Page:Harvard Law Review Volume 9.djvu/271

243 THE RULE AGAINST PERPETUITIES, 243 testator's son, when said child should reach twenty-one, and to each child of his said daughter, if she should have any, the sum of from ^3,000 to $5,000, if such child should be temperate and of good capacity to manage the money, and from time to time there- after, as the wants and necessities of the children should require, the trustees should pay out such further sums as might be neces- sary ; and " when the youngest of said children shall arrive at the age of forty years, then all my estate shall be theirs, to have and to hold the same to them and their heirs, those of them of good and regular habits and of capacity to do business and manage property, to take care of and manage, as trustees, the portion or portions thereof belonging to those, if any, who are not then possessed of such habits and capacity ; but before said property shall vest in and be theirs, proper, suitable, and sufficient bonds or other secu- rity must be given by them for the payment of said sum or sums to my said daughter, if living, so long as she shall live, to my said son's widow if she shall then be living, so long as she lives and re- mains his widow, and also for the good and sufficient support of my said son so long as he shall live." The executors of the will brought a bill of interpleader against the testator's son and daughter, and against the trustees. The counsel for the trustees contended that the gift of the residue to the grandchildren was good ; the son's counsel, that it was bad. There were of course four questions : — First. To whom was the residue given } Second. Was the gift vested or contingent } Third. If contingent, was it too remote } Fourth. If too remote, what was the consequence ? The first two questions are questions of construction. The Chief Justice begins his opinion thus : ''The construction of the will, including the question whether the testator intended the re- mainder, which he devised to his grandchildren, should vest in them before they became entitled to a distribution of it, is determined as a question of fact by competent evidence, and not by rules of law." This mode of expression is peculiar to the learned Court. Whether correct or not, it is unnecessary for the matter in hand to consider. First. The first question the Chief Justice answers by saying that the residue is given to living grandchildren and the issue per stirpes of deceased grandchildren. This is a highly novel con- struction, but it is purely a matter of interpretation, and I do not dwell upon it.