1. If a power can be exercised at too re mote a period, any estate appointed under it is bad. 2. It does not follow, because ap pointments may be bad, that the power is bad. 3. Remoteness of appointment depends on its distance from the creation and not the exercise of the power.
Where the donee of the power appoints to one of the objects of the power by giving her a general power of appointment to such per sons as she sees fit, the appointment is good on the ground that giving a general power of appointment is considered the same as giving the absolute estate; 2 Cl. & F. 453.
Where a testator devised his property in trust for his children living at his death and if any are dead then the share of such to go to his children, and gave the trustee power to sell the property, such power is valid, in asmuch as the objects have the equitable tate and can call for a conveyance of the legal estate at any time ; Cooper's Estate, 150 Pa. 576, 24 Atl. 1057, 30 Am. St. Rep. 829. The testator devised property upon trust for A for life and then to A's children as he shall by deed or will appoint. By will, A directed that £2000 be paid to each of his daughters when attaining 24, the resi due to be divided among his sons equally when attaining 24. A died and at his death 'two .of his children were under 3 years of age. Held that the gifts to daughters were independent gifts, and those of them which came within the rule were good, but that the gifts to sons were to them as a class, and that they all failed; 30 Beavan 111. We are not, solely, limited to read the exact words of the appointment into the original Power in order • to determine whether the gift as created comes within the rule, but can as part of the description take the per sons designated by the donee with their actual circumstances at the time of the ap pointment, e. g. if all the sons had been over 3 years of age at testator's death, then the appointment would have been good; id. So at the time the power was created, was it certain that if donee made an appointment such as he actually made it would have vest ed within the power; L. R. 16 Eq. 1; contra, Smith's Appeal, 88 Pa. 492. When English courts speak of a general power, they mean a general power to appoint by deed or will ; 39 L. J. Ch. N. S. 188; however, in 29 Chan. Div. 251, it was decided that giving a general power to appoint by will is just like giving absolute ownership, and this case would seem to overrule the preceding case in 39 I.
J. Ch. N. S. 188.
Gifts to charity are an exception to the rule and a gift over from one charity to an other at a period beyond the rule is good; [1891] 3 Ch. 252.
The rule is not one to carry out testator's intentions and you cannot vary the same on account of the rule.
In the application of the rule, a child en ventre so mere is to be considered as in be ing, irrespective of whether it be for the child's benefit or not; 7 Term 100.
The principle controlling the allowance of the period of gestation under the rule is, that life begins from conception and it is sufficient if the person entitled to a future interest at majority is begotten though not born within a life in being at its creation ; Gray, Perp. § 220. This principle has been extended to allow two periods of gestation ; 7 Term 100 ; and it has been a subject of discussion whether three might be allowed ; 3 Yo. & Coll. 328 ; Lewis, Perp. 726 ; Gray, Peril. § 222. The time runs only from the creation of the interest, and if by will, then the situation is taken as it is at the testa tor's death and not at the time of making the will.
An interest is not obnoxious to the rule if it begins within the required limits al though it may end beyond them; Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635.
Where a future interest is void as against the rule, prior lithitations will be treated precisely as if the void limitation had been omitted ; Church in Brattle Square v. Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725; 4 Ves. Jr. 427; Saxton v. Webber, 83 Wis. 617, 53 N. W. 905, 20 L. R. A. 509. See an extended note classifying and analyzing the cases, 20 L. R. A. 509. Subsequent limitations though not in themselves too remote, following .an interest too remote were held by Sugden, L. C., to fail. The authorities relied upon for this view are to be found in his argument as counsel in Beard v. Westcott, 5 B. & Ald. 801, and his decision as chancellor in Mony penny v. Dering, 2 De G. M. & G. 145. In Beard v. Westcott, the limitation was held good in the common pleas; 5 Taunt. 393; and bad in the king's bench ; 5 B. & Ald. The latter view is seriously controverted as not supported by the authorities cited in Sudgen's argument ; Gray, Perp. §§ 251-257; Lewis, Perp. 421, 661.