Page:North Dakota Reports (vol. 1).pdf/242

 Charlemagne Tower, so far as real estate situated in this state is concerned. The plaintiff by this action seeks to recover $250 paid by him to defendants under a contract for the sale and purchase of real estate owned by Charlemagne Tower in his life-time, the defendants acting as trustees under his will in making the contract, and agreeing to refund to plaintiff the money in case they could not convey a perfect title. A deed having been tendered by defendants, as trustees, plaintiff refused to accept the same, claiming that while the deed was sufficient in form to transfer the title of the testator, the defendants had no authority to execute a deed of the property, for the reason that the trust which the will purports to create is void, as to real estate in this jurisdiction because in contravention of the statute against perpetuities. For this reason the plaintiff insists that he has a right to recover the $250 paid. The facts are all presented in the complaint. Defendants demurred, and had judgment on the demurrer in the court below, the court holding the trust to be valid. Was this error? The testator has assumed to create a trust as to his residuary estate in favor of his widow, children, and grandchildren. The will makes specific provisions as to the distribution of the income among the beneficiaries under the trust, which however are immaterial so far as the question presented by this appeal is concerned. This trust is to continue until the period for distribution of his estate shall arrive. That period is at the expiration of twenty-one years from and after the death of the last survivor of his children and grandchildren living at the time of his death. There is a provision that, in case it is unlawful to suspend the power of alienation twenty-one years after the death of all the children and grandchildren of the testator living at the time of his death, then the period of distribution shall be twenty-one years after the death of the last survivor of his children and grandchildren living at the date of his will. .This provision was unnecessary. The common-law rule regulating perpetuities permits the tying up of property for lives in being at the death of the testator, and twenty-one years in addition. It does not limit the lives to those of persons in being at the date of the will.