PERPETUITY. Any limitation tending to take property out of commerce for a longer period than a life or lives in being, and twenty-one years beyond, and, in case of a posthumous child, a few months more, allowing for the term of gestation. Randall, Perp. 48.
Such a limitation of property as renders it inalienable beyond the period allowed by law. Gilbert, Uses, Sugd. ed. 260, n.
"A future limitation, whether executory or by way of remainder, and of real or per sonal property, which is not to vest till after the expiration of or which will not necessarily vest within, the period prescrib ed by law for the creation of future estates, and which is not destructible by the person for the time being entitled to the property subject to the future limitation, except with the concurrence of the person interested in the contingent event." Lewis, Perpetuities ch. 12. This was said by Gibson, C. J., to be the nearest approach to a perfect defini tion of a perpetuity ; Hillyard v. Miller, 10 Pa. 334.
It is suggested that some confusion has arisen in connection with the law of per petuities because of a certain ambiguity in the legal definition of the term itself. "The original meaning of a perpetuity is an in alienable, indestructible interest. The sec ond artificial meaning is, an interest which will not vest to a remote period. This latter is the meaning which' is attached to the term when the rule against perpetuities is spoken of ;" Gray, Perp. § 140. The author last cited considers it a matter of regret that the rule should not have been known as the rule against remoteness, rather than the rule as against perpetuities.
The comment was made upon this state ment that notwithstanding the declaration quoted from this author, "yet in all his illustrations he shows that interests which were destructible were not perpetuities" ; Muffin's Appeal, 121 Pa. 205, 15 Atl. 525, 1 L. R. A. 453, 6 Am. St. Rep. 781, where it is held that indestructibility of the estate of the person, for the time being entitled to the property, is essential to constitute a perpe tuity.
The fdllowing is suggested as the true form of the rule: "No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest;" Gray, Perp. 201. A later work adheres more closely to the familiar phraseology (a course which has great advantages in the discussion of common-law rules of decision), in defining it as a rule which "forbids the postpone ment of the vesting of real or personal prop erty for an estate in fee-simple, in tail or absolute interest, during a longer period than lives in being and twenty-one years after, an extension being allowed for gesta tion if gestation exists ;" Brett, L. Cas. Mod. Eq. 47. See, also, McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015; L. R. 44 Ch. D. 85. The rule against perpetui ties as distinguished from that against mak ing estates indefinitely inalienable, concerns itself only with the vesting or assignment of estates and not with their termination; Brooks v. Belfast, 90 Me. 318, 38 Atl. 222; and when properly so limited, it is applicable to a gift in trust for charity ; id. An In teresting case in Colorado holds that not withstanding statutory adoption, in that state, of the common law prior to 4 James I., English decisions after that year are to be regarded as authority in determining what the common law as to perpetuities was at that time ; Chilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 35 L. R. A. 41.
The rule against perpetuities is one of decision only, and in England is affected only by statute under what is known as the Thelluson Act, the passage of which was occasioned by litigation arising under the will of Peter Thelluson who died in 1797. See Thelluson v. Woodford, 4 Ves. Jr. 227; 11 Ves. 112. 1 or the text of the act see Gray, Perp. Appx. B. note; and for the history of the litigation which led to it, see Hargrave, Thelluson Case, ch. 1.