1 CHAPTER XXVII. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS Rules of law and equity the same, in reference to remoteness, when limita tions complete. But if limita tions executory only, equity will modify them, with regard to laws against remoteness. IT has been before remarked, and the whole course of this Treatise has illustrated the observation, that there is no difference between the Courts of law and equity, in the administration of the rules restricting the remoteness of Executory limitations. Nor will a Court of equity, where the limitations of trusts are complete in themselves, or, as it is termed, executed, mould, alter, or put a peculiar construction upon them, in order to evade, or preserve the limitations from the operation of, the Rule against Perpetuities: the ordinary principles of interpretation are adhered to, without regard to any consequences that may ensue from the application of a rule, extrinsic to the particular question of construction, and which application must follow, and take place as a consequence of, a construction, previously determined on or adopted, upon grounds peculiar to itself, and of individual and independent force. But, where the settlor or testator has purposely framed his dispositive scheme after the character, rather, of a declaration, as to what are his general intentions and designs, than, of a series of formal and sufficient limitations, in themselves actually definite, and by their author intended to be complete, then, he seems designedly to leave the office of carrying out and giving effect to his dispositions, to that jurisdiction, which takes cognizance of matters of trust and agreement, and seeks to discover the real intentions of parties, in their dispositions of, and contracts respecting property. In expressly directing the execution of a formal settlement, or, in leaving such a direction to necessary implication, (either, from the circumstances of the case, or, from the tenor of the instrument,) an intention, by inevitable construction, appears, that what is deficient, informal, and wanting in precision, in the first instrument, should be supplied, remedied, and improved, in the settlement to which it is introductory. And, further, inference is deducible from this limitation of trusts in the executory form, that the settlor or testator intends his dispositions to be carried out, not only, more formally, but, also, with a stricter regard to legal rules and technicalities; and, yet further, that, should his general scheme of disposition indicate any tendency to a violation of those rules, it may be effectuated as far only as they will permit, and in a manner, to insure the validity of the whole series of limitations, created in pursuance of his general directions, in point of legal accuracy. To suppose a person declaring trusts of this executory kind, desirous of having them specifically carried out, in a manner that would lead to their general or total failure, is to make him desire to do, and not to do, at the same time: an absurdity, to which, not even a manifest tendency to illegality, in the scope of his dispositions, can reconcile us, and which must, therefore, be avoided, by completing his settlement, as near as may be to his intentions, conformably with the rules of law. Of this kind, plainly, are trusts executory, evincing an intention, on the part of their author, to settle his property, in a manner, which would expose his dispositions, to objec¬ tion on the score of remoteness. If the direct object and effect of his limitations be not the creation of a perpetuity, but, remoteness attach only to some remoter link in the chain of limitations, there cannot be a doubt, that à Court of equity will carry into effect the general intention, and, Case of Bankes v. Le especially, where the expression of that intention is accompanied by some reservation, as to an observance of the limits prescribed by law. To this effect, is the decision in the case of Bankes v. Baroness Le Despencer, (p) where T., lord Le D., being seised in fee of the ancient barony of lord Le D., by indenture, together with his son, T. S., (heir to the barony,) conveyed certain real estates, to trustees, to the use of T., lord Le D., for life, with remainder, to the use of T. S., for life, with remainder, to the use of the trustees, in fee, in trust, that they should, after the decease of the survivor of T., lord Le D., and T. S., convey, settle, and assure the estates, to the use of such persons, for such estates, and with such powers, and in such manner, in all respects, consistently with the intent of T., lord Le D., and T. S., that the same estates should, so far as the law would permit, be strictly settled, so as to go along with the dignity of Le D., so long as the person possessed of the same dignity should be a lineal descendant of the said T., lord Le D., and be held and enjoyed by the person for the time being possessed of the same dignity, and being such lineal descendant as aforesaid; and that, during every suspension or abeyance of the same dignity, within the limits prescribed by law for strict settlements, the rents and profits of the same premises should be equally divided amongst the co-heirs, per stirpes, of the person or persons respectively, by reason of whose death or deaths without issue male, such suspension or abeyance should be, for the time being, occasioned, as by three counsel in the law, therein specified, should be advised and directed; with a provision, that the trustees should seek the assistance of the Court of Chancery, in case of the referees declining the reference, or not agreeing as to the mode of settlement. The defendant, the baroness Le D., was the only child of T. S., who died before T., lord Le D. On the death of the latter, a reference was made to the counsel named, to ap (p) 10 Sim. 576. prove of a settlement to be made in pursuance of the trusts of the indenture above mentioned; but, they not agreeing as to the form of the settlement, a bill was filed by the trustees, praying, that the trusts of the indenture might be carried into effect, and that a proper settlement might be executed under the direction of the Court. It was argued, on behalf of an only surviving son of T., lord Le D., that it was impossible to give effect to the intention of the parties, without creating a perpetuity: that if the dignity of Le D. were to become in abeyance, in consequence of a former lord having died, leaving only daughters or the issue of daughters, it might continue in abeyance for more than two-hundred years; and according to the language of the deed, the trust for the co-heirs of the former lord was to continue for the same length of time, and on the abeyance being determined, the estates were to go back with the title: that the intention, expressed with regard to the settlement to be made, was one and entire, and, therefore, that, if it in part exceeded the limits allowed by law, and could not, consequently, be wholly carried out, no effect could be given to any portion of the intention. It was said, on the other hand, that where a trust was executory, the Court, if it could not give effect to it in toto, must carry it out so far as it could, consistently with the rules of law and in equity: that, as the parties to the settlement had only required, that their estates should be settled according to a certain course of limitation, so far as the rules of law and equity would permit, the Court, if it made the settlement so far as those rules would allow, did effectuate the intention of the parties. Sir L. Shadwell, V. C., after quoting the first part of the trust, down to the words, "and being such lineal descendant as aforesaid," observed, that, if it had stopped there, there would have been no doubt, that the Court would have directed a settlement to be framed, for the purpose of effectuating the general intention of the parties, and cited, in proof of this, the cases of countess of Lincoln v. duke of New P P castle, Woolmore v. Burrows, and lord Dorchester v. lord Effingham, presently mentioned. His honor further observed, the only question was, whether there was any thing in the second part of the direction, which was so illegal as to tie up the hands of the Court, and prevent it from making any settlement: that it was not material to consider, whether the words, "within the limits prescribed by law for strict settlements," ought to be taken in connexion with the words which preceded them, viz., "during every suspension or abeyance of the same dignity," or, in connexion with the words that followed them, viz., "the rents and profits of the same premises shall be equally divided between the co-heirs, per stirpes, &c.:" and that, in whichever of those ways, the words were taken, an intention was found, that that division of the rents and profits should continue no longer than the law allowed. His honor then suggested one mode of effecting a settlement which appeared to him unobjectionable in point of law :"Suppose," said the learned judge, "that the settlement were to be made in this form: viz., that the estates were to be limited to trustees, for a term of one-thousand years, determinable at the end of twenty-one years from the death of the survivor of all the persons in esse at the time of lord Le D.'s death, and then capable of succeeding to the dignity, and that, subject thereto, the estates were then limited to the different persons so in esse and capable of succeeding to the dignity, for their lives, successively, with remainder, to their sons, in tail, with remainder, to their daughters, in tail; and that, then, the trusts of the term of one-thousand years were declared to be, that, in the event of there being any abeyance, such as is here contemplated, the rents should, during the term, (which could not exceed the limits fixed by law) be disposed of in the manner prescribed: there can be no doubt, that that would be a legal mode of settlement." In pursuance of this decision, a settlement was prepared, by which, effect was given to the trusts, to the fullest extent compatible with the rules of law, (although not in the man |