RULES FOR DETERMINING WHETHER A DEVISE TO A CLASS IS IN VALID. To ascertain whether or not a devise to a class is bad, the following rules have been formu lated: 1. An executory devise is bad unless it be clear at the time of the death of the testator that it must, of necessity, vest in some one, if at all, within lives in being and twenty-one years thereafter.
2. The will of the testator must be construed in the first instance without any reference to the rule against perpetuities, and having thus ascertained the true construction of the instrument, you are to apply the rule against perpetuities and ascertain if any of the provisions in the will are obnoxious to the rule.
In America, the rule above stated may be consid ered as modified, so that the prevailing doctrine is, that you are to ascertain the intent of the testator, and if the will is capable of two interpretations, one of which would make the will void as being illegal, and the other not, the courts are to givP it that con struction which will tnake it legal. That is, the courts will favor that construction which will make the pro visions of the will legal, as that is supposed to have been the real intention of the testator.
3. If the devise is to a single member constitut ing the class, who may by possibility be a person ex cluded by the rule against perpetuities, then no per son whatever could take under it, because the testa tor has expressed his intention of including all, and not to give to one excluding the others.
4. When the devise is to a class of persons, and any of that class may have to be ascertained at a pe riod too remote, the devise fails, for the reason that the testator intended that the amount of each mem ber's share should be ascertained by dividing the whole sum given, by the number of members in the class.
5. When the gift is given to a class, but a definite and fixed sum is given to each member of that class, and cannot be increased or diminished by the increase or diminution of the members of the class, the gifts to each are separable, and those falling within the limit of the rule are good, the others bad. Thus if $20,000 is given to each of five persons in a class, when they arrive at a certain age ; here each gift is separate so that each member of the class stands on his own footing, so that the devise may be good as to some and bad as to others.
6. If, when the devise takes effect, there is a mem ber of the class who can take, the class is closed and the devise is not bad for remoteness, although the gift may not be divided within the time fixed by the rule.