I dissent from the majority opinion in this case for the reasons hereinafter set forth.
I think the majority opinion inaccurately holds that the duration of trust No. 1 is ninety-nine years. I find nothing in the language of the trust that either directly or by inference limits it to this term, for the following reasons:
1. The property in which the trust is declared is lots ten (10) and eleven (11), etc. "to Daniel A. Loring, Sr., and to his successors and assigns forever in trust, subject to a lease of ninety-nine years." It does not purport to convey the lease, which has a duration of ninety-nine years, but the freehold, which would carry with it the right to collect rent from any lease existing thereon.
2. At the time the trust was created the lease had been in effect for eight years, and therefore there is no indication that the remnant of a term, of ninety-one years, described the period of the trust as coinciding with the period of the lease commencing years before. *Page 230
3. The length of the lease cannot have been contemplated, because it was possible or probable that the lease would be terminated before the expiration of ninety-nine years, and, in fact, the record in this case shows that renegotiation was necessary to keep the lease alive. It cannot be contended that if, a short time after the trust was executed, necessity required canceling the lease for breach of condition or failure to pay rent, the trustees would not be authorized to make a new lease which might be of a different duration. And, finally, there was a power given to sell the freehold subject to the lease, and to hold the proceeds upon the same trusts, without reference to duration or to the lease.
It is my opinion that the trust was not fixed at a period of ninety-nine years, but for a period of time which would be covered by the lives of the three beneficiaries and those taking under the various alternative provisions of the trust, none of which specify or infer a period of ninety-nine years. In my opinion this determination of the term of the trust has led to an erroneous conclusion as to the application of the rule against perpetuities.
In applying the rule against perpetuities to the first trust the majority opinion entirely overlooks the fact that the last provisions, with respect to vesting title in the legal heirs of the beneficiaries, do not apply in case one of the beneficiaries dies leaving lawful issue; and also, in my opinion, erred in the holding that the end of the life of each original beneficiary living at the date of the trust was the one which started the running of the twenty-one year period after a life in being. This construction cannot be given this trust. There is nothing in it which singles out one life. The rule is that if the interest vests during any one of one or more lives which exist at the date of the trust and twenty-one years thereafter it is good. This is not only illustrated, but definitely held in Madison v. Larmon, 170 Ill. 65; Thellussoncase, 11 Ves. 112; Greenleaf *Page 231 v. Greenleaf, 332 Mo. 498, 58 S.W.2d 448; Estate of Friday, 313 Penn. 328, 170 A. 123, and Fitchie v. Brown,211 U.S. 321, as well as by most standard textbook writers.
Under the provisions of the trust, if one beneficiary dies leaving lawful issue its share vests immediately in such issue, and the latter becomes entitled to one third of the income. On the other hand, the clause providing for the income to vest in the legal heirs of the beneficiaries upon the death of all cannot violate the rule because the legal heirs of one or all of the beneficiaries are ascertained immediately following the death of the last survivor, so in any event the interest would vest within the period fixed by the rule.
The rule only requires that the estate vest within the fixed time, as possession or enjoyment is immaterial. (O'Hare v.Johnston, 273 Ill. 458; Flanner v. Fellows, 206 Ill. 136; Lunt v. Lunt, 108 Ill. 307.) The term "issue" or "lawful issue" means lineal descendants. (Arnold v. Alden, 173 Ill. 229;Robeson v. Cochran, 255 Ill. 355.) "Lawful issue" and "legal heirs" have different meanings. Lawful issue of one will always qualify as a legal heir, but legal heirs in many instances are not lawful issue, since an heir may be one who is not a descendant.
In the present case there is no need for confusion upon this point. If one of the beneficiaries at the time of his death has lawful issue the trust provides "the share of such deceased beneficiary to go to such issue." This settles the vesting and enjoyment of one third of the trust, and a like result would follow in each of the other shares if the beneficiaries died and left lawful issue, as in each case the beneficiary's share would immediately, upon death, go to the lawful issue, and no question of perpetuity could possibly arise, as both the vesting and enjoyment of the income of each one-third interest would immediately follow the death of the original beneficiaries, and therefore the *Page 232 clauses of the trust with respect to alternative provisions in behalf of a survivor, or the death of all of the beneficiaries without issue would have no application, because such provisions would become useless upon vesting of the interest in the issue.
The trust also makes provision in the case of the death of the beneficiary without issue (not heir,) and provided "the share of such deceased beneficiary to be equally divided by the survivor or survivors." Here is no perpetuity for under the conditions named the interest vests immediately after the death of the beneficiary. And in like manner the same provision is made until the death of all. If the survivor of the three died leaving issue, it would take all, as the issue of one who had acquired the entire interest by survivorship. In this instance there could be no possible violation of the rule against perpetuities, because it would pass immediately upon the death of the third beneficiary, who was a life in being at the date of the creation of the trust.
We then come to the last contingency, which provides "and in the event of the death of all three of said beneficiaries, then the income of said property is to be divided equally among the legal heirs of said beneficiaries by said trustee, or his successors." The opinion, at least by inference, makes this provision control the ultimate passing of the interest and all the other provisions in the trust, without regard to circumstances which may make the principles discussed above applicable. Taking the entire trust instrument into consideration, it is clear this last contingency contemplates it is to apply in cases where no issue of a beneficiary takes it prior to this time. It is a final alternative provision for those who are to enjoy the income. If issue is born as to that share the last provision cannot apply. If all die without issue then the legal heirs of the original beneficiaries are those who will take and *Page 233 enjoy it, but this provision does not violate the rule against perpetuities for two reasons: (1) If there is issue the interest has already vested under the first contingency. If there is no issue then it goes to the survivors. There is no violation. (2) When all die without issue it then goes to the legal heirs of the three. Here can be no violation because it is within the twenty-one years of the death of the last survivor.
Even if the duration of the trust is assumed to not exceed ninety-nine years, there is no violation of the rule, because this term does not control the time when the trust terminates. The estate will vest in the legal heirs of the beneficiary within three lives in being and possibly less, if issue survives a beneficiary. Any possible taker is not barred by the rule.
I am of the opinion the first trust is not void, in which event the second trust could not be given the effect attributed to it in the opinion. Since no issue was born to any of the beneficiaries, and appellant qualified as the only "legal heir," upon their death it follows she has, at least, a life estate in the income, which would make the provision terminating the trusteeship in the second instrument invalid.