ticular instruments.95 The following cases only stand out as decisions of general utility. In White v. Glover,96 it was held that the trustee can sell either at public or private sale if there is nothing in the creation of the power to the contrary. In Franklin Savings Bank v. Taylor,97 the supreme court indicates the principle upon which the purchaser from a trustee need not look to the application of the purchase money when there is no express clause exempting him from that responsibility. The court there said: "Where it appears that the donor of the power confided the application of the purchase money to the judgment and discretion of a particular person or persons designated, it is conclusive that it was not intended to burden the purchaser with it."1 Sometimes the question arises to whom is an express power given;2 or whether the power is in an individual as executor or trustee,3 or as executor or life tenant.4 § 253. Extent of power of the life tenant: A usual difficulty in this class of cases is to determine whether the life tenant has an absolute unrestricted power or whether there can be a sale only for maintenance or what the donee needs. Under the Cashman case, it would seem that when the words of a gift after the life estate of "what is left" alone confer a power of disposal by the life tenant, they give such power without restriction. In other cases, the context of the will has sometimes been held to cut down the unrestricted power, 95 Hamilton v. Hamilton, 98 Ill. 254; Kurtz v. Graybill, 192 Ill. 445; Hughes v. Washington, 72 Ill. 84; Pool v. Potter, 63 Ill. 533; Jenks v. Jackson, 127 Ill. 341; Longwith v. Riggs, 123 Ill. 258; Summers v. Higley, 191 Ill. 193; Starr v. Moulton, 97 Ill. 525; Taylor v. Walson, 177 Ill. 439; Skinner v. McDowell, 169 Ill. 365. On the construction of powers in marriage settlements see Swift v. Castle, 23 Ill. 209; Breit v. Yeaton, 101 Ill. 242. the power went, there was no distinction between mandatory and discretionary powers. 97 131 Ill. 376, 383. 1 Dickson v. New York Biscuit Co., 211 Ill. 468, 487, 488 and cases there cited, accord. 2 Rankin v. Rankin, 36 Ill. 293; Lash v. Lash, 209 III. 595, 602. 3 Pahlman v. Smith, 23 Ill. 448. 4 Clark v. Clark, 172 Ill. 355. 5 134 Ill. 88; Walker v. Pritchard, 121 Ill. 221. 6 Kaufman v. Breckinridge, 117 Ill. 305; Griffin v. Griffin, 141 Ill. 96 59 Ill. 459. It was also held here that the trustee may sell for a debt or for cash to pay a debt, and 373. that, so far as the construction of and sometimes not.7 Sometimes the question is raised as to whether the power is to convey by deed or will, or both.8 7 Markillie v. Ragland, 77 Ill. 98. See Spengler v. Kuhn, 212 Ill. 186, 196. 8 Bowerman v. Sessel, 191 Ill. 651, 654; Fairman v. Beal, 14 Ill. 244; Christy v. Pulliam, 17 Ill. 59, 19 Ill. 331; Kirkpatrick v. Kirkpatrick, 197 Ill. 144, 154. See ante, 158 a, note on Life Interests with Power of Disposition or Appointment. See also Butler v. Heustis, 68 Ill. 594; Crozier v. Hoyt, 97 Ill. 23. In Fairman v. Beal, supra, the power could only affect the remainder after the donee's life estate, though it could be exercised by deed. CHAPTER XII. RULE AGAINST PERPETUITIES. PART 1. IN GENERAL. § 254. The rule as stated in Illinois: Our supreme court has clearly recognized, approved, and acted upon Professor Gray's statement of the rule 1 as follows: "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." 2 § 255. Several of Professor Gray's corollaries to this rule3 are supported by direct decisions in this state: The corollary to the rule most often repeated by our supreme court is that the future interest must vest in the proper time. sufficient if it may so vest.1 1 Rule against Perpetuities, § 201. 2 Howe v. Hodge, 152 Ill. 252, 274; Lawrence v. Smith, 163 Ill. 149, 160; Owsley v. Harrison, 190 Ill. 235, 241; Chapman v. Cheney, 191 Ill. 574, 584; Pitzel v. Schneider, 216 Ill. 87, 97; Madison v. Larmon, 170 Ill. 65, 70; Nevitt v. Woodburn, 82 Ill. App. 649, (190 Ill. 283). In Waldo v. Cummings, 45 Ill. 421, at pp. 426-427, the court quotes with approval Lewis' definition of a perpetuity: "Lewis in his treatise on perpetuities, defines it to be 'a future limitation, whether executory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of, or will not necessarily vest within, the period It is not fixed and prescribed by law for 3 Rule against Perpetuities, Ch. VI. 4 Lawrence v. Smith, 163 Ill. 149, 160; Bigelow v. Cady, 171 Ill. 229; Owsley v. Harrison, 190 Ill. 235; Post v. Rohrbach, 142 Ill. 600, 606; Our supreme court also seems clear that vested as distinguished from executory interests are not subject to the rule.5 Thus, a devise subject to a term of 1,000 years is valid. It is a vested interest at once upon its creation.7 Remainders, which are vested under the view of the Boatman cases and Chapin v. Nott, are, it is submitted, vested only in the sense of being transmissible,10 and, perhaps, also, indestructible. They are not, therefore, outside the application of the Rule against Perpetuities simply because they are called vested. Observe, however, that if the ultimate limitation after the estate tail in Chapin v. Nott is vested only in the sense of being transmissible and is not destructible, it is void for remoteness.11 Yet it was held valid. This means either that the contingent future interest was destructible or that "vested" was used in a sense which took it out of the Rule against Perpetuities. The contingency may be postponed for a number of lives, provided they are all in being when the contingent interest is created.12 Schuknecht v. Schultz, 212 Ill. 43, 46; Pitzel v. Schneider, 216 Ill. 87, 97. See also Reid v. Voorhees, 216 Ill. 236, 243. 5 Ingraham v. Ingraham, 169 Ill. 432, 451. Observe, however, the exception hereafter noted, post, § 269. • Eldred v. Meek, 183 Ill. 26, 36 (semble); Marsh v. Reed, 184 Ill. .263, 274-275. 7 It should be observed that the vesting here referred to is vesting in interest as distinguished from vesting in possession. In Post v. Rohrbach, 142 Ill. 600, 606, the court said the gift was void because "it might not have taken effect in possession within a life or lives in being and twentyone years thereafter." The error here is so clear that it may be laid to a slip of the pen. The Rule does not invalidate interests which vest in possession at too remote a period, but only those which vest in interest at a time beyond the prescribed limit. The difference between vesting in interest and vesting in possession is clearly recognized by our Supreme Court, and in fact correctly applied where the Rule against Perpetuities is in volved. (Madison v. Larmon, 170 Ill. 65; Eldred v. Meek, 183 Ill. 26, 36; Marsh v. Reed, 184 Ill. 263, 275). Thus, the devise subject to a term of 1000 years cannot vest in possession till too remote a time, but it does not offend the rule because it vests in interest at 8 198 Ill. 414; ante, § 100. 11 Ante, § 101, note 3, § 271. It was recognized, in Smith v. McConnell,13 that the period of a life in being and twenty-one years may be extended by at least two periods of gestation. It is clear, also, that the time within which the future interest must vest runs only from the testator's death.14 The effect of interests being too remote has been heretofore dealt with, ante, § 183. § 256. Two departures from the rule as expressed by Professor Gray: Our supreme court has recognized to an appreciable extent two departures from the rule as above formulated: "15 (1) It has given out with approval from time to time the following definition from Bouvier's Law Dictionary: "A perpetuity is defined to be a limitation, taking the subject thereof out of commerce for a longer period of time 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 time of gestation. The logical result of this definition would cause the Rule against Perpetuities to be a rule invalidating restraints on alienation. It is clear from Professor Gray's treatise that the true object of the Rule is to prevent the creation of future interests on too remote contingencies, and that its effect in removing practical restrictions on the immediate conveyance of property is only an incidental result. This position our supreme court now seems to recognize with entire approval.16 13 17 Ill. 135, 140, 141. Andrews' Law Dictionary was 14 Ingraham v. Ingraham, 169 quoted with approval. Ill. 432, 460. 15 Waldo v. Cummings, 45 Ill. 421, 426; Hale v. Hale, 125 Ill. 399, 409; Hart v. Seymour, 147 Ill. 598; Lunt v. Lunt, 108 Ill. 307; Howe v. Hodge, 152 Ill. 252; Bigelow v. Cady, 171 Ill. 229, 232; Flanner v. Fellows, 206 Ill. 136, 141; Henderson v. Virden Coal Co., 78 Ill. App. 437. In Hart v. Seymour, supra, a definition to the same effect from In Andrews v. Andrews, 110 Ill. 223, 230, the court stated the same idea in this way: "The law will not permit estates in land to be tied up longer than for a life or lives in being and twenty-one years, and in case of a posthumous birth, nine months more after the termination of the life estates." 16 Howe v. Hodge, 152 Ill. 252, 274; Ingraham v. Ingraham, 169 Ill. 432, 451; Madison v. Larmon, 170 Ill. 65, 71. |