Where a gift over may take effect on a number of different contingencies, which contingencies would make some gifts good and others bad, then, if the testator has ex pressly separated them, the court will give effect to the good limitations; however, if the testator has not separated the contin gencies, then there is no reason for the court separating them at one place any more than another, and hence they will hold the gift bad; 2 W. Bl. 704; 2 H. Bl. 358. There is an exception to the above rule, when by means of separation it is possible to have a contingent legal remainder in realty, in which case the court will so separate the gifts, even though the testator has not; 7 H. L. Cas. 531.
If a gift by will to a class is void as to one of the class because against the rule as to perpetuities, it is void as to all; Coggin's Appeal, 124 Pa. 10, 16 Atl. 579, 10 Am. St. Rep. 565. When a gift is made to a class, the share which each member of the class is to receive must be fully determined within the limits of the rule (e. g. a gift to a class, such as to A's children when they reach 25). Those living, at testator's death will reach 25 during their life and when they reach 25 the class, is closed and the interests become vested; however, some of the other members may die before reaching 25, and this will increase the shares of the others, so it cannot be told what share each will get until they all reach 25 or die, hence the share which each member will get on final distribution has to be determined with in the period of the rule, or the gift is bad; 2 Mer. 363. Although persons may popularly be spoken of as not belonging to the same class, still they may legally belong to the same class, as a gift to A's nephews and testator's children at 25; 6 Sim. 485.
What appears to be a gift to a class may in some cases be considered as separate and in dependent gifts to the members of the class, as a gift to the testator's children at 21 and if any die such child's share to go to its children at 21, such gift is good, as the shares are determined during a life in being and are not dependent on any contingency that may arrive after this time; 11 Hare 372 ; 3 De G., M. & G. 390.
Where an absolute interest is given in the first place, and later the testator introduces clauses modifying the gift, and such clauses are too remote, then, for the purpose of sav ing the bequest and preventing an intestacy, the modifying clauses will be disregarded ; 2 Beavan 352 ; but an absolute interest must nave been given in the first instance; 22 L. J. Ch. N. S. 1020. However, in England, where a gift was made to A for life and then to an unborn daughter, with a restraint against anticipation, the latter clause was disregarded and the court held that there cannot be a restraint to last after the limits of the rule. So a restraint on a daughter
unborn at the testator's death is bad; 11 Ch. Div. 645. See 15 Ch. Div. 610.
Where limitations are to take effect during or at the determination of an estate tail, such limitations are not obnoxious to the rule, since they are at all times within the absolute control of the person who has the present estate, for he can bar them, and this is true even though the present estate is in the hands of a minor and he is under disa bility to convey; 2 Bro. C. C. 215; 1 Lev. 35.
Mr. Justice Powell, in Scattergood v. Edge, 12 Mod. 278, distinguished perpetuities into two sorts, absolute and qualified ; meaning thereby, as it is apprehended, a distinction between a plain, direct, and palpable per petuity, and the case where an•estate is lim ited on a contingency, wnich might happen within a reasonable compass of time, but where the estate, nevertheless, from the na ture of the limitation, might be kept out of commerce longer than was thought agreeable to the policy of the common law. But this distinction would not now lead to a better understanding or explanation of the subject, for whether an estate be so limited that it cannot take effect until a period too much protracted, or whether on a contingency which may happen within a moderate com pass of time, it equally falls within the line of perpetuity, and the limitation is therefore void; for it is not sufficient that an estate may vest within the time allowed, but the rule requires that it must; Randall, Perp. 49 ; Rand v. Butler, 48 Conn. 293; 7 Sim. 173 ; Odell v. Odell, 10 Allen (Mass.) 1; Cog gin's Appeal, 124 Pa. 10, 16 Atl. 579, 10 Am. St. Rep. 565. See Cruise, Dig. tit. 32, c. 23; 1 Belt, Suppl. to Ves. Jr. 406 ; 2 Ves. 357; 3 Sound. 388; Com. Dig. Chancery (4 G 1) ; 3 Ch. Cas. 1 ; Davis v. Williams, 85 Tenn. 646, 4 .S. W. 8.
Under statutes of the New York class, a devise which suspends the power of aliena tion for a specific time, not measured by two lives, but by a term of years, is void; Trowbridge v. Metcalf, 5 App. Div. 318, 39 N. Y. Supp. 241; Montignani v. Blade, 74 Hun 297, 26 N. Y. Supp. 670. That a con tingency may arise which will make the estate alienable is immaterial, but the va lidity of the provision must be determined independently of any possible agreement of parties ; Winsor v. Mills, 157 Mass. 362, 32 N. E. 352 ; but a power is not rendered void because by its terms an appointment might possibly be made which would not take ef fect within the required period; In re Law rence's Estate, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925.
See OPTION.