The Rule of Perpetuities and Powers of Sale

The rule against perpetuities is usually stated as prohibiting the creation of future interests or estates, which by possibility may not become vested within a life or lives in being and twenty-one years, together with the period of gestation, where the latter is necessary to cover cases of posthumous birth. It is not enough that the estate may possibly or even probably vest within the time limited by the rule, but the court must be able to see by looking at the document creating the estate that the estate will necessarily vest within the time. The Rule against Perpetuities applies in the case of equitable as well as legal interests. Therefore, the creation of a trust or equitable interest, which may not vest in the object of the trust within the time limited by law for the vesting of legal estates, will be nugatory.

It is also well settled that the Rule against Perpetuities applies as well to powers over property as to interests and estates therein. It is the purpose of this note to discuss some of the problems involved in applying the Rule against Perpetuities to the case where a trust has been created by will by which the trustees are given a power of sale. In an effort to eliminate much of the confusion and inconsistencies winch seem to have invaded this branch of the law, a classification of the cases according to the situs and quantum of the interests devised has been attempted.