. 294 at 297 (1852), quoting from
Long v. Blackall, 7 T.R. 102, 101 Eng. Rep. 875 at 877 (1797),
quoted in the text at Part Two, note 87 supra; Gardner v. City
National Bank & Trust Co., 267 Mich. 270 at 284, 255 N.W. 587
(1934), quoting from 22 Halsbury, LAws OF ENGLAND, §601 p. 302
(1912), quoted in the text at Part Two, note 89 supra.
 THE PERIOD OF THE RULE 297
both for the purpose of receiving interests limited to it
and for that of serving as a measuring life in being as
to interests limited to others. In Chambers v. Shaw/06 a
testator devised his estate to his wife for life with a
provision that if a posthumous child should be born it
would take half the estate, to commence in possession
when it reached twenty-one, and that the wife would
take the other half if she lived until the child was
twenty-one, otherwise the child would take the whole.
The testator died in September, 1860, a son was born
in December, 1860, the son died in April, 1862, and the
wife died in September, 1862. The Court held that the
wife took the entire estate as sole heir of her son, saying
that the first interest to the posthumous son vested on
the testator's death. This case illustrates both the pur-
poses mentioned. The posthumous son was treated as
a life in being for the purpose of the vesting of the half
given him unconditionally and as a measuring life for
the purpose of the vesting of the other half. It is per-
missible under the Rule to suspend vesting for any num·
ber of periods of gestation actually involved in addition
to lives in being and twenty-one years. It is possible to
have as many as three such periods. 107 John Stiles might
1o6 52 Mich. 18, 17 N.W. 223 (1883). The will contained a manda-
tory direction to convert the land into personalty so the common-law
Rule Against Perpetuities applied. Rev. Stat. 1846, c. 62, §§30, 31;
Comp. Laws (1857) §§2614, 2615; Comp. Laws (1871) §§4097, 4098;
Comp Laws (1897) §§8812, 8813; How. Stat., §§5546, 5547; Comp.
Laws (1915) §§11548, 11549; Comp. Laws (1929) §§12950, 12951;
Mich. Stat. Ann., §§26.30, 26.31; Comp. Laws (1948) §§554.30, 554.31,
provide: "When a future estate shall be limited to heirs, or issue, or
children, posthumous children shall be entitled to take, in the same
manner as if born before the death of their parents.
"A future estate depending on the contingency of the death of any
person without heirs or issue, or children, shall be defeated by the
birth of a posthumous child of such person, capable of taking by
descent."
101 Gray, RuLE AGAINST PERPETUITIES, 3rd ed., §222 (1915); 2 Simes,
LAw oF FuTuRE INTEREsTs, §492 (1936); PROPERTY REsTATEMENT, §374,
Comment p. (1944).
298 PERPETUITIES AND OTHER RESTRAINTS
devise property to James Thorpe and his heirs "until
my youngest grandchild is of age and then to my young-
est descendant in being." If John has a posthumous
child which has a posthumous son who is the father
of a child en ventre sa mere when he comes of age, the
unborn child could take the executory interest limited
to the youngest descendant of John in being. Periods of
gestation are allowed under the Rule Against Perpe-
tuities only if gestation in fact exists; it is not permissible
to suspend vesting for lives in being plus twenty-one
years and nine months in gross. 108 If John Stiles devises
property to James Thorpe and his heirs "until twenty-
one years and nine months after the death of my young-
est child and then to my youngest descendant in being,"
the executory limitation is void although it must neces-
sarily vest within a period which might well be shorter
than that involved in the preceding illustration.
As the passage quoted by our Supreme Court from
Halsbury's Laws of England 109 indicates, the period of
the Rule Against Perpetuities is the life of a person or
the survivor of a group of persons in being and ascer-
tained for that purpose by the instrument creating the
future interest in question and twenty-one years, but if
no such person or persons are ascertained by the in-
strument, the period is twenty-one years. Whether the
term of years follpws lives in being or is itself the sole
measure of the period, it may be in terms of a mi-
nority or minorities, as was the case in Wilson• v.

1os Cadell v. Palmer, 1 Cl. & F. 372, 6 Eng. Rep. 956 (1833), cited
with approval in St. Amour v. Rivard, 2 Mich. 294 at 297 (1852).
See: Gardner v. City National Bank & Trust Co., 267 Mich. 270 at 284,
255 N.W. 587 (1934) and authorities cited in the preceding note.
1o9 Gardner v. City National Bank & Trust Co., 267 Mich. 270 at
284, 255 N.W. 587 (1934), quoting from 22 Halsbury, LAws OF ENG-
LAND, §601, p. 302 (1912), quoted in the text at Part Two, note 89
supra.
 THE PERIOD OF THE RULE 299
110
Odell, or a gross period of twenty-one years or less
unrelated to minorities. 111 Toms v. Williams 112 was a
suit to construe the will of a testatrix who died in 1876
owning the reversion under a forty-year lease given in
1854 which required the lessor, at the expiration of the
term in 1894, to pay for the lessee's improvements (a
building costing some $50,000) or renew the lease for
another forty years. The will gave the entire estate, in-
cluding personalty, to trustees who were to accumulate
$5,000 per year of the income, use it to pay for the
lessee's improvements in 1894, and then to transfer the
corpus of the trust to three named persons "or the sur-
vivor of them, and to their heirs and assigns forever, as
tenants in common." The Court held that the provision
for accumulation for eighteen years did not exceed the
period of the common-law Rule Against Perpetuities,
which the Court said was "any number of lives in being
and twenty-one years, and of course for twenty-one years
as a distinct period, independent of lives." 113 In Mark-
ham v. Hufford, 114 testatrix bequeathed $500 to the pe-
titioner "to be paid to him at the expiration of two
years from the date of my demise: Provided that he shall
be deemed a reformed man, in the judgment of the
executors of this will," otherwise to the Women's Chris-

110 58 Mich. 533, 25 N.W. 506 (1885), Part Two, note 101 supra.
111 Cadell v. Palmer, 1 Cl. & F. 372, 6 Eng. Rep. 956 (1833), cited
with approval in St. Amour v. Rivard, 2 Mich. 294 at 297 (1852) and
Toms v. Williams, 41 Mich. 552 at 571, 2 N.W. 814 (1879); Gray,
RuLE AGAINST PERPETUITIES, 3rd ed., §223 (1915); 2 Simes, LAw OF
FUTURE INTERESTS, §493 (1936); PROPERTY RESTATEMENT, §374, Com.
ment m. (1944). .
112 41 Mich. 552, 2 N.W. 814 (1879). The surplus income above
$5,000 per annum was to be accumulated until the expiration of the
minority of the youngest of the three named persons and then paid
over to them or the survivor of them. One of them was of age when
the testatrix died.
m 41 Mich. 552 at 571.
n4 123 Mich. 505, 82 N.W. 222, 48 L.R.A. 580 (1900).
300 PERPETUITIES AND OTHER RESTRAINTS
tian Temperance Union. It was held that this was a
condition precedent which suspended vesting for only
two years in gross and so was valid. In re De Rancourt's
Estate 115 involved a bequest to a trustee to pay the
income to the testator's heirs for fifteen years and then
to transfer the corpus to the heirs of the testator deter-
mined according to the statute then in force. It was
treated as valid.
It will be recalled that if lives in being are to be used
as all or part of the measure of the period of the Rule
Against Perpetuities, they must be the lives of persons
ascertained for that purpose by the instrument creating
the future interest; courts will not select lives not desig-
nated by the instrument or connected with its limita-
tions. As to the twenty-one year period, the Rule is
not quite so strict. Thus if Andrew Baker devises prop-
erty to James Thorpe and his heirs "for the lives of
James and all of his descendants living at the time of
my death and for such period thereafter as the law per-
mits suspension of vesting and then to the youngest liv-
ing descendant of John Stiles" the words "such period
thereafter as the law permits" are construed to mean
twenty-one years, and the future interest of the young-
est descendant of John Stiles is, accordingly, valid. 116

11s 279 Mich. 518, 272 N.W. 891, 110 A.L.R. 1346 (1937). Both
land and personalty were involved. In Otis v. Arntz, 198 Mich. 196,
164 N.W. 498 (1917), land and personalty were devised to descendants
of the testator to be ascertained twenty-five years after his death. The
disposition was held void as violating the statute prohibiting suspen-
sion of the absolute power of alienation. Of course, it also violated
the common-law Rule Against Perpetuities.
us Pownall v. Graham, 33 Beav. 242, 55 Eng. Rep. 360 (1863);
Fitchie v. Brown, 211 U.S. 321 (1908); Gray, RuLE AGAINST PERPETUI·
TIES, 3rd ed., §§219, 219b (1915); 2 Simes, LAw OF FuTURE INTERESTS,
§495 (1936); PROPERTY REsTATEMENT, §370, Comment n. and Illustra-
tion 4 (1944). In West Texas Bank & Trust Co. v. Matlock, 212 S.W.
937 (Tex. Com. App. 1919), "a reasonable time" was construed to
mean twenty-one years.
 THE PERIOD OF THE RULE 301
The computation of the permissible period under the
Rule Against Perpetuities may involve one, two, or all
of the three elements, lives in being, periods of gesta-
tion, and twenty-one years. When more than one of
these elements is involved in a situation, a period of
gestation may precede or follow either or both of the
others. Thus, as has been seen, if John Stiles devises
property to James Thorpe and his heirs "until my
youngest grandchild is of age and then to my youngest
descendant in being at that time," a period of gestation
may precede the measuring life in being of John's child,
a second period of gestation may follow the life and pre-
cede the minority of the grandchild, and a third period
of gestation may follow that minority. The element of
twenty-one years, however, although it may follow lives
in being, may not precede them, because the only per-
missible lives in being are lives in being at the com-
mencement of the period of the Rule. 111 If John Stiles
devises property to James Thorpe and his heirs "until
the death of all of my descendants living twenty-one
years after my death and then to my youngest descendant
living at that time," the executory interest is void. John
may have descendants in being twenty-one years after
his death who were not in being when he died.
Even though an instrument in terms suspends the
vesting of a future interest until the happening of an
event which may not occur within the period of the
Rule, the interest is not void if it could not vest beyond
the period, because the duration of the estate out of
which it is created is limited. If Andrew Baker, ownirig
an estate in Blackacre for the lives of Thomas Kempe,
Roger White and Edward Willis, conveys his estate "to

111 PROPERTY RESTATEMENT, §374, Comment e. (1944); 2 Simes, LAw

OF FUTURE INTERESTS, §493 (1936).
302 PERPETUITIES AND OTHER RESTRAINTS
James Thorpe and his heirs so long as the Penobscot
Building shall stand and then to John Stiles and his
heirs," the executory interest of John Stiles is valid be-
cause it cannot vest after the death of the survivor of
Thomas Kempe, Roger White, and Edward Willis. 118
This is probably an exception to the rule that the meas-
uring lives must be ascertained by the instrument creat-
ing the future interest.
If an instrument postpones the vesting of a future
interest until the happening of both of two conditions,
one of which must occur within the period of the Rule
and the other of which may not so occur, the future
interest is void. If John Stiles devises property to James
Thorpe and his heirs "for thirty years and until my
children are all dead and then to my youngest descen-
dant living at that time," the future interest is in-
valid.119 If, on the other hand, the instrument postpones
vesting only until the happening of that one of two
alternative conditions which first occurs, the fact that
one of the conditions might not be performed within
the period of the Rule will not invalidate the future
interest. In re Lamb's Estate 120 involved a will which
left the estate to nine brothers and sisters of the textatrix
and provided:
"But in case of the death of any of the above-named
legatees previous to the probating or execution of this,
11s Low v. Burron, 3 P. Wms. 262, 24 Eng. Rep. 1055 (1734); Gray,
RULE AGAINST PERPETUITIES, 3rd ed., §§225, 226 (1915); PROPERTY
REsTATEMENT, §370, Comment k. (1944). If the estate conveyed is one
for the lives of ascertained living persons, it cannot violate the Rule
because it cannot vest after the death of the survivor of those persons.
119 PROPERTY RESTATEMENT, §374, Comment g. and Illustration 7
(1944).
120 122 Mich. 239, 80 N.W. 1081 (1899). Both land and personalty
were involved. Cf. Calkins v. Smith, 41 Mich. 409, 1 N.W. 1048
(1879); Skinner v. Taft, 140 Mich. 282, 103 N.W. 702 (1905).
 THE PERIOD OF THE RULE 303
my last will and testament, then I desire, will and be-
queath that the share of such deceased brother or sister
shall revert to, and become the property of, the children
of said deceased legatee; but, if said deceased legatee
has no children living at the time of my decease, then
the said deceased legatee's share of the property be-
queathed to him or her by the terms of this will shall
revert to, and become a part of, the general fund to be
divided among the surviving legatees named in this will."
One of the brothers assigned his interest under the
will and died before the estate of the testatrix was ready
for distribution. The Court held that "execution"
meant distribution and that the children of the brother,
not his assignee, were entitled to the share which would
have been his. This was a sound result because, al-
though distribution might not occur within the period
of the Rule, 121 the gift over would necessarily vest, if at
all, on the death of the survivor of the brothers and
sisters.
121 2 Simes, LAw oF FuTURE INTERESTS, §496 (1936); PROPERTY RE-
STATEMENT, §374, Comment f. (1944). But see: Brandenburgh v. Thorn-
dike, 139 Mass. 102, 28 N.E. 575 (1885); Belfield v. Booth, 63 Conn.
299, 27 Atl. 585 (1893).