may be in effect longer after testator's death than a life in being and 21 years thereafter. The rule against perpetuities is concerned only with the beginning of the interest. It "settles the time within which interests must vest, but when once vested they are all, present and future alike, subject to the same restraints against alienation, and with this the rule against perpetuities has nothing to do." Gray on Perpetuities (3d Ed.) § 121f. Trusts such as this have been approved, or at least permitted, in this state. Once permitted there must be certain limits as to the length of time they can last. This court has held that trusts must terminate as soon as the objects sought have been accomplished. Armstrong v. Barber, supra. The defendants in error are not concerned with the postponement of the payment of the principal of the trust fund. If, under the rules of law, the trust will not be permitted to continue for the full period of 30 years, this would not work such an utter destruction of the testator's scheme that the whole trust must fail. Wagner v. Wagner, supra, 244 Ill. 114, 91 N. E. 66, 18 Ann. Cas. 490. The gifts having vested within a life in being and 21 years thereafter, they must be held valid. The death of the son and the daughter of the testator has vested in the granddaughter, Mary Hazel O'Hare, the equitable right to the income and principal of the fund created by the fourth clause of the will.

This case has been ably and exhaustively presented in the briefs and arguments. We have not attempted to consider seriatim or in detail. the numerous points raised by counsel. What we have said, however, we think has covered, in effect, all the questions argued. Having in mind the various rules of construction relied upon by counsel, in the light of the surroundings under which the will was executed, weighing all the circumstances for and against contingency, we have reached the conclusion that the will provided that the gifts to the grandchildren should vest in them at the death of their parents. This construction is plainly warranted by the language of the will and gives effect and carries into execution the testator's intention. The fourth clause, therefore, does not violate the rule against perpetuities.

The judgment of the Appellate Court is reversed, and the decree of the circuit court is affirmed. Judgment reversed.

CHAPTER XIV

GIFTS OVER UPON THE DEATH OF A PREVIOUS TAKER SIMPLICITER, OR WITHOUT CHILDREN, OR WITHOUT ISSUE SURVIVING THE FIRST TAKER

O'MAHONEY v. BURDETT.

(House of Lords, 1874. L. R. 7 Eng. & Ir. App. Cas. 388.)

The LORD CHANCELLOR [LORD CAIRNS]. My Lords, Jane Brooke, by her will, dated on the 18th of September, 1840, made a bequest of a sum of £1000 in the following words: "I bequeath to my sister, Grace L'Estrange, the widow of Colonel L'Estrange, of Moystown, the sum of £1000 in the 32 per cent. Irish stock, for her life, and after her death to her daughter, Grace L'Estrange. If my said niece should die unmarried or without children, the £1000 I here will to revert to my nephew, Colonel Henry L'Estrange, of Moystown;" and the testatrix appointed her nephew, John Burdett, her residuary legatee. Colonel Henry L'Estrange died before the testatrix, and so did Grace L'Estrange, the tenant for life of the legacy. The testatrix herself died on the 29th of March, 1848. Grace L'Estrange, the niece of the testatrix, was married in 1851 to the Appellant O'Mahoney, and died in 1871, and there was no child of the marriage.

The Appellant, under these circumstances, contends that the interest of Grace L'Estrange, the niece, otherwise O'Mahoney, became, upon her surviving both her own mother and the testatrix, the tenant for life, absolute and indefeasible. He contends, in other words, that by the expression, "if my niece should die unmarried or without children," is to be understood the death of the niece unmarried or without children, not at any time whatsoever, but only during the lifetime of the tenant for life. Of this opinion was the then Master of the Rolls in Ireland, who made an order to that effect on the 15th of July, 1859. But this order was reversed by the Judges in the Court of Appeal in Chancery in Ireland, who by an order dated the 17th of November, 1859, declared that the bequest of £1000 stock to Grace O'Mahoney was defeasible in the event of her dying unmarried or without children, at any time. Under this order the Respondent, as the representative of the residuary legatee, now claims to be entitled to the legacy.

In the absence of any authority to the contrary, I should entertain no doubt that the decision of the Court of Appeal in Chancery in Ireland was in accordance with the true interpretation of the will. A bequest to A., and if she shall die unmarried or without children to

B., is, according to the ordinary and literal meaning of the words, an absolute gift to A., defeasible by an executory gift over, in the event of A. dying, at any time, under the circumstances indicated, namely, unmarried or without children. And in like manner, a bequest, to X. for life, with remainder to A., and if A. die unmarried or without children to B., is, according to the ordinary and literal meaning of the words, an executory gift over, defeating the absolute interest of A. in the event of A. dying, at any time unmarried or without children.

In this particular will any light that is to be obtained from the context is not opposed to, but supports, the natural meaning of the words. The direction that if the niece should die unmarried or without children the £1000 is "to revert to my nephew Colonel Henry L'Estrange," appears to indicate that the legacy was to come back, or come away, from the niece after she had had the possession and enjoyment of it, rather than to imply that the only state of circumstances under which Colonel Henry L'Estrange could take, would be a state of circumstances under which the niece would have had no enjoyment of the legacy at all. In other words, the benefit intended for the nephew appears to me to be introduced through the medium of an executory limitation over after enjoyment by a previous taker, and not as an alternative gift to take effect, if at all, before the period of enjoyment com

mences.

But it is said that there is now established an absolute rule of law, or rule of construction, that where there is a gift for life, followed by a gift over of the capita, with a proviso that if the second taker shall die under age, or unmarried, or without children, there the death of the second taker, thus described, is to be taken to refer, not to death under those circumstances at any time, but to death under those circumstances before the tenant for life; and the case of Edwards v. Edwards [15 Beav. 357, 21 L. J. (Ch.) 324], decided by the late Master of the Rolls, is referred to as the authority for this proposition.

It is clear that the case of Edwards v. Edwards [15 Beav. 357, 21 L. J. (Ch.) 324], decided in the year 1852, could not establish any new rule of construction applicable to cases of this kind; and it is equally clear, looking at the report of the case, that the Master of the Rolls did not intend to establish any new rule of construction. His Honor endeavours to collect and classify the various decisions which have taken place as to construction of gifts over in the case of death, or in the case of death under particular circumstances; and the question is, whether that part of his judgment which deals with gifts, like the one before your Lordships, is a just expression of the principles to be deduced from decisions before that time.

As regards the question actually decided in the case of Edwards v. Edwards [15 Beav. 357, 21 L. J. Ch. 324], with reference to the will then before the Court, there were expressions in that will which may well have warranted the conclusion at which the Court arrived. The testator devised freeholds and leaseholds to his wife for life or widow

hood. Then part of the property he gave to his eldest son "for him and his heirs to possess immediately after his mother's death or marriage." He made similar devises and bequests to another son and to a daughter; and he continued: "If my wife shall remain my widow my trustees shall assign and transfer to each of my children their shares, immediately after her death, and as soon as they arrive at twenty-one years of age. * * * Farther, if one of my children shall die leaving no children, his or her share shall be equally divided between the other two." The direction here for an assignment and transfer, coupled with immediate and absolute possession upon the death of the tenant for life, may well have justified the decision confining the contingency, of death without children, to the life of the tenant for life.1

The Master of the Rolls, however, in his judgment, divides the cases on this subject into four classes. Upon the first three classes it is not necessary to do more than to point out that the conclusions drawn from them by His Honour do not appear to me in any way to lead up to the rule which he deduces from the fourth class of cases which he mentions. The first class of cases is that where there is a gift to A., and if he shall die to B. If in such a case the words are to be read literally, you have, in the first place, the absolute gift, and then a gift over in the event of death; an event not contingent but certain, and in order to avoid the repugnancy of an absolute giving and an absolute taking away, the Court is forced to read the words "in case of death" as meaning in case of death before the interest vests.2

1 "If the fund is vested in trustees, who are directed to distribute it at a certain time, so that the trusts then determine, and the legatees, who are to take upon the death of prior legatees without issue, are contemplated as taking through the medium of the same trustees, there is prima facie reason for restricting the death without issue to death without issue before the time of distribution. Galland v. Leonard, 1 Sw. 161; Wheable v. Withers, 16 Sim. 505; Edwards v. Edwards, 15 B. 357; Beckton v. Barton, 27 B. 99; Dean v. Handley, 2 H. & M. 635. See Smith v. Colman, 25 B. 217; In re Hayward, Creery v. Lingwood, 19 Ch. D. 470; In re Luddy, Peard v. Morton, 25 Ch. D. 394; Lewin v. Killey, 13 App. C. 783, P. C." Theobald on Wills (7th Ed.) p. 662.

"When there is a direction that a legatee is to have the absolute control of her legacy at a particular time, a subsequent gift over will be limited to take effect before that time. Clark v. Henry, 11 Eq. 222, 6 Ch. 588." Theobald on Wills (7th Ed.) p. 663.

2 "If there is an immediate gift to A. and a gift over in case of his death, or any similar expression implying the death to be a contingent event, the gift over will take effect only in the event of A.'s death before the testator. Lord Bindon v. Earl of Suffolk, 1 P. W. 96; Turner v. Moor, 6 Ves. 556; Cambridge v. Rous, 8 Ves. 12; Crigan v. Baines, 7 Sim. 40; Taylor v. Stainton, 2 Jur. N. S. 634; Ingham v. Ingham, I. R. 11 Eq. 101; In re Neary's Estate, 7 L. R. Ir. 311; Elliott v. Smith, 22 Ch. D. 236; In re Bourke's Trusts, 27 L. R. Ir. 573. See Watson v. Watson, 7 P. D. 10." Theobald on Wills (7th Ed.) p. 658.

"But, as a rule, when there is a gift to A. indefinitely, followed by a gift at his decease, A. will take only a life interest. Constable v. Bull, 3 De G. & S. 411; Waters v. Waters, 26 L. J. Ch. 624; Adams' Trust, 14 W. R. 18; Joslin v. Hammond, 3 M. & K. 110; Reid v. Reid, 25 B. 469; Bibbens v. Pot

With regard to the second class of cases, namely, gifts to A. for life,3 and if he shall die without children, over, the Master of the Rolls expresses himself thus: "In the second of the supposed cases there is a manifest distinction. There the event spoken of on which the legacy is to go over is not a certain but a contingent event. It is not in case of the death of A., but in case of his death without children; and here it would be importing a meaning and adding words to the will, if it were to be construed to import as a condition which was to entitle B. to take, that the death of A. without children must happen before some particular period. In these cases, therefore, it has always been held, that if at any time, whether before or after the death of the testator, A. should die without leaving a child the gift over takes effect, and the legacy vests in B. This is established by the case of Farthing v. Allen [2 Madd. 310], mentioned in Maddocks, but reported only in Jarman on Wills." [Vol. 2, p. 688.] My Lords, I agree with these observations, but I must observe in passing that I am unable to understand how it is not, to use the expression of the Master of the Rolls, "importing a meaning and adding words to the will," if you construe it to imply, as a condition which is to entitle B. to take, that the death of A. without children must happen before some particular period, any more where there is not, than where there is, a previous life estate. I may pass over the third class of cases as not bearing upon the question now before your Lordships.*

The fourth class of cases mentioned by the Master of the Rolls consists of those where a life estate is given, and the property is then

ter, 10 Ch. D. 733; Re Houghton, Houghton v. Brown, 50 L. T. 529; Re Russell, 52 L. T. 559." Theobald on Wills (7th Ed.) pp. 658, 659.

"In the case of realty, a devise to A. simply in a will before the Wills Act, and in case of his death over, would perhaps be construed as to A. for life, and after his death over. Bowen v. Scowcroft, 2 Y. & C. Ex. 640. See, however, Wright v. Stephens, 4 B. & Ald. 574. On the other hand, if the devise gives A. the fee, a gift over, in case of A.'s death, will be held to refer to his death before the testator. Rogers v. Rogers, 7 W. R. 541." Theobald on Wills (7th Ed.) p. 660.

3 In Edwards v. Edwards, 15 Beav. 357, at 361, the Master of the Rolls said: "The second case is that of a gift to A., and, if he shall die without leaving a child, then to B." This includes the case where the first taker is given an absolute interest. Fifer v. Allen, 228 Ill. 507, 81 N. E. 1105; Carpenter v. Sangamon Loan & Trust Co., 229 Ill. 486, 82 N. E. 418; People v. City of Peoria, 229 Ill. 225, 82 N. E. 225; Humane Society v. McMurtrie, 229 Ill. 519, 82 N. E. 319.

4 In Edwards v. Edwards, 15 Beav. 357, at 363, the Master of the Rolls said: "In the third class of cases, where a previous life-estate is given, the same rule which applies to the first class of cases applies equally, though the application of it fixes a different time. In the first case, the rule is, if A. die before the period of possession or payment, i. e. before the death of the testator, the legacy goes to B. In the case I am now considering, the rule is the same, namely, if A. die before the period of possession or payment, i. e. before the death of the tenant for life of the legacy, the legacy goes to B. This is the case of Hervey v. McLaughlin [1 Price, 264], cited with approbation by V. C. Wigram in Salisbury v. Petty [3 Hare, 92]. And it may further be observed, that the propriety of giving effect to the testator's words, making death a contingent event, by referring that event to the period when the