21 Years blished, that real property might be rendered un- ing Lives in alienable during the existence of a life in being, and being, and 21 years after; that is, till the son of a tenant for after. life attained his full age. From one life the courts gradually proceeded to several lives in being at the same time; for this, in fact, only amounted to the life of the survivor; and as it might happen that a tenant for life, to whose unborn son an estate tail was limited, might die, leaving his wife ensient, an allowance has also been made for the time of gestation of a posthumous son. 19. It may therefore be now laid down as a general rule of law, that an estate may be rendered unalienable during the existence of a life, or any number of lives in being, and nine months and 21 years after; but that all restraints on alienation which exceed that period are void: and in the case of deeds, all the limitations are also void. 20. It should however be observed, that the term of 21 years was probably adopted, because that is the period which must elapse, before an infant can bar an entail. For Lord Alvanley, in the case of Thelus. 4 Ves. 337. son v. Woodford, has said, that the period of 21 years had never been considered as a term that might at all events be added to an executory devise or trust. He had only found this dictum, that estates might be unalienable for lives in being, and 21 years, merely because a life may be an infant, or in ventre matris : therefore he was clearly of opinion, that expression could not be held to mean more than children in the womb at the testator's death. 21. We have seen that in conveyances deriving This Rule applied to their effect from the statute of uses, springing and springing and shifting uses might be created to arise upon, or after a limitation in fee simple. And it having been deter shifting Uses. Tit. 16. c. 5. mined, that neither a fine nor recovery, or any other act of the first taker, should defeat such springing or shifting use, it became therefore necessary to ascertain the time when such use should become vested: for otherwise uses of this kind might be limited on such remote contingencies, as to create perpetuities. It was therefore established, that if an estate in fee simple was first limited, the event on which it was to change must be such, that it must either take place, or become incapable of taking place, during the existence of one or more life or lives then in being, and nine months and 21 years after; otherwise it will be void, as tending to a perpetuity. Davies v. 22. Thus, where husband and wife levied a fine of Speed, Show. Parl. Ca. 104. the wife's estate, to the use of the heirs of the body of the husband on the wife begotten, remainder to the use of the right heirs of the husband; the limitation to the heirs of the body of the husband was held to be void as a contingent remainder, for want of a Cont. Rem. preceding estate of freehold to support it. And Mr. Fearne observes, there was no sort of ground to maintain the validity of the limitation to the right heirs of the husband, as a future use, as it was postponed to a general failure of heirs of the body of the husband by the wife, which was too remote. 429. 111. 23. But if there be a limitation of a use to A. and his heirs; with a proviso, limiting the estate to B. if A. dies without issue living at the time of his death; or if A. and B. both die without issue living at the decease of the survivor of them; or if A. has no child who attains the age of 21; or if neither A. nor B. have a child who attains the age of 21; it is a good proviso: for these events are such, that they must happen, or become incapable of happening, within the period above mentioned. 24. In the case of Lloyd v. Carew, Lord Somers Tit. 16. c. 5. $31. dismissed the bill, because the event on which the use was to shift being to take place within one year after the death of persons in being, was too remote; and tended to a perpetuity. But the House of Lords reversed the decree, after hearing the Judges: and ordered, that on payment of 4,000l. to Sir Richard Com. Rep. Carew, or into the Court of Chancery, for his issue, the appellants, as heirs of Penelope, should be let into possession of the premises in question. 20. ante, c. 16. § 74. 25. With respect to uses arising from the execu- And to Uses arising from tion of powers of revocation and appointment, it has Appointbeen observed, that an appointment operates under ments. the statute of uses, not as a conveyance of the land, but as a substitution of a new use, in the place of a former one, and a designation of the person in whom the new use is to vest. The person taking under a power derives his estate, not from the person executing the power, but under the original conveyance by which the power was created; in the same manner as if the use appointed had been limited to him in such conveyance: from which it follows, that the uses created by an appointment under a power, must be such as would have been good, if limited in the deed by which the power was given. Ca. 232. 27. John Duke of Marlborough devised all his Spencer v. estates to trustees and their heirs, to the use of his D. of Marlborough, daughter Harriet Countess of Godolphin for life, 3 Bro. Parl. remainder to Lord Ryalton her eldest son for life, remainder to trustees to preserve contingent remainders; remainder to the first and other sons of Lord Ryalton in tail male; remainder to Lord Robert Spencer, eldest son of his second daughter Anne Countess of Sunderland, for life, remainder to trustees to preserve contingent remainders; remainder to VOL. IV. Ee his first and other sons in tail male; remainder to Charles Spencer (afterwards Duke of Marlborough) in the same manner: and inserted a clause in his will, empowering his trustees, on the birth of each son of the said Lord Ryalton, Lords Robert and Charles Spencer, to revoke and make void the respective uses limited to their respective sons in tail male; and in lieu thereof, to limit the premises to the use of such sons, for their lives, with immediate remainders to the respective sons of such sons, severally and respectively in tail male. And he gave his household furniture, plate, &c. in the same manner. Upon an application to the Court of Chancery by the trustees, for further directions in carrying the trusts of the will into execution, a question having arisen touching the power given in the will to revoke the uses limited to the first and other sons in tail, and to limit the premises to the use of such sons for life only; Lord Northington declared, that the clause of revocation and settlement in the will, as tending to a perpetuity, and repugnant to the estate limited, was void and of no effect. On an appeal from this decree to the House of Lords, it was argued, on behalf of the appellants, that the same policy of the law which will not permit estates to be fixed unalienably in one family for ever, will support and protect the means of preserving them, till they come to that point, at which the mischiefs of a perpetual restraint may commence ; the one being as necessary an incitement to industry as the other. It had not then been fixed by any legislative or judicial act or authority. It had indeed been determined, that estates might be made unalienable for the duration of any number of lives in being, and for 21 years beyond; and in some in stances still farther; but no judicial determination had said what were the precise bounds, which should in no instance, nor by any means be exceeded. The particular mode of conveyance, though it might be new, or, according to the expression in the law books, of the tendency of a limitation to a perpetuity, was not sufficient to render such conveyance or limitation void. The interposition of trustees, to support contingent remainders, was an invention introduced about a century before; an invention which tended greatly to suspend and restrain the powers of alienation; and yet it was then become the established mode of settlement. Every limitation of estates, and every restraint of alienation, had a proportionable tendency, in some sense, to a perpetuity. That if the means made use of in this will, to make part of the Duke of Marlborough's estate accompany the honours and estates fixed in his family, for one succession beyond the common limitations, were regular and according to the course of law, they seemed to introduce no danger of a perpetuity; since the restraint would not go beyond the sons of the several noble persons named in the will; and the immediate descendants of such sons would be tenants in tail, and have a power of alienation. That if the trustees had executed this power upon the birth of the appellants, and the respondent, the duke, it was apprehended that a court of equity would not have interposed to impeach it: and if after an execution of the power, the limitations being to persons in esse, though for life only, would have been supported; the neglect of the trustees ought not in equity to prejudice the infant cestui que trusts: but it being a power which the trustees were enjoined to execute, the Court should consider it as executed from the |