In Metzen v. Schopp,26 the future interest after an estate tail was limited by will upon a definite failure of issue. It was, therefore, valid so far as any question of remoteness was concerned, regardless of whether it was destructible or not. There the testator devised to his wife for life with a remainder to his son John Peter in tail, and "in case of the death of my son John Peter Metzen, without leaving issue and after the death of my wife" the property to be sold and the proceeds divided. It was held that the son did not get a fee simple but only a statutory life estate with a statutory remainder in fee "to the heirs of his body."27 That was all that was involved, but the court, evidently to forestall further litigation, went out of its way to say that the interest after the estate tail was limited upon a definite failure of issue and intimated that it was a perfectly valid devise. The use of the word "leaving" in the phrase "without leaving issue" made it, upon the English cases respecting personalty28 and the Illinois cases regarding realty as well,29 a gift on a definite failure of issue. Then it appears that the son John Peter was married and had issue before the testator died, which issue may fairly be assumed to have been living at the testator's death. If, then, that child took a vested statutory remainder in fee upon the death of the testator the gift over upon trust to convert was valid even though it be regarded as an indestructible executory devise. is void under the doctrine of Palmer v. Cook, 159 Ill. 300, ante, § 139. 26 202 Ill. 275. 27 Ante, §§ 114 et seq. 28 Ante, § 201. PART 4. CHARITIES. 30 § 274. Trusts for charitable purposes not void for remoteness though the trust must last indefinitely: In several Illinois cases,31 it is suggested that a trust to charity is not void for remoteness though it is to last indefinitely, and that this is so, because of a particular exception in favor of charitable bequests. It should be observed that the Rule against Perpetuities has nothing whatever to do with the validity or invalidity of a gift on the ground merely that it may last indefinitely, provided it must become a vested interest within the proper time.32 § 274a. Where charitable bequest is to a corporation or association not yet formed: Suppose the gift to a corporation or association be for a charitable object and not preceded by any gift to an individual, and suppose, also, the corporation or association is not in existence. It might be argued that the gift was subject to a condition prescribing that the corporation or association must come into existence, and that, as that event might happen at an indefinite time in the future, the whole gift 30 What is a charitable bequest: Ingraham v. Ingraham, 169 Ill. 432; Crerar v. Williams, 145 Ill. 625, 643, 44 Ill. App. 497; Andrews v. Andrews, 110 Ill. 223; Heuser v. Harris, 42 Ill. 425; Hunt v. Fowler, 121 Ill. 269; Trafton v. Black, 187 Ill. 36; Garrison v. Little, 75 Ill. App. 402; Morgan v. Grand Prairie Seminary, 70 Ill. App. 575; Taylor v. Keep, 2 Ill. App. 368; Gilman v. Hamilton, 16 Ill. 225; Trustees v. Petefish, 181 Ill. 255; Abend v. Endowment Fund, 74 Ill. App. 654. Charitable bequests valid although the cestui is indefinite: Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 Ill. 223; Mills v. Newberry, 112 Ill. 123 (condition precedent that a selection be made); Trafton v. Black, 187 Ill. 36; Morgan v. Grand Prairie Seminary, 70 Ill. App. 575. Trust for charity "or other purposes" void for uncertainty: Taylor v. Keep, 2 Ill. App. 368. 31 Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 Ill. 223; Abend v. Endowment Fund, 74 Ill. App. 654; Garrison v. Little, 75 Ill. App. 402. 32 Ante, § 256. Note that in Kirkland v. Cox, 94 Ill. 401, 416, where there was a gift over to charity, if the first taker died without issue the court declined to pass upon whether the gift over was void for remoteness. was void for remoteness. Courts, however, are quick to see an immediate gift for charity33 and to hold that the corporation or association must be formed within a reasonable time and that if it cannot be formed at all, yet the gift to charity will be carried out cy pres.34 Crerar v. Williams,35 seems to be a case where the charitable gift was a present one to a non-existing corporation or association. It was held valid. The testator directed a corporation to be formed. The formation of such a corporation was impossible under the Illinois laws as they stood at the time of the testator's death. Nevertheless, the court upheld the gift and said it should be enforced cy pres. Ingraham v. Ingraham,36 sustained the validity of a gift to a hospital to be founded in the future, on the ground that it was an immediate gift to charity.37 $275. PART 5. ACCUMULATIONS. Accumulations other than for charity: There is no statute against accumulations in Illinois. When, therefore, the future interest is executory and there is a provision for accumulation in the meantime, such accumulation may be provided for up to the most remote time at which the future interest can vest and still be valid.38 If the executory interest does not vest within the time prescribed by the Rule against Perpetuities and the accumulation is to continue up to the time of the vesting of the future interest, then the future interest must be void, and the provision for accumulation, if it is part 33 Ingraham v. Ingraham, 169 Ill. 432, 452 (quoting Gray's Rule against Perpetuities, § 607). 34 This must be the ground upon which Morgan v. Grand Prairie Seminary, 70 Ill. App. 575, is to be supported. The charitable bequest there was held valid although the gift was on condition that the city donated a lot. 35 145 Ill. 625. 36 169 Ill. 432, 454-459. 37 In Heuser v. Harris, 42 Ill. 425, and Andrews v. Andrews, 110 Ill. 223, the gift was an immediate one to charity. There was simply a failure to name trustees to administer the trust. 38 Rhoads v. Rhoads, 43 Ill. 239; Hale v. Hale, 125 Ill. 399; Ingraham v. Ingraham, 169 Ill. 432, 450. of the testator's scheme, in connection with the gift which is too remote, will also fail. Suppose now, that the interest in the legatee is vested at once with a postponed enjoyment clause, valid under the doctrine of Claflin v. Claflin,38a or upon any other ground, with a provision for accumulation in the meantime. The accumulation, it is submitted, may continue up to the most remote time that the postponed enjoyment can last. If it is to continue beyond that time, then the whole postponement is void and the trust for accumulation is bad. This, however, it should be observed, is not an application of the Rule against Perpetuities, but of the rule which limits the length of time that a postponed enjoyment clause may be operative.39 $276. Accumulation for charitable purposes: Suppose there is an unconditional gift to charity with a direction for accumulation which may last longer than a life or lives in being and twenty-one years. It is not perceived upon what ground the clause for accumulation can be void for remoteness. If void at all, it must be because it is an improper restraint on alienation. The corporation, association or trustees directing the charity might disregard it and the attorney-general would not be allowed to enforce it on exactly the same ground that a postponed enjoyment upon the absolute equitable interest of an individual, which lasts for too long a time, might be disregarded by the cestui and by the trustees.40 Whether such a provision for accumulation can be so disregarded, is, perhaps, not yet settled in this state. Assuming, however, that the direction for accumulation may be disregarded, it is clear that the doing so cannot be of any advantage to the heirs at law of the testator, for as against them, the whole fund is at once payable to charity.41 38 a Post, § 288. 39 Post, § 293. 40 Post, § 293. 41 Ingraham Ill. 432. always construed as immediate gifts merely subject to the payv. Ingraham, 169 ment of debts in the usual course of administration. Hence, LO question of their remoteness arises: Scofield v. Olcott, 120 III. 362; Ducker v. Burnham, 146 Ill. 9, 20; Hawkins v. Bohling, 168 Ill. 214, 220; Nevius v. Gourley, NOTE ON TRUSTS-Devises contingent on payment of debts: Taken literally such devises would be void for remoteness, (Gray's Rule against Perpetuities, § 415), but these devises are apparently 95 Ill. 206. TITLE II. ILLEGAL CONDITIONS AND RESTRAINTS. CHAPTER XIII. ILLEGAL AND IMPOSSIBLE CONDITIONS. § 277. When the condition is subsequent and impossible of fulfilment or illegal: Under these circumstances the preceding estate is never divested.1 In three cases 2 in this state the event upon which the interest given was to cease, was not only not impossible, but it did. actually happen. The only thing that was impossible, was the performance of the act required in order that the one vested with the estate might keep it. In all three cases this impossibility of performance arose because of the act of the person for whose benefit the performance was imposed. In all of them, therefore, the divesting of the interest was avoided. § 278. Where the condition is precedent and illegal or impossible: In such a case the future interest can never vest.3 In Goff v. Pensenhafer, there is a suggestion of the recognition of the rule laid down in Jarman on Wills,5 that when the condition precedent is impossible, the gift upon a condition precedent takes effect in spite of the non-fulfilment of the condition under certain circumstances. It should be observed that these circumstances according to Jarman are: First, That the impossibility exists at the time the future interest is limited, and, second, that the testator knows of the impossibility. 1 St. Louis, J. & Ch. R. R. Co. v. Mathers, 71 Ill. 592; Chicago v. Chicago & W. Ind. R. R. Co., 105 Ill. 73, 78 (semble); Gray v. Chicago, Mil. & St. P. Ry., 189 Ill. 400, 409 (semble). 2 Jones v. Bramblet, 2 Ill. 276; Jennings v. Jennings, 27 Ill. 518; Chicago v. Chicago & W. Ind. R. 3 Jennings v. Jennings, 27 Ill. 518, 522 (semble); Goff v. Pensenhafer, 190 Ill. 200, 210. 4 190 Ill. 200, 210. 5 6th ed. (Bigelow), vol. 2, star page 852. |