There is a kind of property, composed of things quae ipso usu consumuntur, which cannot be transferred in remainder. There can be no limitation after a life interest in such articles. They are cases which do not depend on the construction of wills, but on the character of the property itself. They are limited to articles where "the use and the property can have no separate existence."

Porter v. Tournay, 3 Ves. 311, and Randall v. Russell, 3 Meriv. 190, are cases of that character.

But it must be borne in mind that property of that kind is the subject of no such absolute rule. The intention of the donor must control. If it be given to the first taker, with the evident intention that it was for his personal consumption, any gift over would be repugnant and void. The fact, however, that the property given was perishable, would not of itself authorize the finding of the intention to make the first gift absolute. It might be sold, and the proceeds become the subject of the gift over.

Bule v. Kingston, 1 Meriv. 314, was an action by the claimant of property under a will assuming to give a life interest to one person and the remainder to another. The testatrix gave £1,500 to J. E. T., his executors, etc., in trust for her sister C. W. for her separate use, and all other sums due to her. The will then contained this provision: "What I have not otherwise disposed of, I give to my said sister the unlimited right of disposing of by will, excepting to E. P.; and in case my said sister dies without a will, I give all that may remain of my fortune at her decease to my godson, William Ashby." This bequest to William Ashby was held void for repugnancy to the gift to Charlotte Williams.

There seems to be no doubt, that where there is an absolute gift, a legacy or devise over is void as being inconsistent with the absolute estate previously given.

Pinckney v. Pinckney, 1 Bradf. 271.

The point open to dispute is, whether the first gift was intended to be absolute.

See also Marshall v. Rives, 8 Rich. 85.

SECTION V.

THE PERIOD OF LIMITATION; HOW MEASURED; THE ULTERIOR LIMI TATION; THE PARTICULAR LIMITATION; FIXED BY CERTAIN CONTINGENCIES OR CONDITIONS; WHAT MUST BE THEIR CHARACTER; MUST OPERATE AS CONDITIONS PRECEDENT TO THE VESTING OF THE ESTATE OF INHERITANCE; CASES AND AUTHORITIES CONSIDERED.

FIRST. THE ULTERIOR LIMITATION, BY WHAT PERIOD FIXED.

SECOND. THE PARTICULAR LIMIT, HOW DETERMINED.

THIRD. THE CONTINGENCY OR CONDITION MUST OPERATE AS A CONDITION PRECEDENT TO THE VESTING OF THE ESTATE OF INHERITANCE, AND CANNOT BE MADE TO OPERATE TO DIVEST THE ESTATE AFTER IT IS ONCE VESTED.

FIRST. THE ULTERIOR LIMITATION, BY WHAT PERIOD FIXED.

We have before seen, that the limitation over must not exceed in duration a life or lives in being and twenty-one years thereafter, at common law, to be measured from the time of the creation of the contingent interest. The time when the estate is to vest must be within that period. If it may possibly not be determined within that period, or in other words, may be possibly postponed beyond it, the limi- tation over, as we have seen, is void for remoteness. Some of the States have shortened the period, but have not changed the mode of fixing it. It is in all the States limited to a life or lives in being, and never merely by years or dates. New York seems to have the shortest period, it being only for two lives.

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It not be uninstructive to bear in mind the causes which led to the adoption of this mode of limiting the period. Originally, as we have seen, tenants in fee had no right to alien their estates without the consent of their landlords. Then came the commercial revolution, which resulted in giving the right of alienation to every tenant in fee. To that there was this rebound, that the tenant might suspend the right of alienation by creating contingent interests, and thus leaving the estate itself in abeyance for a time. The

tenant could not be restricted in his right to alien, but the estate could be left without a tenant in fee for a limited period; the consequence of which was, a suspension of alienation, for the very potential reason that there was no one who could say he owned the estate.

The reasons put forth for this suspension of ownership, and the consequent suspension of alienation, were the necessities and wants of families of children; the infancy of some and the helplessness and improvidence of others. It seemed hard to deny to a man the right to so fix his own property that it might become an unfailing source of support for helpless and improvident children. The courts were finally induced to sanction the practice to the extent of meeting those necessities. But they said, "you must not go beyond a life or lives in being and twenty-one years thereafter. That period will embrace all the members of your family, and give them time to attain the age of majority." This was judicial legislation and became a part of the common law. The New York legislature were less indulgent as to the period. They shortened up on the common law period, and allowed these precautionary provisions to embrace only two lives in being, which might include only a small part of the family.

One of the important questions which arose after this period of limitation was established, was whether a child unborn, but in progress of gestation at the death of the testator, was to be counted among lives in being at that time. Among the early cases wherein this question was considered was Reeve v. Long, 1 Salk. 228.

There was a devise of land to the testator's nephew, Henry Long, for life, remainder to his first son in tail made, and so on to the second and third sons. For default of such issue, then to another nephew, Richard Long, and to his sons in the same order.

Henry married and died without issue, leaving his wife enciente with a son.

Richard took possession of the premises. Afterward the son of Henry was born, and by his guardian entered on

Richard. The latter then brought ejectment, and the court of King's Bench decided in his favor.

The court resolved: "1. That the remainder to the first son of A. is a contingent remainder, and must take effect during the particular estate of A., or, eo instanti, that it determines; that by consequence this remainder to the son became void by the death of the tenant for life before A. had a first son.

"2. That this was such a default of issue, or a dying without issue, that instantly the remainder limited over to B. vested in him, and he became seized in possession; and this cannot be defeated, nor the estate fetched back again, though A. has a son born afterwards."

This judgment was afterwards reversed by the House of Lords, that tribunal holding that the son unborn at the death. of the testator should be regarded as among lives in being at that time.

The question was again passed upon in Doe v. Clark, 2 H. Bl. 399. The question there arose in this way: "There was a devise to B. for life, and after his decease to all and every such child or children of B. as shall be living at the time of his decease." The question was whether a posthumous child of B. should be treated as living at the death of the testator. It was decided that the child should be so regarded.

Lord Ch. J. Eyre thus stated the rule: "I hold that an infant en ventre sa mere, who by the course and order of nature is then living, comes clearly within the description of 'children living at the time of his decease.""

The same rule was declared in Stedfast v. Nicoll, 3 John. Ca. 18. It was held in this case that the posthumous son took the estate in remainder, in the same manner as if he had been born in the life-time of his father.

This doctrine was made the law in England by a declaratory act, providing that posthumous children should be enabled to take, as if born during the life of their father. 10 Wm. 3 ch. 16. It has ever since been the established law of England.

So in New York, there is a statute provision that, “where a future estate shall be limited to heirs or issue, or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parent." 1 R. S. 725, §30. And by another provision, "relatives of the intestate, begotten before his death, but born thereafter, shall in all cases inherit in the same manner as if they had been born in the life-time of the intestate, and had survived him.” 1 R. S. 754, § 18.

The same rule seems to prevail in all the other States. See Den v. Flora, 8 Ired. 374; Morrow v. Scott, 7 Geo. 535.

This construction of the rule necessarily added to the twenty-one years, which was allowed for a child born to mature, nine months more for the period of gestation. Hence we have the common law rule of a life or lives in being, and twenty-one years and nine months thereafter, as a period beyond which contingent interests must not be limited.

But no term of years, independent of certain lives in being, is allowed as a limit. It is too remote, because it may exceed a life or lives in being when the contingent interest is created.

Boynton v. Hoyt, 1 Denio, 53

Where the common law period of limitation prevails, of a life or lives in being, and twenty-one years thereafter, a provision in the instrument creating the contingent interest, limiting the period to any number of years, after the prescribed life or lives, short of twenty-one, will be valid. At least it has been so held in England.

In Cadell v. Palmer, 1 Clark & Finnelly, 372, 421, 423, there was a limitation by way of executory devise, not to take effect until twenty years from the decease of the survivor of twenty-eight persons named, who were living when the will was made and when the testator died.

It was contended, on the one side, that the law did not permit a limitation of a fixed term of years. But the court decided that it was valid, when interposed in the place of the twenty-one years allowed by the common law rule. It was