Seaver v. Fitzgerald , 141 Mass. 401 ( 1886 )

O. Allen, J.

There is no objection, on the ground of remoteness, to a gift to unborn children for life, and then to an ascertained person, provided the vesting of the estate in the latter is not postponed too long. Loring v. Blake, 98 Mass. 253. Evans v. Walker, 3 Ch. D. 211. In re Roberts, 19 Ch. D. 520. Lewis on Perp. 417, 511. In all the cases cited by the demandant’s counsel, the gift over was to persons who might not be ascertainable with certainty within the allowed time. But the present case is not of that class. There was no contingency or uncertainty as to who should finally take. The estate or interest vested in the Augustinian Society, a body corporate, absolutely and at once, upon the testator’s death, subject to the preceding life estates. All that is required by the rule against perpetuities is, that the estate or interest shall vest within the prescribed period. The right of possession may be postponed longer.

Moreover, the devise was to take full effect, with right of possession, upon the death of the testator’s daughter Annie, if she should leave no child. In point of fact, she left none. Therefore, in this alternative contingency, not only the estate, but the right of possession, would certainly vest within the permitted period; and, as this contingency is the one which happened, the validity of the devise would not be affected by the consideration that the other contingency might be too remote. Jackson v. Phillips, 14 Allen, 539, 572, and cases there cited. On both grounds, the entry must be,

Judgment for the tenant.