[226] The maximum period during which alienation may be suspended may, in one instance, under the New York statutes, and those of a great many other States, be suspended for two lives in being, and twenty-one years and a fraction afterwards, in certain cases of minority. For example, an estate to A for life, remainder to B for life, remainder to his children in fee, but in case such children shall die under the age of twenty-one years, then to D in fee. Here, it will be observed, the ownership may be legally suspended for the lives of A and B, and the actual infancy of B’s children; but in no event can such suspension exceed that length of time before the remainder becomes vested. If one of the children reach twenty-one, D’s remainder is cut off. In the example just given, suppose the children of B die before attaining twenty-one, and that B, at his death, leaves his wife enceinte, there would then be a suspension of alienation for a few months more than twenty-one years.
The extent to which variation from the ordinary term of gestation may take place in women, whether the birth be premature or protracted, is one of the difficult problems involved in medical jurisprudence. On this subject the highest medical authorities are at issue; some adhering closely to the regular period of forty weeks as the extreme term; while others extend their indulgence even to the utmost verge of eleven calendar months. See Long v. Blackall, 7 Term R. 104; Cadell v. Palmer, 1 Cl. & Finn. 372.
[227] Moore v. Moore, 47 Barb. 257.
[228] Burrill v. Boardman, 43 N. Y. 254.
[229] Rose v. Rose, 4 Abb. Ct. App., Dec., 108.
[230] The argument of Prof. Dwight, one of the counsel, in two volumes, presents a marvelous and most scholarly amount of research upon the law of charitable uses, from the earliest times.
[231] See page 31.
[232] Swinburne, Part 7, Sec. 14, says: “Concerning the making of a latter testament, so large and ample is the liberty of making testaments that a man may, as oft as he will, make a new testament, even until his last breath; neither is there any cautel under the sun to prevent this liberty; but no man can die with two testaments, and therefore the last and newest is of force; so that, if there were a thousand testaments, the last of all is the best of all, and makes void the former.”
[233] 4 Co. Rep. 60.
[234] Doe v. Barford, 4 Man. & S. 16.