Perpetuity - Definition - Law Dictionary Home Dictionary Definition perpetuity

Definition :

Perpetuity, concerns rights of property only, and does not affect the making of contracts, which do not create rights of property, Ram Baran Prasad v. Ram Mohit Hazara, AIR 1967 SC 744: (1967) 1 SCR 293.

Is a future limitation, whether executory or by way of remainders, and of either real or personal property which is not to vest until after the expiration of, or will not necessarily vest within the period fixed and prescribed by law for the creation of future estates and interests, Walsh v. Secretary of State for India, (1863) 10 HLC 367.

Perpetuity, unlimited duration; exemption from intermission or ceasing, where, though all who have interest should join in a covenant, so that they could not bar or pass the estate. It is odious in law, destructive to the common wealth, and an impediment to commerce, by preventing the wholesome circulation of property.

The rule against perpetuities, or the doctrine of remoteness, applies to the corpus of property whether real or personal, and whether limited by deed or will, and may be thus stated: that the vesting of property cannot be postponed, or the alienation of it restricted, beyond any number of lives in being [whether interested or not is quite immaterial [Duke of Norfolk's Case, 3 Cha Ca 1; 33 Car. 2, called 'the Case of Perpetuities'; and Stephens v. Stephens, Ca Tem Talb 228 (1736)], and twenty-one years from the death of the surviving life, without reference to the infancy of any person who is to take under the limitations, or of any other person, allowance for gestation being made only in those cases where it exists. If proof of the extinction of the lives mentioned is impracticable before the property can vest, the trust may be avoided, Re Villar, (1929) 1 Ch 243.

The rule requires a limitation, whether of an absolute or partial interest, positively and necessarily to vest within the period prescribed, and not to depend upon a mere possibility. Moreover, not only the person to take, but also the precise amount of his interest, must be ascertained within the prescribed period, Blight v. Hartnoll, (1881) 19 Ch D 294; Re Thompson, (1906) 2 Ch 202.

In regard to limitations and interests which take effect under or by virtue of any instrument executed before 1926 or any will of a person who died before that date, and subject to s. 163 of the (English) Law of Property Act, 1925, infra, to all limitations after that date, if the rule be exceeded, the limitation is wholly void and cannot be validated by the happening of any event subsequently to its creation. When a limitation might have included objects too remote it is invalid, notwithstanding the objects may actually be ascertained within the verge of the rule. Further, limitations following upon a limitation void for remoteness are themselves void, whether within the line of perpetuity or not. But the Law of Property Act, 1925, s. 163, declares that:

Where in a will, settlement or other instrument the absolute vesting either of capital or income of property or the ascertainment of a beneficiary or class of beneficiaries, is made to depend on the attainment by the beneficiary or members of the class of an age exceeding 21 years and thereby the gift to that beneficiary or class or any member thereof or any gift over, remainder, executory limitation or trust arising on the partial or total failure of the original gift is, or but for this s. would be, rendered void for remoteness, the will, settlement or other instrument shall take effect for the purposes of such gift, gift over, remainder, executory limitation, or trust as if the vesting or ascertainment aforesaid had been made to depend on the beneficiary or member if the class attaining the age of 21 years and that age shall be substituted for the age stated in the will, settlement or other instrument.

The statutory modification only extends to instru-ments executed after 1925 or to any appointment or bequest by will of a person dying after 1925.

The period presented by the rule is to be computed from the date or delivery of the deed creating the limitation, or from the testator's death, when given by will, that being the period at which a will takes effect, while a power in favour of a special class or class is considered to have been created by the instrument conferring the power and not by the instrument exercising it.

The following limitations are exempt from the per-petuity rule:-

(1) A limitation expectant upon an entail, for it can be destroyed by barring the entail; but should the entail be preceded by a term for years, and its trusts be postponed until the failure of the issue in tail, they will be void, because limited to arise on an indefinite failure of issue.

(2) Limitation the nature of whose subject-matter is such as to render it necessary for them to take effect, if at all, within the period prescribed by the perpetuity rule.

(3) Limitations in mortmain, and to charitable uses. Church property is not embraced by the law of perpetuity.

(4) Perpetuities allowed or created by Act of Parliament, such as Blenheim, settled upon the renowned Duke of Marlborough and his posterity (3 & 4 Anne, c. 6; 4 Anne, c. 4; and 5 Anne, c. 3); and Strathfieldsaye, on the great Dike of Wellington and his descendants (41 Geo. 3, c. 59; 42 Geo. 3, c. 113; and 54 Geo. 3, c. 171). See also as to the effect of an Act of Parliament, Manchester Ship Canal Co. v. Manchester Racecourse Co., (1900) 2 Ch 352; (1901) 2 Ch 37.

(5) Express exceptions set out in the (English) Law of Property Act, 1925, s. 162, relating to rents, rent-charges and rights to land or relating to land and certain rights or remedies connected therewith, and see also s. 7, ibid. (Determinable fees).

Closely connected with the rule against perpetuities was another and independent rule, commonly known as the rule against double possibilities, or the rule in Whitby v. Mitchell, (1890) 44 Ch D 85, viz., that after an estate has been limited to an unborn person for life, a remainder cannot be limited to any child of that unborn person, and this rule applies to equitable as well as to legal estates; see Re Nash, 1901, 1 Ch 1. This rule has been abolished in regard to the instruments coming into operation after 1925 (Law of Property Act, 1925, s. 161). See POSSIBILITY.

For the general law of perpetuities, consult the works of Lewis (1849); Marsden (1883); and Prof. Gray (Boston, U.S.A., 2nd Edn. 1906); and as to option of purchase in a lease, and the present restrictions on the creation of a lease in futuro, see OPTION and LEASE.

Compare also title ACCUMULATION.