§ 9. There was one inconvenience attending limitations of this kind, namely, that the tenant for life might bar and deftroy the remainders limited to his first and other fons by the alienation or forfeiture of his estate; but the invention of trustees to preserve contingent remainders, of which an account has been Tit. 16. ch. 7. already given, proved an effectual remedy to this abuse. § 10. Another mode of protracting the power of alienation was invented long after, by limiting the estate to the father for ninety-nine years, if he fhould fo long live, and vefting the freehold in trustees during his life, upon which there was a limitation to the first and other fons (then unborn) of the father, fucceffively in tail; by which means the power of barring the intail was in general protracted, until the death of the father. f. 1. 2. 24. Tit. 16. eh. 7. f. 20. 3 Atk, 136, be rendered unalienable § 11. In confequence of the general admiffion of Eftates may thefe modes of fettling eftates, it became fully eftablished that real property might be rendered unalien able during a life in being and twenty-one years after. for Lives in being and 21 Years after. From one life the courts gradually proceeded to feveral lives in being at the fame time, for this in fact only amounts to the life of the furvivor; and as it may 3 P. Wms. happen that a tenant for life, to whofe unborn fon 265. an estate tail is limited, may die leaving his wife enfient, an allowance has alfo been made for the time of geftation of a pofthumous child. $ 12. It Forreft. R. 228. Vide Lade v. This Rule is applied to Springing and shifting Ufes. Tit.16. ch. 5. Ca. 137- S 12. It may, therefore, be now laid down as a certain rule of law, that an estate may be rendered unalienable during the existence of a life, or any number of lives in being, and nine months, and twentyone years after; but all reftraints on alienation which exceed this period, are void. And, in the cafe of deeds, the limitations are alfo void. § 13. We have feen, that in those conveyances which derive their effect from the ftatute of ufes, fpringing and shifting uses might be created to arise upon or after a limitation in fee-fimple, and, it having been determined, that neither a fine or recovery, or any other act of the first taker, fhould defeat fuch springing or shifting use, it became therefore neceffary to ascertain the time when fuch use should become vested; for, otherwife, fpringing and shifting ufes might be limited on fuch remote contingencies, as to create perpetuities. It is, therefore, now fully established, that if an eftate in fee-fimple is first limited, the event on which the springing or fhifting ufe is to arise must be such, that it must either take place, or become incapable of taking place, during the existence of one or more life or lives in being, and nine months and twenty-one years after. S 14. Thus, if there be a limitation of a use to A. and his heirs, with a provifo, limiting the estate to B., if A. dies without iffue living at the time of his death, or if A. and B. both die without iffue living at the decease of the furvivor of them, or, if A. has no child who attains the age of 21, or if neither A. nor B. have a child who attains the age of 21, it is a good pro 9 vifo ; vifo; for thefe events are fuch, that they must happen, or become incapable of happening within the period above mentioned. But, for the fame reason, such a provifo would be bad, if limited to take effect after an indefinite failure of iffue of C. a ftranger, as that event might not happen till iong after that period. Davies v. Show. Parl. § 15. Where husband and wife levied a fine of the wife's estate to the use of the heirs of the body of the husband on the wife begotten, remainder to the huf- Ca. 104. band in fee, the limitation to the heirs of the body of the husband was held to be void as a contingent remainder, for want of a preceding eftate of freehold to fupport it. And Mr. Fearne obferves, there was no fort of ground to maintain the validity of the limitation to the right heirs of the hufband, as a future ufe, as it was poftponed to a general failure of heirs of the body of the husband, by the wife, which was too remote. § 16. With refpect to contingent ufes arifing from the act of the parties, that is, by the execution of powers of revocation and appointment, it has been ob Cont. Rem. 429. Ho!craft's 488. Fearne And alfo to Ufes arifing from Ap pointments. served, that an appointment operates under the statute of ufes, not as a conveyance of the land, but as a fub- Ante ch. 16. ftitution of a new ufe in the place of a former one, and a defignation of the perfon in whom the new use is to veft; and the perfon taking under a power, derives his eftate, not from the perfon executing the power, but under the original conveyance by which the power was created, in the fame manner as if the use appointed had been originally limited to him in VOL. IV. K k fuch fuch conveyance; and that the ufe, when appointed by the person executing the power, is fed by the seifin of the trustees to uses in the fame original conveyance. From these principles, it follows, that the uses created by an appointment under a power, must be fuch as would have been good, if limited in the original deed. And that, if fuch ufes would have been void, if limited in the original deed, as too remote and tending to a perpetuity, they will also be void, if limited by an ap pointment under a power. S 17. John Duke of Marlborough devised all his eftates to trustees and their heirs, to the use of his daughter Harriet Countefs of Godolphin for life; remainder to Lord Ryalton her eldest son for life; remainder to trustees to preferve contingent remainders; remainder to the firft and other fons of Lord Ryalton in tail male; remainder to Lord Robert Spencer (eldest fon of his fecond daughter Ann Countess of Sunderland) for life; remainder to trustees to preserve contingent remainders; remainder to his first and other fons in tail male; remainder to Charles Spencer (afterwards Duke of Marlborough) in the fame manner; and inferted a claufe in his will, empowering his truftees, on the birth of each fon of the faid Lord Ryalton, Lord Spencer, and Lord Charles Spencer, to revoke and make void the respective ufes limited to their refpective fons in tail male, and, in lieu thereof, to limit the premises to the use of fuch fons for their lives, with immediate remainders to the refpective fons of fuch fons, severally and refpectively, in tail male: and he gave his household furniture, gold, plate, &c. in the fame manner. Upon an application to the Court of Chancery by the trustees, for further directions in the carrying the trufts of the will into execution, a queftion having arifen touching the power given in the will to revoke the uses limited to the first and other fons in tail, and to limit the premises to the use of such fons for life only; the Lord Chancellor declared, that the clause of revocation and fettlement in the will, as tending to a perpetuity, and repugnant to the estate limited, was void and of no effect. On an appeal from this decree to the Houfe of Lords, it was argued, on behalf of the appellants, that the fame policy of the law, which will not permit estates to be fixed unalienably in one family for ever, will fupport and protect the means of preferving them till they come to that point, at which the mischiefs of a perpetual restraint may commence; the one being as neceffary an incitement to industry as the other. This point, how ever, is difficult to fix. It has not yet been fixed by any legislative or judicial act or authority. It has, indeed, been determined, that estates may be made unalienable for the duration of any number of lives in being, and for 21 years beyond, and, in fome instances, ftill farther: but no judicial determination has said what are the precife bounds, which fhall in no inftance, nor by any means, be exceeded. The particular mode of conveyance, though it may be new, or, according to the expreffion in the law-books, of the tendency of Kk 2 the |