tainment of the class at that time, and the estates will consequently fail for remoteness in toto, if that event be too remote, notwithstanding some of the class may have reached the prescribed age before. 17 There has been a great deal of controversy in the English courts upon the question how far a gift to persons within the allowed limits fails by being mixed up with others, whose share cannot be ascertained so as to determine what would go to the former members of the class, without waiting beyond the limits allowed by the rule against perpetuities.18

14. The question of remoteness, as we have already intimated, is to be determined with regard to possible events, and not to those which actually occur. If, therefore, the limitation is to such persons, or upon such events, that it may extend beyond the allowed limit, the devise will be void for remoteness, notwithstanding the fact that it may, or does, occur within the limits allowed by law.19

15. Trusts of personal estate, attendant upon a devise of land, will not always be valid, if limited to the same persons, especially where the vesting in any tenant in tail is provided not to take effect until he shall attain the age of twenty-one. 20 But if such trust be for the purpose of discharging an encumbrance upon the estate, it will be maintained.21

"Blagrove v. Hancock, 16 Sim. 371; Walker v. Mower, 16 Beav. 365; Leake v. Robinson, 2 Mer. 363.

18 Arnold v. Congreve, 1 Russ. & My. 209; Griffith v. Pownall, 13 Sim. 393; Greenwood v. Roberts, 15 Beav. 92; Lord Dungannon v. Smith, 12 Cl. & Fin. 546; Merlin v. Blagrave, 25 Beav. 125; Storrs v. Benbow, 3 DeG., M. & G. 390; Seaman v. Wood, 22 Beav. 591; Cattlin v. Brown, 11 Hare, 372; Vanderplank v. King, 3 Hare, 1; Webster v. Boddington, 26 Beav. 128; Wilson v. Wilson, 4 Jur. N. s. 1076.

19 Church in Brattle Square v. Grant, 3 Gray, 142; Jee v. Audley, 1 Cox, 324; Hodson v. Ball, 14 Sim. 558; Lett v. Randall, 3 Sm. & G. 83.

20 Lincoln v. Newcastle, 12 Vesey, 218, 232, 233; Dungannon v. Smith, 12 Cl. & Fin. 546.

a Southampton v. Hertford, 2 V. & B. 54; Briggs v. Earl of Oxford, 1 DeG., M. & G. 363; Gilbertson v. Richards, 6 Jur. N. s. 672.

16. The persons to take, and the interests to be taken, must be such as necessarily are to be ascertained within the proper period.22 And in deciding on the question of remoteness, the state of circumstances at the testator's death, and not at the date of the the will, is to be regarded.23

17. In regard to provisions for grandchildren of the testator, there is less danger of transgressing the rule against perpetuity than in regard to the children and grandchildren of another person, since one's own children must be in esse at his own decease, and their children also at their decease; so that a limitation to one's own grandchildren, not protracted as to vesting beyond their ages of twenty-one, will be sure to come within the rule, while the same rule will by no means hold as to the grandchildren of another.24

18. But the testator may make his limitation depend, in terms, upon the happening of events after the date of his will, or even after his death.25

19. It seems to be settled that a devise to an unborn person for life is valid, and that an executory devise to the issue of such unborn person will be valid, if the will provides that in order to take they must come into existence during the continuance of lives in existence, and twenty-one years.26 And a remainder after the termination of such life-estate is valid, if made in favor of persons competent to take.27

20. Alternative limitations may be so framed as to be good

22 Curtis v. Lukin, 5 Beav. 147, 155.

"Tregonwell v. Sydenham, 3 Dow, 194, 215, and numerous other cases cited in the latest English edition of Jarman, vol. 2, 257, and note, most of which have been before referred to, the latest of which is the opinion of Lord St. Leonards, in Monypenny v. Dering, 2 DeG., M. & G. 145, 170. See also Dungannon v. Smith, 12 Cl. & Fin. 546.

25 Deerhurst v. St. Albans, 5 Mad. 232; s. c. nom. Tollemache v. Coventry,

2 Cl. & Fin. 611; s. c. 8 Bligh, 547.

1 Jarman, 262; Cadell v. Palmer, 7 Bligh, 202; s. c. 1 Cl. & Fin. 372.

1 Jarman, 264. But see Cooke v. Bowler, 2 Keen, 54.

or bad, according to the event; and if the contingency which is valid occur, the estate will be held legal, notwithstanding the other alternative may be too remote.28 And it makes no difference in this respect that the alternatives are not distinctly expressed, but involved in words which apply equally to both limitations.29

21. One cannot empower trustees to limit an estate beyond the limits of the rule against perpetuities, but the persons appointed to take must have been capable of taking directly under the will.30

22. The American courts have followed the English rule against perpetuities, except that in some instances it has been qualified by statutory enactments. A suspension of the vesting of real estate by devise, during the lives of the testator's widow and children, is valid.31

23. It has been decided in a recent English case, that a direction in a devise of lands to a college, that the same should be leased to his wife's relations forever, at two thirds its value, was a void direction, as tending to perpetuity, and that consequently the devise took effect absolutely in the college in the first instance.32

24. A gift, the income of which is to be applied to keeping the tombs of the testator and his family in repair, is void, as tending to perpetuity, and if so connected with a gift over as to be inseparable, both will be held void.33

25 Longhead v. Phelps, 2 Wm. Bl. 704; Leake v. Robinson, 2 Mer. 363; Goring v. Howard, 16 Sim. 395; Minter v. Wraith, 13 id. 52; Monypenny v. Dering, 2 DeG., M. & G. 145; Cambridge v. Rous, 25 Beav. 409.

20 Challis v. Doe, 18 Q. B. 231; Burley v. Evelyn, 16 Sim. 290; Proctor v. Bishop of Bath and Wells, 2 H. Bl. 358.

Marlborough v. Godolphin, 1 Ed. 404; Robinson v. Hardcastle, 2 T. R. 241, 380, 781.

Griffen v. Ford, 1 Bosw. N. Y. Sup. Ct. 123.

34 Attorney-General v. Greenhill, 9 Jur. N. s. 1307. Fowler v. Fowler, 10 Jur. N. s. 648.

CHAPTER XVIII.

THE ADMINISTRATION AND MARSHALLING OF ASSETS.

1. These questions generally arise, not among creditors, but among other claimants to the estate.

2. It often becomes necessary to give a legatee or devisee, or the heir, the claim of a creditor, by way of indemnity.

3. Courts of probate pursue the law, in the distribution of assets. Courts of equity do not always.

n. 1. The distinction between legal and equitable assets discussed at length. 4. Courts of equity regard all debts equally entitled to payment.

equity.

Equality is

5. They enforce this rule upon the ground that he who invokes their aid must submit to their rules.

6. Trust estates, capable of identification, do not constitute assets.

7. The direction in the will that all just debts shall be paid, will not affect the order of distribution.

8. The views of Lord Chancellor Campbell upon this point.

9. The testator has the right to direct what fund shall pay debts.

10. Many eminent judges have regretted that this should depend upon anything short of an express direction.

11. The rights of creditors cannot be affected by any direction of testator.

12. Estates not transmissible except by way of appointment do not become assets until after such appointment.

13. Giving legatees and others the rights of creditors by way of indemnity.

14. The marshalling of assets among different classes of creditors.

15. The mortgagee of real estate entitled to a dividend upon his whole debt, without relinquishing his security. Query?

16. The chief importance of this inquiry is in regard to conflicting claims arising between the different legatees and devisees, or between them and creditors.

17. Descended estates are liable before those devised.

18. Statement of the rules of law applicable to the subject more in detail.

(1). The personal estate the primary fund for the payment of debts.

(2). Real estate specifically set apart for the payment of debts.

(3). Real estate descended to the heir.

(4). Real estate devised.

n. 33, 34. Some American cases discussed. Order of payment of legacies.

19. If the executor pay debts out of his own money, he may reimburse himself out of any assets in his hands legally applicable to the payment of debts.

20. Devise of real estate, even in the residuary clause, regarded as specific.

21. Question, as between general pecuniary legatees and the residuary legatee.

22. The mode of charging legacies upon real estate.

23. As between a specific devise of real and personal estate.

24. The question as between a specific devisee of real estate, and real estate passing by the residuary clause, finally determined in the House of Lords.

25. Late decision by Sir J. Romilly upon the point.

26. Where an encumbrance rests upon an estate, at the time of purchase, the land is the primary fund for payment. Other points in American cases.

27. The same rule extends to all estates devised or descended.

28. It is not sufficient to shift the burden, that the testator might have been compelled to pay the debt.

29. By statutes in England and New York all estates pass by devise or descent, subject to all encumbrances.

30. The degree of certainty required to change the legal intendment as to the burden.

31. Judge Hare's statement of the rule. Exceptional cases in America.

§ 74. 1. THE administration and marshalling of assets is a subject of interest always, and sometimes of considerable difficulty and uncertainty. It may be assumed as an universal rule in the American courts, and the rule is the same now in England, that all estate of a deceased person, of every kind, is liable for his debts, and no controversy therefore can arise between the creditors and other claimants to an estate. But these questions now arise chiefly between different claimants to the residuum of the estate after the payment of the debts.

2. And in many cases where the creditors of an estate enforce the collection of debts against specific property, either real or personal, upon which they have a specific lien by way of mortgage, or for an unpaid balance of purchase-money, it becomes necessary, in order to indemnify the party to whom such property is specifically bequeathed in the will, or upon other grounds, to give such party, whose general rights are thus curtailed, an equitable contribution from others interested in the distribution of the estate, so as thereby more fully to equalize the burden