Editor's notes.

- In light of the similarity of the provisions, decisions under former Orig. Code 1863, § 2249, Code 1873, § 2267, Civil Code 1895, § 3102, Civil Code 1910, § 3678, Code 1933, § 85-707, and § 44-6-1 [repealed], are included in the annotations for this Code section.

Legislative intent.

- Intention of the legislature was to prevent testators and others from rendering estates unalienable within the limits prescribed by the section. Hollifield v. Stell, 17 Ga. 280 (1855) (decided under former Orig. Code 1863, § 2249).

Rule against perpetuities is an expression of public policy as determined by the Georgia General Assembly. Thomas v. Murrow, 245 Ga. 38, 262 S.E.2d 802 (1980) (decided under former Code 1933, § 85-707).

Section is statement of common law.

- Rule against perpetuities, as codified in Georgia, is recognized as a statement of the common-law rule. Burt v. Commercial Bank & Trust Co., 244 Ga. 253, 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Rule against perpetuities not mere rule of construction.

- Rule against perpetuities is not a rule of construction but a positive mandate of law to be obeyed irrespective of the question of intention, and is to be applied even if the accomplishment of the expressed intent of the testator is made impossible. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572, 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

Rule against perpetuities is a positive mandate of law and is not a mere rule of construction. Lufburrow v. Williams, 152 Ga. App. 674, 263 S.E.2d 535 (1979) (decided under former Code 1933, § 85-707).

Rule against perpetuities is a rule against remoteness of vesting of interests. Walker v. Bogle, 244 Ga. 439, 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Rule is for the purpose of preventing the creation of remote future interests in estates. Parker v. Churchill, 104 Ga. 122, 30 S.E. 642 (1898) (decided under former Civil Code 1895, § 3102).

Rule concerns remoteness of vesting.

- Rule against perpetuities deals with the vesting of an estate rather than with the postponement of possession, though it may sometimes have been applied to delay possession. Wright v. Hill, 140 Ga. 554, 79 S.E. 546 (1913) (decided under former Civil Code 1910, § 3678).

Rule against perpetuities is a rule against remoteness of vesting, not a rule for invalidating interests which last too long. Burt v. Commercial Bank & Trust Co., 244 Ga. 253, 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Effect of rule against perpetuities.

- Rule against perpetuities places time limits on the vesting of future interests; the rule also seeks to protect the free alienability of property, although the restraint may be more indirect than a pure restraint on alienation which is against public policy even if confined in time. Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903 (1983) (decided under former § 44-6-1).

Rule against perpetuities prevents the tying up of property for an indefinite period and thus destroying the property's salability. An interest vested in a class that is subject to open so as to let in persons born during the existence of the preceding estate, because the estate cannot be sold so as to bar the interests of the unborn members of the class, just as effectively ties up property and prevents the property's being freely sold as if the interests created were contingent. Landrum v. National City Bank, 210 Ga. 316, 80 S.E.2d 300 (1954) (decided under former Code 1933, § 85-707).

Thrust of the rule is to encourage the right of free dealings in real estate interests. St. Regis Paper Co. v. Brown, 247 Ga. 361, 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

No encumbrance of title.

- Rule against perpetuities is one of the most beneficent provisions of the law relative to estates. Nothing could interfere more with commerce in lands than for the title to be encumbered with an indefinite succession. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572, 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

Application of section.

- This section should always be applied in construing a will to determine whether it is inconsistent with the law. Sheats v. Johnson, 229 Ga. 150, 189 S.E.2d 856 (1972) (decided under former Code 1933, § 85-707).

Time for application of section.

- Devise, bequest, or grant is to be first construed, and then the rule applied. Parker v. Churchill, 104 Ga. 122, 30 S.E. 642 (1898) (decided under former Civil Code 1895, § 3102).

"Wait and see" alternative rejected.

- Goals of certainty and early vesting would not be served by adopting the "wait and see" approach, an alternative to the rule against perpetuities which permits a court to consider the actual sequence of events occurring after the creation of the interest. Pound v. Shorter, 259 Ga. 148, 377 S.E.2d 854 (1989) (decided under former § 44-6-1).

Term "his lifetime" in deed construed.

- When a deed conveyed land to D, "heirs and assigns, his lifetime, and then to the lawful heirs of his body, then to their heirs and assigns," to have and to hold the same to "said party of the second part, his heirs, executors, administrators, and assigns, in fee simple;" in view of the words "his lifetime," the deed conveyed only a life estate to D, with the remainder in fee simple to D's children. English v. Davis, 195 Ga. 89, 23 S.E.2d 394 (1942) (decided under former Code 1933, § 85-707).

Cited in Robinson v. McDonald, 2 Ga. 116 (1847); Carlton v. Price, 10 Ga. 495 (1851); Dudley v. Porter, 16 Ga. 613 (1855); Gibson v. Hardaway, 68 Ga. 370 (1882); Wright v. Hill, 140 Ga. 554, 79 S.E. 546 (1913); Patterson v. Patterson, 147 Ga. 44, 92 S.E. 882 (1917); Nottingham v. McKelvey, 149 Ga. 463, 100 S.E. 371 (1919); Curles v. Wade & Brimberry, 151 Ga. 142, 106 S.E. 1 (1921); Roberts v. Wadley, 156 Ga. 35, 118 S.E. 664 (1923); Bramblett v. Trust Co., 182 Ga. 87, 185 S.E. 72 (1936); Citizens & S. Nat'l Bank v. Howell, 186 Ga. 47, 196 S.E. 741 (1938); Boykin v. Bradley, 192 Ga. 212, 14 S.E.2d 734 (1941); Folds v. Hartry, 201 Ga. 783, 41 S.E.2d 142 (1947); Bussey v. Bussey, 208 Ga. 760, 69 S.E.2d 569 (1952); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Southern Airways Co. v. DeKalb County, 101 Ga. App. 689, 115 S.E.2d 207 (1960); Burton v. Hicks, 220 Ga. 29, 136 S.E.2d 759 (1964); Brown v. McInvale, 118 Ga. App. 375, 163 S.E.2d 854 (1968); Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973); National Bank v. First Nat'l Bank, 234 Ga. 734, 218 S.E.2d 23 (1975); Capers v. Camp, 244 Ga. 7, 257 S.E.2d 517 (1979); Stephens v. Trust for Pub. Land, 475 F. Supp. 2d 1299 (N.D. Ga. 2007); Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195, 758 S.E.2d 781 (2014).

All interests must vest within period of rule.

- Requirement of the rule against perpetuities is not that all interests be vested at the death of the testatrix, but that all interests become vested within the period of the rule. Burt v. Commercial Bank & Trust Co., 244 Ga. 253, 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Contingent estate, too remote, is void.

- When there is a possibility that the limitations contained in the will of the deceased would extend through lives not in being when the limitations commenced, or for a longer time than is permitted by the rule against perpetuities, those limitations that are too remote are illegal and void, and the last legal takers will become entitled to the trust estate in fee simple. Landrum v. National City Bank, 210 Ga. 316, 80 S.E.2d 300 (1954) (decided under former Code 1933, § 85-707).

When a will seeks to set up a trust for the benefit of a number of persons as well as institutions, but the duration of the life of anyone in being constitutes no part of the specified duration of the trust, and it is provided therein that it shall not endure for more than 25 years, it is a clear violation of the rule against perpetuities, and the trust is absolutely void. Fuller v. Fuller, 217 Ga. 316, 122 S.E.2d 234 (1961) (decided under former Code 1933, § 85-707).

When a future estate is contingent and the event upon which the contingency is based may occur beyond the rule against perpetuities, the estate is void for remoteness. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572, 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

When a will establishing a trust provides that the remainder interest vests in those grandchildren in life at the time the youngest has completed his or her education, the provision is inconsistent with subsection (a) of this section. Sheats v. Johnson, 229 Ga. 150, 189 S.E.2d 856 (1972) (decided under former Code 1933, § 85-707).

Common law rule is life in being plus 21 years.

- In order to constitute a good and valid executory bequest or devise, the limitation over must be confined to a stated period, to wit, to a life or lives in being, and 21 years afterwards, to which may be added a few months more to reach the case of a posthumous child. Carlton v. Price, 10 Ga. 495 (1851) (decided under prior law).

Common law rule is that no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Burt v. Commercial Bank & Trust Co., 244 Ga. 253, 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

With no life in being, limit is 21 years.

- When the vesting of a gift is not limited upon the life of any person, the term cannot be longer than 21 years. Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29, 8 S.E.2d 28 (1940) (decided under former Code 1933, § 85-707).

When no life in being forms any part of the period of suspension or postponement of the time when the estate or interest is to become vested, the limit of time under the rule against perpetuities is 21 years. Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940); St. Regis Paper Co. v. Brown, 155 Ga. App. 679, 272 S.E.2d 544 (1980), rev'd on other grounds, 247 Ga. 361, 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

When the future estate created is not tied to any life in being, the interest must become vested within 21 years. St. Regis Paper Co. v. Brown, 247 Ga. 361, 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

Trust may last beyond period of rule.

- Trust does not violate the rule against perpetuities when the interests of the beneficiaries vest within the period of the rule even though the trust remains in effect beyond the period of the rule. Burt v. Commercial Bank & Trust Co., 244 Ga. 253, 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Some time limit for the enforcement of a first refusal right is desirable. Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903 (1983) (decided under former § 44-6-1).

Rule inapplicable to restrictive covenants.

- Rule against perpetuities deals with estates in land and the vesting of estates, and does not relate to restrictive covenants. Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629 (1931); McKinnon v. Neugent, 225 Ga. 215, 167 S.E.2d 593 (1969) (decided under former Civil Code 1910, § 3678 and Code 1933, § 85-707).

Rule inapplicable to vested remainders or reversions.

- As vested remainders are not subject to the rule against perpetuities, it follows that the rule against perpetuities does not apply to reversions. A grantor or a testator may create a vested estate for any number of years, and such estate will not be destroyed by the rule against perpetuities. Erskine v. Klein, 218 Ga. 112, 126 S.E.2d 755 (1962) (decided under former Code 1933, § 85-707).

Since the rule against perpetuities involves remoteness of vesting, it is not applicable to a vested remainder or to a reversion. Smith v. Francis, 221 Ga. 260, 144 S.E.2d 439 (1965) (decided under former Code 1933, § 85-707).

Rule applies to vesting of remainders.

- Remainders are not invalidated by the rule against perpetuities unless the remainders fail to vest within the term provided. Burt v. Commercial Bank & Trust Co., 244 Ga. 253, 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Immediate gift with age restriction is vesting of remainder.

- Words of immediate gift after which an age restriction is attached have long been construed as vesting the remainder but postponing enjoyment to a later date. Walker v. Bogle, 244 Ga. 439, 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Receipt of income with final distribution postponed.

- Right to receive income from property with final distribution postponed indicates a vested interest in the property. Walker v. Bogle, 244 Ga. 439, 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Stock option agreement.

- Following Shewmake v. Robinson, 148 Ga. 287, 96 S.E. 564 (1918), it was assumed that the rule against perpetuities applied to a stock option agreement. Smith v. Stuckey, 233 Ga. App. 79, 503 S.E.2d 284 (1998) (decided under former § 44-6-1).

Rule against perpetuities did not bar a stock option agreement providing that the option was to be exercised "at any time" after a certain date. Smith v. Stuckey, 233 Ga. App. 79, 503 S.E.2d 284 (1998) (decided under former § 44-6-1).

Bequest to class.

- Bequest to a class, some of whose members are in being at the time the bequest is to take effect, does not include others subsequently born. Parker v. Churchill, 104 Ga. 122, 30 S.E. 642 (1898) (decided under former Code 1895, § 3102).

Will creating a testamentary trust, with income to be paid in stated installments to three sisters, and at their death the income to be paid to testator's nieces in equal parts with trust to be kept intact as long as any one of them was living plus 21 years, constitutes a gift to a class, the class composed of the nieces of the testator. The nieces of the testator living at the time of the testator's death take a vested interest, subject to open and let in any additional nieces born during the existence of the preceding trust, with the result that, as to the nieces, the limitation was for a longer time than is permitted by the rule against perpetuities. Landrum v. National City Bank, 210 Ga. 316, 80 S.E.2d 300 (1954) (decided under former Code 1933, § 85-707).

Unborn children.

- Bequest by a testator, to such child or children as his granddaughter may have at her decease, no such children being then in life; and a provision that "in case any such child or children should die during the life of its mother, leaving issue of their body, such issue shall, in such case, represent the parent" is not a limitation over upon the death of an unborn child, and thus void under this section; rather it is a gift to the children and grandchildren of testator's granddaughter, living upon the termination of a life in being, viz: that of the granddaughter. Robert v. West, 15 Ga. 122 (1854) (decided under prior law).

Limitations over in favor of the brothers and sisters of a niece, should she have a child and it should survive her and die without issue, deals with a child not in being when the will took effect by the death of the testator, and which might never be born or, if born might not die within 21 years, so that the limitation over to the brothers and sisters might not be determinable within the time limited by the rule. Phinizy v. Wallace, 136 Ga. 520, 71 S.E. 896 (1911) (decided under former Civil Code 1910, § 3678).

Limitation of an estate to plaintiff for life, and at plaintiff's death to plaintiff's children born and to be born, does not create a perpetuity. Palmer v. Neely, 162 Ga. 767, 135 S.E. 90 (1926) (decided under former Code 1910, § 3678).

Construction of limitation over to future husband of unmarried woman is valid.

- Devise was in trust for L for life, with remainder to her children, if any; and if none, or if those born died before reaching maturity, then over to any man with whom L might intermarry. Any interest conveyed to him necessarily had to vest in possession within 21 years after the death of L. The devise over was therefore not void as an attempt to create a perpetuity. Jossey v. Brown, 119 Ga. 758, 47 S.E. 350 (1904) (decided under former Code 1895, § 3102).

Limitation over to future wife of married man is too remote.

- Limitation over on the death of E, J's wife, to J in trust for any future wife which he may have, which estate was to determine at her death, was a violation of this section, for no man could say, at the time the deed was executed, that J necessarily would marry within 22 years after the death of his wife E, or that the person whom he would marry was in life. Overby v. Scarborough, 145 Ga. 875, 90 S.E. 67 (1916) (decided under former Code 1910, § 3678).

Contingency depending upon future wife void.

- It was early held that when property is devised to A for life, remainder to his widow for life, remainder over on the death of the widow, the ultimate remainder on the death of the widow, if contingent until that event, is bad, because A may marry a woman who was not born at the testator's death; and the result is not affected by the fact that A is very old at the testator's death. Overby v. Scarborough, 145 Ga. 875, 90 S.E. 67 (1916) (decided under former Code 1910, § 3678).

Trust giving income for life is equivalent of life estate.

- Insofar as the vesting requirement of the rule against perpetuities is concerned, there is no difference between having a life estate in Blackacre and a trust giving the beneficiary the right to receive the income from Blackacre for life. Burt v. Commercial Bank & Trust Co., 244 Ga. 253, 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Property vested to prevent violation of rule by contingency with uncertain date.

- When it is clear that it was the testator's intent to make a valid will, even if the language of the will may have been read to delay the vesting of the estate in the remainder beneficiaries until certain debts were paid at a future unspecified time, the devise to the remainder beneficiaries did not violate the rule against perpetuities because the remaindermen became vested at the death of the life beneficiary in keeping with the Georgia tradition of vesting property at the earliest possible time. First Nat'l Bank v. Jenkins, 256 Ga. 223, 345 S.E.2d 829 (1986) (decided under former § 44-6-1).

Right of first refusal.

- When a first refusal right is not tied to a fixed price method or some method of pricing which may not reflect true market value, but is conditioned upon meeting a sale price which the seller is willing to accept, such an agreement encourages the development of the property to its fullest potential and is not void as a violation of the rule against perpetuities or as a restraint on alienation. Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903 (1983) (decided under former § 44-6-1).

When the language of a sales contract and warranty deed supported the court's finding that a right of first refusal was personal to the grantee, and did not extend to the grantee's "successors or assigns," the duration of this right was within the lifetime of the grantee and the rule against perpetuities was not violated. In re Wauka, Inc., 39 Bankr. 734 (Bankr. N.D. Ga. 1984) (decided under former § 44-6-1).

Right of first refusal is compatible with the policies of commerce and utilization of land, and thus not void as a violation of the rule against perpetuities since, even though the preemptive right may be unlimited in duration, it requires merely matching the offer of a third party. Hinson v. Roberts, 256 Ga. 396, 349 S.E.2d 454 (1986) (decided under former § 44-6-1).

No intent to violate section if alternative vesting method provided.

- Testator did not have overriding intention to violate this section when according to the testator's own clear words the testator expressed a desire not to violate the rule and when the testator set forth a valid alternative method for final vesting and distribution within rule in form of a saving clause. Norton v. Georgia R.R. Bank & Trust, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former § 44-6-1).

In terrorem clause in will did not show intent to violate this section since testator left four likely challengers who had little to lose by challenging the will. Norton v. Georgia R.R. Bank & Trust, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former § 44-6-1).

Rule was violated in the following case.

- Seal v. First Bank & Trust Co., 163 Ga. App. 620, 295 S.E.2d 367 (1982) (provision for acceptance of subdivision lots by City of Marietta) (decided under former Code 1933, § 85-707).

Rule not violated.

- This section is not violated when owner of family business, parent of ten children aged between 37 and 60 and grandparent of twelve grandchildren aged between 5 and 34, wished to provide life estates for those children the owner selected, and their children and their grandchildren. Norton v. Georgia R.R. Bank & Trust, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former § 44-6-1).

Determination is whether contingency may occur beyond time limitation.

- Whether a limitation over is to be regarded as a perpetuity or not depends upon the time within which such limitation must take effect. It is not enough that a contingent event may happen, or even that it will probably happen, within the limits of the rule against perpetuities; if it can possibly happen beyond those limits, an interest conditioned on it is too remote. O'Byrne v. Feeley, 61 Ga. 77 (1878); Overby v. Scarborough, 145 Ga. 875, 90 S.E. 67 (1916) (decided under former Code 1873, § 2267 and Civil Code 1910, § 3678).

Determination is made at death of testator.

- Whether an instrument violates the rule against perpetuities is to be determined at the death of the testator when the limitations begin because the crucial determination is not whether the rule is in fact violated but rather whether the rule may be violated. Rogers v. Rooth, 237 Ga. 713, 229 S.E.2d 445 (1976) (decided under former Code 1933, § 85-707).

Choice of measuring life or lives.

- First step in determining whether or not the rule is violated is choosing the measuring life or lives. That person or those persons must be lives in being at the creation of the interest, which in the case of a will is the testator's death. Rogers v. Rooth, 237 Ga. 713, 229 S.E.2d 445 (1976) (decided under former Code 1933, § 85-707).

When a divesting condition is too remote, it is void under the rule against perpetuities, but the remainder interest is given effect. Walker v. Bogle, 244 Ga. 439, 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Remoteness of condition.

- If there is any possibility that a contingent event might happen beyond the limits set out by this section, then the limitation is too remote. Lanier v. Lanier, 218 Ga. 137, 126 S.E.2d 776 (1962) (decided under former Code 1933, § 85-707).

Independent provisions of will may be violative of rule without invalidating entire will.

- When the various provisions of a will are independent and not for the carrying out of a common or general purpose, those which are contrary to the rule may be rejected and the valid provisions upheld. The test is whether the invalid parts are so interwoven with those which are valid that the former may not be eliminated without interfering with or changing in any essential the main testamentary scheme. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572, 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

Failure of a testamentary trust for violating this section does not render invalid other provisions of the will which are not affected by the trust. Sheats v. Johnson, 229 Ga. 150, 189 S.E.2d 856 (1972) (decided under former Code 1933, § 85-707).

When a remote divesting condition and the executory interests which follow it are invalidated, the remaining provisions of the testamentary trust would not be invalidated under the doctrine of "infectious invalidity." Walker v. Bogle, 244 Ga. 439, 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

If invalid limitation is essential part of general scheme, whole gift is void.

- When only a part of a gift is invalid by reason of the rule against perpetuities and the invalid limitation is an essential part of the general scheme of the will or gift, the several parts of the devise or the grant are treated as inseparable and the whole is adjudged void. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572, 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

If invalid portion cannot be separated from valid portion entire gift void.

- When the income from a trust was to be paid to both charitable and noncharitable purposes, the charitable purpose for which the trust was established is not subject to the operation of the rule of this section, but the noncharitable purposes are void if they come within the rule. When there is no method by which the charitable and noncharitable portions of the trust can be separated and the charitable portion preserved, the entire trust has to fail under the rule. Green v. Austin, 222 Ga. 409, 150 S.E.2d 346 (1966) (decided under former Code 1933, § 85-707).

When interest vests within time permitted.

- Rule against perpetuities does not apply to charities when the gift is made in such a way that the interest vests in the charity immediately or within the time permitted for the vesting of future interests, and in such cases a public or charitable trust may be perpetual in its duration, and the property may be left to trustees who may be self-perpetuating. Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

When a gift to charity unconditionally vests for that purpose, either immediately or within the period permitted by the rule against perpetuities, it is not void as violating the rule. Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29, 8 S.E.2d 28 (1940); Pace v. Dukes, 205 Ga. 835, 55 S.E.2d 367 (1949) (decided under former Code 1933, § 85-707).

Rule applies if vesting postponed beyond permitted time.

- If by the terms of a gift for charitable uses its vesting is postponed beyond the period of perpetuity rule, this rule will be applied just as in cases of the creation of other future interests. Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

A grant or devise for a charitable use, which is conditioned upon its vesting only after the termination of a trust for accumulation, is void for remoteness, if the period of accumulation may possibly exceed that prescribed by the rule. Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

When a gift is to vest in charity upon a condition precedent which may or may not happen within the period, it is void as violating the rule. It is not sufficient that the estate may by some possibility become vested within the permissible period, or even that it will probably do so; for, if the condition fixed by the donor is such that the gift may by any possibility fail to vest in charity within the lawful time, or if there is any room for uncertainty or doubt upon the question, the gift is void. Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29, 8 S.E.2d 28 (1940) (decided under former Code 1933, § 85-707).

When devise over is to another charity.

- This rule does not have application where a devise to one charity is limited over after a devise to another charity. Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

To be charity, hospital must perform some gratuitous service.

- While the character of a hospital as a charitable institution would not be destroyed by the hospital's receipt of compensation from some patients able to make payment, so as to thus enlarge the hospital's primary object and purpose for the gratuitous relief of human suffering, a legacy for the establishment of a hospital, to be governed and managed under the uncontrolled discretion of trustees, without any requirement that any part of the hospital's work be gratuitously done, violates the rule against perpetuities. This would be especially true if the only provision which could be taken as relating to compensation or gratuitous service is merely a "special request that all charges at said hospital be reasonable." Trust Co. v. Williams, 184 Ga. 706, 192 S.E. 913 (1937) (decided under former Code 1933, § 85-707).

Trust to pay medical and educational expenses of testator's relatives not charity.

- Devise for the purpose of defraying medical expenses of blood relatives of a testator, and for educational loans to deserving persons who were dependents of the testator's blood relatives, is not a devise for public charity; and the intended trust is void under this section. Hardage v. Hardage, 211 Ga. 80, 84 S.E.2d 54 (1954) (decided under former Code 1933, § 85-707).

To establish a permanent charity for one family, and thus permit the perpetual holding together of property, which this section was designed to prohibit, is not justified by the slight prospective public good that might come from educating or keeping off of the public charity rolls the poor of one family. Hardage v. Hardage, 211 Ga. 80, 84 S.E.2d 54 (1954) (decided under former Code 1933, § 85-707).

Trust to benefit university system valid.

- Devise in trust to the trustees of the University of Georgia for the use and benefit of the Georgia School of Technology is not invalid as a perpetuity. Regents of Univ. Sys. v. Trust Co., 186 Ga. 498, 198 S.E. 345 (1938) (decided under former Code 1933, § 85-707).

Lease agreement with purchase option.

- Lease agreement for a specified term of two years, containing provisions for the purchase of the property, which lease and option agreement were renewed by action of the parties thereto for a like term of two years, would not be violative of the rule against perpetuities. McKown v. Heery, 200 Ga. 819, 38 S.E.2d 425 (1946) (decided under former Code 1933, § 85-707).

Purchase option exercisable within period of lease.

- An option to purchase written into a lease and exercisable within the period of the lease does not violate the rule against perpetuities even though the period within which the option may be exercised extends beyond the period specified in the rule. St. Regis Paper Co. v. Brown, 247 Ga. 361, 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

Effect of lease renewable in perpetuity.

- An option within a lease renewable in perpetuity does not violate the rule against perpetuities. Rose v. Chandler, 247 Ga. 382, 279 S.E.2d 423 (1981) (decided under former Code 1933, § 85-707).

Purchase option limited in time to life of grantee.

- There is no violation of the rule against perpetuities when the option is limited in time to the life of the grantee and his wife, or at the death of the survivor of the grantees. Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977) (decided under former Code 1933, § 85-707).

Purchase option with unlimited time to exercise is violation.

- Option to purchase realty or an interest therein which is unlimited as to the time within which the option may be exercised constitutes a perpetuity and is prohibited under the statute. Smith v. Aggregate Supply Co., 214 Ga. 20, 102 S.E.2d 539 (1958); Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977) (decided under former Code 1933, § 85-707).

Perpetual option to purchase land is a direct violation of the rule against perpetuities and is void ab initio. Rose v. Chandler, 247 Ga. 382, 279 S.E.2d 423 (1981) (decided under former Code 1933, § 85-707).

Perpetual option to buy goods off land.

- Clause in a deed of land reserving a perpetual right to remove sand from land conveyed, for which grantee and grantee's successors are to be paid a fixed fee per car of sand removed, grants a perpetual option to buy sand and is violative of the rule against perpetuities. Brown v. Mathis, 201 Ga. 740, 41 S.E.2d 137 (1947) (decided under former Code 1933, § 85-707).

Repurchase option without time limit is void.

- Clause which authorized the grantor to repurchase land at a stated price, without fixing any time limit during which the property should be used or within which the option should be exercised, is void as violative of the rule against perpetuities. Gearhart v. West Lumber Co., 212 Ga. 25, 90 S.E.2d 10 (1955); Thomas v. Murrow, 245 Ga. 38, 262 S.E.2d 802 (1980) (decided under former Code 1933, § 85-707).

Clause which gives to the living descendants of grantor the right of first refusal to repurchase the land without fixing any time limit within which the option should be exercised is void as violative of the rule against perpetuities. Lufburrow v. Williams, 152 Ga. App. 674, 263 S.E.2d 535 (1979) (decided under former Code 1933, § 85-707).

Deed in which grantor conveys only the agricultural interest and timber rights, while retaining the mineral rights coupled with an option to repurchase, violates the rule against perpetuities, but does not void the deed and/or vest the underlying fee interest in the grantor's successors-in-interest. Milner v. Bivens, 255 Ga. 49, 335 S.E.2d 288 (1985) (decided under former § 44-6-1).

Rule against perpetuities was not violated by a provision that an option to purchase land "shall extend for a period of 90 days beyond the death of the survivor of two life tenants . . . except that, if grantor shall fail to notify grantee of the death of said survivor of said life tenants, then said period shall extend 90 days beyond such time as grantee is notified." A reasonable time for giving notice was to be implied which in no case could exceed 21 years from the death of the last survivor. Young v. Cass, 255 Ga. 508, 340 S.E.2d 185 (1986) (decided under former § 44-6-1).

Agreement which created a lease to mine for a 50-year period and gave an option to continue that had to be exercised by mining within that period, did not violate the rule against perpetuities, even though the lease could be extended indefinitely. Parker v. Reynolds Metals Co., 747 F. Supp. 711 (M.D. Ga. 1990) (decided under former § 44-6-1).

Am. Jur. 2d.

- 61 Am. Jur. 2d, Perpetuities, §§ 5, 22 et seq.

C.J.S.

- 70 C.J.S., Perpetuities, §§ 22, 23, 39 et seq., 51. 90 C.J.S., Trusts, § 26. 90A C.J.S., Trusts, § 218.

ALR.

- Validity of appointment under power, with reference to the rule against perpetuities, 1 A.L.R. 374; 101 A.L.R. 1282; 104 A.L.R. 1352.

Perpetual lease or covenant to renew lease perpetually as violation of rule against perpetuities or the suspension of the power of alienation, 3 A.L.R. 498; 162 A.L.R. 1147.

Postponing distribution until payment of debts or settlement of estate as violating rule against perpetuities, 13 A.L.R. 1033.

Devise or bequest for upkeep of cemetery lot as violation of rule against perpetuities, 14 A.L.R. 118.

Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770.

Prior estate as affected by remainder void for remoteness, 28 A.L.R. 375; 75 A.L.R. 124; 168 A.L.R. 321.

Rule against perpetuities as affecting limitation over to charity after a gift of indefinite duration to another charity, 30 A.L.R. 594.

Provision for application of rent or income from property to discharge of encumbrance as violation of statute against accumulation of income, 65 A.L.R. 1069.

Doctrine as to possibility of issue extinct as affecting property rights or taxation, 67 A.L.R. 538; 98 A.L.R.2d 1285.

Applicability of rule against perpetuities to reverter on breach of condition subsequent, 70 A.L.R. 1196; 133 A.L.R. 1476.

Rule against accumulation of income as applicable to stock dividends, 70 A.L.R. 1336.

Provision for application of rent or income to improvement, restoration, or maintenance of trust property as violation of statute against accumulation of income, 71 A.L.R. 417.

Violation of rule against perpetuities, or unlawful restraint of alienation or suspension of ownership, by postponement of vesting or alienation of ownership until exercise of discretion as to sale or disposal, 89 A.L.R. 1046.

Provision which suspends vesting of estate or interest for a fixed period upon the condition or with the qualification to effect that period shall not be longer than the lifetime of person or persons in being at death of testator as violation of rule against perpetuities, 91 A.L.R. 771.

Distinction as regards rule against perpetuities between time of vesting of future estates and time fixed for enjoyment of possession, 110 A.L.R. 1450.

Rule against perpetuities as applied to gift to class, conditional upon specified age being attained, 155 A.L.R. 698.

Estoppel to invoke rule or statute against perpetuities, 162 A.L.R. 156.

Gift to charity as affected by conjoined noncharitable gift invalid under rule or statute against perpetuities or rule against accumulations, 170 A.L.R. 760.

Settlor's right to revoke or terminate trust, or to withdraw funds or invade corpus thereof, as affecting operation of rule against perpetuities, 7 A.L.R.2d 1089.

Validity, under rule against perpetuities, of gift in remainder to creator's great-grandchildren, following successive life estates to children and grandchildren, 18 A.L.R.2d 671.

Validity of restraint, ending not later than expiration of a life or lives in being, on alienation of an estate in fee, 42 A.L.R.2d 1243.

Application of rule against perpetuities to limitation over on discontinuance of use for which premises are given or granted, or the commencement of a prohibited use, 45 A.L.R.2d 1154.

Perpetual nonparticipating royalty interest in oil and gas as violating rule against perpetuities, 46 A.L.R.2d 1268.

Gift for maintenance or care of private cemetery or burial lot, or of tomb or of monument, including the erection thereof, as valid trust, 47 A.L.R.2d 596.

Separability, for purposes of rule against perpetuities, of gift to several persons by one description, 56 A.L.R.2d 450.

When is a gift by will or deed of trust one to a class, 61 A.L.R.2d 212; 13 A.L.R.4th 978.

Lease for term of years, or contract therefor, as violating rule against perpetuities, 66 A.L.R.2d 733.

Applicability of doctrine of equitable approximation to cut down to a permissible time period the time of a testamentary gift that violates rule against perpetuities, 95 A.L.R.2d 807.

Rule against perpetuities where estate is limited on alternative contingencies, one within and one beyond the period allowed by the rule, 98 A.L.R.2d 807.

Modern status of presumption against possibility of issue being extinct, 98 A.L.R.2d 1285.

Validity and effect of provision or condition against alienation in gift for charitable trust or to charitable corporation, 100 A.L.R.2d 1208.

Doctrine that gift which might be void under rule against perpetuities will be given effect where contingency actually occurs within period of rule, 20 A.L.R.3d 1094.

Pre-emptive rights to realty as violation of rule against perpetuities or rule concerning restraints on alienation, 40 A.L.R.3d 920.

Construction and application of "first refusal" option contained in trust instrument and relating to sale or shares of stock, 51 A.L.R.3d 1327.

Construction and operation of private pension plan provision for distribution of pension funds upon termination of plan, 55 A.L.R.3d 767.

Independent option to purchase real estate as violating rule against perpetuities or restraints or alienation, 66 A.L.R.3d 1294.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

Sufficiency of provision of lease to effect second or perpetual right of renewal, 29 A.L.R.4th 172.

Lease renewal provision as violating rule against perpetuities or restraints on alienation, 99 A.L.R.6th 591.