Opinion
(December Term, 1860.)
In determining whether a limitation of property does or does not amount to a perpetuity, regard is had to possible, not actual, events, and the fact that the gift might have included objects too remote, is fatal.
CAUSE removed from the Court of Equity of CALDWELL.
Jesse Moore died in the said county, leaving a last will and testament, in which, after making various specific devises and bequests, the testator proceeds: "Item 7. My will is that all the rest of my property of every description, and my money, be kept by my executor, whomsoever I map appoint; it shall be kept as a fund. Should any of my children or grandchildren come to suffering, in any other way, save by idleness, drunkenness, or anything of the kind, so as to become an object of charity, I want the said executor to give a part of this to such child or grandchild."
The bill is filed by the next of kin of the testator, and prays for a distribution of this fund amongst them, upon the ground that the bequest is an attempt to create a perpetuity, and therefore void.
The cause being set for hearing upon bill, answer and exhibit, was transferred to this Court by consent.
Mitchell, for the plaintiffs.
No counsel for the defendant.
Upon the best consideration which we have been able to give to this case, we are clearly satisfied that the bequest contained in the seventh clause of the testator's will can not be sustained. It is an attempt to create a fund and keep it in existence for a purpose which may not be finally accomplished for a period longer than that which the rule against perpetuities will allow. Whether the administration of this fund by the executor as "treasurer" is to be deemed a power or trust in him, the necessary effect of it will be that the fund will be tied up and kept from commerce during the entire lives of the testator's children and grandchildren, which it is manifest may be, and probably will be, much longer than a life or lives in being at the testator's death, and twenty-one years afterward. This makes the bequest void, although it might happen that all the grandchildren would die within twenty-one years after the death of all the testator's children. In a case of this kind, it is well known to be "an invariable principle in applying the rule under consideration, that regard is had to possible, not actual, events, and the fact that the gift might have included objects too remote, is fatal to its validity, irrespectively of the event." In the present case, it is plain that the gift of the fund might be needed by the objects of the testator's bounty for some time after the time allowed by the rule against perpetuities, that is, after twenty-one years from the death of the last survivor of the testator's children; see 1 Jarman on Wills, 227 et seq., where the subject is fully discussed and explained; see also 2 Rop. on Leg., 298 et seq.
In deciding against the validity of the bequests upon the ground that it violates the settled rule on the subject of perpetuities, we do not intend to give or intimate an opinion whether the objects of the intended charity are sufficiently definite, or the manner in which they are to be ascertained is pointed out with sufficient precision.
The plaintiffs are entitled to a decree according to the prayer of the bill.
PER CURIAM. Decree for the plaintiffs.
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