K/- C . / dcrtifU ICam Bti^tml Hibtaty u-c -4 __S0'"e"'J"'™rslty Library ivr bi3.G77 The rule against perpetuities, 3 1924 018 785 851 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018785851 THE KULE AGAINST PEEPETUITIE8. BY JOHN CHIPMAN GRAY, KOTALL PKOFESSOR OF LAW IN HAKVAKD UNIVEESITT. BOSTON: LITTLE, BROWN, AND COMPANY. 1886. 3C^3^0 Copyright, 1886, By John Chipman Geat. University Press: John Wilson and Son, Cambridgk. PEEFACE. I HAVE long thought that in the present state of legal learning a chief need is for books on special topics, chosen with a view, not to their utility as the subjects of convenient manuals, but to their place and importance in the general system of the law. When such books have been written, it will then, for the first time, become possible to treat fully the great departments of the law', or even to construct a corpus juris. Such a book should deal with the whole of its subject, its history, its relation to other parts of the law, its present con- dition, the general principles which have been evolved and the errors which have been eliminated in its development, and the defects which still mar its logical symmetry, or, what is of vastly greater moment, lessen its value as a guide to conduct. A treatise of this nature I have tried to write on the legal doctrine governing the creation of future interests in prop- erty, commonly known as the Rule against Perpetuities. The doctrines derived from the feudal law, which so closely limited the creation and transfer of future estates, have passed or are fast passing away. Any reasons for their existence have gone, and under the joint action of the Leg- islatures and Courts they have themselves almost disap- peared. Of all that forest of learning there remains here and there only a stump over which an unlucky testator may stumble. But the Rule against Perpetuities is in full vigor;, IV PEEPACE. where the Legislature has interfered, it has been to increase its stringency. Indeed, the Rule is substantially, at the pres- ent day, the law of future interests. Though I have been desirous to keep as closely to the sub- ject as possible, it seemed almost indispensable to show how the law of future interests has been thus simplified and re- duced to the Rule against Perpetuities. Chapter II., which treats of this, cost more labor than any other in the book. On the other hand, questions of construction have been rigorously excluded, unless where, as in Chapter XIX., the Rule against Perpetuities is concerned in their solution. There is an enormous number of cases reported where an interest did or did not violate the Rule, according as one or another construction was adopted. But the adoption of one construction rather than another was not affected by the ex- istence of the Rule, and when a construction had been adopted there was no doubt whether or not the Rule applied to it. The consideration of such cases belongs to a treatise on In- terpretation. It has always seemed to me a blemish in Mr. Lewis's admirable work that so large a part of it is devoted to these questions. The learned reader will observe that some parts of the subject are treated at much greater length than others. The guide in determining the room to be allotted to each question has been its comparative difficulty. On points which have raised serious doubts in the minds of others, or in my own mind, the authorities and arguments have been fully given ; but although I hope the book may be of service not only in practice but to students, it is not written in usum tironum, and undisputed doctrines have been stated with as much brevity as is consistent with accuracy. The ambiguity in the meaning of terms, which is perhaps the chief reproach of our law, has worked great harm with the matters here considered. The Rule against Perpetuities should have been called the Rule against Remoteness. It is PEBFAOE. V aimed at the control of future interests ; it has nothing to do, save incidentally, with present interests. But its name is a constant temptation to treat it as aimed against restraints on the alienation of present interests.^ Hence frequent lapses into error, from which the courts have recovered themselves slowly and painfully ; and hence also statutes, like those of New York, whose interpretation has cost, and will cost, a subsidy.^ If this book has any merit, it is in the more or less successful attempt to free the subject from this source of confusion and mistake.^ In many legal discussions there is, in the last resort, noth- ing to say but that one judge or writer thinks one way, and another writer or judge thinks another way. There is no exact standard to which appeal can be made. In questions of remoteness this is not so ; there is for them a definite rec- ognized rule : if a decision agrees with it, it is right ; if it does not agree with it, it is wrong. In no part of the law is the reasoning so mathematical in its character ; none has so small a human element. A degree of dogmatism, therefore, may be permitted here which would be unbecoming in other branches of the law. If the answer to a problem does not square with the multipli- cation table one may call it wrong, although it be the work of Sir Isaac Newton ; and so if a decision conflicts with the Rule against Perpetuities, one may call it wrong, however learned and able the court that has pronounced it. That I have done all my own sums correctly, I do not ven- ture to hope. There is something in the subject which seems 1 See §§ 2, 3, 140, 234-245, 268-277, 589-591, 600. 2 See §§ 747-750. 8 When 1 began to collect the authorities, I did not clearly apprehend that the Rule against Perpetuities had no direct connection with restraints on alienation, and I intended to devote a chapter to those restraints; but as I went on I saw that such a chapter would be out of place, and therefore concluded to treat the subject in a separate essay, — Restraints on the Alienation of Property, Boston, 1883. VI PREFACE. to facilitate error. Perhaps it is because the mode of rea- soning is unlike that with which lawyers are most familiar. The study and practice of the Rule against Perpetuities is indeed a constant school of modesty. A long list might be formed of the demonstrable blunders with regard to its ques- tions made by eminent men, blunders which they themselves have been sometimes the first to acknowledge ; and there are few lawyers of any practice in drawing wills and settlements who have not at some time either fallen into the net which the Rule spreads for the unwary, or have not at least shuddered to think how narrowly they have escaped it. Finally, I must acknowledge my great obligations to Mr. Lewis's classical treatise. He is prolix, and his prolixity makes him occasionally obscure ; but no writer on the Com- mon Law excels him in acuteness and candor. I have never consulted him but with renewed respect. On a few points I have ventured to disagree with him, but never without diffi- dence. To Mr. Marsden's excellent treatise I also take pleasure in recognizing my indebtedness. From him, too, I have at times differed ; but much oftener I have been forti- fied in mj"^ conclusions on doubtful questions by finding that they agreed with his. With two such books on our shelves I feel I owe an apol- ogy for adding another to the overgrown literature of the law. My excuse must be that it is thirty-six years since Mr. Lewis published the Supplement to his book, and that Mr. Marsden's plan excludes consideration of the history of the Rule ; but chiefly that neither of them deals with the American cases. I have to thank Professor E. W. Gurney for kindly revising the sections in the Appendix on the Roman Law. J. C. G. Boston, January, 1886. TABLE OF CONTENTS. CHAPTER I. Section Introduction 1-4 CHAPTER II. Future Interests 5-98 I. Real Estate 6-70 A. Lands of Freehold Tenure 6-69 1. Common Law 6-17 (1.) Remainders and Reversions . . . 8-11 (2.) Rights of Entry 12 (3.) Possibilities of Reverter .... 13-15 (4.) Rights in Land of Others ... 16, 17 2. Statute De Bonis 18, 19 3. Statute Quia Emptores 20-51 Tenure and the Statute Quia Emptores in the United States 22-28 (1.) Remainders and Reversions ... 29 (2.) Rights of Entry 30 (3.) Possibilities of Reverter .... 31-42 (4.) Rights in Land of Others .... 43 (5.) Escheat, and Dissolution of Corpora- tions 44r-51 4. Statutes of Uses and Wills 52-66 (1.) Bargain and sale of Freehold in fu- turo 56, 57 (2.) Contingent P"se after Estate for Years 68-60 (3.) Bargain and Sale to Person not in esse 61-65 Viil TABLE or CONTENTS. Section 5. Later Legislation 67, 68 6. Equitable Estates 69 B. Lands of Copyhold Tenure 70 II. Personal Estate 71-97 A. Chattels Eeal 71-76 Uses 73 Wills 74 Equity 75 B. Chattels Personal 77-97 English Law 77-87 Uses 79 Wills 80-86 Equity 87 American Law 88-97 Wills 88-90 Deeds 91-96 Eeversionary Interests 97 III. Summary 98 CHAPTER III. Vested and Contingent Interests 99-118 I. Eeal Estate 100-116 Eemainders 100-112 Eeversions 113, 113 a Other Legal Interests 114 Escheat 115 Equitable Interests 116 II. Personal Estate 117 Secondary meanings of the term " vested "... 118 CHAPTER IV. Postponement or Enjoyment 119 -122 a TABLE OP CONTENTS. , ix CHAPTER V. Section Origin and History of the Eule against Perpetuities 123-200 a 1. No Question of Eemoteness in Early Times — Possi- bility on a Possibility 123-134 2. Introduction of Conditional Limitations . . 135-139 3. Double Meaning of Perpetuity 140, 141 4. Conditional Limitations at first held Destructible 142-147 6. Executory Devises of Terms introduced . . 148-152 6. First Suggestions at the Bar of the Eule against Per- petuities 163-158 7. Slow Judicial Eecognition of the Doctrine of Eemote- ness 159-168 8. The Eule against Perpetuities established . . 169, 170 9. Extension of the Eule to cover Minorities . . 171-175 10. Extension of the Eule to cover Terms in Gross 176-185 11. Extensions of the Eule not to be justified on Prin- ciple 186-188 12. Any Number of Lives in esse allowed . . . 189, 190 13. Invalidity of Successive Eemainders not the Origin but the Eesult of the Eule against Perpetuities 191-199 14. The Eule against Perpetuities iti America .... 200 CHAPTEE VL The Eule against Perpetuities and its Corollaries 201-267 1. Nature of Interest 202-204 2. Vested Interests not subject to the Eule . . 205-210 3. Nature of Contingency 211-213 4. The Contingency must happen within Limits 214-215 a 5. Lives in Being 216-219 6. Period of Gestation 220-222 7. Term of Twenty-one Years 223, 224 8. Limitations of an Estate for Life or not exceeding Twenty-one Years 225-230' 9. Time runs from Testator's Death ....... 231 TABLE OF CONTENTS. Section 10. Enougli if Interest begins within the Eequired, Limits 232-246 Examination of American Cases inconsistent with this 234-246 11. Effect of Interests being too Eemote . . . 247-258 (1.) Effect on Prior Limitations .... 247-250 (2.) Effect on Subsequent Limitations . . 251-258 12. Conflict of Laws 259-267 CHAPTER VII. Interests, though Alienable, mat be too Remote 268-278 CHAPTER VIII. Interests subject to the Rule against Perpetuities 279-330 I. Legal Interests 283-321 A. Real Estate 283-318 (1.) Reversions and Vested Remainders . . 283 (2.) Contingent Remainders .... 284-298 (3.) Rights of Entry 299-311 (4.) Possibilities of Reverter .... 312, 313 (5.) Rights in Land of Others . . . 314-316 (6.) Conditional Limitations 317 Copyholds 318 S. Personal Estate 319-321 II. Equitable Interests 322-328 III. Contracts 329, 330 CHAPTER IX. Separable Limitations 331-368 CHAPTER X. Limitations to Classes 369-398 Independent Gifts 389-395 TABLE OF CONTENTS. xi CHAPTEE XI. Section Limitations to a Series 399-410 CHAPTEE XII. Teusts 411-422 a Trusts for the Payment of Debts ...... 415-417 Executory Trusts 418-422 CHAPTEE XIII. Modifying and Qualifying Clauses 423-442 CHAPTEE XIV. Limitations after Estates Tail 443-472 CHAPTEE XV. Powers 473-561 1. If a Power can be exercised at a Time beyond' the Limits of the Eule against Perpetuities it is bad 475-509 2. A Power which cannot be exercised beyond the Lim- its of the Eule is not rendered bad by the fact that within its Terms an Appointment could be made which would be too Eemote 610-513 3. The Eemoteness of an Appointment depends on its Distance from the Creation, and not from the Ex- ercise, of the Power 514^630 4. Consequences of an Appointment being too Ee- mote 531-540 5. Election 541-561 CHAPTEE XVI. Mortgages 562-671 Eights at Law 562, 663 Eights in Equity 564-671 Xll TABLE OF CONTENTS. CHAPTER XVII. Section CusTOMARX Eights . 572-588 CHAPTEE XVIII. Charitable Trusts : 689-628 Gifts to Corporations not in esse 604-626 CHAPTEE XIX. Construction . 629-670 Ci/pres 643-670 CHAPTEE XX. Accumulations 671-679 APPENDIX. A. Charities roR Definite Persons 680-685 Note. — The Attorney General as a Party to Suits for enforcing Charities. B. The Thellusson Act 686-727 C. Legislative Changes in the United States . 728-752 Z>. Foreign Law 753-773 I. Scotch Law 753-760 II. Eoman Law 761, 762 III. French Law 763-765 IV. Law of Louisiana 766-772 V. Law of Texas 773 TABLE OF CASES CITED. The Befebences are to the Sections. Section Abbisa v. Burney 194, 325, 326, 451 Abbot V. Weekly 576 Abbott V. Holway 67 Ackerman v. Shelp 584, 585 V. Vreeland 352 Adams V. Adams 646, 648 V. Broughton 91 V. Chaplin 14 V. Perry 750 ». Savage 58, 60 Adye v. Smith 621 Aikin v. Albany, &c. R. E. Co. 282 V. Smith 91 Albee v. Cummings 88 Alexander v. Alexander 255 Alfred V. Marks 739 Allason's Trusts 215 a Allen's Case 137 Allen V. Stevens 585 Allyn V. Mather 647, 662-664 Alverson v. Eandall 108 American Abademy o. Harvard College 678 American Bible Society v. Stark 750 Amner v. Luddington 151 Amory v. Lord 750 Anderson v. Pike 771 Andrew v. Andrew 231 Andrews v. Andrews 607 V. Partington 638 Anon, (cited 9 Hen; VI. 23, 24) 134 Anon. (2 Abb. N. C. 56) 308 Anon. (3 Atk. 277) 680, 081 Anon. (Bro. Ab. Chat. 140, pi. 23) 149 Anon. (Bro. Ab.FeofF.alUses.pl.SO) 137 Anon. (Bro. Ab. Feoff, al Uses pi. 50) 136 Anon. (13 Co. 48) 187 Anon. (Dyer, 7 a) 80, 149, 153 Anon. (Dyer, 74 b, pi. 18) 149 Anon. (Dyer, 124 a) 138 Anon. /Dyer, 277 6) 150 Section Anon. (Dyer, 300 b) 33 Anon. (Freem. Ch. 137) 86 Anon. (Freem. Ch. 206) 84 Anon. (2 Hayw. 161) 97 Anon. (Jenk. Cent. 5) 34 Anon. (Jenk. 328) 187 Anon. (8 Leon. 195 ; 4 Leon. 192) 151 Anon. (March, 106) 83 Anon. (Moore, 608) 137 Anon. (Owen, 33) 80 Anon. (Sav. 11) 577 Anon. (Sel. Cas. in Ch. 69) 685 Apprice v. Flower 163 Archer's Case 145 Archer v. Dowsing 215 a Arraitage v. Coates 434 Armstrong v. Armstrong 351 V West 256 Arnaud v. Tarbe 769 Arnold v. Cougreve 389, 424 V. Gilbert 750 Ashley v. Ashley 207, 232 Ashton Charity, Re 590 Ashurst V. Given 721 Aspden v. Seddon 280, 329 Atkinson i\ Hutchinson 633 AttenborougU v. Attenborough 346, 349, 480, 510 A. G. V. Archbishop of York 590 V. Barker 685 V. Bishop of Chester 607 V. Bishop of Oxford 605 V, Boucherett 685 V. Bowyer 607 V. Brettingham 590, 685 u. Buckland 683 V. BucknaU 683, 685 V. BuUer 590 V. Butler 678, 685 V. Carlisle 685 V. Claphara 685 V. Cock 681 V. Craven 607 XIV TABLE OF CASES CITED. Section A. G. V. Crispin V. Cross 110 590 V. Dove 685 V. Downing V. Dublin 607 681 V. Fellows 685 V. Gill 231, 594 V. Goddard 681 V. Goulding V. Gower 605 51 V. Green 685 V. Haberdashers' Co. 685 V. Heath 685 V. Heelis 685 V. Hungerford V. Ironmongers' Co. V. Jolly V, Kerr 590 685 605 590 V. Magdalen College V. Mathias 685 579 V. Mayor of Dublin i>. Mayor of Galway V. Merrimack Manuf. Co. 685 685 282 V. Mill 264 u. Nethercoat 590 V. Newark 590, 685 V. Northumberland 683, 685 V. Plumptree V. Poulden 678 685 697, 704 V. Price 683, 685 V. St. Cross Hospital V. Sands 685 43 V. Sherborne Grammar School 685 V. Smart 685 V. Southraolton 282 V. South Sea Co. 590 V. Vivian 685 V. Wallace 350 V. Warren 590, 685 V. Wax Chandlers' Co. 282 c;. Webster 627 V. Whitchurch 605 V. Whorwood 685 V. Wright V. Wyggeston's Hospital Attwater v. Attwater 685 685 282 Austin V. Cambridgeport Parish 305, 306 Avern v. Lloyd 232, 270 276, 277 Ayling v. Kramer Ayres v. Falkland 282 33 B. Backhouse v. Bellingham 161, 361 Bacon v. Proctor 400, 415, 676 Bagshaw v. Spencer 415 Bailey v. Bailey 750 Section Bailey v. Seabrook 14 Baker's Succession 770 Baker v. Brereman 576, 577 Baldwin v. Joyner 93 V. Rogers 110, 388 Balm V. Balm 638 Bankes v. Holme 452 V. Le Despencer 418 Banks v. Marksberry 88, 91 V. Phelan 750 Baptist Ass. v. Hart 616 Barbour v. De Forest 750 Barger's Appeal 722 Barker v. Dayton 28 Barksdale v. Gamage 14 Earnardiston v. Carter 415 Barnes v. Allen 118 V. Patch 408 Barnitz v. Casey 224 Barnum v. Baltimore 611 ... Barnum 232, 235, 237, 240, 397, 508 Barrett v. Buck 702, 713 Barrie v. Smith 282, 307, 309 Barrington v. Liddell 686, 710, 711 V. Tristram 638 Barton's Case 141, 146 Barwick's Case 71 Bascom v. Albertson 260, 609, V50 V. Nichols 260, 609 Bassil V. Lister 693 Bateman v. Hotchkin 676 Baxter's Trusts 121 Bean v. Bloom 6(9 V. Bowen 750 V. Hockman 750 Beard v. Westcott 184, 232, 252-257, 654 Beardsley v. Hotchkiss 750 Beatty v. Kurtz 685 Beau V. Bloom 579 Beaulieu v. Ternoir 768 Beckman v. Bonsor 609, 750 Bective v. Hodgson 687, 690 Bedford Charity, Re 685 Bedford's (Earl of) Case 58, 141 Bedon v. Bedon 14 Beech v. St. Vincent 711 Belcher v. Burnett 118 Bell V. Bell 389, 391, 521, 537 V. Scammon 57 V. Warden 676 Belt's Estates 215 a Benedict v. Webb 750 Bengough v. Eldridge 185 Bennet v. Lewknor 153, 154, 156 Bennett v. Bennett 449 V. Lowe 232 Benson v. Hodson 449 Bentinck v. Portland 382 389 TABLE OF OASES CITED. XV Se ction Section Berkeley v. Swinburne 638 Braeebridge v. Cook 144 Bernal v. Bernal 683 685 Bradley v. Mosby 91 Betty V. Moore 95, 97 Braman v. Stiles 120 Bible Society v. Pendleton 267 Brandon v. Woodthorpe 215 a Biddle's Appeal 679 Brasher v. Marsh 740 Biddle v. Perkins 492 Brattle Square Church v Grant 247, Billing V. Welch 282 268, 305 308, 593 Bingham v. Jones 760 Bray v. Bree 477, 524 V. Weiderwax 51 V. Hamraersley 477, 524 Birmingham Canal Co. V. Cart- Bremer v. Penniman 750 Wright 270 274 ,275 330 Brent's Case 137, 142 Biscoe V. Biscoe 228 Brent v. Gilbert 131 137, 142 Bisliop of Winchester v. Prior of Brett !). Sawbridge 362 St. John 46 Brewer v. Brewer 259, 750 Black V. Ray 97 V. Hardy 57 Blackbourn v. Lassels 136 Brewster v. McCall 88 Blacket v. Lamb 542, 545-547, 549, Brian and Cawsen's Case 33 550 Bridges v. Pleasants 620 Blagrove v. Hancock 325 ■374 Bridgnorth v. Collins 686, 690 Blakemore's Settlement 374 Briggs V. Oxford 468,486,497,498,504, Blamford v. Blamford 125 133 288 676 Blanchard v. Blanchard 108 750 Brink v. Richtmyer 577 0. Detroit, &c. R. R. Co; 282 Bristow V. Boothby 452, 475, 494 Bland v. Lipscombe 579 V. Warde 647, 651 V. Wilhams 121 Bromfield's Estate 97 Blandford v. Thackerell 389 Brooke v. Turner 656 Blasson v. Blasson 220 Broome v. King 88 Blease v. Burgh 121 638 Brouncker v, Bagot 75 Blewett V. Tregonning 579 Brown, Matter of 107 Blight V. HartnoU 374 385 476 511 Brown's Settlement 490 498, 499 Bliven v. Seymour 750 Brown & Sibly's Contrac 268, 522 Blosse V. Clanmorris 33 Brown v. Dale 680 Blundell v. Catterall 577 Doe d., V. Holme 113 a Board of Education v. Edson 42 V. Evans 750 Boiling V. Petersburg 39 307 V. Kelsey 97 Bolls V. Winton 62 141 146 V. Meeting Si. Society 590 Bolton V. Jacks 750 V. Pratt 93 Bond's Case 578 V. Pringle 215 a Bonner v. Latham 93 0. Williams 108 Boraston's Case 138 V. Williamson 716, 717, 721 Boreliam v. Bignall 121 374 Browne v. Hammond 110 Borland v. Marshall 68 V. Stoughton 466, 467, 471 a, 505, Bostock's Case 187 688 Boteler v. Bristow 576 577 579 V. Taylor 215 a Boucher v. Antram 161 V, Warnock 215 a Boughton V. Boughton 374, 389, 674, Brownlee v. Douslin 279 688 Brudenell v. Elwes 206, 232, 255, 645, v. James 232, 374, 389, 645, 647, 646, 651 651, 674, 688 Brummet v. Barber 96 Bouknight v. Brown 108 Brunsden v. Woolredge 683 Bould V. Wynston 141, 146 Bryan v. Collins 691, 699 Boulton's Case 138 Buchanan v. Harrison 206, 214 Bourne v. Buckton 704, 711 Buekhurst Peerage 13,36 Bowditch V. Andrew 117 Buckler v. Harvy 17 Bowers v. Beekman 750 Buckley v. Simonds » 61 Bowyer v. West 374 Buckton V. Hay 390, 436, 441 Boyce v. Banning 489, 499 Buckworth v. Thirkell 182 Boydell v. Golightly 362 Bufford V. HoUiman 773 Boynton v. Hoyt 750 Buist V. Dawes 14 Bracebridge's Case 137, 144 Bulkley v. Depeyster 750 XVI TABLE OP CASES CITED. Bull V. Pritchard Bullock V. Stones Burges v. Burges Burgess V. Wheate Burke v. Valentine Burley v. Evelyn Burnett?). Roberts Burrill V, Boardman V. Shell Burt V. Sturt Burton's Appeal Bute, In re Bute V. Harman Butler V. Butler V. Godley Byers v. McCartney Section 325, 326, 374 175 161, 166, 168, 361 51 750 232, 252, 253 88 609, 750 750 704,711 590 365 121, 874 633, 716, 750 94 625 Cadell I). Palmer 178, 184-186, 206, 218, 222, 223 Caines v. Marley 91 Caldwell v. Willis 249, 398, 409 Cambridge v. Rous 348 Campbell v. Harding 227 Canal Bridge v. Methodist Relig- ious Society 305 Cannon v. Barry 746 Carbery v. Cox 605, 680 Cardigan v. Armitage 84 Ca;rkhuff 17. Anderson 720 Carlyon v. Levering 588 Came v. Long 680 Carpenter v. Historical Society 609 V. Miller 619 Carr v. Atkinson 535 V. Bedford 683 V. Erroll 365, 449 Carroll v. Olmsted 23, 68 Carson's Appeal 717, 718 Carter v. Barnardiston 11, 415 V, Branson 307 V. Cropley 627 V. Doe 306 Carver v. Bowles 425, 433, 542, 546, 548, 549, 552, 556 Case V. Drosier 456, 458, 469, 470 Catchniay v. Nicholas 84 Cater v. Balfour 612 Cattlin ;;. Brown 231, 232, 294, 333, 889, 391, 631 Cecil's Case 150 Cecile v. Lacoste 770 Chalfont ;;. Okes 166 Chamberlain v. Chamberlain 260, 265 Chamberlayne v. Brockett 606, 607, 677 Champernon's Case 35 Section Chance v. Chance 374 Chapman d. Oliver v. Brown 133, 197, 288, 633, 645 Chappel V. Brewster 19, 663 Chatfield v. Berchtholdt 259 Chedington's (Rector of) Case 125, 126, 133, 151, 169, 288 Cheeseman v. Partridge 681 Cherry v. Mott 605, 606 Child V. Baylie 152-160, 168, 169 V. Child 750 Childs V. Russell 117 Chilton V. London 579, 581 Chitty V. Parker 685 Cholmeley v. Humble 140 Cholmley's Case 125, 127 Christ's Hospital v. A. O. 685 V. Grainger 597-600 Christie v. Gosling 120, 365, 367, 633 Christopher Corbet's Case 35 Chudleigh's Case 58, 63, 134, 187, 141, 143, 144 Church V. Kemble 425, 538, 543 Churchill v. Churchill 428, 551, 553 Clancy v. O'Gara 750 Clapp V. Stoughton 308 Clare v. Clare • 361 Clarges v. Albemarle 84 Clark v. Taylor 605 Clarke, Doe d., v. Clarke 220 Clemens v. Clemens 750 Clements v. Leitrim 471 a Cleveland, &c. R. Co. v. Coburn 17, 279 Cloutier v. Lecomte 769 Clulow's Trust 700, 703, 711 Cobb V. Davenport 584 Cochrane's Succession 768 Cochrane v. Cochrane 467, 471 a, 505 Cocks V. Manners 680 Coit V. Comstock 305, 311, 621-624 Colchester, Mayor of, v. Brooke 61 Cole V. Cole 770 V. Sewell 133, 186, 287, 447, 449, 490, 498 Collier v. M'Bean 37, 40 V. Walters 37, 40 Collins Manuf. Co. u. Marcy 807 CoUison V. Lettsom 274 Colston's Hospital, fie 590 Colton V. Fox 231, 750 Colvin V. Nelson 769 Comberbach. Doe d., v. Perryn 110 Commercial Bank v. Lockwood 51 Commissioners of Streets, fie 215 a Commissioners v. De Clifford 33, 337, 596 Comport V. Austen 374 Conduitt i.'. Soane 215 a Congregational Society v. Stark 89, 307 TABLE OP CASES CITED. XVU Section 37,40 529 716, 722 570 750 750 110 207 a 585, 587 700, 707 91 215 a, 437, 441 140 Conner v. Waring CouoUy V. M'Dermott Conrow's Appeal Constable v. Nicholson Converse v. Kellogg Cook V. Lowry 'Cooke V. Bow en V. Bowler CooUdge V. Learned Coorabe v. Huglies Cooper V. Cooper V, Laroclie Corbet's Case Corbet's (Cliristoplier) Case Corbyn v. French Cornelius w. Ivins Cornell v. Lamb Corpus Christi College Case Cortelyou v. Van Brundt Cotton's Trustees, Re Cotton V. Heath Doe d., V. Stenlake Coulter V. Robertson Courtier v. Oram Coventry v. Coventry Cowell B. Springs Co. Cox V. Harris V. Sutton Craig V. Craig V. Hone V. Stacey Crane v. Hyde Park Crawford v. Lundy V. Moses Crawley v. Crawley Cresson v, Ferree Creswell v. Emberson Cromek v. Lumb Cromie v. Louisville Home Society Crompe v. Barrow Cromwell v. Cromwell Crooke p. County of Kings Cross V. Glennie Goodtitle d., v. Croxall V. Sliererd Croxton v. May Crozier v. Crozier Cruger v. Cruger V. Hey ward V. McLaury Cruwys v. Coleman Cumming v. Beid Cimrcli Cunliffe v. Brancker Cunningham v. Moody Cunynghame's Settlement, Re Curran v. Philadelphia Trust Co. 35 605 306 23 129 577 490, 499 162, 232 656 51 277, 374, 428 120 305, 306 248 750 750 114, 206, 445 307 499 228 687, 704, 708 499 374, 389 Orphans' 607 342 750 750 465, 674 WodhuU 656 107 215 a 256 750 14 309 408 Memorial 607 631 112 435, 437 678, 724 Section Curtis V. Hatton 264 V. Keesler 687 o. Lukin 120, 268, 277, 674, 675, 688 Cutlar V. Spiller 92 D. D'Abbadie v. Bizoin 108, 206, 522, 531 Dail V. Jones 93 Daniel v. ArkwrigUt 530 V. Jackoway 40, 827 V. Stepney 303 Daniels v. Eldredge 118, 120 V. Wilson 40 Dartmouth College v. Woodward 590 Dashiell v. Dashiell 88 Davenport v. Harris 374 Davies v. Fisher 121 Davis t>. Bush 215 a V. Jenkins 685 V. Speed 177 Dawson v. Dawson 91 Dayton v. Conklin 750 Dean & Canons of Winsor v. Webb 43, 49 Deas V. Horry 14 De Barante v. Gott 750 Deer v. Devin 96 Deerhurst v. St. Albans 232, 401 Defflis V. Goldschmidt . 215 a Deford y. Deford 232, 235, 240, 246, 248, 397 Deihl V. King 88 Delamy's Estate, Re 680 Delaplane v. Crenshaw 585 De Lassus v. Gatewood 108 Delbert's Appeal 108 Den V. Central R. R. Co. 307, 309 V. Davis 19 V. Demarest 107, 108 «. Page 2:12 Dennehy's Estate 651 Denny v. Allen 117 De Peyster v. Beekman 750 V. Clendining 750 V. Michael 24, 307 Derbyshire's Estate 679 De Renne's Estate 263, 724, 725 Despard v. Churchill 259, 263 De Themmines v. Bonneval 605 Devisme v. Mello 110 De Wolf I). Lawson 265, 751 Dey Ermand, Matter of 750 Dickie v. Van Vleck 750 Dickinson v. Mort 4.33 Dickson ti. Montgomery 613 Dillam v, Frain 141 XVlll TABLE OF CASES CITED. Section Dillon V. Fraine 63, 141, 142 V. Eeilly 408 a Dingley v. Dingley 117 Dodd i.. Wake 215 a, 374 Dodge V. Pond 750 V. Williams 265, 607, /51 Doe V. Bateman 30,72 V. Challis 338-340 a, 344 (■• Clarke 220 u. Considine 103 V. Dorvell 112 V. Elvey 113 a V. ronnerau 175, 182 V. Gallini 660 u. Garrod 206 V. Holme 113 a V. Jesson 511 V. McFadden 67 V. Mclsaac 422 a, 670 a. Martin 112 V. Pearson 282 V. Perratt 447 V. Perryn 110 II. Scarborough 449, 456 V. Scudaraore 108 V. Stenlake 656 V. Vaughan 232 V. Ward 121 Dolley, Doe d., v. Ward 121 Donaldson v. Am. Tract Society 750 Doncaster v. Doncaster 365, 497, 499 Donohue v. McNichol 208, 232 Doo V. Brabant 180 Dorchester v. Effingham 418 Dorland v. Dorland 750 Dorrian v. Gilmore 408 a Doubleday v. Newton 750 Douglas V. Douglas 77 V. Hawes 282, 307 Dowd V. Montgomery 92 Downing v. Marshall 609, 750 Drake v. Brown 720 Drakeley's Estate 704 Drewett v. Pollard 711 Drown v. Smith 57 Da Bois V. Ray 633, 760 Ducloslange's Succession 770 Ducloslange v. Ross 769 Duffield V. Duffleld 103 Dukes V. Dyches 91 Duncan v. Sel£ 92 V. Sylvester 577 Dundee, Magistrates of, v. Morris 678 Dungannon v- Smith 186, 231, 334-336, 401, 403-405, 407, 409, 464, 630 Dunn V. Flood 302, 303 V. Sargent 118 Duplessis V. Kennedy 766 Dupre V. Thompson 750 Dutch Church v. Mott 590 Section Dutton, Re 680 Dyce V. Hay 578 Dyson v. Repp 727, 745 E. Easterbrooks v. Tillinghast 327 Eberly's Appeal 722 a Ecclesall, Overseers of. Re 690 Edelen v. Middleton 228 Edge V. Salisbury 683 Edmondson's Estate 121, 277 Edward Seymor's Case 84 Edwards v. Barksdale 14 V. Champion • 227 .,. Tuck 215 a, 686, 701, 704, 711 Eels V. Lynch 750 Egerton v. Massey 11, 113 a Elborne v. Goode 687, 690, 704, 713 Elliott V. Elliott 634, 640, 641 Ellis V. Maxwell 262, 267, 686, 687, 699, 704, 714 V. Prevost 772 Elmer v. Scot 685 Emerson v. Cutler 117 V. Simpson 309 Emison v. Whittlesey 108 Emmet's Estate 638, 639 Emmons v. Cairns 750 Episcopal City Mission v. Appleton 282 Erskine v. Wright 755 Evans v. Astley 232 V. Hellier 687, 703, 711 V. Walker 117, 232 Everdike v. Prior of Bridlington 123 Everitt v. Everitt 760 Evers !,■. ChaUis 338-340 a, 344 Ewen V. Bannerman 678 V. Magistrates of Montrose 678 Exmouth, In re 365, 407 Eyre v. Marsden 687, 694, 701, 702, 704-706, 711, 713 Eyres v. Faulkland 33 F. Faber v. PoUce 108 Fairfield v. Lawson 621 Farmer v. Francis 121 Farnseombe, Re 382 Farrar v. M'Cutoheon 769 Farrell v. Cameron 215 a Farrington v. Darrel 124, 129, 184 Faulkner v. Daniel 231, 448 V. Elger 627 Ferguson v. Ferguson 247, 449, 631, 670 V. Hedges 248 TABLE OF CASES CITED. XIX Section Ferguson v. Mason 67 Ferrand v. Wilson Ui, 464, 483, 497, 501, 502, 604 Field V. Field 750 First Methodist Church v. Old Co- lumbia Co. 38 Fisher v. Smith 65 Fisk V. Fisk 770 Fitch a. Rawling 576, 677 V. Weber 706 Fitzhugh «. Anderson 96 Fitzroy v. Kiolimond 530 Fletcher v. Fletcher 14, 39 Flory w. Denny 77 Flower v. Hartopp 299 Floyer v. Bankes 467, 605 Foley V. Burnell 85, 365 Folger V. Chase 44, 51 Forbes v. Eccl. Commissioners 578 Fordyce i>. Bridges 264,265,714,760 V. Ford 365 Forsbrook v. Forsbrook 656, 658-660, 665 Forster v. Brown 153 Forsyth v. Eathbone 760 Forth V. Chapman 361, 632 Foscue V. Foscue 92 Fosdick V. Fosdick 242-246, 374 Foster v. Romney 232 V. Wybrants 647 Fowler v. Dale 578, 579 V. Depau 750 Fox V. Fox 121 V. Horah 51 Foxwith V. Tremain 159 Foy !;. Hynde 140 V. Mayor, &c. of Baltimore 40 Franklin's Succession 769 Franklin v. Armfield 590, 684, 731 Fraser v. Fraser 215 a Freeman, Doe d., v. Bateman 30, 72 Freke v. Carbery 259, 264, 714 Fieme v. Clement 633 French v. Old South Society 305, 306 Friedman v. Steiner 39 Fry V. Capper 434 Fuller V. Arms 282 Fulmerston v. Steward 138, 139 Furness Minors' Estate 717, 723 G. 67 616 Gale V. Coburn Gallego V. A. G. Gallini, Doe d., v. Gallini 660 Gano V. McCunn 750 Gardette's Estate 239 a, 438, 523 h Gardner v. Sheldon 14, 33 Section Garland v. Brown 277 Garrett v. Scouten 809 Garrod, Doe d., u. Garrod 206 Garth v. Cotton 192 Garvey v. McDevitt 750 Gateward's Case 576, 579 Gault V. Hall 65 Gaved u. Martyn 588 Gay V. Gay 159, 160 Gebhardt v. Beeves 42 Gee V. Audley 537 Geiger v. Brown 97 Gentili, Goods of 269 Germin v. Ascot 140 Gerrard v. Butler 428 Gibert v. Peteler 308 Gibson v. McNeely 647, 669, 740 V. Moulton 666, 740 Giddings v. Smith 733 Gilbert v. Murdock 92 Gilbertson v. Richards 270-275, 316, 667, 570 Giles V. Boston Society 305, 311 Gill, Doe d., o. Pearson 282 Gillam v. Taylor 683, 686 Gillespie v. Broas 40 Gillis V. Bailey 307 Gilman, Doe d., u. Elvey 113 a V. Healy 760 V. Reddington 750 Giraud v. Giraud 750 Glass V. Richardson 70 Godolphin v. Godolphin 645 Goldsborough v. Martin 232, 235, 240, 397, 409 Gooch V. Gooch 232, 244, 268, 277, 374, 388 Goodday v. Michell 576 Goodiar v. Clarke 448 Goodier v. Gierke 448 V. Johnson 117, 206, 214, 388 Gooding v. Read 232, 242 Goodinge v. Goodinge 683 Goodman v. Goodright 182 ■u. Mayor of Saltash 679, 581-583, 682, 685 Goodtitle v. Burtenshaw 60 V. WodhuU 656 V. Wood 182 Goodwin v. Clark 448 Gore V. Gore 60, 174, 175, 180, 181, 209 Gorham v. Daniels 67 Goring v. Bickerstaffe 163, 164, 167, 168, 189 V. Howard 345 Gorst V. Lowndes 697 Gortario v. Cantu 730, 778 Gosling V. Gosling 120, 367, 641, 692 Gosset's Settlement 529 Gott V. Cook 750 XX TABLE or CASES CITED. Section Gould V. Taylor Orphan Asylum 607 Governor St. Thomas Hospital v. Charing Cross K. Co. 590 Gowdchep's Case 124 Gowen's Appeal 215 a Gower v. Grosvenor 231, 361, 364 Goyeau v. Gt. West. K. Co. 306 Graham v. Graham 92 V. Read 750 Grange v. Twing 475 Grant v. Grant 750 V. Lynam 408 Gray v. Blanchard 305, 306 V. Bond 577 V. Gray 19 V. Montagu 268 Green v. Allen 613 V. Edwards 150 V. Gascoyne . 694, 701, 713 V. Howard 683 Greene u. Dennis 248 Greenwood v. Roberts 391 Greet v. Greet 121 GrifCen v. Ford 231, 750 Griffin v. Carter 93 V. Graham 620, 731 Griffith V. Blunt 374 V. Harrison 645, 647 V. Jones 683 V. Pownall 389, 510, 537 Griffiths V. Vera 687, 691 Griggs V. Dodge 88 Grim's Estate 717, 718, 722 Grimes v. Harmon 614 Grimstead v. Marlowe 576, 579 Grimston v. Bruce 282 Grout V. Schoonhoven 750 Groves v. Groves 215 a V. Nntt 769 Guild V. Richards 282, 306 Gullett V. Lamberton 91 Gulliver v. Wickett 170, 175, 338 H. Hale V. Hale 231 382, 383, 385 V. Pew 483, 647, 651 Haley v. Bannister 699, 704 Halford v. Stains 701, 702, 711 Hall's Charity, Re 590 Hall V. Deering 34 V. Hall 374 V. Nottingham 576 V. Nute 103 Hamilton v. Brickwood 215 a V. Hempsted 19, 663 V. Rodgers 378 Hampton v. Holman 232, 645, 052, 658, Section Hanbury & Cookrell's Case 169 Hancock v. Butler 633 Hand v. North 380 Handall v. Brown 151 Hanington, Doe d., v. McFadden 67 Hannan v. Osborn 760 Hannington v. Richards 161 V. Ryder 151 Harbin v. Masterman 122 a, 679, 692, 704 Harding v. Nott 347 Hare v. Barges 230 Harper v. Stanbrough '769 Harrell v. Davis 92 V. Harrell 94 Harrington v. Harrington 365-367 Harris v. Barnes 60 u. Carson 585 V. Clarissa 228 V. Clark 750 V. Davis 227, 231 0. McLaran 91, 97, 249 Harrison v. Grimwood 121 V. Harrison 750 V. Round 449 Hartopp V. Carbery 316, 450 Harvey v. Stracey 428, 510, 516, 522, 537, 538, 631 Harwell v. Lucas 137 Hasker v. Summers 330, 485 Hasley v. Hasley 770 Hastie v. Arsdie 714 Hatton V. Weems 228 Haverington's Case 161 Hawes Place Congregational Society V. Trustees 679 Hawley v. James 267, 750 Haxtem v. Corse 750 Hay V. Coventry 232 Hayden v. Stoughton 248, 308 Hayes v. Hayes 232 V. Kershow 760 V. Tabor 103 Haynes v. Haynes 215 a Haywood v. Stillingfleet 60 Heald v. Heald 232 Heasman o. Pearse 447, 631 Heiss V. Murphey 607 Helfenstine v. Garrard 23, 68 Helm V. Webster 42 Henderson v. Hunter 38 Hennessy v. Patterson 107 Henrion v. Bonham 680 Henry v. Means 88 Hensliaw v. Atkinson 607 Hensman v. Fryer 113 a Herbert v. Webster 390, 437, 441 Heron v. Stokes 112 Heuser v. Harris 607 Heyns v. Villars 63, 141 TABLE OF CASES CITED. XXI Section Heywood v. Heywood 261, 696, 714 Higgenbotham v. Rucker 97 Higgins V. Derby 361 V. Dowler 361 Hill V. Hill 88, 91, 94, 97 V. Lord 584, 585 Hills V. Simonds 392, 394 HlUyard v. Miller 678 Hilton V. Hilton 120, 692 Hinckley, Estate of 752 Hinde v. Lyon 138 Hoare v. Parker 86 Hobbs V. Parsons 277 Hobson V. Hale 259, 265 V. Hole 750 Hockley v. Mawbey 511 Hodgson V. Halford 250, 437 Hodson V. Ball 206, 214 Hoe V. Garrell 138, 142 Hoes V. Hoesen 97 Hogan V. Byrne 680 Hogg V. Jones 366 Hoggatt V. Gibba 769 Holder v. Preston 478 Holland v. Peck 620 HoUovvay v. Webber 366, 367 Holmes v. Mead 750 Holmesdale v. West 365, 418 Holton V. McAllister 93 Home V. Jackson 107 Homer u. Shelton 89, 90 Hone V. Van Schaick 750 Hooker v. Utica Turnpike Road Co. 40 Hooper v. Bradbury 90 V. Cummlngs 307 Hope V. Gloucester 230, 316 V. Hutchins 91 V. Johnson 22'8 Hopkins v. Hopkins 189, 194, 325, 645 Hopper, Den d., v. Demarest 107, 108 Horn V. Gartman 91 Horner v. Chicago, &o. R. R. Co. 306 Horry v. Glover 88 Horwitz V. Norris 720 Hosea v. Jacobs 231 Hosford V. Ballard 309 Hoste V. Pratt 379 Howard v. Norfolk 161, 169 Howell's Estate 717, 718 Hoyle V. M'Cunn 577 Huber's Appeal 720 Hucks V. Hucks 645 Hudson V. Hudson 77 Hughes V. Cannon 92 V. Daly 621 Hugo V. Williams 656 Hull V. Hull 750 Humberston f. Humberston 189, 193, 645, 650, Q52 Hunt V. Beeson 309 Section Hunt V. Davis 92 V. Hunt 57 V. Wright 305, 311 Hunter v. Hunter 750 Hyde v. Parrat 84 I. Ibbetson v. Ibbetson 334, 407 Idle V. Cook 33 Indianapolis R. R. Co. v. Hood 306 Indian Orchard Canal Co. v. Sikes 305 IngersoU v. Sergeant 26 Inglis 0. Sailors' Snug Harbor 607 Ingram v. Porter 91 Irons V. Smallpiece 77 Irving V. De Kay 750 Irwin V. Irwin 529 Isaac V. Defriez 683, 685 Iseman v. Myres 750 Ivimey v. Stocker 588 J. JacKd. Westby v. Fetlierstone 447 Jackson v. Brown 664 V. Demarest 309 V. Dunsbagh 67 V. Jackson 58 V. Marjoribanks 121 V. Phillips 363, 608, 680 V. Sclmtz 24 V, Selring 65 V. Topping 306 Jacob's Will, Re 120 Jacob and Telling's Case 159 Jacobson v. Fountain 574 Jagger v. Jagger 695 Jaggers v. Estes 91, 96 Jamaica Pond Aqueduct Co. v. Chandler 40 James v. Beasley 750 V. Masters 97 V. Wynford 380 Janey v. Latane 616 Jansen v. Cairnes 750 Jay V. Jay 159 Jee V. Audley 182, 215, 215 a, 339, 373, 537 Jeefers v. Lampson 108 Jeffersonville, &c. R. Co. v. Barbour 309 Jeffries v, Jeffries 282 Jennings v. Jennings 750 Jerrayn v. Orchard 71 Jocelyn v. Nott 605, 622 Johnson's Trusts 268,365,366,594 Johnson v. Lish 228 xxu TABLE OF CASES CITED. Johnson v. Mayne V. Mitchell V. Norway Johnston, In re Jones V. Habersham V. Hoskins V. Maggs V. Postell V. Zollicoffer Jordan u. Roach V. Stevens Josselyn y. Josselyn Judd V Judd K. Kain v. Gibhoney Kampf V. Jones Kane v. Gott Keating v. Reynolds Keen v. Macey Keening v. Ayling Keiley v. Fowler Keith V. Keith Kelly V. Love Kelso V. Dickey V. Lorillard Kenege v. Elliott Kenrick v. Dempsey Kent V. Waite Kenyon v. Nichols Keppell V. Bailey Ker V. Dungannon 335, V. Hamilton Kerlin v. Campbell Kerr v. Dougherty Kevern v. Williams Keyser's Appeal Killam v. Allen Kilpatrick v. Graves V. Johnson Kimball v. Crocker King, The, v. Prior of the of St. John King V. Cotton V. Ecclesfield V. HoUington V. King 542, 545, V. Parker V. Rundle V. Whaley Kingswell v. Kingswell Kinnaird v. Miller Kirkpatrick v. Davidson Knapping v. Tomlinson Knight V. Ellis V. King V. Knight Section 625 91 50 365, 407 311, 590, 597, 607 91 704, 711 , 313, 455 14,: 746 57 120, 692 374 616 426, 544 750 88 91 308 633 704, 714, 760 616 118 750 309 275, 330, 485 585 584 268 336, 399, 407, 656 374, 639 38 265 634, 638-640 120, 236 750 39 750 121 Hospital 44,46 227 578 43 548, 550, 554 681 750 750 71 618 88,96 389, 391 362 579 161 Knowles v. Dow V. Nichols Knox V. Jones V. Wells Kumpei). Coons Kmiku V. Kawainui L. Ladd V. Mills Lade v. Holford Lambe v. Archer Lambert v. Smith Lampet's Case Section 585 584 259, 260, 750 121 107 65,67 750 464 359 65 Lampitt v. Starkey Lamport's Case Lance v. Lance Lancefield v. Iggulden Lane v. Cowper Den d., v. Davis V. Lane Lanesborough v. Fox Lang V. Ropke V. Wilbraham Langston v. Blackmore Lantsbery v. Collier Lassence v. Tierney Law's Succession Lavve v. Hyde Lawrence v. Bayard Leach v. Leach Leake v. Robinson 74, 80, 82, 125, 133, 152, 159 152 159 93 113 a 131 19 121 452 231, 750 231, 750 529 497-499 426, 431 770 305, 309 107 633, 634, 637 343, 373, 375, 382, 385, 389, 687 750 764 151 110, 151 215 a 112 609, 750 40, 41, 594, 750 Leavitt v. Wolcott Lebon v. Penavaire Lee's (Vincent) Case Lee V. Lee Leng V. Hedges Leonard Lovie's Case Leonard v. Bell V. Burr LethieuUier v. Tracy Lett V. Randall 206, 214 Levy V. Hart 750 V. Levy 678, 750 Lewis V. Hopkins 362 c. Lewis 94 Life Ass. V. Fassett 44, 51 Liford's Case 33 Liley v. Hey 408, 683 Lincoln v. Newcastle 334, 365, 418 Line v. Hall 645, 648 Lingan v. Carroll 248 Linn Regis, Mayor of, v. Taylor 577, 580 List V. Rodney 108, 215 a Litchfield,Vicars Choral de, v. Ayres 17 TABLE OF OASES CITED. XXIU Section Literary Fund v. Dawson 607, 616-618 Little V. Willford 610 Llttlefield v. Maxwell 584, 585 Littlejohns v. Household 108 Llversage, Doe d., v. Vaughan 232 Lloyd V. Carew 178-181, 185-187 V. Jones 679 V. Wilkinson 161 Locke V. Motley 577 Lockman v. Reilly 107 Loddington v. Kime 113 a Lombe v. Stoughton 691 London v. Turner 96, 97 London, Mayor of, «. Alford 133 London & Brighton K. Co. v. Fair- clougli 77 London & S. W. R. Co. v. Gomm 230, 268, 275, 277, 279, 280, 298, 316, 330, 670 Long V. Blackall 168, 182, 198, 221 Longdon v. Simson 661, 699 Longfield v. Bantry 471 a Longhead v. Phelps 342 Lord V. Colvin 690, 704 Lorillard v. Coster 750 Loring v. Blake 117, 232 Lott V. Meacham 88 Love V. Wyndham 133, 161, 167, 168, 189, 217, 226 Lovell V. LoTell 172 LoTering v. Lovering 894, 395 V. Worthington 232, 244 Lovett V. Gillender 750 V. Kingland 750 Lovie's (Leonard) Case 112 Low V. Burron 189, 227, 229 Lowry v. Muldrow 392 Luddington v. Kime 173, 189 Ludlow V. Greenhouse 685 V. N. Y. & H. E. R. Co. 307 Ludwig V. Combs 228 Lumley, Doe d., v. Scarborough 449, 456 Lunn V. Thornton 77 Lunt V. Lunt 121 Luxford V. Cheeke 103 Lyddon v. Ellison 215 a, 418, 428, 645 Lyde v. Taylor 91 Lyford's Charity 590 M. McArthur v. Scott 231, 740 McAuley v. Wilson 620 M'Call W.Lewis 91 McCalop V. Stewart 767, 770 McCormack v. McCormack 750 McCormick v. Connell 309 Section McDaniel v. Watson 39 M'Donald v. Bryce 687, 690, 704 V. M'Mullen 118, 228 McDonnell, Doe d., v. Mclsaac 37, 422 a, 670 M'Dowall V. M'Gill 757 McElwee v., Wheeler 108 M'Ginney v. Wallace 96 McGowan v. McGowan 750 McGrath v. Van Stavoren 750 Mclntire School, Trustees of, v. Zanesville Canal Co. 607 McKee's Appeal 717 MeKelway v. Seymour 307 McKissick v. Pickle 307 McLarty v. McLaverty 714, 760 McLeod V. Dell 730, 732 McNair v. MclSTair 755, 767 McNeilledge v. Barclay 683 V. Galbraith 683 McSorley v. McSorley 750 V. Wilson 750 Machu, Re .36 Mackenzie^ v. King 216 a V. Mackenzie 690, 700 Mackworth v. Hinxman 399, 656 Maoleary, Re 301 Macpherson v. Stewart 259, 264, 690, 714, 760 Maddox v. Staines 175 Magistrates of Dundee v. Morris 678 Magrath v. Morehead 120 Mahon v. Savage 683 Mainwaring v. Baxter 413, 456 Mallet V. Sackforri 82, 151 Mandleb^um v. McDonell 23, 24 Mangum v. Piester 14 Manice v. Manice 260, 265, 750 Manning's Case 74, 80, 82, 152-166, 157, 162, 163 Manning y. Andrews 132, 137, 139, 191, 289, 652 Mansell v. Mansell 285 Mapes V. Am. Home Miss. Soc. 263, 609 Mappin v. Mappin 121 Marden v. Chase 57 Marks v. Marks 179, 180 Marlborough ti. Godolphin 182, 195, 232, 289, 635, 645 Marshall v. Holloway 464-466, 674, V. Pearce 769, 771 V. Rives 88 Martelli v. Holloway 366, 367, 633 Martin v. Margham 607, 678, 679 V. Martin 767 V. Needles 611 V. Reed 77 Marx V. McGlynn 609 Mary Portington's Case 140 XXIV TABLE OP CASES CITED. Section Mason v. Jones 750 V. Mason 750 Massenburgh v. Ash 170, 173, 180 Massey's Appeal 248 Massey «. Barton 522 Massingberd v. Ash 173, 180 Massy v. O'Dell 417 Mathews v. Keble 690, 691, 704, 710, 711 Matteson v. Armstrong 750 V. Matteson 750 Matthews v. Daniel 228 V. Ward 23 Maulding v. Scott 88 Maurice v. Graham 750 Mayor v. Nixon 685 Maxwell v. Maxwell 678, 679, 700 Mayor of Colchester v. Brooke 51 Mayor of Linn Regis v. Taylor 577, 580 Mayor of London v. Alford 133 Mayor of New York v. Stuyvesant 39, 224 Mayor of Saltash v. Goodman 579, 581-583 Mazy ok v. Vanderhorst 14 Medlycott v. Jortin 511 Meikleham v. Meikleham 374 Meller v. Stanley 230, 353, 409 Mellon's Estate 215 a, 718, 725 Memphis & Charleston E. R. Co. t/. Neighbors 307 Merchant Taylors' Co. v. A. G. 282 Mergenthaler's Appeal 108 Merlin v. Blagrave 374 Merriam v. Simonds 118 Merrick's Trusts, Be 206, 214 Merrifield v. Cobleigh 309 Meserole v. Meserole 750 Methodist Church v, Clark 610, 751 Michael's Trusts, Re 390, 437, 441 Micliel V. Beale 770 Michon's Succession 769 Middleton v. Losh 711 Mildmay's Case 62, 140 Miles V. Harford 347, 349, 365, 480 V. Kniglit 215 a Millechamp v. Hudson 576 Miller v. Atkinson 620 V. Chittenden 625 Mills V. Evansville Seminary 307 V. Parsons 136 Milner's Estate 215 a Milroy v. Milroy 121 Hinge v. Gilmour 19 Minot V. Tappau 118 V. Taylor 232 Mitchell V. Leavitt 282, 809 Mitcheson's Estate 718 Moffat V. Strong 88, 750 Mogg V. Mogg 294, 634-636, 647 Monarque v. Monarque 750 Section Monarque v. Requa 750 Monill V. Lawson 685 Monkliouse v. Monkhouse 656 Montagu v. Incliiquin 365, 407 Monypenny v. Dering 231, 252-254, 287, 344, 645, 647, 651, 653, 656 Moore v. Bradley 19 V. Clench 230 V. Hegeman 750 V. Howe 88 V. Littel 107 V. Moore 246, 396, 409, 750 Morgan v. Davey 273 a, 329 V. Gronow 477, 519, 521, 523, 523 o, 526, 526 a, 529-531 V. Masterton 609, 750 V. Morgan 704, 708, 711 Moriarty v. Martin 545, 547, 554, 558 Morris V. Porter 750 Morrison ». Rossignol 230 Morrow v. M'Conyille 680 V. Williams 92 Morse's Settlement 374 Morse v. Martin 521 t'. Ormonde 447, 448 Mortimer v. West 645, 652, 656 Morton v. Morton 750 Moseley's Trusts 382-384 Mott V. Ackerman 750 Moultrie v. Smiley 51 Mounsey v. Ismay 576 MuUineux's Case 138, 145 Murphy v. Cook 769 V. Merritt 93 Murray v. Addenbrook 121 V. Green 51 Mutton's Case 131, 186 N. Nash V. Cutler V. Nash Nellis V. Nellis Nelson v. Callow 117 108 750 499 Nettleton v. Stephenson 694, 697, 701 Newark, Methodist Church of, v. Clark 751 Newcastle v. Lincoln 365, 366, 418 Newman v. Newman 374 New South Meeting House, Re 680 Newton's Charity 590 New York, Mayor of, v. Stuyresant 39, 224 NichoU II. Nicholl 645, 647 NichoUs V. Sheffield 287, 449 Nicoll V. N. Y. & Erie R. Co. 51 Nimmo v. Eonney 770 Nix V. Ray 91 Noble V. Smith 77 TABLE OF CASES CITED. XXV Section ■Norfolk, Duke, Case of 133, 155, 159, 160, 168-170, 172, 178, 182, 186, 191, 193, 197-199, 288, 296 North V. Butts 149 North Sliields Old Meeting House, Re 590 Nudd V. Hobbs 584, 585 0. Oakes w. Chalfont 117,166 O'Brien v. Mooney 750 V. Wetherell 306 Ocean Beach Ass. v. Brinley 585 Ocheltree v. McClung 64 Oclie's Case 138 O'Connell v. The Queen 34 Oddie V. Brown 673, 687, 704 Odell V. Odell 121, 585, 590, 593, 597, 607, 678, 679 u, Youngs 231, 750 Ogilvie V. Kirk Session of Dundee 678, 679, 700, 714, 760 O'Hara's Will, Matter of 750 Old South Society, v. Crocker 305, 680 Oliver, Chapman d., v. Brown 133, 288 Olney v. Hull 108 O'Neill V. Lucas 687, 704, 708 Oppenheim v. Henry 638, 639 Osbrey v. Bury 112 Osgood V. Abbott 307 Otis V. Coffin 672 V. McLellan 232 Ould V. Washington Hospital 590, 607, 611 Overhill, Re 216 a Overseers of Ecclesall, Ee 590 Owen V. Cooper 91 V. Smith 44, 51 Owens v. Missionary Society 600 Oxley V. Lane 750 P. Packer V. Scott 387 Padwick v. Knight 580 Page V. Palmer 309 Pain V. Patrick 576 577 Palmer's Case 141 Palmer V. Holford 252 253 374 Paramour !>. Yardley 80,81,83 148, 161 Parfitt V. Heniber 645 652 Parish V. Merrill 93 Parke's Charity 590 Parker V. Nichols 57 Parkliurst v. Roy 260, 678 Parks I . Parks 750 Section Parsons v. Mills 57 Patching v. Barnett 374 Patterson v. Patterson 19 Pay's Case 138, 139, 176 Payne v. Ferrall 138, 139, 176 V. Lassiter 96 V. Long 215 a Peard v. Kekewich 120, 231, 521 Pearks v. Moseley 385, 631, 633 Pearsall v. Post 587, 609 Pearse v. Killian 14 V. Reeve 152, 161, 163 Peggy V. Legg 228 Pelham v. Gregory 362 Pells V. Brown 33, 138, 139, 142, 159, 160 Penliay v. Hurrell 58 Pennsylvania Co. v. Price 237 a, 430 PenYisylvania R. R. Co. o. Parke 38 People V. Mauran 61 V. White 42 Peoria v. Darst 108 Perin v. Carey 684 V. McMicken 769 Perley v. Langley 584, 585 Perry v. Price 65 Persons v. Snook 750 Peters v. Lewes, &c. R. Co. 478, 490, 499, 507 Pettingill v. Devin 42 Petts V, Brown 159 Peyton v. Lambert 645 Phelps V. Phelps 609, 750 V Pond 609 Philadelphia v. Girard 591, 678 Philips V. Crews 88 Phillips, Re 708 Pliipps V. Ackers 186 V. Kelynge 672, 675 V. Mulgrave 362 Phipson V. Turner 521 Picken v. Matthews 379 Pickett, Doe d., v. Pope 88 Pickford v. Brown 374 Pickle V. M'Kissick 306 Pierson v. Lane 19 Pills V. Brown 159 Pine St. Society v. Weld 590 PinslOe V. Parker 138, 145 Piper V. Moulton 305, 311 Pitt V. Jackson 645, 649 Pitts V. Mangum 96 Planner, Doe d., v. Scudamore 108 Pleasants v. Pleasants 224, 228, 392 Plumb V. Tubbs 306 Plunket V. Holmes 11 Polk V. Paris 19 Pollock !'. Booth 230 Poole's Case 140 Poole V. Needham 33, 34 Poor, Doe d., v. Considine 103 XXVI TABLE OF CASES CITED. Section Porter v. Bradley 1 59 V. Fox 380 Portington's (Mary) Case 140 Post V. Bernheimer 308 V. Hover 633, 750 V. Weil 308 Potts V. Potts 366 Powell's Trusts 522, 526, 526 b Powell V. Brown 91 Powis V. Capron 492 Pownall V. Graham 219, 367 Poynton w. Wilson 576 Pray v. Hegeman 750 V. Pierce 57 Price V. Almory 152 V. Atmore 152 V. Boustead 215 a V. Hull 108 V. Price 91 V. School Directors 807 V. Talley 88 Prichard v. Thompson 750 Pride v. Fooks 704 Prior of St. Bartholomew's Case 124 Prior o£ Spalding's Case 44, 47 Proctor V. Bishop of Bath and Wells 333, 339, 340 a Propagation of Gospel, Society for, w. A. G. 598 Provost V. Provost 771 I'uUen V. Rianhard 720 Purdy V. Hayt 107, 750 Purefoy v. Rogers 11 Pursell V. Elder 690, 704 Purslowe v. Parker 138, 145 R. Race V. Ward Kachal v. Rachal Radley v. Kuhn Ralph, Ex parte V. Carrick Rand v. Butler Randall v. Russell Bawley v. Holland Rayraan i\ Gold Read v. Gooding 576, 579 769, 770 750 280, 281 690, 705, 713 739 84 58,60 71, 151 374 Rector of Chedington's Case 125, 126, 138, 151, 169, 288 Reece v. Steel 656 Reid V. Reid 255, 428 Retherick v. Chappel 153, 157 Rex V. Croyden 124 D. Prior of the Hospital of St. John 44, 46 V. Skingle 43 Rhoads v. Rhoads 120 Section Richards v. Moore 750 Rickert v. Madeira 720 Ridley, Re 390 486, 441 Riker v. N. Y. Hospital 750 Ring V. Hardwick '374, 427 Rivers v. Adams 579 581, 583 Roach V. Wood 553 Robert v. Corning 750 V. Ristine 309 Roberts, Re 117, 206 209 232, 337 Robie V. Sedgwick 51 Robinson, Estate of 752 V. Hardcastle 232, 255, 645 Robison v. Robison 750 Rocke V. Rocke 120 Roe V, Galliers 210 Rogers v. Eagle Co. 57 V. Randall 88 V. Tilley 750 Root V. Stuyvesant 750 Roper V. Hallifax 496 Rose V. Rose 609, 750 Rosslyn's Trust 687, 695 Rous V. Jackson 526, 526 b Routledge v. Dorril 117, 191, 232, 255, 291, 374, 510, 511, 516, 529, 531, 537, 647 Rowland ;;. Morgan 334, 365 V. Tawney 374 ■v. Warren 14,39 Roy V. Latiolas 769, 770 Royall V. Eppes 88, 228 Rudiard v. Hannington 151 Ruppert, Estate of 750 Russell V. Allen 603 607, 680 V. Grinnell 120 V. Kearney 88 V. Milton 118 Ruth V. Oberbrunner 607 Ryan's Settlement 215 a Rye's Settlement 231 s. Sabbarton v. Sabbarton 86, 361 Sackvile v. Dobson 164 Sackville-West v. Holmesdale 365, 418 Sadler v. Pratt 588 St. Amour i'. Rivard 647, 665 St. Aubyn v. St. Aubyn 69t St. Bartholomew's (Prior of) Case 124 St. Paul V. Heath 711 St. Thomas Hospital, Governor of, V. Charing Cross R. Co. 590 Salmon v. Salmon 382 V. Stuyvesant 750 Saltash, Mayor of, r. Goodman 579, 581-588, 682, 686 TABLE OP CASES CITED. XXVU Section Saltern v. Saltern 227 Sampson v. Randall 88 Sanders v. Cornish 161 Sanderson v. White 607 Sanford v. Lackland 120 Saumarez v. Saumarez 121 Saunders v. Vautier 120, 692 Savage v. Burnham 750 V. Lee 57 Sayer's Trusts 215 a, 374 Scarisbriek v. Skelmersdale 467, 674, 676, 688 Scarsdale v. Curzon 364-366, 418 Seattergood v. Edge 159, 180, 189 Scatterwood v. Edge 180, 268, 305 Scheetz v. Fitzwater 13, 38 Schettler v. Smith 231, 353, 750 Schmidt v. Hess 607 Schmitt V. Kars 750 School Committee v. Kesler 40 Scott V. Monell 750 Seaburn v. Seaburn 616 Seaman v. Wood 382 Sears v. Putnam 374, 429 V. Russell 214, 393, 395 Seaward v. Willock 647, 653 Selby V. Robinson 579 Sergeant, Matter of 718, 719, 722 Serjeants', The, Case 159 Sewell V. Denny 701, 702 Seymor's (Edward) Case 34 Shanley v. Baker 248 Sharon Iron Co. v. Erie 305 Shattuck V. Stedman 117 Shaw V. Rhodes 686, 687, 697, 703, 711 u. Thompson 627 V. Weigh 113 a Sheffield v. Orrery 175 Shelley v. Shelley 365, 418 Shelton v. Montague . 578 Sheridan v. House 107 Sherwood v. Am. Bible Society 609 Shipman v. Fanshaw 750 V. RoUins 609, 750 Shirley v. Ferrers 84 Shore v. Wilson 685 Shotwell V. Mott 590 Shower v. Pilck 77 Shrunk v. Schuyler Nar. Co. 677 Sidney v. Wilmer 699 Silk V. Prime 486 Simmons v. Augustin 19 V. Pitt 703 Simonds v. Simonds 232 Simpson's Case 137 Simpson v. Cook 751 V. English 750 u. Southwood 130, 137 Sims V. Quinlan 605 Singleton v. Bremar 65 Section Sinnett v. Herbert 607 Skinner v. Shepard 309 Slade V. Patten 235, 237, 430 Slark V. Dakyns 510, 521 Smith's Appeal 239, 395, 438, 519, 523-623 6 Smith V. Belay 141 V. Bell 88 V. Butcher 647 V. Camelford 112, 645 V. Clever 84 u. Cuninghame 674 V. Dungannon 334-336 V. Dunwoody i ' 228, 238 V. Edwards 750 V. Farr 222 V. Floyd 684, 585 V. Gates 88 ('. Gatewood 574, 576, 579 0. Harrington 683 V. Lomas 701 V. Smith 382, 384 V. Townsend 594 V. Tucker 92 V. Warren 137, 144, 147 V. West 107, 108 Smyth u. Kinloch 690, 700, 710 Snow V. Cutler 139, 160, 165, 171 V. Tucker 1.39, 165, 171 Society for Propagation of Gospel V. A. G. 598 Society for Theological Education V. A. G. 268 Sohier v. Trinity Church 282, 590 Somerville v. Lethbridge 252, 253, 654 Sondes' Will 428 Sons of the Clergy v. Mose 685 Southampton v. Hertford 463, 465-467, 672, 674-676 Southard, Den d., k. Central R. R. Co. 307, 309 Southern v. WoUaston 121, 231, 374 Southey v. Somerville 252 Southwell u. Wade 49 Sowerby v. Coleman 578 Spalding's (Prior of) Case 44, 47 Sparhawk v. Cloon 120, 236 Speakman v. Speakman 382, 388, 411, 631 Spencer v. Marlborough 195, 196, 535 Sperry v. Pond 306 Stackpoole v. Stackpoole 645, 646 Stafford's Case 125 Staines v. Maddock 175 Stampe v. Clinton 33 Stanley v. Colt 282, 590 V. Leigh 175, 181, 361 Starr, Matter of 750 State V. Brown 40 V. Gerard 731 XXTIU TABLE OF CASES CITED. Section State V. McGowen 731 V. Rives 51 V. Savin 95, 97 V. Warreu 611 ti. Warrington 88 V. Wilson 587 Stephens v. Evans 108, 214, 340 a, 395 V. Gadsden 428, 542, 545, 546, 549, 556 V. Stephens 172, 175, 186-188 Stephenson v. Haines 309 Steven's Succession 769 Stevens v. Miller 750 Stevenson v. Evans 740 V. Lesley 750 Stewart v. Green 680 Stille's Appeal 717, 718 Stock V. Stipe 306 Stonley V. Bracebridge 137 Storrs V. Benbow 389 Strang v. Strang 750 Stratford v. Powell 365 Strathmore v. Strathmore 755, 757, 769 Streaper v. Fisher 720 Stroud V. Norman 540 Stuart V. Cockerell 207, 232, 277, 382 Suir Island School, Re 590 Summers's Trusts 215 n Suttie V. Suttie 757 Sutton's Hospital, Case of 61 Sutton V. Cradock 93 V. HoUowell 92 Swaffleld v. Orton 120 Swasey v. Am. Bible Society 607, 683 Swift V. Easton Beneficial Society 680 V. Heirs 17 Swyft w. Eyres 17 Sykes v. Sykes 469-472 Sympson v. Sothern 137 Syms V. Mayor 230 Taber v. Packwood 88 Tainter v. Clark 678 Taite v. Swinstead 490, 493, 497, 499 Talbot V. Jevers 120, 704, 705 Talbott V. Grace 587 Taltarum's Case 19, 156 Tanistry, Case of 577 Tanner, Doe d., v. Dorvell 112 Tatham v. Vernon 121 Tatton V. MoUineux 140, 158 Tayloe v. Gould 750 Taylor's Trusts 215 a Taylor v. Biddal 160, 167, 172, 175, 186, 334 V. Cedar Rapids, &c. R. R. Co. 306 V. Frobisher 118, 121, 374, 388, 681 Taylor v. Sutton V. Taylor V. Wharton Taylor Orphan Asylum, Re Teague's Settlement, Re Temple v. Hawley Section 308 449 172 607 435 750 Tench v. Cheese ' 686, 690, 691 Tewart v. Lawson 676, 710 Tharp v. Fleming 590 Tliatcher's Trusts 252, 258, 340, 374 Thayer v. McGee 39, 42 V. Wellington 248 Thellusson v. Woodford 133, 182, 183, 185, 190, 198, 199, 216, 217, 221, 633, 686 Theological Education, Society for, V. A. G. 268, 593 Thomas, Estate of 750 V. Howell 683 o. Thomas 512, 513 V. Wilberforce 374 Thompson v. Carmlchael 750 V. Gibson 23, 68 u. Simpson 529 V. Thompson 656 Thomson v. Livingston 241, 522, 750 V. Ludington 108 V. Shakespear 680 V. Thomson 750 Thorn v. Coles 750 Thorndike v. Loring 242, 674 Thornton v. Bright 433, 434 Thouron's Estate 718 Thrasher v. Ingram 88 Threadgill v. Ingram 88 Throckmerton v. Ti-acy 17 Tiers v. Tiers 750 Tillman v. Sinclair 93 Timms v. Potter 92 Tinkham v. Erie R. Co. 307 Titus V. Weeks 750 Tobey v. Moore 281, 305 Todhunter v. D. M. I. & M. R. Co. 209, 278, 736 ToUemache v. Coventry 186, 401-407 Tomkyns v. Blane 545, 549, 554 Toms V. Williams 209, 751 Tongue v. Nutwell 248 Torrance v. Torrance 40 Towle V. Remsen 307 Towns V. Wentworth 656 Townshend v. Windham 560 Tracy v. Ames 750 Trafford v. TrafiEord 834, 364 Trafton v. Hawes 57, 65, 07 Trash v. Wood 656 Treat's Appeal 621 Tregonwell v. Sydenham 248, 414, 419-422, 447, 672 Trickey v. Trickey 878, 700, 707 TABLE OF CASES CITED. XXIX Section TroUope v. Routledge 529 Trustees Mcilntire School i>..Zanes- ville Canal Co. 607 Tucker v. Bishop 750 B. Stevens 91 V. Tucker 750 Talk V. Moxhay 280 Turley v. Turley 740 Turvin v. Newcome 444, 467, 505, 674, Tyrrel's Case Tyson V. Smith 63 577, 580 u. TJnderhillu. Saratoga R.R. Co. 282,307 Union Canal Co. v. Young 38 United States v. Repentigny 22 V. Vachel v. Vachel 84 Vail V. Vail 750 Vanderplank v. Hill 231 V. King 644, 645, 649, 650 Vander Volgen v. Yates 681 Van Emburgli v. Aekerraan 750 Van Kleeck u. Reformed Dutch Church 248 Vannerson v. Culbertson 97 Van Nostrand v. Moore 231 Van Rensselaer v. Ball 30, 309 V. Barringer 309 V. Dennison 30, 309 V. Hays 24, 25 V. Slingerland 309 V. Smith 309 V. Snyder 309 Vansant v. Roberts 265 Van Schuyver v. Mulford 750 Van Tilburgh v. HoUinshead 108 Van Vechten v. Van Veghten 750 Varlo V. Faden 710 Vass V. Hicks 92 Vaughan v. Burslem 365 Vawdry v. Geddes 374, 674 Veizy v. Pinvvell 162 Vernon v. Inabnit 91 Verplanck, Matter of 750 Vicars Choral de Litchfield v. Ayres 17 Vice V. Thomas 588 Vidler v. Parrott 215 a Vincent Lee's Case 151 Voris V. Renshaw 808, 309 w. Wade-Gery v. Haudley Section 690 Wailes v. Daniell 769 Wainman v. Field, 409 Waldo V. Caley 683 V. Cummings 88 Wallace v. Harmstad 23, 26, 38 Wallack v. Hammond 138 Waller v. Hanger 685 Wallinger v. Wallinger 552 Wallis V. Freestone 498 V. Wallis 57 Walpole V. Conway 112 Walsh V. Secretary of State for India 329 Walsingham's Case 34 Ward V. Audland 77 V. Turner 77 Ware v. Curaberlege 685 ' V. Polhill 483, 487, 495, 497 Waring v. Coventry 498 Warman v. Seaman 161 Warner v. Bennett 307 Wartenby v. Moran 309 Warwick v. Gerrard 62, 510 Washborn v. Downs 268, 305 Washington's Estate 717, 718 Wastneys v. Chappell 227 Waters v. Lilley 584 Watson V. Young 340 a, 349 a Watt V. Wood 711 Weatherall v. Thornburgh 120, 687, 694, 701, 704 Webb V. Dean 720 V. Sadler 440, 477, 527, 534 V. Webb 697 Webster v. Boddington 380, 382, 391 V. Parr 385 Weekly v. Wildman 576, 579 Weeks v. Cornwell 750 Wegg V. Villars 141 Welcden v. Elkington 71, 80, 83, 151, 152 Welch V. Kinard 91 Weld V. Traip 71 Wellbeloved v. Jones 685 Welles V. Olcott 19, 663 Wellington v. Wellington 33 Wells V. Heath 590, 593 V. Wells 750 Welsch V. Belleville Bank 88, 95 Welsh V. Foster 57 West V. Knight 685 Westby, Jack d., v. Fetherstone 447 Westcott V. Cady 88 Westerfleld v. Westerfield 750 Wetherell v. Wetherell 641 Wheeler v. Smith 616 Whelan v. ReiUy 236 XXX TABLE OF CASES CITED. Section Section Whistler v. Webster 541, 558, 559 Wood's Case 136 Whitaker ». Burhans 577 Wood V. Cheshire 40 Whitbread v. St. John 638 V. Drew 205, 209 White V. Fisk 621 V. Griffin 232, 298 647, 661 V. Hale 613, 731 V. Humphreys 228 V. Howard 259 , 267, 609, 624 V. Reignold 136, 146 V. St. Barbe 529 V. Sanders 161, 173 V. University 620 V. White 481, 499 V. White 552, 554, 683 V. Wood 265, 750 Whitehead v. Rennett 374, 431 Woodcock V. Woodcock 151 V. Watson 769 Woodgate v. Fleet 750 Whitworth v. Stuckey 14 i\ TJnwin 380 Widdow's Trusts 215 a Woodlet V. Drury 136, 148 Widmore v. WoodroiFe 683 Woodliff V. Drury 136, 143 Wiggins Ferry Co. v. Ohio & Miss. Woodruff V. Cook 750 R. Co. 17, 39, 279 Woodworth v. Payne 51, 307 Wight V. Shaw 117 Woolmore v. Burrows 418 Wilbraham v. Snow 77 Woolridge v. Woolridge 548, 550-552, Wildes V. Davies 701, 711 553, 559 Wilford V. Wilford 138 Worster v. Gt. Falls Mfg. Co. 39 Wilkes V. Leuson 65 Wortes V. Clifton 77 Wilkinson v. Duncan 389, 537 Wright V. Cartwright 71 William v. Florence 127 Doe d., V. Jesson 511 Williams's Estate 717 v.GoS 529 Williams v. Ash 228 V. Hobert 682, 685 V. Caston 14 V. Linn 682 V. Conrad 750 V. Wilkin 282 V. First Presbyterian Soc. 68, 607 Wrightson v. Macaulay 447 V. Lewis 362, 676 Wrotesley v. Adams 17 u. Pearson 612 Wyman v. Brown 67 V. Teale 231, 232, 374, 650 Wyncli, Ex parte 647 V. Williams 609, 678, 750 Wyth V. Blackman 361 Williamson, Estate of 375 a V. Mason 91 Williman v. Holmes 112 Y. Willingale v. Maltland 581 Willion V. Berkley 14 Yard's Appeal 591 Willis, Doe d., v. Martin 112 Yeap Cheah Neo v. Ong Cheng Willson V. Cobley 121, 256, 374 Neo 200 Wilson V. CockrlU 90, 91, 95 Year Book, 22 Edw. I. 641 21 V. Lynt 678, 750 9 Edw. III. 25, 26 44,46 V. Wilson 389, 441, 691, 695, 699, 10 Edw. m. 45 127 704 18 Edw. III. 39, pi. 84 128 Winchester, Bishop of, v. Prior of 22 Edw. IIL 19 128 St. John 46 24 Edw. in. 29, pi. 17 128 Winslow V. Goodwin 117 40 Edw. III. 9 5 10,11 Winsor, Dean & Canons of, v. Webb 43, | 49 Edw. in. 16 124 49 11 Ass. 8 35 Winter, Doe d., v. Perratt 447 12 Ass. pi. 5 126 V. Winter 77 38 Ass. pi. 3 124 Wit1)am V. Vane 329 7 Hen. IV. 16, pi. 9 128 Withers v. Iseham 576 4 Hen. VL 19 ft 35 V. Withers 702 9 Hen. VL 28, 24 124, 129, 134 Witman v. Lex 626, 678 11 Hen. VL 12, 13 124 Wolf's Est. 638 19 Hen. VI. 28, 24 124 Wollaston v. King 477, 521, 526, 526 a, | 21 Hen. VI. 37 86 531, 533, 541, 556-561 35 Hen. VI. 56, 67 46 Wollen V. Andrews 657 37 Hen. VI. 30 80, 83, 148 Wolley V. Jenkins 497, 499 38 Hen. VI. 38 17 Wombwell v. Hanrott 530 2 Edw. IV. 25 77 TABLE OF CASES CITED. XXXI Section Tear Book, 7 Edw. IV. 10-12 44,47 7Edw. IV. 12 a 33 7Edw. IV. 26 576 8Edw. IV. 18, 19 577 llEdw . IV. 4, pi. 7 47 12Edw . IV. 3o 47 12Edw . IV. 19 19 15 Edw. IV. 29 576, 577, 579 15Edw . IV. 32 579 18 Edw .IV. 3 576 21 Edw . IV. 54 576 2 Hen. VII. 13 130 8 Hen. VII. 35 17 Year Book, 10 Hen. VII. 12 11 Hen. VII. 13 Hen. VII. 27 Hen. VIII. 10, pi. 23 27 Hen. VIII. 29, pi. 20 Young's Settlement, Re Young I). Young Zeisweiss v. James Section 123 35 85 43 33,34 120 95,96 626 ADDENDUM. Since this book was in type the case of Von Jirockdorff v. Mal- colm, 30 Cli. D. 172, iias been reported. In that case A. in 1851, under a general power, appointed property to B. for life, and on his death to such of B.'s issue, born in his lifetime, as he should, by deed or will, appoint. B. married in 1860, and died in 1884 ; and by will he appointed part of the property to all his daughters who should survive him, and should, either during his hfe or after his death, attain the age of twenty-four. B. left four daughters him surviving, of whom the youngest was three years old at his death. It was objected that the appointment in B.'s will was too remote, to which it was answered that, as the youngest daughter was three . years old at B.'s death, the class of daughters must be ascertained within twenty-one years thereafter ; and WilJeinson v. Duncan, 30 Beav. Ill, was cited. Pearson, J., said : " I think that Wilkinson v. Duncan applies, and that the appointment is not void for remoteness." In Wilkinson v. Duncan it was held that when gifts are made to several persons by one description, but the amount of the gift to one is not affected by the existence or non-existence of the others, the gifts are separable, and some may stand though others may be too remote. §§ 389, 537, post. In Von Brockdorff v. Mal- colm, on the other hand, the gift was to a class ; the amount of the gift to each member depended upon their number ; and if any one might not take till a time beyond the limits of the Rule against Perpetuities, the whole gift was too remote. Yet, notwithstanding, the decision in Von Brockdorff v. Malcolm appears to have been correct. B. appointed by will to those of his daughters surviving him who should reach twenty-four ; the class of daughters surviving him was XXXIV ADDENDUM. closed when his will took effect ; and the meaning of the appoint- ment was exactly- the same as if he had appointed to those of his four daughters, naming them, who should reach twenty -four. If he liad appointed to those of his daughters who were three j'ears of age or over at his death who should reach twentj'-four, the ap- pointment would have been undoubtedly good ; and that is exactly what he did. Under the facts as thej- existed the appointment was to daughters who were over three years of age ; the appoint- ment, when made, could not possibly have any other meaning ; and as the meaning of an appointment is to be determined at the time and under the facts when it is made, although its validity is to be judged of with reference to the time of the creation of the power, the appointment was good. See Morgan v. Gronow, L. R. 16 Eq. 1, and the criticisms on Mr. Lewis and on Smith's Appeal, 88 Pa, 492, §§ 517-519 a, 523-623 6, i?os«. THE RULE AGAINST PERPETUITIES. THE RULE AGAINST PERPETUITIES. CHAPTER I. INTEODTJCTION. § 1. Ceetain transfers of rights in their nature alienable the law forbids. Sometimes the cause is the character of the person who is to make the transfer ; thus an infant cannot convey his land. Sometimes it is the character of the person who is to receive the transfer ; thus Mortmain Acts forbid devises to corporations. Sometimes it is the nature of the richt ; thus the right to recover damages for a libel is not assignable. And sometimes the transfer is to take effect at too remote a period ; thus a bequest to those descendants of the testator who shall be living fifty years after his death is bad. The rule of the common law, which determines this last class by fixing the limit within which future interests can be created, is called the Rule against Perpetuities. § 2. The Rule against Perpetuities is often spoken of as aimed at restraints upon alienation. Now it is true that future interests, to confine which within precise limits is the object of the rule, make the interest of a present owner of an estate less marketable, and therefore may be loosely said to restrain alienation ; but, speaking accurately, a future interest does not render a present interest inalienable. The present owner has less to convey than he would have if the 2 THE RULE AGAINST PEEPETUITIES. future interest did not exist ; but all that he has he can convey freely. Suppose land is devised to A. and his heirs, with an executory gift over should he die unmarried, A. can sell his interest, and in the hands of the purchaser the land is subject to precisely the same gift over, no more no less, as it was in the hands of A.^ The misconception has been aided by the name given to the Rule. It would have been better had it been called the Rule against Remote- ness. But usage has settled the name as the Rule against Perpetuities. § 3. The practice of confounding the rule against remote- ness with the rules disallowing restraints on alienation ^ has led to grave practical errors, as, for example, (1) that future interests, if alienable, cannot be obnoxious to the Rule against Perpetuities ; ^ (2) that a trust to pay the income of prop- erty to A. and his heirs violates the Rule against Perpetu- ities ; * (3) that there is no objection to restraining the alienation of a life estate, if it is a present and not a future estate. Thus the authors of the New York Revised Stat- utes,^ which have been followed in several States,* speak of and deal with the rules limiting the creation of future estates as rules limiting suspension of alienation, and hence seem to have been led to the notion that there is no objection to re- straining the alienation of present trust estates for life, — a conclusion which has produced a fertile crop of litigation and evasion.^ 1 Of course, if the contingency -writer's essay, " Restraints on the on which the future interest is to Alienation of Property." arise is an alienation by the pres- " See Chap. VII. , post. ent owner, then the future interest * See §§ 234-237, post. may be truly called a restraint on 6 ggg g§ 747-750, post. alienation. Such a case is the e See §§ 751, 752, post, gift of a life estate to A., until he 7 jj. y. Eev. Sts. pt. 2, c. 1, attempts to part with it, and then tit. 2, § 63. See Gray, Eestraints to B. on Alienation, §§ 280 et seq., espe- * As to these latter rules see the cially §§ 286, 295. INTRODtrCTIOK. 3 § 4. As the Rule against Perpetuities is the law limiting the time within which future interests can be created, we must first see what future interests can be created, apart from any question of remoteness. We shall find that originally the common law subjected their creation to many restrictions, but that these restrictions have been gradually so far removed that the Rule against Perpetuities is now almost the only legal check upon the granting of future interests. THE EULE AGAINST PEEPETITITIES. CHAPTER II. FITTtTEE INTEEBSTS. § 5. In this chapter it is proposed to treat of future estates and interests in property, and of the restrictions on their creation, other than the Rule against Perpetuities. I. REAL ESTATE. A. LANDS OP FREEHOLD TENURE. 1. Common Law. § 6. No seisin or ownership of a freehold estate in land of freehold tenure can begin in futuro. This is owing to the fundamental doctrine of the feudal law, that such seisin can be given only by a present livery, actual or constructive. § 7. The future interests allowed by the common law are: (1) Remainders and Reversions ; (2) Rights of Entry for Condition broken ; (3) Possibilities of Reverter ; and (4) Rights less than Ownership in Land of others. § 8. (1.) Remainders and Reversions. — Though seisin or ownership of a freehold estate can be given only by livery, yet that seisin may be cut up into several successive life estates, either with or without an ultimate estate in fee. The first life estate is called a particular estate ; the succeeding life estates, and the ultimate estate in fee, if any, are remainders. The essential qualities and the restrictions on the creation of a re- mainder are that it must be created at the same time as the particular estate, and that it must vest on the expiration of the previous estate or estates as originally limited. A FUTURE INTERESTS. 5 remainder cannot cut short or overlap the preceding estate, and no interval of time must separate it from such estate. The particular estate and the remainders form an unbroken series. Each remainder is said to be supported by the preced- ing estates. There can be no remainder after a fee simple. § 9. Remainders are either vested or contingent. A re- mainder is vested when at any time during its continuance it is ready to come into possession, whenever and however the preceding estates determine. A remainder is contingent when, in order for it to come into possession, the fulfilment of some condition precedent, other than the determination of the preceding estate, is necessary. If an estate is given to A. for life, remainder to his eldest born son in fee, the remain- der is contingent until the birth of A.'s first-born son, and then vests. The distinction between vested and contingent remainders is developed in the following chapter. § 10. Unless a contingent remainder becomes vested on or before the determination of the preceding vested estates, it can never come into possession : it has perished. It makes no difference whether the preceding estates have ended by reaching the limit originally imposed on them, or whether they have been cut short by merger, forfeiture, or otherwise. It has been doubted whether the common law originally allowed of contingent remainders ; they were, however, recog- nized as valid as early as the fifteenth century.^ § 11. A future estate may be indirectly created by giving livery of seisin for one or more life estates, without an ulti- mate remainder in fee. The estate remaining in the former owner ready to come into possession on the termination of the life estate or estates is a reversion. The same result is reached when an ultimate remainder in fee is contingent. Until it-vests, there is a reversion in the feoffor and his heirs.^ ^ Wms. Real Prop. (13th ed.), of use or devise, there is, unques- 265-287 ; but see 40 Edw. III. 9 i. tionably, during the contingency of 2 When a conveyance is by way a remainder in fee, a reversion in 6 THE ETJLE AGAINST PBKPETTJITIES. The transfer of remainders and reversions alreadj' existing is considered, § 17, post. § 12. (2.) Mights of Entry for Condition broken. — Future interests sometimes arose from conveyances being on condi- tion, implied or express. All estates were conveyed on the implied condition that the tenants should not deny tenure. Express conditions might also be attached to a conveyance. On breach of a condition the grantor had a right to enter; but, until entry, the estate remained with the grantee. The right of entry was inalienable, and therefore advantage of a condition could only be taken by the grantor and his heirs.^ § 13. (3.) Possibilities of Reverter. — Some estates were terminable by special or collateral limitations ; for instance, an estate to A. till B. returned from Rome ; or an estate to A. and his heirs until they ceased to be tenants of the Manor of Dale.2 On the happening of the contingency, the grantor was in of his old estate without entry. The estate was not cut short, as it would have been by entry for breach of con- dition, but expired by the terms of its original limitation. After a life estate of this kind a remainder could be limited. After a fee there CQuld be no remainder ; ^ but there was a so-called possibility of reverter to the feoffor and his heirs * which was not alienable.^ the grantor or devisor and his heirs; Kem. 175-178; 4 Kent, Com. 257- and the weight of reason and of 260. authority seems to be the same way ' On breach of a condition at- upon a feoifment at common law. taehed to an estate for years, the Fearne, C. R. 360-364. ' Plmiket «. lessor may put an end to the estate Holmes, 1 Lev. 11: 1 Sid. 47; T. without entry. Leake, Dig. Land Eaym. 28. Purefoy u. Rogers, 2 Law, 226. Wms. Saund. 380, 382 and note. ^ See Co. Lit. 27 a, Harg. note, Egerton v. Massey^ 8 C. B. N. 8. 157. 338, 358. Co. Lit. 191 o, Butler's . s See Buckhurst Peerage, 2 Ap. note. Carter v. Barnardiston , 1 P. Cas. 1, 23, 24. Wms. 505, 511-518. Contra, see ^ See Challis, 'Real Prop. c. 17. Co. Lit. 342 h; 40 Edw. IIL 9ft,- ^ gee the following section. In 2 Prest. Abs. 101-107; Cornish on Pennsylvania, where possibilities of FUTURE INTERESTS. § 14. An estate in " fee simple conditional," so called, was by far the most common of these estates with special limita- tions.i This was an estate to the donee and the heirs of his body (either all the heirs of his body or some special class of them), with a provision that on the failure of such heirs the land should revert to the donor and his heirs. Sometimes this provision was expressed ; but, even though not expressed, yet on a gift in frankmarriage, or simply to A. and the heirs of his body, it was tacitly implied.^ If the donee of such an estate had issue born, then he acquired an estate which he could alienate ^ so as to pass a fee simple. If he never had issue born, or if his issue, though born, had all died, and there never had been any alienation of the estate, then on his death, or the subsequent failure of his issue, the land reverted to the grantor and his heirs.* This possibility of reverter was inalienable ; * but it could be released to the tenant of the fee simple conditional.^ There could be no remainder after a fee simple conditional.'' reverter have been assumed to still exist (§ 38, post), the court seems also, in Scheetz v. Fitzwater, 5 Pa. 126,to have thought them assignable. 1 See Challis, Real Prop. c. 18. Notwithstanding its name, this es- tate was one with special limitation rather than on condition. The writ of formedon in reverter alleges no entry by the donor, F. N. B. 219; Rast. Ent. 375; and this writ was the one in use at the common law. See St. De Donis, 13 Edw. I. c. 1, § 4. Cf. Willion u. Berkley, 1 Plowd. 223, 242. 2 St. De Donis, 13 Edw. I. c. 1, § 1. Bract. Lib. 2, c. 6, fol. 17 6. ' It is held in South Carolina, where estates in fee simple condi- tional still exist, that they are never devisable. Jones v. Postell, Harp. 92. * See Willion v. Berkley, 1 Plowd. 223, 235; Barksdale v. Gamage, 3 Rich. Eq. 271, 279, 280. ^ It cannot be devised. SeeBedon V. Bedon, 2 Bail. 231, 248; Adams V. Chaplin, 1 Hill, Ch. 265, 280; Deas V. Horry, 2 Hill, Ch. 244; but cf . Cruger v. Heyward, 2 Des. 94 ; and note to Mazyck v. Vander- horst, Bail. Eq. 48, 56; nor does the fee simple conditional merge in it, Adams v. Chaplin, 1 Hill, Ch. 265. « Pearse v. Killian, McMuU. Eq. 231. See Adams v. Chaplin, 1 Hill, -Ch. 265, 278. ' Willion V. Berkley, 1 Plowd. 223, 235, 242. Co. Lit. 18 a. 2 Inst. 336. Mazyck v. Vanderhorst, Bail. Eq. 48. Bedon v. Bedon, 2 Bail. 231, 248. Bailey v. Seabrook, Rich. 8 THE RULE AGAINST PEEPETUITIBS. § 15. It should be noted here that when tenant in fee sim- ple dies without heirs, or, being a corporation, is dissolved, the land escheats to the lord.^ Ch. Cas. 419, 426 et seq. Adams v. Chaplin, 1 Hill, Ch. 265. Edwards V. Barksdale, 2 Hill, Ch. 184, 197. Deas V. Horry, lb. 244. Williams V. Caston, 1 Strob. 130, 133. Buist V. Dawes, 4 Strob. Eq. 37, 48. The case of Cruger v. Heyward, 2 Des. 94, if it decides the contrary, must be considered overruled, see note to Mazyck v. Vanderhorst, Bail. Eq. 48, 58. But see Bract. Lib. 2, c. 6, fol. 18 b; Fleta, Lib. 3, c. 9, § 9; Gard- ner V. Sheldon, Vaugh. 259, 269; 2 Prest. Est. 318, 319, 323-354; note to Mazyck v. Vanderhorst, Bail. Eq. 48, 53, 55, 56. At the present day, apart from the objection of remoteness, there seems no reason why a limitation in a will after a fee simple condi- tional should not be good as an ex- ecutory devise. Gardner v. Sheldon, Vaugh. 259, 270. Cruger v. Hey- ward, 2 Des. 94 (see note to Mazyck V. Vanderhorst, Bail. Eq. 48, 58). Rowland v. Warren, 10 Oreg. 129. And several cases in which an executory devise after a fee sim- ple conditional has been held to be too remote seem to imply, by raising and deciding the question of remoteness, that such a devise, if not too remote, would be good. ' Mazyck v. Vanderhorst, Bail. Eq. 48. Bedon v. Bedon, 2 Bail. 231, 248. Adams v. Chaplin, 1 Hill, Ch. 265, 280. See Barksdale v. Gamage, 3 Rich. Eq. 271, 276. The South Carolina cases in which it has been decided or said that there can be no exec- utory devise after a fee simple con- ditional, Bailey v. Seabrook, Rich. Ch. Cas. 419; Williams v. Caston, 1 Strob. 130, 133; Buist v. Dawes, 4 Strob. Eq. 37, 48 et seq. ; Barks- dale V. Gamage, 3 Rich. Eq. 271, 274, seem to rest on no valid reason, as is strongly intimated in the care- fully considered opinion of Dorgan, C, in Buist v. Dawes, 4 Strob.' Eq. 37, 48. The only reason given is in Bailey v. Seabrook, Rich. Ch. Cas. 419, viz., the rule that a limi- tation must always be construed, ^if it can be, a remainder instead of an executory devise ; but as this limi- tation confessedly cannot be con- strued as a remainder, the rule seems rather a reason for construing it as an executory devise. In Edwards V. Barksdale, 2 Hill, Ch. 184, 197, 198, it is said by O'Neall, J., that if an estate which would otherwise be deemed a fee simple conditional is followed by an executory devise not too remote, the first estate must be construed to be an estate in fee simple. Cf. also Whitworth v. Stuckey, 1 Rich. Eq. 404; Mangum V. Piester, 16 S. C. 316. In Fletcher v. Fletcher, 88 Ind. 418, a deed of land to A. for life, and after his death to his children in fee simple, was held to give A. an estate in fee simple conditional, which on the birth of children be- came absolute. It is unnecessary to point out to the learned reader the errors in this amazing opinion. 1 On the effect of the Statute FUTURE INTERESTS. 9 § 16. (4.) Rights less than Ownership in Land of others. — Rights in land owned by others, such as commons and other profits, ways and other easements, rents, &c., cannot, from their nature, be created by livery of seisin. They, therefore, lie in grant, that is, are created by deed, and consequently can begin in futuro?- § 17. Though rights in others' lands could at common law be created to begin in futuro, yet such rights when once exist- ing could not be granted in futuro; and the same was true of existing reversions and remainders. Thus a rent might be granted to A., to begin ten years from date, and A. could transfer by grant the rent to B. ; but such transfer must have been of A.'s present right. A. could not grant to B. the rent, to have it from and after A.'s death. So, again, if land had been conveyed to G. for life, remainder to H. and his heirs, H. could grant his remainder to L, but he could not grant I. the remainder from and after H.'s death.^ The reason given is that " if a reversion might be granted at a day to come, from thence it would follow that the grantor would have a particu- lar estate in it, in the mean time, of his own creation, which cannot be by the rule of law that a man should be lessor to Quia Emptores upon the escheat of classes is that neither of them lies the land of a dissolved corporation, in livery. see §§ 44-51, post. '^ Buckler v. Harvy, Cro. El. 450, 1 By the common law, all inter- 585 ; Moore, 423 ; 2 Cor 55 a. Swift ests in real estate that can be created v. Heirs, March, 31 ; .«ub nom. by livery have to be so created, and , Vicars Choral de Litchfield v. are called corporeal hereditaments; Ayres, W. Jones, 435; sub nom. interests that from their nature do ' Swyft v. Eyres, Cro. Car. 546 ; not admit of livery can be con- 1 Koll. Ab. 828, pi. 3. See Prisot, veyed by deed, and are called incor- C. J., 38 Hen. VI. 38; Vavasour, J., poreal hereditaments. This genus 8 Hen. VII. 3 S ; Throckmerton v. of incorporeal hereditaments con- Tracy, 1 Plowd. 145, 152, 155, 156; tains two species: (1) Existing fu- Wrotesley u. Adams, lb. 187, 197; ture estates, i. e. remainders and Plowd. Qu. § 302; 1 Roll. Ab. 829, reversions ; (2) jura in alieno solo, pi. 7; Gilbert on Bents, 60; Challis, i. e. profits a prendre, easements, &c. Heal Prop. 87, 88. The tie uniting these very unlike 10 THE RULE AGAINST PEEPETUITIES. himself."! There seems to be no reason why such right should not have been created to determine at any time or on any contingency ; that is, the right might be created to begin or to end at any time, but during its continuance it was sub- ject to the rules governing the creation of future interests in corporeal hereditaments.^ 2. Statute De Bonis. § 18. In 1286, by St. Westm. II., 13 Edw. I. c. 1, De Bonis Conditionalibus, estates in fee simple conditional wei'e turned into estates tail, the donor's possibility of reverter became a reversion, and a remainder could be granted after the fee tail as after a life estate. Interests were thus secured to future generations of a family, and, failing these, to the re- mainder-man or donor, which could not be destroyed by the tenant for the time being of the estate. § 19. By the gradual operation of (1) the doctrine of Col- lateral Warranty ; (2) the allowance, by the courts, of Com- mon Recoveries as a means of barring estates tail ; ^ and (3) the Statutes of Fines, 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36, — estates tail became alienable, and the reversions and remainders after them destructible.* The alienation . of estates tail is at present regulated in England by St. 3 & 4 Wm. IV. c. 74, by which fines and recoveries were abolished and sim- pler modes of assurance substituted. Wherever in any of the United States estates tail have been preserved, simpler forms ^ 1 Plowd. 155. particular estate in the settlor or in 2 See Wiggins Ferry Co. v. Ohio the testator's heirs, but the settlor & Miss. R. Co., 94 111. 83; Cleveland or heirs retain the fee until the &c. R. Co. v. Coburn, 91 Ind. 557; future event happens, upon which § 279, post. the fee shifts. § 54, post. Under the Statutes of Uses and * Taltarnm's Case (1472), 12 Wills existing incorporeal heredita- Edw. IV. 19. ments can now be transferred in * Digby,'Hist. Law Real Prop. futuro; for a shifting use or ex- u. 5, § 2. 2 Bl. Com. 348-364. ecutory devise does not create a AVms. Real Prop. c. 2. FUTURE INTERESTS. 11 of conveyance have also generally taken the place of fines and recoveries.' 3. Statute Quia Emptores. § 20. At common law a tenant in fee could either, (1) with the consent of the lord, substitute another in his own 1 See, for example, Me. Rev. Sts. (1883) c. 73, § 4; Mass. Pub. Sts. o. 120, §§ 15-18; Brightly, Purd. Dig. (Pa.) 619, §§ 3-5; Del. Rev. Sts. c. 83, § 27; Md. Rev. Code (1878), art. 44, § 7. The Statute De Bonis was brought by the colonists to America. On Dec. 12, 1712, South Carolina passed an Act declaring that certain British Statutes particularly mentioned should be in force; and, § 10, that all others should be declared im- practicable. This Act does not men- tion the Statute De Bonis ; and the Statute is therefore not in force in that State. See § 14, ante. Mr. Dane, 6 Dane, Ab. 606, says that this Act applied also to North Carolina, Ten- nessee, Georgia, Alabama, and Mis- sissippi ; but either it did not apply to them, or the enumeration of Stat- utes in the Act did not include all those in force, for in all the above States the Statute De Bonis seems to have been in force until repealed by later legislation. N. C. St. 1784, c. 204, § 5. Patterson v. Patterson, 1 Hayw. 163. Den d. Lane v. Davia, lb. 277. Minge v. GUmour, lb. 279. Moore v. Bradley, 2 Hayw. 142. Polk V. Faris, 9 Yerg. 209, 234. Ga. Const. (1777), art. 51. Ga. Const. (1789), art. 4, § 6. Ga. St. Feb. 16, 1799, § 5. Gray v. Gray, 20 Ga. 804. Ala. St. Dec. 22, 1812, § 10. Simmons v. Augustin, 3 Port. 69. Miss. St. June 13, 1822, § 24. In Connecticut, an estate to one and the heirs of his body was held to give neither a fee simple condi- tional nor an estate tail ; but to give " an absolute estate in fee simple to the issue of the fii'st donee in tail." The Statute of 1784 (Rev. of 1875, tit. 18, c. 6, pt. 1, § 3, p. 352), to this effect, is said to be declaratory of the common law of- the Colony. Welles V. Olcott, Kirby, 118. Chap- pel V. Brewster, lb. 175. Hamilton V. Hempsted, 3 Day, 332. See Ohio Rev. Sts. (1880) § 4200. In most of the United States es- tates tail have, at the present day, been done away with. Words which imder the Statute Be Bonis would create an estate tail give, in some States, an estate in fee simple; e. g. New York, Rev. Sts. pt. 2, c. 1, tit. 2, § 3 ; elsewhere, an estate for life in the first donee, with remainder in fee to his children, e. g. New Jersey, Rev. Sts. (1877), Descent, § 11, p. 299. The Supreme Court of Iowa has held that the Statute De Bonis is not in force in that State; they leave undetermined the question whether a gift to A. and the heirs of his body gives him a fee simple condi- tional. Pierson v. Lane, 60 Jowa, 60. 12 THE EULE AGAINST PERPETUITIES. place to hold the fee of the lord ; ^ or (2) he might, by sub- infeudation, grant the land to be held of himself. But the former mode could be employed only when the feoffee was to hold the same fee that the feoffor had held ; and, therefore, when the feoffor conveyed a part only of his land the feoffee had to hold of him ; and so, when the feoffor conveyed a life estate, or a fee with a special limitation (e. g. to A. and his heirs, tenants of the Manor of Dale), or (after the Statute Be Bonis) an estate tail, the feoffee held directly of him.^ All reversions and possibilities of reverter were therefore always in the hands of the persons of whom land was held : for though a reversion could be alienated, it carried with it the lordship of the particular estate ; and a possibility of reverter could not be alienated. Land in frankalmoign also could not be held of any one but the grantor .^ § 21. The St. Westm. III., 18 Edw. I. c. 1 (1289), known as the Statute Quia Emptores Terrarum, enacts that on all conveyances in fee the tenant shall not hold of the grantor, but of the grantor's lord. This put an end to subinfeudation. The Statute does not affect gifts in tail or for life.* We have here to consider its effects on the future interests allowed by the common law,^ and also on the right of escheat. § 22. Before dealing with this, however, it will be conven- ient to see how far the Statute Quia Emptores is in force in the United States ; and a question preliminary to this inquiry is: How far does tenure exist in the United States? For it is idle to inquire whether a Statute directing of whom land shall be held is in force, if land cannot be held at all. This preliminary question has been much discussed. Land was held of the Crown in the Colonial times, and it does not seem 1 Bract. Lib. 2, c. 35, § 12, f. * See § 3 of the Statute ad fin.; 81. 2 Inst. 65. 22 Edw. I. p. 641 ; 2 Inst. 504 ; 2 2 Inst. 65; Digby, Hist. Law Digby, Hist. Real Prop. c. 4, § 5, Real Prop. c. 4, § 5. < note. 8 Lit. § 141. 5 See § 7, ante. PUTUEB INTERESTS. 13 that SO fundamental an alteration in the theory of property as the abolition of tenure would be worked by a change of po- litical sovereignty. Tenure still obtains between a tenant for life or years and the reversioner ; and so in like manner, it is conceived, a tenant in fee simple holds of the chief lord, that is, of the State.^ § 23. The subject has, however, in many States been affected by legislation or decision. Connecticut. — " Every proprietor in fee simple of lands has an absolute and direct dominion and property in the same." ^ New York. — " All lands within this State are declared to be allodial, so that, subject to the liability to escheat, the en- tire and absolute property is vested in the owners, according to the nature of their respective estates ; and all feudal tenures, of every description, with all their incidents, are abolished." 2 New Jersey. — The St. of Feb. 18, 1795,* declares that the purchaser of lands shall hold them of the chief lord, if there be any, of the fee ; that all tenures are turned into free and common socage ; but that this shall not take away " any rents certain, or other services incident or belonging to tenure in common socage, due or to grow due to this State, or any mean lord, or other private person, or the fealty and distresses inci- dent thereunto ; " and that the tenure of all grants made or to be made by the State shall be " allodial and not feudal," and " in free and pure allodium only." ^ The statement in 1 Sharswood, Law Lect. viii. 207- This Statute had been preceded by 232. HofE. Leg. Out. 593. United St. Feb. 20, 1787, which was identi- States V. Repentigny, 5 Wall. 211, cal with the Wew Jersey Statute, 267. Cf. 2 Bl. Com. (Sharswood's infra. See Cornell v. Lamb, 2 ed.) 77, note. But see 1 Washb. Cowen, 652; HofE. Leg. Out. 595. Keal Prop. 39-42 ; 2 Bl. Com. * Rev. Sts. 1877, pp. 165, 166. (Cooley's ed.) 102, note. ^ "Allodial" land often meana 2 St. Oct. 1793. See St. 1821, land held of no one. 2 Bl. Com. tit. 56, c. 1, §1, note; Rev. Sts. tit. 45, note, 47, 105. See Wright, 18, c. 6, pt. 1, § 1. Tenures, 146, 147 ; Gilbert, Ten- 8 Rev. Sts. pt. 2, c. 1, tit. 1, §3. ures (4th ed.), 352, Watkins's notfr 14 THE KtTLE AGAINST PEEPETtTITIES. 1 Washb. Real Prop. *40, that tenure does not exist in New Jersey, is incorrect. Pennsylvania. — In Wallace v. Harmstad ^ it was held that tenure does not exist in Penns3dvania. This will be considered below jn connection with the Statute ^wm Emptores^ Maryland. — In Matthews v. Ward ^ it is said that after the Revolution " lands became allodial, subject to no tenure." * Virginia. — Tenures were abolished by St. 1779, c. 13.^ Ohio, Indiana, Illinois, Michigan, and Wisconsin were formed out of the Northwest Territory which was ceded by Virginia to the United States in 1784, subsequent to the abolition of tenure. In these States, therefore, there would seem to have been originally no tenure. The government of the North- west Territory, July 14, 1795, passed an Act declaring that the common law of England and all Acts of Parliament made in aid of the common law prior to 4 Jac. I. (and which were of a general nature), "and also the several laws in force in this Territory," should be in full force.^ It is doubtful how far this republication of the common law and re-enactment of the English Statutes was within the power of the Territorial Government.'' If the act was valid, then tenure, and at the 5 ; Somner, Gavelkind, 109-111, cit. passim; Co. Lit. 1 6, 5 a, 65 a, 126. This is the sense in which it Harg. note ; AUen, Prerog. 196; is employed in the New York Ke- Digby, Hist. Real Prop. c. 1, sect, vised Statutes, supra. Used with I. §§ 2, 4. In the New York Stat- this meaning the expression " alio- ute of 1787, and the New Jersey dial tenure " is nonsense. But Statute, the word is perhaps em- " allodial land" is also employed ployed in this latter sense. But see to mean land which though held of 3 Kent, Com. 513, note (a), a lord is not subject to any services. ' 44 Pa. 492. " Erat alodium prsedium non modo ^ See § 26, post. ab omni prsestatione liberum, sed a ^ lo Q-ju & j_ 443^ 45j_ quolibet servitio reali et personali * See Hoff. Leg. Out. 594. immune, licet illius possessor domi- , ^ 10 Hen. St. 50, 64, 65. See 2 num agnosceret, a quo illud tenebat Minor, Inst. 71 ; 1 Lomax, Dig. 539. in feudum honoratum." Ducange, ' 1 Chase, St. 190, 191. Glos. Alodis; Spelm. Glos. Aloa- ' 1 Chase, St. 190, note. Thomp- rius, sub Jin. Cf. Ducange, Glos. »oc. son u. Gibson, 2 Ohio, 439. Helfen- FUTUEE INTERESTS. 15 Fame time the Statute Quia Umptores, were re-established in tlie Northwest Territory. After Ohio was set off as a State, its Legislature, Feb. 14, 1805,^ passed a Statute repealing the Act of the Territorial Government, and then re-enacting it. But on Jan. 2, 1806, the Legislature of Ohio passed an Act^ repealing so much of the last Act as declared that the com- mon law of England and English Statutes should be in force. It would seem, therefore, that the law in Ohio was relegated to its condition before the Territorial Act of 1795, and that therefore there is no tenure in that State.^ In Wisconsin the Constitution (1848) * provides that land shall be allodial.^ West Virginia. — This State was not set off from Virginia till 1862, and carried with it the law of Virginia. Tenure, therefore, has nerer existed in this State. Kentucky. — This State was set off from Virginia in 1791 ; consequently there was no tenure. The Revised Statutes of 1851 ® repealed all Statutes of a general character, whether of Kentucky, Virginia, or England. Did this repeal the Vir- ginia Statute abolishing tenure, and thereby revive it? South Carolina. — The Statute of Dec. 12, 1712, § 5,'^ de- clared that the only tenure of lands in South Carolina was that of free and common socage. The statements, therefore, in 1 Washb. Real Prop. *40, and Smith on Landl. and Ten. (Am. ed.) 6, note, that there is no tenure in South Carolina, appear to be incorrect. Georgia. — The Rev. Code of 1873, § 2221, declares that " the tenure by which all realty is held in this State is under the State as original owner," — a legislative declaration that tenure exists. stine V. Garrard, 7 Ohio, pt. 1, 275. * Art. 1, § 14. Carroll v. Olmsted, 16 Ohio, 251, ^ See Mandlebaum w. MoDonell, 260. 29 Mich. 78, 95. Barker v. Dayton, ^ 1 Ghase, St. 512. 28 Wis. 367, 384. 2 1 Chase, St. 528. « P. 127. » 11 Am. Jur. 94, 95. Walker, ' Grimke's Laws, 99. Rev. Sts. Am. Law, § 124. 1873, p. 416. 16 THE ETJLE AGAINST PEKPETUITIES. Minnesota. — The Constitution (1857) ^ declares that all land shall be allodial. California. — Tenure seems not to exist in this State.^ It is not improbable that the courts of other States may follow that of Maryland, and declare tenure abolished with- out legislative aid ; but as yet the Maryland case (except in Pennsylvania) ^ finds no support elsewhere. § 24. In those States where tenure no longer obtains, there can be no question whether the Statute Quia Emptores is in force ; its subject-matter has ceased to exist. In this condition are at least Connecticut, New York,* Maryland,^ Virginia,^ Ohio, Wisconsin, West Virginia, Kentucky (?), Minnesota, California.'^ § 25. In the States where there is no reason to question the existence of tenure, there seems as little reason to ques- tion the existence of the Statute Quia Emptores. There is no cause why this Statute should not have prevailed as generally as the Statute De Donis. Denio, J., in Van Rensselaer v. Mays^ points out the absurdity of supposing that subinfeuda- tion existed in the Colonies generally. In New Jersey the Statute was in force,^ and has been expressly re-enacted ; ^* Mr. Dane says-*^ that the Statute of Quia Emptores was 1 Art. 1, § 15. the Charter to Lord Baltimore, 2 Civil Code, § 762. Lucas, Chart. 95. 2 As to Pennsylvania, see § 26, ° The Statute Quia Emptores was infra. in force in Virginia, Chalm. Col. ^ It has been sometimes said that Op. 142 ; but was repealed by St. the Statute Quia Emptores was not 1792, c. 147, after tenures had been in force in New York even before abolished, 1 Lomax, Dig. 539. the Revised Statutes. Jackson v. ' See Mandlebaum v. McDouell, Schutz, 18 Johns. 174, 179, 180. 29 Mich. 78, 95. De Peyster v. Michael, 6 N. Y. 467, ^ jg n. Y. 68, 75. 502, 503. But see Denio, J., in Van » Chalm. Col. Op. 148. Rensselaer v. Hays, 19 N. Y. 68, i" See § 23, ante. As to New 71-75; Chalm. Col. Op. 149; and York and Virginia before the ab- 25 Alb. L. J. 169. olition of tenure, see notes to 6 See Chancellor Kilty's Eng- § 24. lish Statutes in Marylapd, 146; and " 4 Dane, Ab. 504. FUTURE INTERESTS. 17 "never adopted here" (jm. in Massachusetts). But no au- thority is cited for the proposition. The alleged non-existence of the Statute in North Carolina, Tennessee, Georgia, Ala- bama, and Mississippi rests upon the same ground as the alleged non-existence in those States of the Statute De Bonis, which, as we have seen,i wholly fails.^ In Indiana, Illinois, and Michigan either there is no tenure, or, if tenure exists, the Statute Quia Emptor es exists also.^ There would seem to be, of the States in which tenure exists at the present day, but two in which the Statute Quia Emptores is not in force, — Pennsylvania and South Carolina. § 26. Pennsylvania. — By the Charter of 1681 the Crown granted to William Penn the power to grant land to be held of himself, his heirs and assigns, and not immediately of the Crown, the Statute Quia Emptores notwithstanding.* And in Ingersoll v. Sergeant^ (1836), a very elaborately argued and carefully considered case, it was held that the Statute Quia Emptores was not in force, and that therefore rent reserved on a conveyance in fee simple was rent service and could be ap- portioned. This decision has always been deemed a landmark in the law of Pennsylvania; but in Wallace v. Harmstad^ (1863) the Court ruled that there was no tenure in the State. This ruling was unnecessary to the decision of the case, and has been far from meeting with universal acceptance. It has been severely criticised by Chief Justice Sharswood in his Law Lectures,^ and by Mr. Cadwalader in his treatise on Ground Rents.^ These criticisms seem just. If Wallace v. Harmstad had professed to overrule Ingersoll v. Sergeant, the ruling, whether right or wrong, would be plain enough. But on the contrary it is said : " That ground rent is a rent service 1 § 19, note, ante. ^ 1 Whart. 337. « And see Martin's English Stat- « 44 Pa. 492. utes in North Carolina (1792), 39. ' Pp. 207-282. ' § 23, anie. 8 chap. 1. See Jackson & Gross, * Lucas, Chart. 106, 107. Landl. & Ten. §§ 1-H. 18 THE ETJLE AGAINST PERPETUITIES. was fundamental in Ingerwll v. Sergeant^ a case which has been so often recognized and followed as to have become a rule of property." i In fact Wallace v. Harmstad is unin- telligible. To speak of rent service, or of the Statute Quia Emptores, in a State where tenure is non-existent, is an ab- surdity ; rent service and the Statute Quia Umptore$ neces- sarily imply tenure. They are meaningless terms without it. Considering the high authority which has always attached to Ingersoll v. Sergeant^ there may be reason, in spitp of WaUaee V. Harmstad, to believe that tenure still exists in Pennsyl- vania, and that the Statute Quia Mmptores does not. § 27. South Carolina. — On Dec. 12, 1712, was passed an Act to put in force in the Province the English Statutes therein particularly mentioned, the tenth section of which declared that all the English Statutes not enamerated and made of force in the Province by the Act were impracticable in the Province. The Statute Quia Emptoreg is not mentioned in this Act, and is therefore not law in South Carolina. § 28. The important result of this inquiry, for our present purposes, is that in all of the United States, with the excep- tion of South Carolina and perhaps Pennsylvania, land, if held at all, can be held of none but the State ; for in all the States, with the two exceptions^ either there is no tenure, or, if there is tenure, the Statute Quia Emptores is in force. § 29. Recurring to the question stated above,^ and consider- ing the effect of the Statute Quia Emptores on the interests allowed by the common law^ and on the right of escheat, we perceive that with regard to (1) Remainders and Reversions the Statute had no effect, except that when now, since the Statute, a remainder is granted in fee, the tenants of all the remainders, as well as of the particular estate, hold of the grantor's lord.* 1 44 Pa. 495. « Lit. §§ 215-217. 2 Inst. 505. 2 § 21, ante. Leake, Land Law, 42, 321. » See §7, ante. FUTURE INTEEESTS. 19 § 30. (2.) Rights of Entry for Conditiori broken. — These were not affected by the Statute Quia Emptores. The right of the feoffor to enter and substitute himself tor the feoffee is not a reversionary right, nor is it dependent upon tenure.^ The' validity of conditions attached to fees has been repeatedly recognized in America.^ § 81. (3.) Possibilities of Reverter. — These rights, as their name implies, were reversionary rights; but a reversionary right implies tenure, and the Statute Quia Emptores put an end to tenure between the grantor of an estate in fee simple and the grantee. Therefore, since the Statute, there can be no possibility of reverter remaining in the grantor upon the conveyance of a fee ; or, in other words, since the Statute, there can be no fee with a special or collateral limitation ; and the attempted imposition of such a limitation is invalid. The distinction between a right of entry for condition broken and a possibility of reverter is this : after the Statute, a feof- for, by the feoffment, substituted the feoffee for himself as his lord's tenant. By entry for breach of condition, he avoided the substitution, and placed himself in the same position tO' the lord which he had formerly occupied. The right to enter was not a reversionary right coming into effect on the termi- nation of an estate, but was the right to substitute the estate of the grantor for the estate of the grantee. A possibility of reverter, on the other hand, did not work the substitution of one estate for another, but was essentially a reversionary interest, — a returning of the land to the lord of whom it was held, because the tenant's estate had determined. § 32. In accordance with the doctrine of the, foregoing section, no possibility of reverter after a qualified fee has been sustained in England since the Statute Quia Emp- tores. A fee simple subject to a conditional limitation, that 1 Lit. §§ 325, 347. Co. Lit. 202. ^ See especially Van Rensselaer Doe d. Freeman v. Bateman, -2 B. v. Ball, 19 N. Y. 100 ; Same v. & Aid. 168. Dennison, 35 N. Y. 393, 400. 20 THE RULE AGAINST PEEPETTJITIES. is, to a springing or shifting use or executory devise, is sometimes called a qualified or determinable fee ; but this is not technically exact. A qualified fee is one subject to a special limitation ; that is, a limitation which marks the original bounds of the estate, and after which, in case of a fee, no other estate can be granted. A conditional limita- tion, as the term is commonly used, cuts off the first estate and introduces another. An estate to A. and his heirs, ten- ants of the Manor of Dale, is an instance of a qualified fee. An estate to A. and his heirs, but if he dies unmarried, then to B. and his heirs, is a fee simple subject to a conditional limitation. Qualified fees were good at common law, but were done away with by the Statute Quia Emptores. Condi- tional limitations were not good at the common law ; they were first introduced by the Statutes of Uses and of Wills.^ § 33. The effect, however, of the Statute Quia Emptores in putting an end to qualified fees has been often overlooked, though, as has just been said, no such fee has been actually sustained in England by decision since the Statute. The dicta of English Judges which support or assume the validity of such fees since the Statute are as follows : — (1.) Choke, J.2 (1467), said : " As if I give land to a man to have to him and his heirs in fee so long as John A'Down has issue of his body, in that case the feoffee will hold of his lord, &c. ; yet if John A'Down dies without heir of his body. &c., in that case T may well enter, &c. But not by escheat, &c., but because the feoffment is determined." (2.) Brian and Cawsen's Oase^ (1585'). The reporter says: "And it was said, that if I give lands to one and his heirs, as long as J. S. hath heirs of his body, the same is a fee simple determinable, and not an estate tail, qucere of that." 1 On the difference between a Gray, Restraints on Alienation, § 22, special limitation and a conditional note (2). limitation, and on the different ' 7 Edw. IV. 12 a. meanings of the latter term, see ' 2Leon. 68, 69; 3 Leon. 115, 117. FUTTJBE INTERESTS. 21 (3.) Poole V. Needham^ (1608). Ejectment. J. was tenant in tail male, remainder in fee to T. T. granted his remainder to the Queen in fee, as long as any issue male of J. should live. J. suffered a common recovery, under which the plain- tiff claimed, and died without issue. The defendant, as ser- vant to T., entered. Judgment for the plaintiff. The Court held the grant of the remainder to the Queen void because the estate granted could never come into possession, and that therefore the recovery barred T.'s remainder. They seem to have been of opinion that the Queen did not take a fee simple absolute ; that the fee simple determinable on the termination of the particular estate tail was void, because there was no possibility of advantage in it ; but that if it had been the reversion that had been so granted to the Queen, the grant would have been good, on account of the attendant services, &c. If, however, the Queen had been held to take a fee _ simple absolute, it is not clear that her estate would not have been barred by the recovery .^ (4.) Liford's Case^ (1614). In this case it is said : "A man may have an inheritance in fee simple in lands, as long as such a tree shall grow, 27 Hen. VIII. 29 J, because a man may have an inheritance in the tree itself." In 1 Roll. R. 95, 101, where the case is reported su6 nam. Stampe v. Clinton, the expression is, " If land is given as long as an oak shall grow, it is an inheritance (' tarn diu que querJce crescera ceo est inherit^)." It is not clear whether the remark is to be attributed to counsel or to the Court. (5.) Pells V. Brown^ (1620). Here Mr. Justice Houghton, in his argument, puts this case : " If a man gives or deviseth lands to one and his heirs as long as J. S. hath issue of his body, he, by recovery, shall not bind him who made this gift, without making him a party by way of vouchee." 1 Yelv. 149. ., Ml Co. 46 b, 49 a. 2 See the authorities collected in * Cro. Jac. 590, 593. Blosse V. Clanmorris, 3 Bligh, 62. 22 THE RULE AGAINST PEEPETUITIES. (6.) G-ardner v. Sheldon ^ (1671). Vaughan, C. J., speak- ing to a point which he expressly declares is not material to the case, says : ^ " An estate to a man and his heirs as long as John Stiles hath any heir, which is no absolute fee simple, is doubtless as durable as the estate in fee which John Stiles hath to him and his heirs, which is an absolute fee simple."^ (7.) Ayres v. Falkland* (1697). Treby, C. J., and Pow- ell, J., say: " A man may have a possibility of reverter where he cannot limit a remainder ; as if A. gives lands to B. and his heirs during the time that such an oak shall grow, he hath a possibility of reverter, though no remainder can be limited." (8.) Idle v. Coolc ^ (1705). Powell, J., says : " A fee tail was a fee-simple at common law ; for there were three sorts of fee simples, absolute, qualified (which was to time only, Hcil. as long as suuh a tree stood, or as J. S. had heirs of his bpdy) ; and also fee simple conditional, which was limited as to the heirs inheritable." He then states the effect of the Statute De Bonis on the last class. His statement is correct as to the law existing at the passage of the Statute Be Bonis, which, it will be remembered, was before the date of the Statute Quia Emptores. (9.) Lethieullier Y. Tracy ^ {11 bi'). Lord Hardwieke is re- ported by Atkins and Ambler to have said that if an estate is given to trustees until A.'s reaching twenty-one, and on A.'s attaining that age, then to him, the trustees take a determi- nable fee with a vested remainder to A. ; but in Ambler he is previously made tO call the estate of the trustees a chattel interest, and it seems incredible that Lord Hardwieke should have spoken of a vested reniainder after a determinable fee, 1 Vaugh. 259. 6 1 P. Wras. 70, 74, 75; 2 Ld. ^ P. 273. Raym. 1144, 1148. 8 See also pp. 269, 270. « 3 ^.tk. 774 ; Ambl. 204 ; 3 * 1 Ld. Raym. 325; suh nom. Kenyon, 40. Eyres v. Faulkland, 1 Salk. 231. FUTURE INTERESTS. 23 nothing being better settled than that a remainder can never be limited after a fee simple determinable.^ (10.) Wellington v. Wellington'^ (1768). Here, on a devise upon default of issue of the testator to trustees until debts and legacies were paid and then to A., the Court of Queen's Bench certified that the trustees took a determinable fee, but the only point in issue was whether the trustees took a pres- ,ent or a future estate. There is no opinion.^ § 34. Possibilities of reverter have also been spoken of by counsel and text-writers as if they were valid interests, with- out paying any regard to the Statute Quia Emptor es.'^ But with the exception of Poole v. Needham, ante, the English books reveal no actual case where any attempt has been made since the passiug of the Statute down to modern times to create a qualified fee with a possibility of reverter ; and the learned reader need not be reminded that little reliance is to be placed on statements, however often repeated, which have never been brought to the test of decision. " The mere state- ment and restatement of a doctrine, the mere repetition of the cantilena of lawyers, cannot make it law, unless it can be traced to some competent authority, and, if it be irreconcila- ble to some clear legal principle." ^ § 35. On the other hand, in Christopher Corbet'' s Case, in > §§ 13, 14, ante. See Fearne, Armitage, 2 B. & C. 202. Co. Lit. C. R. 226, Butler's note (d). 1 6, 27 a. Shep. Touch. 101. 1 2 1 W. Bl. 645; 4 Burr. 2165. Prest. Est. 431-433, 440-444, 481, ' See also Anon. Dyer, 300 6, 482, 508, 509; and many modem where the case referred to by the authors. Mr. Preston, loc. cit., has judges seems to have been simply a list of instances of determinable one of a springing use ; and Com- fees, and this list is given in a re- missioners of Donations «. De Clif- vised form in Challis, Real Prop, ford, 1 Dr. & W. 245. 201-206, but many of them are fees * 27 Hen. VIII. 29, pi. 20. Wal- simple, subject to a shifting use or Bingham's Case, 2 Plowd. 557. executory devise, and not fees de- Edward Seymor's Case, 10 Co. terminable at common law. 97 6. Anon. Jenk. Cent. 5. Hall«. = O'Connell v. The Queen, 11 Bearing, Hardr. 148. Cardigan v. CI. & E. 373. 24 THE E0LE AGAINST PEKPETUITIBS. the Common Pleas, as reported by Sir Edmund Anderson, the Chief Justice,^ the question was whether a proviso for the cesser of an estate tail upon an attempt to bar the entail was void. The Chief Justice, in his opinion, remarks : ^ " Intend- ments should be guided by the rules of the Law, and not by idle conceits, and to prove this further, 13 Hen. VII., 11 Hen. VII., 21 Hen. VI. fo. 37, it is held, and the law seems plain, that if land be given to one and his heirs so long as J. S. has heirs of his body, the donee has a fee and can alien notwithstanding there be a condition that he shall not alien ; as 11 lib. Assize, p. 8, a like case is put and held as before : and there if land be given to one and his heirs so long as J. S. or his heirs may enjoy the Manor of D., these words (so long) are utterly vain and idle, and do not abridge the estate . . . and yet it is to be admitted that one may have an estate in fee determinable, but not by the act and consent of the par- ties without any entry for condition broken or title defeasi- ble ; and to show briefly how this will be is now convenient, and it will be if the lord of a villein being tenant in tail enters on the land, &c., he and his heirs will enjoy the land so long as the villein has issue, and then his estate will determine ; so he who recovers rent against a tenant in tail, ' que ill teign in tail ' [out of what he holds in tail ?] ; or [suppose] that tenant in tail be attainted of treason, the King will have a fee of the land entailed determinable on death without issue, and has no greater estate ; but these estates last mentioned are not made by the first creation of these estates but by matter coming afterwards by other means." ^ 1 2 And. 134. has a base fee which, -while it lasts, 2 Pp. 138, 139. descends to his heirs. Leake, Land ' When a tenant in tail makes a Law, 40, 319. Challis, Real Prop. conveyance, e. g. a feofiment, which 264-272. As Anderson, C. J., re- operates as a discontinuance, but marks, such an estate is not and leaves to the issue, or at any rate cannot be created by the intention to the reversioner or remainder-man, of the parties; it results by opera- the right to aformedon,the grantee tion of law from their intention not FUTUEB INTERESTS. 25 § 36. Mr. Sanders was the first author to distinctly recog- nize, or at any rate to distinctly state, that the Statute Quia Emptores put an end to qualified fees.^ He says that his remarks are taken from an opinion of his own, " which was subsequently well considered by two gentlemen of eminence at the bar, and signed by them." The Commissioners on Real Property (Sir John Campbell and Messrs. Tinney, Duval, Hodgson, Duckworth, Brodie, and Tyrrell, all, except the chairman, among the most eminent real-property lawyers of their time), in their third Report, made in 1832,^ speaking of a devise of an estate to A. B. and his heirs, on condi- tion that they use the name and arms of C. D., say : " Some have thought that the will passed a fee simple, determinable upon the non-performance of the condition ; but it was not a determinable fee in the proper sense of the expression, if (as is perhaps the true state of the law on this subject) a deter- minable fee was an estate before the Statute of Quia Emptores, as upon a grant to A. B. and his heirs, so long as I. S. and his issue shall live, in which case the donor retained, in the nature of a right to an escheat, a reversionary interest which arose on the death of I. S. and the failure of his issue. But the Statute of Quia Emptores, by destroying the tenure be- tween the donor and donee, in cases where the fee was granted subsequently to the Statute, put an end to any right of reverter on such grants;" and reference is made to the passage in Anderson, above quoted.^ The most careful recent writers have adopted this view.* being fulfilled. It was argued in Base fees would therefore seem not Champernon's Case, 4 Hen. VI. to have been aifected by the Statute 19 J, 21 a, that when a tenant in tail Quia Emptores. had made a lease for life inoonsist- ^ 1 Sand. Uses (5th ed.), 208. ent with the fee tail, and thereby ^ P. 36. worked a discontinuance, and given ' And see Re Machu, 21 Ch. himself a base fee in reversion, D. 838, commented on in Gray, he held of the principal lord, and Restraints on Alienation, § 22, not of the donor; but the court de- note. cided that he still held of the donor. * Leake, Land Law, 36, note (of). 26 THE EULE AGAINST PEEPBTUITIES. § 37. The history of the only devise which in recent times has been claimed in England as raising a determinable fee is very singular. The Statute Quia Emptores was not referred to, but the final decision is a strong authority that determin- able fees do not now exist. Collier v. M'Bean^ (1865) was a bill by a vendor for specific performance. Sir John Rom- illy, M. E., held that a devise to trustees to hold during the life of A. B., and also until the testator's debts and legacies were paid, was a determinable fee. Under this construction the plaintiff did not make a good title. The Lords Justices ^ dismissed an appeal on the ground that, if the Master of the Rolls thought the title bad, it was too doubtful to be forced on a purchaser; but Sir J. L. Knight Bruce, L.,J., stated his impression to be that the trustees took a fee simple, and that the title was good. In 1873 a case involving the same ques- tion under the same will came before the then Master of the Rolls, Sir George Jessel. Collier v. Walters.^ The Master of the Rolls doubted whether he was not bound to follow the decree in the former case ; but, on the matter being mentioned at his request to the Lords Justices, they were of opinion that it was open to him to hear the case unfettered by the former decisions. The result is thus given by him : * " When the case comes to be argued on the footing that I was not to be bound by that decision, neither counsel asserts that that de- cision is right, but both positively abandon it : both the lead- ing counsel and the junior counsel, on consideration, say that they cannot support the decision of the Master of the Rolls. That is a very strong and a very peculiar circumstance, His Lordship having determined that according to the true con- struction of the will there was a determinable fee, neither of the counsel for the plaintiff will argue in support of that Marsdpii, Perp. 71, 72. Pollock, " L. E. 1 Ch. 81. Land Law, 213-215. See Buckhurst s j^ r. 17 j;q_ 252. Peerage, 2 Ap. Cas. 1, 24. < P. 261. 1 U Beav. 426. FUTURE INTERESTS. 27 proposition at all. In fact, there is not any authority to be found for any such determinable fee. I have looked at an enormous number of cases to see if I could find such an au- thority, but I have been quite as unsuccessful as the counsel for the plaintiff, and I think there is no such case to be found. I think, therefore, I may dismiss the interpretation of the will given by Lord Romilly as untenable." ^ § 38. In Pennsylvania (if Wallace v. Harmstad^ is un- sound) and in South Carolina tenure exists and the Statute Quia Umptores is in force. In these States, therefore, apart from the question of remoteness,^ qualified fees may be valid. In Scheetz v. Fitzwater,^ Penn. R. R. Oo. v. Parhef and Hender- son v. Hunter^ it was assumed that fees simple determinable might be created.^ § 39. In the other States there is either no tenure at all, or, where there is tenure, there is no good reason to doubt the existence of the Statute Quia Emptores. In neither case can there be any possibility of reverter. As in England, so in the United States, there are, however, several cases which speak of such interests as possible.® § 40. The cases, however, in which possibilities of reverter have come, or have been supposed to come, before American 1 See Conner v. Waring, 52 Md. 41 N. H. 16, 22. Congregational 724, 734; § 40, infra; anfl McDpn- Soc. v. Stark, 34 Vt. 243. Mayor of nell V. Mclsaac, 1 Haz. & Warb. New York v. Stuyvesant, 17 N. Y. 353; Pet. P. E. I. 236. 34. Thayer w. McGee, 20 Mich. 195, 2 44 Pa. 492. 211. Fletcher d. Fletcher, 88 Ind. 8 As to this see § 312, post. 418. Wiggins Ferry Co. u. Ohio & * 5 Pa. 126. Miss. R. Co., 94 111. 83. MoDaniel ^ 42 Pa. 31. V. Watson, 4 Bush, 234. Peyton, ' 59 Pa. 335. C. J. (dissenting), in Kilpatrick v. ' See Union Canal Co. v. Young, Graves, 51 Miss. 432. See Frieda 1 Whart. 410, 427, 428; Kerlin v. man v. Steiner, 107 111. 125; Row- Campbell, 15 Pa. 500; First Metho- land v. Warren, 10 Oieg. 129; Boll- dist Church u. Old Columbia Co., ing v. Petersburg, 8 Leigh, 224, 14 W. N. C. (Pa.) 229. 234. 8 Worster v. Gt. Falls Mfg. Co. 28 THE RULE AGAINST PERPETUITIES. courts are few. Besides the Penusylvania cases ^ they are as follows : — (1.) Wood V. Cheshire? This case states that the Supe- rior Court in the same suit had held, at July Term, 1854, that an estate granted to a county for so long a time as the land should be used as a court-house terminated, without entry, upon the land not being so used. No such case is reported in the decisions of the Court for July Term, 1854, or anywhere else in the New Hampshire Reports. (2.) Jamaica Fond Aqueduct Oo. v. Chandler.^ ' In this case a fee simple determinable was said to be created, but all that was necessary for the decision was to find that a fee was created ; whether determinable or absolute was immaterial. (3.) Hooker v. Utica Turnpike Road Co.^ Here it was merely held that a turnpike company who had abandoned their road could not recover under a penal statute for injuring it. (4.) Leonard v. Burr.^ Devise to A. of the use of land until Gloversville was incorporated into a village, and then to the trustees of said Gloversville. The Court of Appeals held that the devise over to the trustees was void, and that A. took a determinable fee. The precise point was passed upon,, because if A. took a fee simple subject to a void execu- tory devise, he would have an absolute estate, whereas it was held that on the incorporation of Gloversville the land re- verted to the grantor's heirs. This is the only reported deci- sion (outside of Pennsylvania) of the highest court of any State distinctly based on the existence of a possibility of re- verter. It is submitted that the decision was incorrect, and that in truth there was a devise to A. in fee, subject to a bad executory devise, and that therefore A. took a fee simple absolute. (5.) Gillespie v. Broas.^ A deed of land for the use of a 1 § 38, ante. * 12 Wend. 371. 2 32 N. H. 421. « 18 N. Y. 96. s 9 All. 159. • 23 Barb. 370. PUTTJRE INTERESTS. 29 county as long as the land should be used for a court-house, and when it should cease to be so used, to revert to the grantor and his heirs, was held not to pass " a good unincum- bered title." (6.) State V. Brown} Here, as in Jamaica Pond Aqueduct Co. V. Chandler, ante, a fee simple determinable is said to have been created ; but the only point at issue was whether it was a fee at all. (7.) Fay V. Mayor, ^c. of Baltimore?' Land was given to trustees for the use of the Roman Catholics of Baltimore, to build a chapel and lay out a burying-ground ; and if the trus- tees did not build the chapel and use the residue as a burying- ground, then the deed to be void and the premises to revert. The land was used as a burying-ground, but the chapel was built on an adjoining parcel. On a petition to restrain the City of Baltimore from selling the land for taxes, brought by the priest of the chapel and a parishioner who had buried some of his family in the land, it was held that the petition- ers had no locus standi, and the majority of the Court seem to place their decision on the ground that the land had re- verted to the grantor.^ The deed in this case was a bargain and sale, and the interest of the grantor would seem to have been a shifting use, and not a common-law possibility of reverter. (8.) Conner v. Waring} Devise to A. for life, with power in A. to appoint among such one or more of the testator's children or their issue as A. might see fit. A. appointed a share to trustees in trust to permit L., a daughter of the testa- tor, to take the rent's and profits during her life, and after her death in trust that the share should become the estate of her children, and in case any one of her children should die under age without issue, its share should go to her surviving chil- dren. A. also appointed that in case L. died without having 1 3 Dutch. 13. » Pp. 405, 406. 2 4 Gill, 394. * 52 Md. 724, 734. 30 THE RULE AGAINST PBEPBTTJITIES. any children or descendants of children, her share should go to the testator's surviving children and their representatives. This last appointment was held in Torrance v. Torrance^ on a like provision under the same will, to be on an indefinite failure of issue, and to be, therefore, void for remoteness. L. died without ever having had issue, and the question arose, on a bill in equity, as to the disposition of her share. The Court held that her trustees took a determinable fee, that her death terminated their estate, and that the land vested, by way of reverter, in the heirs of the testator. The Court obviously fell into the same mistake into which Lord Romilly had fallen in Collier v. M'Bean^ which counsel could not be found to defend, and which Sir George Jessel had so emphatically condemned in Collier v. Walters? It is clear that the trustees had a fee simple absolute^ which, on the contin- gency that had occurred, they held subject to a resulting trust in favor of the testator's heirs.* (9.) School Committee v. Kesler.^ It was held in this case that qualified fees do not exist in North Carolina. (10.) Daniels v. Wilson.^ Land in a village was conveyed to a county by a deed, with a proviso that the land was sold for county purposes so long as the county seat remained in the village ; and if at any time the county ^eat was removed therefrom, "then this conveyance to be void and of no effect, and the land reverts to the " grantors. It was held, or rather assumed without contention, that this provision was good, but whether as a condition or a limitation is not clear. The counsel for the grantor treat it as the former.^ (11.) Daniel v. Jackoway? Land was conveyed to a county board for the use and benefit of the county, for a countj' site 1 4 Md. 11. ing trust and not by possibility of 2 34 Beav. 426. reverter. » L. K. 17 Eq. 252. See § 37, « 67 N. C. 443. ante. " 27 Wis. 492. * The teirs were undoubtedly ' See p. 494. entitled, but it was under a result- ^ Preem. Ch. (Miss.) 59. PUTUKE INTERESTS. 31 for a court-house. The Superior Court of Chancery of Mississippi held that when the land ceased to be used for a court-house, there was a resulting trust to the grantor, and ordered a reconveyance. The grantor was not held to have any legal interest. It would seem that this resulting trust should have been held bad for remoteness. § 41. From the foregoing examination of the authorities it appears that Leonard v. Burr^ is the only weighty case re- ported on either side of the Atlantic, since the passage of the Statute of Quia Umptores, in which the validity of a possi- bility of reverter has been clearly adjudicated. The question may naturally arise. Why inquire so curiously as to the valid- ity of a common-law possibility of reverter, since by a shift- ing use or an executory devise to the grantor the same result can be reacjied ? The answer is : Shifting uses and execu- tory devises are, past a doubt, subject to the Rule against Per- petuities ; but it is not universally agreed that possibilities of reverter are so. Therefore, if this- latter class of interests are valid, and are not subject to the objection of remoteness, interests ma}^ by means of them, be created in a grantor and his heirs, which may not come into possession for centuries. It is submitted that theory and policy alike agree in denying the existence at the present day of such possibilities of re- verter, and that the allusions to them as actual rights in the books are outweighed by the fact of their non-appearance in practice. § 42. In several of the Western States, statiites have been enacted for the dedication of streets, which the courts con- sider as providing for the passage of the fee. In Illinois it has been held under such a statute that when the street is disused the land reverts to the grantor.^ 1 18 N. Y. 96. tion v. Edson, 18 Ohio St. 221; and 2 Gebhardt v. Reeves, 75 111. 301. People v. White, 11 Barb. 26. See Helm V. Webster, 85111. 116. To Thayer w. McGee, 20 Mich. 195. Con- the same effect are Board of Eduoa- tra, Pettingill v. Deyin, 35 Iowa, 344. 32 THE EULE AGAINST PERPETUITIES. § 43. (4.) Rights less than Ownership in Land of others. — Such rights are not the subjects of tenure.-' § 44. (5.) Escheat.— The effect of the Statute Quia Emp- tores on the right of escheat was, of course, to give that right to the grantor's lord. It is said by Lord Coke ^ that " if land holden of I. S. be given to an abbot and his successors, in this case if the abbot and all the convent die, so that the body politique is dissolved, the donor shall have againe this land, and not the lord by escheat. And so if land be given in fee simple to a deane and chapter, or to a mayor and commonalty, and to their successors, and after such body politique or in- ' corporate is dissolved, the donor shall have again the land, and not the lord by escheate." This statement has been often repeated as law, and has proved a sore stumbling-block to courts and writers in this country. Being unwilling to follow it, they have been constrained to call it " obsolete " or " un- suited to our institutions." ^ Let us examine the authorities cited by Lord Coke for his assertion. They are (a) 17 Edw. IL St. 3 ; (6) 9 Edw. IIL 26 ; (c) 7 Edw. IV. 11, 12. F. N. B. 33, cited, contains nothing in point. § 45. (a) 17 Edw. II. st. 3, De Terris Templariorum (1324). This Statute recites that lands of the Templars which were holden of the King and divers other lords were, upon the dis- solution of the order, "seised into the Hands of our Sove- raigne Lord the King, and of divers other Lords of the Fees 1 27 Hen. VIII. 10, pi. 23. Bro. den," is often extended loosely so Ab. Escheate, 9, 22. A. G. ii. as to cover incorporeal heredita- Sands, Hardres, 488, 496. 3 Inst, ments. Co. Lit. 6 a. 2 Bl. Cora. 16, 19, 21. Co. Lit. 47 a, 144 a, 298 a, 17. Shep. Touch. 91. 1 Prest. Est. Butler's note (2). Wms. Real Prop. 8-10. Williams on Commons, 30. (13th ed.) 341, 342. See Dean & Rex v. Skingle, 1 Stra. 100. .King Canons of Winsor v. Webb, Godb. v. Hollington, 3 East, 113. 211. Consequently the Statute of " Co. Lit. 18 6. Quia Emptores has no application » Owen v. Smith, 31 Barb. 641. to them. See § 17, ante, ad finem. Life Ass. v. Fassett, 102 111. 815. The term "tenement," though it 2 Kent, Com. 307, note (J). See strictly means " that which is hoi- Folger v. Chase, 18 Pick. 68, 66. FUTURE INTERESTS. 33 of them, who challenged the same Lands for the Considera- tion aforesaid, that the same Lands ought to revert to them as their Escheats." It then enacted that the lands should be given to the order of the Hospital of St. John of Jerusalem, to hold of the King and other Lords of the Fees by the same services as the Templars held them. There is nothing here to indicate that the lords claimed as donors ; on the contrary, it is expressly said that they claimed by escheat, because the lands were holden of them. § 46. (6) 9 Edw. III. 25, 26 (1334). This is the case of The King v. The Prior of the Hospital of St. John. The ad vow- son of the church of Sanford was in the Master of the Temple, and after the lands and tenements of the Templars had been seised into the hands of the King and the other lords, the church became void. The question was whether the King had the riglit to present on this vacancy, or whether it had passed to the Piior of the Hospital by the grant in the above Statute of all the lands of the Templars. Shardelowe, J., said : " There is no doubt in law but that by reason of the dissolution of the order their possession was escheat to the King, and in the same manner to all the other Lords that which was held of them, so that the estate that the Prior had in the advowson is of the King's grant. Wherefore, after he has parted by his deed with his right of advowson, the pres- entation cannot remain to him." A distinct statement that the lands passed by escheat to the lords of whom they were held. Not a word of their passing to the donors as distinct from the lords.' § 47. (c) 7 Edw. IV. 10-12 (1467). The Prior of Spal- ding's Case. Trespass by the Prior for taking an astray in the Manor of Spalding. The Manor of Spalding was held by the Prior in frankalmoign of John of Gaunt as lord of the Honour of Bolingbroke. The King in Parliament granted to 1 See Littleton, arguendo, in Bishop of Winchester v. Prior of St. John of Jerusalem, 35 Hen. VI. 58, 57. 3 34 THE ETJLB AGAINST PERPETUITIES. John of Gaunt the estrays infra omnia fceda sua. The Hon- our of Bolingbroke was forfeited by Act of Parliament to the King, and the defendant, as the King's bailiff, took an estray in the Manor of Spalding. The question at issue was whether land held of John of Gaunt in frankalmoign could be properly said to be infra foeda sua, within his fee. The counsel for the plaintiff contended that, as no services were rendered by ten- ant in frankalmoign, the land could not be said to be within the lord's fee. The judges were of a contrary opinion. It should be remembered that land in frankalmoign can be held only of the donor, and therefore, after the Statute Quia JEmp- tores, estates in frankalmoign could be created only by the King.^ So in frankalmoign lands the donor and the lord must be the same. Thus Fairfax, arguendo in this case : " If all the monks and the abbot or prior of such a house die, the donor shall have the land by way of escheat, as he is lord, and the land within his fee." Therefore in a case of frankalmoign the words "donor" and " lord " are • interchangeable. The only thing in this case that makes for Lord Coke's proposition is a remark of Choke, J. : " As to what has been said, that if the abbot and all his monks die the donor can enter, it seems to me that he well may : for if the gift was to the abbot and his successors, then when the succession fails, the gift is de- termined, for the gift depends wholly on the succession. As if I give land to a man to have to him and his heirs in fee so long as John A'Down has issue of his body, in that case the feoffee will hold of his lord, &c., yet if John A'Down dies without heir of his body, &c., in that case I may well enter, &c. But not by escheat, &c., but because the feoffment is determined, &c. ; so here when the succession fails, the gift is determined, &c., and therefore the donor may well enter, &c." Danby, C. J. : " It seems to me that this cannot be, for notwithstanding they die, yet others can be made, &c." This dictum of Mr. Justice Choke certainly supports the 1 Lit. §§ 140, 141. F. N. B. 210 et seq. FUTURE INTERESTS. 35 statement of Lord Coke. It must be borne in mind, however, that it was made in a discussion on frankalmoign tenure, where the donor and the lord must be the same person, and that the case of land to be held so long as John A'Down has heirs of his body, which is the basis of Choke, J.'s proposition, is probably not law.^ § 48. In early times conveyances to corporations were gen- erally gifts to ecclesiastical corporations, and gifts to ecclesi- astical corporations were usually in frankalmoign. Upon the dissolution of a corporation, land held by it in frankalmoign escheated to the donor, for the donor was the lord. Hence, one may suspect, arose the notion that on the dissolution of any corporation all its land came back to the donors, the fact being that what made this true in case of land held in frankalmoign did not apply to land held on other tenures by corporations. At any rate, the diotum of Choke, J., sujrra, is the only authority for Lord Coke's statement. § 49. Before the publication of Lord Coke's First Insti- tute, 1628, he and two of his fellows of the Common Bench had said in Dean and Canons of Winsor v. Wehh^ (1613): " That if a man give lands unto Dean and Canons, and to their successors, and they be dissolved ; or unto any other cor- porations ; that the donor shall have back the lands again, for the same is a condition in law annexed to the gift ; and in such case no writ of escheat lieth, yet the land is in him in the nature of an escheat." The remark was not called for by the decision of the case, which was a prohibition to an Ecclesiastical Court to entertain a suit by a parson to recover the treble value of tithes. Moore, 282, 283, pi. 435,^ is merely an opinion of Serjeants Moore and Brograve (1590) that the suppression of a monastery gave a right of entry to the foun- ders, and that the King should be understood founder if no 1 See §§ 31-42, ante. Cf. 11 Edw. ' Cited in Harg. note to Co. Lit. IV. 4, pi. 7; 12 Edw. IV. 3 a. 136. 2 Gobd. 211. 36 THE KTJLB AGAINST PERPETUITIES. other was found. It was not known of whom or on what tenure the land was held. The King would clearly have been entitled by escheat..^ § 50. But the notions which Lord Coke imposed upon his brethren did not always long survive his retirement. In John- son V. Norway^ (1622) arose the precise question whether, on the dissolution of a corporation, its land went to the donor or escheated to the lord. Hobart, C. J., said : " The great doubt of the case will be upon the barre of the defendant, whether by the death of the abbot and the monks, the land escheat to the lords of whom that was holden, or whether that shall go to the donors, and to the founders, and he thought that the land shall escheat, to which Winch seemed to agree." The report adds that the Judges said thej' would advise of the case, and gave order to argue it again ; but Lord Hale's MSS.^ say that it was held that the land escheated. This is the only case in which the question has been decided. § 51. But although Lord Coke's doctrine rests solely iDn a dictum of a judge in the fifteenth century, and is contrary to the only decided case, it has often been referred to as law.* No decision, however, has ever followed it, and it is probably one of those decantata which when carefully examined will be 1 See Southwell v. Wade, 1 Roll. v. Sedgwick, 35 Barb. 319, 329. Ab. 816, A, pi. 1. Commercial Bank v. Lockwood, 2 '■i Winch, 37. Harring. 8, 13. Fox v. Horah, 1 » Cited Co. Lit. 13 6, Harg. Ired. Eq. 358, 361. State v. Rives, 5 note. Ired. 297, 309. Life Ass. v. Fassett, * Per Lord Hardwicke in A. G. 102 111. 315. Coulter v. Robertson, 24 u. Gower, 9 Mod. 224, 226. Per Lord Miss. 278, 321. See Owen d. Smith, Mansfield in Burgess v. Wheate, 1 31 Barb. 641 ; People v. Mauran, W. Bl. 123. 165. Per Lord Denman 5 Denio, 389, 401 ; Woodworth v. in Mayor of Colchester v. Brooke, 7 Payne, 5 Hun, 551, 553 ; 74 N. Y. Q. B. 339. 384. Folger u. Chase, 196, 201 ; Moultrie v. Smiley, 16 Ga, 18 Pick. 63, 66. Bingham v. Wei- 289, 298, 299; Murray w. Green, 64 derwax, 1 Corast. 509. NicoU v. Cal. 36:?, 357; 1 Bl. Com. 484; 2 N. Y. & Erie R. Co., 12 Barb. 460, Prest. Est. 50; 1 Prest. Abs. 272; 2 465; 12 N. Y. 121, 129, 130. Robie Kent, Com. 307. FUTURE INTBEESTS. 37 found not only " odious and obsolete," but in fact to have never been law at all. 4. Statutes of Uses and of Wills. § 52. The next change in the law of future estates was worked by the Statute of Uses, 27 Hen. VJII. c. 10 (1535). This Statute enacted that when any one was seised to the use of another, such other should be seised of the same estate of which he had the use. Uses in equity could be created by parol without livery of seisin, and there was no restraint on their creation in futuro. When, therefore, by means of the Statute of Uses, the legal estate became united to the use, it became possible to create freeholds without livery of seisin, and commencing in futuro. § 53. Uses could be devised in equity, but when the legal estates were joined to them, they ceased to be devisable until St. 32 Hen. VIII. c. 1 (1540), which permitted devises in land. As devises were good without livery, so they too could be conveyed in futuro. § 54. When a use or devise takes effect on the determina- tion of preceding estates created at the same time, it is a remainder limited by way of use or devise. When a use cuts short another granted estate, it is called a shifting use. When it cuts short the estate of the person creating it, it is called a springing use. Devises are not distinguished into springing and shifting. All future devises which are not remainders are called execu- tory devises. Conditional limitation is a common term for shifting uses and shifting executory devises.^ I For another meaning of conditional limitation, see Gray, Restraints on Alienation, § 22, note 2. 38 THE EXJLB AGAINST PEKPETUITIES. § 55. Apart from the Rule against Perpetuities, there are no restraints on the creation of shifting and springing uses and executory devises in fututo. On\.j three exceptions to this have ever been suggested : (1) that a future freehold cannot he raised by a bargain and sale ; (2) that a contingent use is bad if preceded by an estate for years ; (3) that a bar- gain and sale cannot be to a person not in esse. The validity of these three supposed exceptions will now be examined. § 56. (1.) Can a Future Freehold he raised hy a Bargain and Sale? — There is no doubt that a feoffment may be made to a future use, or that a man may covenant to stand seised to a future use ; and it would seem equally clear on principle that a man may by bargain and sale create an estate to begin in futuro. In a bargain and sale, as in a covenant to stand seised, the owner of the land stands seised to his own use until the time named in the bargain or covenant, and then the use shifts ; the use in both cases arises out of the seisin of the owner ; there is no difference in the two except in the character of the consideration. § 57. In Massachusetts it was early held, by a singular error, that while a future estate could be raised by a covenant to stand seised, it could not be raised by a bargain and sale. " The conveyance, being in effect a bargain and sale, must have all the other requisites and q^alities of a bargain and sale. One of these qualities is, that it must be to the use of the bargainee, and that another use cannot be limited on that use ; from which it follows, that a freehold to commence in futuro cannot be conveyed in this mode ; as that would be to make the bargainee hold to the use of another, until the future freehold should vest." ^ The fallacy is obvious ; it lies in assuming that the use to the bargainee arises immediately 1 Welsh V. Foster, 12 Mass. 93, Nichols, 7 Pick. HI; Hunty. Hunt, 96. The same law is laid down ia 14 Pick. 374, 880, 381 ; Gale ». Wallis V. Wallis, 4Mass. 135; Pray Coburn, 18 Pick. 897; Brewer v. V. Pierce, 7 Mass. 881; Parker v. Hardy, 22 Pick. 378. FUTURE INTBEESTS. 39 'upon the bargain and sale ; that, under the Statute, the legal estate vests in him ; and that the interest of the bargainor, until the future event happens, must arise out of that legal estate of the bargainee. Whereas, in fact, the use does not arise until the future event, and in the mean time the bar- gainor retains his original estate. It is surprising that the learned Court did not perceive that the objection which they made to a bargain and sale applied equally to a covenant to stand seised. The Massachusetts doctrine has not been adopted elsewhere, and the error on which it rests has often been pointed out.^ Even in Massachusetts the practical in- convenience of the doctrine is done away with by the other erroneous doctrine, peculiar to that State, that a covenant to stand seised can be supported by a pecuniary consideration.''' One error neutralizes the other. A use in futuro can be raised by a bargain and sale. § 58. (2.) Is a Contingent Use good although preceded by an Estate for Years? — In two eases, Adams v. Savage^ (1703) and Bawley v. Holland*^ (1712), it was held that a use limited after an estate for years to a person not in esse, was bad as a contingent remainder unsupported by a freehold.^ § 59. The soundness of these two decisions is very ques- tionable. It is well settled that if a future limitation can be construed as a remainder it must be so construed, and not as a springing use ; but it is a very different thing to say that a 1 Rogers v. Eagle Co., 9 Wend. 8 2 Ld. Raym. 854; 2 Salk. 679. 611. Bell V. Scammon, 15 N. H. ^ 22 Vin. lb. 189; 2 Eq. Cas. 381. Wyman u. Brown, 50 Me. 139 Ab. 753. (overruling the dictum in Harden * See Earl of Bedford's Case, V. Chase, 32 Me. 329). Jordan e. Moore, 718; Pop. 3; Chudleigh's Stevens, 51 Me. 78. Drown v. Case, 1 Co. 135 a ; Penhay v. Hur- Smith, 52 Me. 141. Savage v. Lee, rell, 2 Vern. 370 ; 2 Freem. Ch. 90 N. C. 320. See Parsons v. Mills, 212, 231, 235, 258 ; Hayes, Limit. 2 Roll. Ab. 786 ; Gilbert, Uses 72 ; Gilbert, Uses (Sugd. ed.), 169 (Sugd. ed.) , 163. et seq. ; Jackson v. Jackson, Fitzgib. 2 Trafton v. Hawes, 102 Mass. 146. 533. 40 THE RULE AGAINST PEBPBTTJITIES. good springing use must be construed into a bad remainder, because it is preceded by an estate which is insufficient to support a remainder. To construe a limitation as a remain- der, if it can be a remainder, is one thing ; but to insist upon construing it as a remainder, when it cannot be a remainder, seems the very wantonness of destruction. In fact, an estate after an estate for years, though commonly called a remain- der, is not strictly so : a remainder is an estate after a free- hold ; a remainder-man, so called, after an estate for years, has the present seisin, and the reason why at common law an estate cannot be given to a person not in esse after an estate for years is, that there is no one to take the present seisin, and that a freehold cannot be granted in futuro} But, by way of use, a freehold can be granted in futuro. § 60. The cases of Adams v. Savage and Rawley v. Holland have, accordingly, been much criticised.^ But, further, they must be considered as overruled by the cases in which it has been repeatedly held that a future contingent devise after an estate for years is a good executory devise, and not a bad re- mainder.'' There is no intelligible distinction in this respect between springing uses and springing executory devises, and if Adams v. Savage and Rawley v. Holland have not been formally overruled, it is in all probability because the ques- tion has not arisen under a deed, as it has under wills. The statement may therefore be ventured that a contingent use is good although preceded ly an estate for years. § 61. (3.) Is a Bargain and Sale to a Person not in esse good? — It is clear that a use, either in possession or remainder, may be raised by bargain and sale to one man, on a consideration 1 Leake, Land Law, 320. Chal- (1722). Haywood v. Stillingfleet, lis, Real Prop. 77. 1 Atk. 422 (1737). Harris v. Barnes, 2 Gilbert, Uses (Sugd. ed.), 167, 4 Burr. 2157 (1768). See Lord 168, note. Hayes, Limit. 67, note, Mansfield in Goodtitle v. Burten- 72, note. 1 Sand. Uses (5th ed.), shaw, Fearne, G. R., App. 570, 147, 148. Wilson, Uses, 69, 70. 571 ; Gilbert, Uses (Sugd. ed.), ^ Gore V. Gore, 2 P. Wms. 28 171. FUTURE INTERESTS. 41 paid by another.^ In Gilbert on Uses ^ it is said : " If a man bargains and sells lands to one for life, then to his first son in tail, who is not yet born, it seems this is a good contingent remainder, rising out of the estate of the bargainor ; but 'tis said by Judge Newdigate,^ that by bargain and sale only, no contingent use can be supported, it seems he means by the estate of the bargainee; but, qucere, whether it may not, ut ante, but it seems a feoffment or fine is the surest .way, and so to put it out of the power of the owner of the land to destroy the future uses. Qucere, whether the consideration given by the party in uses will create a use to one not in esse." To this passage the editor, Mr. Sugden, has appended a note : " It seems clear that a contingent use to a person not in esse cannot be raised by a bargain and sale ; because of course the intended cestui que use cannot pay a consideration, and a con- sideration paid by the tenant for life would not, it is conceived, extend to the unborn son." In the same book* it is said that a man cannot in a bargain and sale reserve to himself a power of making leases, because " no uses will rise without consider- ation, therefore not to the lessees ; for where the persons are altogether uncertain, and the terms unknown, there can be no consideration." To this the editor adds in a note : " But although a general power of leasing cannot be reserved, yet a power may be reserved in a bargain and sale to grant a lease to a person from or on behalf of whom a valuable considera- tion moved at the execution of the deed."* In Sanders on Uses ® it is said that " if there be a bargain and sale for the life of the bargainee, with a power for him to make leases, a lease made under that power cannot operate as an appoint- ment of the use to the lessee." 1 2 Roll. Ab. 784, pi. 6, 7. Plowd. ' 2 Sid. 158. 307. 2 Inst. 672. Buckley v. Si- ^ P. 91. monds, Winch, 59, 61. Case of ^ See also Sugd. Pow. (8th ed.) Sutton's Hospital, 10 Co. 23, 34 a. 138, 139. 2 Sugd. ed. 398. « 2 Sand. Uses (5th ed.), 62. 42 THE KULE AGAINST PEKPETTJITIES. § 62. The statement of these eminent lawyers appears to have little support either in principle or authority. As a con- sideration paid by one person can I'aise a use, and even a future use, to another, there seems no reason why it should not raise a use to a person not in esse. If the cestui que use had to pay or promise the consideration, that would be a rea- son for requiring him to be in esse ; but as the consideration can be paid or promised by a stranger, the reason fails. A man may covenant to stand seised to the use of relatives not in esse, e. g., to the use of the covenantor's unborn children. ^ And it would seem that if a use can be raised to an unborn person by a covenant to stand seised, it can be raised to such person by a bargain and sale. § 63. The only authorities cited in support of the theory that a use to a person not in esse cannot be raised by bargain and sale seem to be 2 Sid. 158, and Pop. 81. The first cita- tion is a dictum of Newdigate, J., in Heyns v. Villars^ a case in the Upper Bench during the Commonwealth (1659). He says, speaking of a bargain and sale, as distinguished from a covenant to stand seised and from a feoffment: "By this con- veyance only no contingent use can be supported. See for this 4 Ma. Dy. f. 155 a, ace." This case referred to is Tyr- rel's Gase,^ which established that a use cannot be raised out of the use of a bargainee, — a proposition undoubtedly correct, but giving no support to the theory that a contingent use cannot be raised out of the seisin of the bargainor. The second authority cited is Dillon v. Fraine.^ Popham, C. J., there says : " And I remember that when I was a counsellor at law in the time of the Lord Dyer, where a feoffment was made to the use of one for life, with remainders over, with restraint to alien, and with power given to tenant for life to 1 See Bolls v. Winton, Noy, seq. ; Sugd. Pow. (Sth ed.) 138, 122; Mildmay's Case, 1 Co. 175 a, 139. 176 J, 177 a; Warwick v. Gerrard, " 2 Sid. 157, 158. 2 Vern. 7 ; 2 Hayes, Conv. 89 et » Dy. 155 a. * Pop. 70, 81. PTJTTJEE INTERESTS. 43 make leases for one and twenty years or three lives, it was much doubted whether this power so limited to him without words in the assurance that the feoffee and his heirs shall stand seised to these uses, shall be good to make such leases or not. And therefore suppose that a man bargains and sells land to one for his life by deed indented and inrolled, and make therein a proviso, that the tenant for life may make such leases, this is to no purpose as to power to make a lease." What the Chief Justice seems to mean is this: In case of a feoffment to uses with power in A. to make leases, it is doubtful whether any use will arise to the lessees, unless it is expressly stated in the deed of feoffment that the feoffee is seised to the uses of the lessees under such leases as A. shall make ; and so in a bargain and sale, with power in A. to make leases, no use will arise to the lessees, unless the bargain and sale is in terms to the lessees under such leases as A. shall make. This is a question of the merest form, on which the matter would certainly not turn at the present day. What- ever the meaning of this obscure dictuniy it is a slight founda- tion on which to build so inconvenient a doctrine, as that a use to a person not in esse cannot be raised by bargain and sale. It is entirely obiter, and occurs in a case better known as Chudleigh' s Case,^ abounding in the most futile conceits of school logic. Sugden in his Treatise on Powers^ well says of another dictum, of Popham in this case: " Indeed, had the whole Court delivered this opinion it would not at this day be entitled to much attention. All the settlements in the kingdom are made by way of use which is there styled im- pious. . . . No settled notions then existed as to the time within which contingent uses might be raised." § 64. The origin of the notion that a bargain and sale can- not raise a use to a person not in esse seems to have been this : In a covenant to stand seised a general power to lease is bad, 1 Reported, besides utsup., 1 Co. 120; Jenk. 276; 1 And. 309. 2 1 Sugd. Pow. (7tU ed.) 22. 44 THE EULE AGAINST PERPETUITIES. because the lessee may not be of the blood of the covenantor, and by covenant to stand seised no use can be raised to one who is not of kin or connected by marriage.^ Hence it was assumed that a general power to lease must be bad also in a bargain and sale. The fallacy lay in forgetting that while a consideration of blood cannot come from a stranger, a money consideration can. The true doctrine is therefore believed to be that a bargain and sale to a person not in esse is good? § 65. The practical importance of this last discussion lies in the fact that if an intended conveyance has failed to take effect through lack of livery or the statutory substitute for livery, it may take effect, if it be for a consideration of blood, as a covenant to stand seised, or if it be, or be alleged to be,^ for a valuable consideration, as a bargain and sale.* It is most undesirable to hamper the effect of this sensible and benefi- cent rule of law by an unnecessary theory that a use to per- sons not in esse cannot be raised by a bargain and sale. For if such theory be groundless, then every conveyance will oper- ate according to the intention of the parties, unless in the very rare case that there is neither a consideration of blood, nor a valuable consideration, nor a recital of a valuable consideration. 1 In a covenant to stand seised a ingly, Fisher v. Smith, Moore, 569; power to lease to unborn relations Wilkes ». Leuson, Dyer, 169a; Gil- is good. See § 62, ante. bert, Uses (Sugd. ed.), 96; Kuuku ^ In Ocheltree v. MoClung, 7 W. v. Kawainui, 4 Hawaiian, 515. See Va. 232, 242-247, it was considered Jackson v. Sebring, 16 Johns. 515; that a use to persons not in esse Gault v. Hall, 26 Me. 561. The case might be raised by a bargain and of Singleton v. Bremar, 4 McCord, sale. It is not clear how far the 12, seems contra. decision rested on the special Ian- * See, in Perry v. Price, 1 Mo. guage of the Virginia Statute. ' 553, and Lambert v. Smith, 9 Oreg. 3 " The recital of a consideration 185, the converse case, where a deed is conclusive for the purpose of sup- purporting to be a bargain and sale porting the deed against the grantor was allowed to operate as a feoff- and his heirs." Trafton v. Hawes, meut. 102 Mass. 533, 541. So, accord- FTJTUEB INTERESTS. 45 § 66. If the three questions discussed in §§ 56-65, ante, have been correctly answered in the affirmative, then there is no restraint on the creation of future estates in land, either by way of use or by will, other than the Rule against Perpe- tuities. 5. Later Legislation. § 67. In several of the United States freehold estates may be created in futuro either by express provision of statute or by inference from statutes dispensing with the necessity of livery of seisin. ^ And although in several of the States (e.g. New York, Michigan, and Wisconsin'^) uses have been abolished, which of itself would greatly limit the creation of estates in futuro, yet wherever this has been done it is be- lieved that freehold estates can, by statute, be created in futuro, so that the abolition of uses occasions no practical inconvenience.^ § 68. The only possible exception to this is Ohio. The Statute of Uses is not in force in that State.* And it has never been expressly enacted that freeholds can be created in futuro. But land passes there by deed without livery of seisin,^ and the Courts of Ohio will not improbably hold, as have those of Maiiie and Vermont,® that when livery of seisin is no longer necessary the objection to the creation of a free- hold in futuro falls with it. 1 See 2 Washb. Real Prop, book 2, Bert. 153. Nor in Massachusetts. c. 4, §7; Abbott v. Holway, 72 Me. Trafton v. Hawes, 102 Mass. 533, 298 ; Gorham ij. Daniels, 23 Vt. 541. Nor in New York. Jackson 600. V. Dunsbagh, 1 Johns. Cas. 91, 97. ^ See 1 Greenl. Cr. 315, note. * Thompson v. Gibson, 2 Ohio, 8 Ferguson v. Mason, 60 Wis. 439. Helfenstine v. Garrard, 7 Ohio, 377. And see Kuuku v. Kawainui, pt. 1, 275. Williams v. First Pres- 4 Hawaiian, 515. byterian Soc, 1 Ohio St. 478, 497. AVhether the Statute of Enrol- Carroll v. Olmsted, 16 Ohio, 251, ments, 27 Hen. VIII. c. 16, is in 260. See § 23, ante. force in America generally, quxre. ^ Borland v. Marshall, 2 Ohio It is not in force in New Brunswick. St. 308, 313, 314. Doe d. Hanington v. McFadden, ' See preceding section. 46 THE ETTLB AGAIKST PEEPETXJITIES. 6. Equitable Estates. § 69. Of future uses before the Statute of Uses, and of future trusts since, there has been no restraint on the creation save the Rule against Perpetuities. B. LANDS OF COPYHOLD TENURE. § 70. (1.) In lands held in copyhold there may be rever- sions and remainders; and the remainders may be either vested or contingent.^ (2.) Copyholds may be surrendered on condition.^ (3.) In some manors an estate to A. and the heirs of his body gives a fee simple conditional at common law ; in others the principle of the^Statute De Bonis has been adopted by the custom, and A. takes an estate tail.^ (4.) It is not clear how far a surrender to a future use is good.* To avoid the doubt, when freehold and copyhold lands are set- tled, although a legal estate is given in the freeholds, the copyholds are ordinarily given to trustees to hold upon trusts corresponding to the legal estates in the freeholds.^ (5.) The Statute of Uses does not apply to copyholds.® (6.) When copyholds are surrendered to the use of a will, an executory devisee is entitled to admittance.'^ 1 Wms. Real Prop. (13th ed.) 59, 60. Wms. Real Prop. (13th 383. ed.) 383. A contingent remainder in copy- ^ Scriv. Cop. (6th ed.) 100. hold land is not destroyed by the ' Wms. Real Prop. (13th ed.) forfeiture or surrender of the par- 360-364. ticular estate; the freehold in the * See 1 Scriv. Cop. (4th ed.) lord supports it, until the time 159-188. when the particular estate would ^ 3 Dav. Prec. Conv. (3d ed.) have expired; but if the contin- 597. gent event does not happen before ' Wms. Real Prop. (13th ed.) the expiration of such time the 380. remainder fails. Fearne, C. R. ' Glass v. Richardson, 2 De G. 319, 320. Scriv. Cop. (6th ed.) M. & G. 658. FUTUKE INTERESTS. 47 n. PERSONAL ESTATE. A. CHATTELS REAL. § 71. As there is no seisin of a chattel real, an estate for years can be granted to begin infuturo, the grantee in the mean time having an interesse termini} Thus an estate can be granted to A. for twenty years, then to B. for twenty years, then to C. for twenty years, and sO on, each grant to B., C, &c., being, not a remainder, but a grant to commence in futuro independent of the preceding grant or grants.^ A grant of a leasehold to A. for life, or in tail, gives him the entire interest in the whole term ; and for this reason in making settlements in England leaseholds are always put in trust.^ But at the present day, on a gift of a term to A. for life, and then to B., the courts, if the language will possi- bly permit, construe it as a gift of the term to A. should he live so long, and a separate gift to B. to commence upon the death of A. and continue until the end of the term.* An underlease or assignment of a term may be created to take effect in futuro? § 72. Condition. — A condition may be attached to an un- derlease, on breach of which it may be terminated without entry ; ^ and the entire leasehold estate may be assigned on a condition of which the assignor may take advantage.' 1 See Barwick's Case, 5 Co. 93 6, a leasehold by the termor to begin 94 b ; Weld v. Traip, 14 Gray, after his death is bad, because the 330. law presumes that the termor will 2 See Wright v. Cartwright, 1 live beyond the term. Welcden v. Burr. 282. Elkington, 2PIowd. 519, 520. See ' See Wms. Settlements, 223,' Jermyn v. Orchard, Show. P. C. 224. 199; Kingswell v. Kingswell, 1 * Wright V. Cartwright, 1 Burr. And. 122; Rayman v. Gold, Moore, 282. 635; Lewis, Perp. 92-94. * Welcden v. Elkington, 2 Plowd. ' See § 12, note, ante. 519, 524; Lewis, Perp. 92-94. But ' Doe d. Freeman v. Bateman, it has been said that the grant of 2 B. & Aid. 168. 48 THE ETJLE AGAINST PEEPBTUITIBS. § 73. Uses. — The Statute of Uses does not apply to lease- holds, and therefore there can be no future use raised out of a term for years. ■* § 74. Wills. — The validity of executory bequests of lease- holds, though once doubtful,^ was established by Manning's Vase^ and Lampet's Case;* for although a generation of judges grumbled at these decisions, they have never been overruled, and the law is now perfectly settled. Thus, by will, a lease- hold may be made to shift upon the death of the person to whom it is first given, or upon any contingent event. § 75. Equity. — There is no restraint on the creation of equitable interests in terms for years. Thus leaseholds may be given to trustees, in trust for A. for life, and then in trust for B. But, as is the ease with all chattels, if an interest legal or equitable be given to A. and the heirs of his body, A. takes the entire interest, and any subsequent gift is void.* § 76. In England, then, it is held that legal interests for life in leaseholds with gifts over can be created by will, but not inter vivos. In America, as will be seen,^ life interests in chattels personal can be created by deed as well as by will, and there can be little doubt, therefore, that in America life interests in leaseholds can be created inter vivos as well as by wiU. B. CHATTELS PEESONAL. § 77. The English law will first be stated, and then the modifications it has undergone in America. Taking the Eng- lish law, the first thing to be noted is that as, according to 1 Leake, Land Law, 118. Of Where a leasehold is granted to A. course a term can be raised by the for life, and then to B., under cir- Statute of Uses out of a freehold cumstances which would give A. estate. the absolute interest at law, whether ^ See §§ 148-151, post. A.'s executors would not be consid- ° 8 Co. 94 h. ered in equity as holding in trust * 10 Co. 46 h. for B., qumre. It seems they would. ^ Brouncker v. Bagot, 1 Mer. 271. ' §§ 91 et seq., post. FUTTTEB INTERESTS. 49 the prevailing opinion, a parol gift of a chattel is not good without delivery, there can be no gift of a chattel by parol to begin in futuro} But if the conveyance is by deed or for value, it can be made to take effect at any time, present or future. § 78. Chattels may be bailed for a term of years, but a grant of a chattel for life or in tail passes the entire interest, and any gift over is void at law.^ Therefore, in settling property, chattels personal, like leaseholds, are settled in trust, and the equitable interest shifts on the death of a cestui que trust or other future event. Chattels personal may be granted on condition, and upon breach the grantor can revest the property in himself without a redelivery .^ § 79. Uses. — The Statute of Uses does not apply to chattels personal any more than to chattels real. § 80. Wills. — It has been settled since Manning's and Lampet''s Cases * that an executory bequest of leaseholds is good at law, but " it may be doubted whether the doctrine of executory bequests is applicable to any other chattels than chattels real." ° The authorities are as follows : In the Year i 1 The leading authorities for the Fairclough, 2 M. & G. 674, 691, common view are: Bract. 16a; note. Lunn v. Thornton, 1 C. B. Jenk. .109; Irons v. Smallpiece, 2 379, 381, note. Ward u. Audland, B. & Aid. 551 ; Shower ». Pilck, 4 16 M. & W. 862, 870. Flory v. Ex. 478; Noble v. Smith, 2 Johns. Denny, 7 Exch. 581, 583. Winter 52. The case in which this view v. Winter, 4 L. T. n. s. 639; 9 was first clearly announced was W. R. 747. Martin u. Reed, 31 Irons V. Smallpiece, uhi sup. That L. J. C. P. 126, 127. Douglas v. decision was hardly in accordance Douglas, 22 L. T. n. s. 127. But with the weight of the authorities the common notion is now so preva- at the time. See 2 Edw. IV. 25; lent, that it is not likely that it will Perk. §§ 57, 59; Wortes v. Clifton, be departed from. See § 98, post. 1 Roll. R. 61 ; Hudson v. Hudson, = Wms. Pers. Prop. (11th ed.) Latch, 214; Ward v. Turner, 2 Ves. 306. Sr. 431, 442. And its soundness has ' See § 72, ante. been seriously questioned. Wil- * 8Co.946; lOCo.466; §74,an?e. braham v. Snow, 2 Wms. Satind. ' Wms. Pers. Prop. (11th ed.) 47 a. London & Brighton R. Co. v. pt. 4, c. 1, p. 308. 50 THE RULE AGAINST PBEPBTXJITIBS. Book of 37 Hen. VI. 30 (1459), a testator made A. and B. his executors, and bequeathed a graile or mass-book to B. to have and use for the term of his life, and after his death the remainder to A. in the same manner for the term of his life, and after his death the remainder to the parishioners of a church forever. The Court of Common Pleas held that the property was in the executors " and not in the devisees, for they will have only the occupation and ^manuranoe' for term of their two lives, and so no property in them." Bro. Ab. Devise, 13, under this case says : " In the time of Hen. VIII. and Edw. VI. this is good law that the occupation can so remain, but if the thing itself was devised to the use the remainder is void, for gift or devise of a chattel for an hour is forever, and the donee or devisee can give, sell, and dispose of it, and the remainder dependent on it is void, which note, for it is ' valde bone diversitie.' " ^ In Owen 33, under the heading of Trinity Term, 7 Eliz. (1665), is this: "Note by Dyer [C. J. of the C. P.], that the Lord Fitz-James, late Lord Chief Justice of England, did devise his land to Nicholas Fitz-James in tail, with divers remainders over, and in the same devise he devised divers jewels and peeces of plate, viz. the use of them to the said Nicholas Fitz-James, and the heires males of his body. In this case it was the opinion of the Court that the said Nicholas had no property in the said plate, but onely the use and occu- pation. And the same law where the devise was that his wife should inhabit in one of his houses which he had for terme of years during her life, because the wife takes no in- terest in the terme, but onely an occupation and usage, out of which the executors cannot eject her during her life, but Walsh held the contrary." § 81. From these meagre indications it would appear that 1 See Welcden v. Elkington, Plowd. 539, 542; Bro. New Cas Dyer, 358 6, 359 a; Plowd. 519, § 334; Anon. Dyer, 7 a. 521, 522 ; Paramour v. Yardley, FUTURE INTERESTS. 51 originally no legal right of property could be created by -will in a chattel, either real or personal, other than an absolute interest, but that the use or occupation of a chattel might be given to A. for life, and that although A. thereby acquired no property, he yet gained a right of occupation. ^ § 82. In Mallet v. Sackford^ (1607) a term was devised to A. for life, and on A.'s death over. The Court were divided in opinion whether the gift over was void ; and in this case ap- parently, according to 1 Roll. Ab. 610, the Court said : " If a man devise a chattel personal to one'for life, the remainder to another, it is a void remainder." But two years later, in Man- ning's Case,^ it was held that upon a devise of a term to A. for life, and on A.'s death to B., B. took a legal estate by executory devise ; and that it was immaterial whether the gift was of the term or of the use of the term. This was con- firmed in Lampefs Case} From the way these decisions were received it is clear that the doctrine was an innovation. Was the innovation to be extended to chattels personal ? § 83. It had been pointed out by counsel, and agreed to by the Court of King's Bench in Paramour v. Yardley,^ that there might be an occupation of a chattel personal distinct from the property, but that the devise of the occupation of a term was the same as a devise of the land itself. Accordingly it would not be strange to find preserved, in cases of chattels personal, the distinction between a bequest of the use of a chattel and a bequest of the chattel itself, which distinction had disappeared in the case of chattels real. Such is in fact the case. In the Court of Common Pleas, Anon.^ (1641), " A prohibition was prayed unto the Council of the Marches of Wales, and the case was thus : A man being possessed of certain goods, devised them by his will unto his wife for her 1 See Paramour v. Yardley, < 10 Co. 46 J ; § 74, ante. Plowd. 539, 542. s pjowd. 539, 542. 2 Cro. Jac. 198. » March, 106. » 8 Co. 94 6. 52 THE ETTLE AGAINST PEEPETU7TIES. life, and after her decease to J. S., and died. J. S. in the life of the wife did commence suit in the Court of Equity, there to secure his interest in remainder, and thereupon this pro- hibition was prayed. And the Justices, viz. Banks, Chief Justice, Crawley, Foster (Reeve being absent), upon consid- eration of the point before them, did grant a prohibition, and the reason was because the devise in the remainder of goods was void, and therefore no remedy in equity, for u^quitas sequitur legem. And the Chief Justice took the difference, as in 37 H. 6. 30, Br. Devise 18, and Com. Welkden §■ MUng- ton's Case, betwixt the devise of the use and occupation of goods, and the devise of goods themselves. For where the goods themselves are devised, there can be no remainder over ; otherwise, where the use or occupation only is devised. It is true that heir looms shall descend, but that is by custome and continuance of them, and also it is true that the devise of the use and occupation of land is a devise of the land itself, but not so in case of goods, for one may have the occupation of the goods, and another the interest, and so it is where a man pawns goods and the like. For which cause the Court all agreed that a prohibition should be awarded." There are three things shown from this case as to the then understanding of the law: (1.) That a devise of chattels, after a devise of them for life, was bad ; while a devise of them subject to a devise of the use of them was good. (2.) That the same rule prevailed in equity as in law. (3.) That the interest which the devisee of the use of a chattel had, though not a right of property, was a legal right of possession like that of a pawnee. § 84. But, by a series of decisions in the last half of the seventeenth century, it became settled that, in equity, if a chattel personal be bequeathed to A. for life, and on A.'s death to B., the bequest of the chattel to A. will be considered as a bequest of the use to him ; that the property will be considered to belong to B. ; and that A. will have only the FUTURE INTERESTS, 53 nse.^ In Vachel y. Vaehel and Gatchmay v. Nicholas the opinions of common-law judges were sought, and were in accordance with the judgments delivered, so we may assume that the common law was considered to agree with equity on this point. § 85. It may safely be considered as settled at the presents day that on a bequest of a personal chattel to A. for life, and| on A.'s death to B., A.'s right to enjoy it during his life, ' and B.'s right to have it on A.'s death, will be somehow pro- tected ; but the mode of doing so is not entirely clear. There seem to be three modes in which it may be done. First. A. may be considered as having a right to possession at law, and the immediate right of property as being in B. This seems to be the theory of the cases cited in the note to the preceding section. Second. A. may be considered as having the legal right of property, which on his death shifts to B. This is what happens in the case of executory devises of leaseholds, and it appears to have been Lord Thurlow's opinion that it happened with personal chattels also.^ It does not seem material which of these two theories is adopted. On either hypothesis, both A. and B. have legal rights, and are entitled to legal remedies. § 86. Third. The whole interest may pass to A. at law, who will hold the chattel in trust for himself for life, and on his death for B. This was possibly Mr. Fearne's view ; ^ but the case of Roare v. Parker^ is perhaps inconsistent with such a theory, for there the person interested in chattels, after the 1 Vachel v. Vachel, 1 Ch. Cas. Vern. 331 (1695). See Randall v. 129 (1669). Catchmay v. Nicholas, Russell, 3 Mer. 190, 195. Cas. temp.. Finch, 116 (1678). = See Foley v. Bumell, 1 Bro. Smith V. Clever, 2 Vern. 88, 59 C. C.274, 278; Lewis, Perp. 95-98. (1688). Shirley v. Ferrers, 1 P. = Feame, C. R. 401, 404. See Wms. 6, note (1690). Clargeg v. Anon. Freem. Ch. 137 ; and cf. Albemarle, 2 Vern. 245 (1691). Sabbarton v. Sabbarton, Andrews, Anon. Freem. Ch. 206 (1695). 383, 335; Cas. temp. Talb. 55, 245. Hyde ». Parrat, 1 P. Wms. 1; 2 * 2 T. R. 376. 54 THE EULB AGAINST PEEPBT PITIES. death of the one who had enjoyed them during her life, brought' trover for them, to maintain which he must have had a legal right to possession. The case iS, however, so imperfectly reported, that it furnishes a dangerous ground for argument. The weight of authority certainly preponderates in favor of one of the two former views. The question is important, for if the last view be sound, the owner for life, having the whole legal estate, may transfer the chattel to a pui'chaser for value without notice, who will hold it free from the claim of one interested in remainder, for this claim is ex hypothesi equi- table only. 8 87. JEquMij. — There is no restraint on the creation of future equitable interests in chattels personal. There can,\ however, be no interest granted after a gift of a chattel per sonal to one and the heirs of his body ; and t^his is_as true at/i ecmi^^as at Jaw. In the two preceding sections has been discussed the condition of the title under a bequest of chat- tels. Where there is a gift by deed of chattels to A. for life, and on A.'s death to B., it would seem that A. takes the whole legal interest, and holds it in trust for himself for life, and on his death to B. § 88. Ameriean Law. — Coming to America, future limita- tions in wills will first be taken up, and then those in deeds. Wills. — In America an executory bequest of a chattel per- sonal passes a legal interest. This has not only been said in many cases in which the parties' equitable rights were in controversy, but has also been expressly determined in suits at law.^ Even in North Carolina, where, as will be seen, a 1 Smith V. Bell, 6 Pet. 68, 78. G. 127. Royall v. Eppes, 2 Munf. Thrasher v. Ingram, 32 Ala. 645. 479. Keating o. Reynolds, 1 Bay, Griggs V. Dodge, 2 Day, 28 (ex- 80. Henry v. Means, 2 Hill (S. C), plaining Smith v. Gates, 2 Root, 328. Rogers v. Randall, 2 Speers, 532). Taber v. Packwood, lb. 52. 38. Marshall v. Rives, 8 Rich. 85. MofEat V. Strong, 10 Johns. 12. Russell v. Kearney, 27 Ga. 96. Lott State V. Warrington, 4 Harring. v. Meacham, 4 Fla. 144. Moore v. 55. Dashiell v. Dashiell, 2 Har. & Howe, 4 T. B. Monr. 199. See / FUTUKE INTERESTS. 55 future limitation of a chattel personal by deed is bad, an executory bequest of such a chattel is good.^ § 89. That an executory bequest gives a legal and not merely an equitable interest appears to be universally accepted as law in America. The sole exception, if it be an exception, is Homer v. Shelton? In that case personal property was bequeathed to A., with an executory bequest over, should A. at his death leave only one child. The question in dispute was whether A. was entitled to possession of the property without giving security. The Court held that as A. was the absolute owner of the property, he was entitled to the posses- sion of it without giving security ; but that he would hold it " in trust, subject to the limitation over." It is certainly not clear that the Court meant to decide that the executory Sampson v. Randall, 72 Me. 109; Albee v. Cummings, 12 Cush. 382, 387 ; Westcott o. Cady, 5 Johns. Ch. 334; Delhi v. King, 6 S. & R. 29; Hill u. HUl, Dudl. Eq. 71, 83, 84; Horry v. Glover, 2 Hill, Ch. 515, 523; Riley, Ch. 53; Philips b. Crews, 65 Ga. 274 ; Waldo v. Cum- mings, 45 111. 421 ; Maulding v. Scott, 13 Ark. 88. It has been said of future limi- tations of personal property that " although allowed," they " are cer- tainly not to be favored; it is with reluctance that they have been sanc- tioned by our courts; and they will lean against the creation of them, either by deed or will. ' ' Brewster ». McCall, 15 Conn. 274, 291; and see Kirkpatriok v. Davidson, 2 Ga. 297, 301, 302. But the correctness of such a general proposition may be doubted. See Banks v. Marksberry, 3 Lit. 275, 279; Welsch ». Belleville Bank, 94111. 191,204. 1 Jones V. Zollicoffer, N. C. Term Rep. 212. Burnett v. Roberts, 4 Dev. 81. Threadgill v. Ingram, 1 Ired. 577. In Jones u. Zollicoffer, it was expressly held that a pur- chaser without notice from the per- son having the life interest could not hold as against those entitled under the executory bequest; and see Burnett v. Roberts. Cf. also Russell V. Kearney, 27 Ga. 96. As to reversionary interests, see § 97. In Alabama it has been held that if one to whom a chattel has been bequeathed for life assigns it by what purports to be an absolute conveyance, the right of those hav- ing the future interest is discon- tinued, and turned into a chose in action. Broome v. King, 10 Ala. 819. Price v. Talley, 18 Ala. 21. But this seems to be the employ- ment of a nomenclature and ideas foreign to the law of personal prop- erty. See Pickett v. Doe d. Pope, 74 Ala. 122; and § 90, note, ;)osi, 2 2 Met. 194, 206, 207. 56 THE EULE AGAINST PEEPETTHTIES. tequest gave an equitable interest only. As was natural in a court having then no equitable jurisdiction, equitable terms such as " trust " were loosely employed. It does not seem that the decision would have been affected by the fact of the gift over being legal rather than equitable. The result of holding an executory bequest of a chattel personal to give only an equitable interest would, as has been said,^ be very important-; for, if such were the case, the legatee for life could pass the property to a bona fide purchaser, free from any claim under the executory bequest. Until a more express decision than Homer v. Shelton, it will not be safe to assume that the courts of Massachusetts mean to depart from what is now everywhere else the accepted doctrine in America.^ § 90. Whether the property is to be considered as being in the first legatee until the specified event, and then as shift- ing to the one to whom the executory bequest, is given ; or whether the first legatee has only the possession and use for his life, and the property is always in the one who is to take on the determination of the first legatee's interest ; or whether there is a difference between the case when the first legatee takes in terms a life interest only, and the case where he takes an absolute interest, with a contingent bequest over,^ — would ' § 86, ante. certain or uncertain event, the first " And is probably also the faw taker has the absolute interest in in England. §§ 85, 8S, ante. personalty, which shifts, on the des- ' This supposed difference seems ignated event, to the person to whom to have had its origin in a mistaken the gift over is made. Fearne, analogy between real and personal C. R. 401, Butler's note (e). Smith, estate. A devise of land after a life Exec. Int. § 159 a. Lewis, Perp. estate is a remainder. After a fee it 88. Keyes on Chattels, §§ 268, 271. is an executory devise, an interest The case of Wilson v. Cockrill, 8 with very different qualities. But Mo. 1, § 91, note, post, is bad law. there are no remainders of personal It should be noted, however, that in property, — all bequests of future in- considering whether a future limi- terests are executory bequests. The tatiou of personal property is vested true doctrine seems to be, that what- or contingent, as those terms are ever is the form of words employed, used in determining the application and whether the gift over is on a of the Rule against Perpetuities, FUTURE INTERESTS. 57 seem in this connection of no practical moment, for on either hypothesis the executory bequest is a legal interest, and can- not be affected by any act of the first taker.^ § 91. Deeds. — It is the prevailing opinion in the United States that a future limitation of a chattel personal as a legal interest can be created by deed as well as by will. Thus, upon the gift of a chattel to A. for life, and after his death to B., B. takes a legal interest.'-^ So upon the gift of a chattel to A., but if he dies without leaving issue at his death then to B., B. has a legal interest.^ And in like manner, upon a gift the form of the limitation may be- come important. See § 111, post. 1 In determining whether, when there is an executoiy bequest, the first legatee of personal property shall be allowed the possession with- out giving security, the following has sometimes been suggested as the test : If the property (or possession) of the chattels in the first taker cannot pass to his executor, but must determine on his death, then he must give security; but if, sub- ject to a contingency named, the property will pass to his executors, then he need not give security. Thus if chattels are given to A. for life, and on his death to B., A. must give security ; but if chat- tels are given to A., but if he dies without issue living at his death then to B., A. need not give security. See Homer v. Shelton, 2 Met. 194, 206; Hooper v. Brad- bury, 133 Mass. 803, 307, 308. But in practice no such test has been applied, and the first taker has sometimes been required to give security, and sometimes not, with- out regard to whether his interest was terminated by his death, or might pass to his executors. The notion of apj^ying this test would seem to have arisen from the wrong analogy mentioned in the preceding note, 2 Tucker v. Stevens, 4 Des. 532. M'Call V. Lewis, 1 Strob. 442. Nix V. Ray, 5 Rich. 423. (Cooper v. Cooper, Brevard MSS. Rep. ; 1 Rice, South Car. Dig. 207, contra, is over- ruled.) Price V. Price, 5 Ala. 578. Williamson v. Mason, 23 Ala. 488. Keen v. Macey, 3 Bibb, 39, See Bradley v. Mosby, 3 Call, 50; Owen V. Cooper, 46 Ind. 524; Harris v. McLaran, 30 Miss. 533, 568, 569; Aikin v. Smith, 1 Sneed, 304; Lyde V. Taylor, 17 Ala. 270 ; Jones v. Hos- kins, 18 Ala. 489. » Hill V. Hill, Dudl. Eq. 71. See Powell v. Brown, 1 Bail. 100; Welch V. Kinard, Speers, Eq. 256, 262. In Wilson v. Cockrill, 8 Mo. 1, it was held that although a gift over upon the death of the first donee of a chattel was good, yet that a gift over upon the death of the first donee without leaving issue at his death was bad. This distinc- tion, based, it would seem, on erro- neous analogies from the law of rea« 58 THE RULE AGAINST PBEPETUITIES. by deed of a chattel personal to take effect on the death of the donor, the donee, on the death of the donor, becomes entitled to possession as legal owner.^ § 92. In North Carolina alone is the opposite doctrine held. There, upon a gift of a chattel personal by deed to A. for life, and upon A.'s death to B., or to A. with an executory limitation over to B. upon a definite failure of A.'s issue, the gift to B. is void .2 And so if, in a gift of a chattel personal by deed to A., the chattel is reserved to the grantor for his life, the gift to A. is void."* § 93. In 1823 the Legislature of North Carolina enacted * that " Every limitation by deed or writing of a slave or slaves, which limitation, if contained in a last will and testament, would be good and effectual as an executory devise or be- quest, shall be and is hereby declared to be a good and effec- tual limitation in remainder of such slave or slaves, and any limitation made or reserved to the grantor, vendor or donor, in any such deed or writing, of a slave or slaves, shall be good and effectual in law : Provided such limitation, had it been made to another person, would be good and effectual accord- estate, finds no support in the au- v. Montgomery, 2 Car. Law Rep. thorities. See § 90, note, ante. 100. Smith v. Tucker, 2 Dev. 541. 1 Dukes V. Dyches, 2 Strob. Eq. Morrow v. Williams, 3 Dev. 263. 353, note. Dawson v. Dawson, Hunt v. Davis, 3 Dev. & B. 42. Rice, Eq. 243, 261. Jaggers v. Harrell u. Davis, 8 Jones, 359. Estes, 2 Strob. Eq. 343, 378, 397. ^ Graham v. Graham, 2 Hawks, (Vernon v. Inabnit, 2 Brev. 411, 322. Foscue v. Foscue, 3 Hawks, and the dictum in Ingram v. Porter, 538. Sutton v. Hollowell, 2 Dev. 4 McCord, 198, contra, are over- 185. Hunt . Cheeke, 3 Lev. 125. So in sequent rather than precedent, but the case, which is of daily occur- often also by holding that there is rence in practice, where an estate no condition at all. Thus a devise is given to A. for life, and on his to a widow for life if she does not death to B., the remainder to B. is marry again, but if she does, then vested, and B. will take although 64 THE EULE AGAINST PERPETUITIES. ■would terminate it after it had come into possession, the con- dition will be deemed subsequent and the remainder vested, although the contingency may happen before the end of the particular estate, and so the remainder may never come into possession, as in the case put in the preceding section. § 104. One class of cases, however, presents some difficulty, those, namely, in which the contingency, if it happens at all, must happen before the termination of the particular estate, and the coming into possession of the remainder. Suppose, for instance, a gift to A. for life, remainder to B. and his heirs, but if B. dies before the termination of the particular estate, then to C. and his heirs. Here, if the condition ever affects B.'s estate at all, it will prevent it from coming into possession ; it will never divest it after it has once come into possession. Remainders subject to conditions of this sort might have been regarded in three ways. § 105. (1.) If the law looked on vested and contingent interests with an impartial eye, it would seem that such remainders should be held contingent. A condition which may prevent an estate coming into possession, but which can never divest it after it has come into possession, is a condition in its nature precedent rather than subsequent. But the preference of the law for vested interests has prevented this view being adopted. § 106. (2.) Such a condition might be regarded in all cases as a condition subsequent, the circumstance that the contin- gency must happen, if at all, at or before the end of the par- ticular estate being regarded as immaterial. The effect of this construction would be to make a remainder vested at any the particular estate should deter- Ifute, 38 N. H. 422, and Hayes minehefore A. 's death, by forfeiture v. Tabor, 41 N. H. 521, are inex- or otherwise. Doe d. Poor v. Con- plicable aberrations of an able and sidine, 6 Wall. 458, aind cases cited, learned but eccentric court. They Wras. Real Prop. (1.3th ed.) 253, are without any precedent, and will 254. The decisions to the con- probably be without any following, trary in New Hampshire, Hall v. See 6 Alb. L. J. 361. VESTED AND CONTINGENT INTERESTS. 65 time, if there was, at that time, a person ready and entitled to take possession as remainder-man, should the particular estate then determine, although, should the particular estate determine at some other time, such person might not be entitled to the remainder. Upon this theory, if there was a devise to A. for life, remainder to his surviving children, the remainder would be at any particular moment vested in the children who would survive A. should he at that moment die. § 107. The New York Revised Statutes seem to have de- fined a vested remainder in this sense : ■' Future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which, they are limited to take effect remains uncertain." ^ It is doubful whether this piece of legislative definition was intended to change the common law ; ^ but the courts have decided, and it would seem cor- rectly, that it has done so.^ And it is conceived that the adoption of this view necessitates the decisions of the Court of Appeals, which at first appear rather startling, that since the abolition of the Rule in Shelley's Case a remainder to heirs, after a life estate to the ancestor, is vested.* 1 N. Y. Rev. Sts. pt. 2, c. 1, tit. remainder been held contingent. 2, § 13. , Kuinpe v. Coons, 63 Ala. 448. See, 2 Chancellor Kent says this defi- too, Smith v. West, 103 111. 332; and nition "appears to be accurately Croxall w. Shererd, 5 Wall. 268, 288, and fully expressed. " 4 Kent, Com. a case in which land is said to have 202. On Chancellor Kent's au- been " settled in apparently some thority the Supreme Court of Ala- sort of tail," and to which the bama has said that if a devise is same remarks apply as to Kumpe made to a woman for life, and on v. Coons, ubi sup. her death to her tjhildren then liv- ' See Lawrence v. Bayard, 7 ing, the children take a vested re- Paige, 70. mainder; but the decision would, it * Sheridan v. House, 4 Keyes, seems, have been the same had the 569; 4 Abb. Ap. 218. Moore v. 66 THE KTTLE AGAINST PEEPETUTTIES. { § 108. (3.) Neither of these views is that of the common law. Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or the gift to the remainder-man, then the remainder is contingent ; but if, after words giving a vested interest, a clause is added divest- ing it, the remainder is vested. Thus on a devise to A. for life, remainder to his children, but if any child dies in the lifetime of A. his share to go to those who survive, the share of each child is vested, subject to be divested by its death.^ But on a devise to A. for life, remainder to such of his children as survive him, the remainder is contingent.^ Littel, 41 N. Y. 6S, reversing 40 Barb. 488. See House p. Jackson, 50 N. Y. 161 ; and also Matter of Brown, 29 Hun, 412; Lockman v. Reilley, lb. 434. But see Hennessy V. Patterson, 85 N. Y. 91, 104; and 6 Alb. L. J. 361. Cf. Purdy v. Hayt, 92 N. Y. 446, 454, 456. Cf. also Den d. Hopper v. De- marest, 1 Zabr. 525; 2 Zabr. 599, under a statute construing a re- mainder to heirs after a life estate to A., as a remainder to A.'s chil- dren; and Croxall v. Shererd, 5 Wall. 268, 288. ' Littlejohns v. Household, 21 Beav. 29. Blanchard v. Blanchard, 1 All. 223. Jeefers v. Lampson, 10 Ohio St. 101. See Den d. Hopper V. Demarest, 1 Zabr. 525 ; 2 Zabr. 599. 2 Price V. Hall, L. R. 5 Eq. 399. Doe d. Planner v. Scudamore, 2 B. & P. 289. Olney v. Hull, 21 Pick. 311. Nash V. Nash, 12 All. 345. Thomson v. Ludington, 104 Mass. 193. Brown v. Williams, 5 R. I. 309. Alverson v. Randall, 13 R. I. 71. Delbert's Appeal, 83 Pa. 462. List V. Rodney, lb. 483. Mergen- thaler's Appeal, 15 W. N. C. (Pa.) 441. Van Tilburgh u. Hollinshead, 1 McCart. 32. Faber v. Police, 10 So. Car. 376. McElwee v. Wheeler, lb. 392. Bouknight v. Brown, 16 So. Car. 155. Stephens v. Evans, 30 Ind. 39. Peoria v. Darst, 101 111. 609 (see Smith v. West, 103 111. 332). Emison v. Whittlesey, 55 Mo. 254. De Lassus v. Gate- wood, 71 Mo. 371. D'Abbadie v. Bizoin, Ir. L. R. 5 Eq. 205, 210. 4 Kent, Com. (12th ed.) 203, note 1. Wms. Real Prop. (13th ed.) 255. Mr. Williams's definition of a vested remainder is an estate ' ' which is always ready, from its commence- ment to its end, to come into pos- session the moment the prior estates, be they what they may, happen to determine." Judge Holmes, in his note to Kent's Commentaries, loc. cit., criticises this definition of Mr. Williams as if it was equivalent to that contained in the New York Revised Statutes, and common in the text-books, which declares, in substance, that a remainder is vested VESTED AKD CONTINGENT INTERESTS. 67 ' § 109. There are three sorts of vested remainders which call for a word of special mention : (1.) Remainders to a class. (2.) Remainders after estates tail. (3.) Remainders in default of appointment. § 110. (1.)' Remainders to a Glass. — Sometimes a remain- der is given to a class of persons, e. g. to children, the num- ber of members in which may be increased between the time of creating the remainder and the termination of the particu- lar estate ; for instance, on a devise to A. for life, remain- der to the children of A. and their heirs as tenants in common. Here, although it is certain that each child born, or its heirs, will have a share in the estate, that share will be diminished by the birth of every other child of A. Each child, neverthe- less, on its birth has a vested remainder. The remainder is said" to "open" and let i^ the afterborn children. ^ So when at any moment, if at that moment there is a remainder-man ready to take possession should the particu- lar estate then determine, although, should that estate determine at an- other time, some other remainder- man might be entitled to the same remainder. Judge Holmes shows clearly the unsoundness of the vul- gar definition. But is this Mr. Williams's definition? His mean- ing would rather seem to be the correct one, that a remainder is vested in a man if he is ready and entitled during the continuance of the remainder to take the land ■whenever and however the preced- ing estate determines. The ambiguity and error in the definitions of a vested remainder have arisen in pai^t from consid- ering them abstracted from the persons to whom they belong. A vested remainder is, ex vi termini, vested in somebody, and if the subject is approached from the side of the remainder-man, some of the difficulty disappears. As the vesting or contingency of a limitation depends upon the language employed, the determina- tion whether it is vested or contin- gent is a matter, often a difficult matter, of construction ; but as such it has no place in this treatise, which does not profess to deal with ques- tions of construction. 1 Doe d. Comberbach v. Perry n, 3 T. R. 484, 494, 495. Fearne, C. R. 312-314, Butler's note (e). 2 Jarm. Wills (4th ed.), 157. See A. G. V. Crispin, 1 Bro. C. C. 386 ; Devisme v. Mello, lb. 587; Lee v. Lee, 1 Dr. & Sm. 85, 86; Bald- win V. Rogers, 3 De G. M. & G. 649, 656, 657; Browne v. Ham- mond, H. R. V. Johns. 210, 212, note (a). 68 THE RTTLE AGAINST PEKPETUITIES. the remainder is to an individual and a class, as to A. and the children of B.^ § 111. (2.) Remainders after Estates Tail. — On the passage of the Statute Be Donis^ remainders after estates tail took ef- fect whenever and however the piirticular estates determined, and were therefore vested. But in the course of time, when,l)y recoveries or fines, estates tail and the remainders dependent on them could be barred, a remainder after an estate tail was not only postponed until the failure of the issue of the tenant in tail, but also became dependent on the contingency of the tenant in tail not suifering a recovery or levying a fine. Tlie remainder, however, is still deemed vested. The barring of the estates by the tenant in tail is considered a condition subsequent. § 112. (3.) Remainders in Default of Appointment. — If in a settlement or will a power to appoint is given, and a re- mainder limited in default of appointment, the remainder is not rendered contingent by the fact that the execution of the power may destroj^ it. Such execution of the power is a condition subsequent divesting estates previously vested.^ § 113. Reversions. — • All reversions are vested interests. From their nature they are always ready to take effect in possession whenever and however the preceding estates determine. § 113 a. When a reversion is assigned, it continues to be a vested interest with the assignee. In this way must be ex- plained the case of Ugerton v. Massey.'^ A testatrix devised 1 See Cooke v. Bowen, 4 Y. & C. Stokes, 2 Dr. & W. 89, 99, 100. 244. Fearne, C. R. 226-229. Sugd. Pow. 2 St. Westm. 11. c. 1 (128.i). (8th ed.) 452, 453. Leonard Lovies ' Cunningham v. Moody, 1 Ves. Case, 10 Co. 78 a, 85 a, contra, is 174, 177. Doe d. Willis v. Martin, overruled. See Walpole v. Conway, 4T. R. 39. Williraan v. Holmes, Barnard. Ch. 153, li57; Smith i. 4 Rich. Eq. 475. Doe d. Tanner Camelford, 2 Ves. Jr. 098. Cf. V. Dorvell, 5 T. R. 518. Osbrey v. §§ 258, 535, post. Bury, 1 Ball & B. 53. Heron v. < 3 C. B. n. s. 338. VESTED AND CONTINGENT INTERESTS. 69 land to A. for life, remainder to the children of A. and their issue living at A.'s death, and in default of such issue to B. in fee ; and she gave the residue of her estate to A. A. con- veyed all her estate in the land to J., and died without leaving issue at her death. It was held that, on the convej'ance to J., A.'s life estate merged in her residuary interest, and that the contingent remainder to B. was destroyed. There was here a life estate and a contingent remainder with a double aspect. If A. left issue at her death, the issue would take ; if she did not leave issue at her death, then B. would, take. Although these contingencies included everj;^ possibility, for A. must die either with or without leaving issue at her death, yet until the fee vested either in the issue or in B., it would, had there been no residuary gift, have remained in the heir of the testatrix as a reversion.^ This reversion would have been destroyed by the condition subsequent of A.'s dying leaving issue, and also by the condition subsequent of A.'s dying without leaving issue ; but until the one or the other of these conditions happened the reversion would have re- mained a vested interest in the heir. Such would have been the ease had there been no gift of the residue. How did such gift affect the question? Four different views have been taken of such a case. (1.) The gift of the fee contained in the residue has most of the characteristics of a remainder. It is a future estate, taking effect, if at all, at the termination of the particular estate and created by the same instrument.^ But this residuary devise cannot be a vested remainder, for there cannot be a vested remainder after a contingent fee.^ 1 See § 11, ante. but is so even since that act. ^ It seems immaterial that the Hensman v. Fryer, L. R. 3 Ch. 420. residuary clause passes other prop- Lancefield v. Iggulden, L. R. 10 Ch. erty. A gift of the residue of the 136. See 1 Prest. Est. 502; 2 Prest. testator's real estate was specific, Abs. 99. not only before the Wills Act of ^ Loddington v. Kime, 1 Salk. 1887 (the will passed upon in Eger- 224; 1 Ld. Raym. 203; 3 Lev. ton V. Massey was made in 1786), 431. (See Doe d. Brown v. Holme, 70 THE ETJLB AGAINST PEEPETTJITIES. (2.) To obviate the difficulty in such a case of having a vested remainder after contingent remainders in fee, Mr. Preston suggested that such prior estates might be, not con- tingent remainders, but executor}' devises.^ Egerton v. Mas- sey, however, negatives such a theory, for these prior estates were held in that case to have been destroyed, which could not have happened had they been executory devises. (3.) Again, it has been suggested that the interest of an heir after the devise of a contingelit fee will not pass by a devise, either specific or residuary.^ But this, too, is negatived by Egerton v. Massey. (4.) The true view would seem to be that al- though a residuary devise is made by the same instrument which creates a particular estate, it is not part of one gift with it, and is therefore not a remainder. The gift of a " residue " implies that the former gift is completed. If Stiles grants a life estate to Doe, and afterwards conveys the residue of the estate to Roe, Roe has a grant of a reversion, and not a remainder ; and although in a will the residuary gift is contained in the same instrument as the particular de- vise, yet the effect of the whole is to be regarded as the estab- lishment of a particular estate with a reversion, and an independent transfer of that reversion, so established, to the residuary devisee.^ It is noticeable that the judges in Eger- ton V. Massey always speak of the vested interest in which the life estate merged as a reversion and not as a remainder. § 114. Other Future Interests in Real Estate. — No other future interests are vested. An interest to commence at a future time certain, e. g. an executory devise to go into effect ten years after the testator's death, cannot be called contin- gent; but neither is it vested. It is an executory limitation.* 3 Wils. 237, 240; Shaw v. Weigh, i 1 Prest. Est. 84, 582; and see 2 Stra. 798, 804.) Doe d. Gilman v. 4 Jur. n. s. pt. 2, 108, 121, 133, 157. Elvey, 4 East, 313. Feanie, C. R. '9 Jur. pt. 2, 50. 225. But see Hayes, Limit. 81 s gge 9 Jur. pt. 2, 50, 52. Cf. et seq. ; Leake, Land Law, 338, 28 Am. Jur. 388. note (rf). ■» Fearne, C. R. 1, Butler's note. VESTED AND CONTINGENT INTERESTS. 71 Thus: (1.) Rights to enter for Condition broken are not vested till breach of the condition. (2.) Possibilities of reverter were probably done away with by the Statute of Quia Ump- tores} If they still exist, they are not reversionary rights, for they belong not to the lord of whom the land is held, but to the grantor, who, by the Statute of Quia Emptores, cannot be the lord. They take effect only when the estate granted ends in a particular way, and are not vested till they take effect in possession. (3.) Rights less than ownership in land of others to begin in futuro are not vested interests until they begin. (4.) Springing and shifting uses and (5.) Executory devises are not vested interests until they take effect in possession or are turned into vested remainders.^ § 115. Escheat. — An exception to the statement at the beginning of the preceding section is the right to take by escheat. If this is a right at all, and it would certainly seem to be, it is a vested right. § 116. Equitable Interests. — There are, strictly speaking, no equitable reversions or remainders. The so-called rever- sions are resulting trusts, and a remainder implies the pres- ence of seisin and tenure, which are conceptions foreign to equitable interests. But to determine whether equitable in- terests are vested for the purpose of judging of their remote- ness, they are to be considered as if they were legal interests.^ II. PERSONAL ESTATE. § 117. There are no remainders in personalty ; all future limitations of personalty are executory limitations.* But to 1 §§ 31-42, anie. vises; but on A.'s death, unmar- ^ An instance in which an execu- ried, B.'s estate is turned into an tory devise is turned into a vested estate in possession, and C.'s estate remainder would be the following : into a vested remainder. See Craig A devise to A. in fee, but if he dies v. Stacey, Jr. Term Rep. 249. unmarried, then to B. for life, and ^ See the following section. on B.'s death to C. in fee. Here * Fearne, C. R. 4, Butler's note, B. and C. have both executory de- 401. 72 THE ETTLE AGAINST PEEPETITITIES. determine whether they are vested, as that term is used with reference to questions of remoteness, the test to be applied is, Would they be vested if they were legal limitations of realty ?__ Mr. Marsden, in his treatise on the Rule against Perpetuities,^ says that no future limitation of personal property vests until the interest comes into possession, and, for instance, if per- sonal property is given to A. for life and after his death to B., the limitation to B. is " executory, and does not vest within the meaning of the Rule against Perpetuities until A.'s death. . . . The result, therefore, is that a future or executory limi- tation of • personalty vests or takes effect within the meaning of the Rule when it takes effect in possession.", Mr. Marsden cites no cases for his proposition, and that it is incorrect, and also that the test above given, though not hitherto formally expressed' in the books, is implied in the decisions of the courts, is shown by the authorities.^ As there is no in-| terest in personalty corresponding to an estate tail, the test! cannot be applied to the limitation of a chattel on an indefi- 1 nite failure of issue. Such limitation of personalty is not vested, though a like limitation of realty would be a vested remainder after an estate tail.^ § 118. The term " vested " has been hitherto considered as it is used in questions of remoteness ; but it has also another 1 Pp. 43, 44. ^as vested, from that which was, to 2 Eoutledge v. Dorril, 2 Ves. Jr. be applied with regard to a remain- 3.57, 366, 367. Evans v. Walker, der in real estate, was founded on a 3 Ch. D. 211. Re Roberts, 19 Ch. rfjctem in Dingley u. Dingley, 5 Mass. D. 520. Loring v. Blake, 98 Mass. .535, 537. See Denny v. Allen, 1 253. See Oakes v. Chalfont, Pol- Pick. 147; Emerson v. Cutler, 14 lexf. 38; Goodier v. Johnson, 18 Pick. 108; Nash u. Cutler, 1^ Pick. Ch. D. 441. See the preceding 491. It is now completely over- section, thrown. Shattuck v. Stedman, 2 The notion which at one time Pick. 468. Winslow u. Goodwin, prevailed in Massachusetts, that a 7 Met. 363. Childs v. Russell, 11 different rule of construction was to Met. 16. Wight v. Shaw, 5 Cush. " be applied in determining whether a 56. Bowditch v. Andrew, 8 All. 339. (so called) remainder in personalty » See § 205, post. VESTED AND CONTINGENT INTERESTS. 73 meaning, which is so frequently given to it that it cannot be styled improper. Such double meaning is, however, very unfortunate, as it has led to much confusion. This other meaning of " vested " is " transmissible." Thus, if an estate is given to A. and his heirs, but if he dies unmarried then to B. and his heirs, here, in the first sense, B.'s interest is not vested, for it is subject to a condition precedent; in the sec- ond sense it is vested, for- it is transmissible to B.'s heirs.^ The Rule against Perpetuities does not concern itself with this secondary meaning of the word " vested." Thus, if an estate is devised to A. and his heirs, with an executory devise over to B. and his heirs in case A. or his heirs ever cease to bear the name of the testator, the executory devise to B. is vested in the secondary sense, because it is transmissible from B. to his heirs ; but it is nevertheless too remote, for in the 1 See Barnes v. Allen, 1 Bro. C. C. 181, 182; Taylor i). Frobisher, 5 De G. & Sm. 191, 197, 198; Kelso V. Dickey, 7 W. & S. 279 ; M'Don- ald V. M'Mullen, 2 Mills, Const. 91, 94; 1 Eoper, Leg. (4th ed.) 550; Marsden, Perp. 42; and a series of cases in Massachusetts, Dunn v. Sargent, 101 Mass. 336; Merriam v. Simonds, 121 Mass. 198, 202; Minot «. Tappan, 122 Mass. 535; Daniels v. Eldredge, 125 Mass. 356; Belcher V. Burnett, 126 Mass. 230 ; Russell V. Milton, 133 Mass. 180, 181. The introduction of this mean- ing of "vested " into the law may perhaps have been as follows: In certain classes of legacies, to be paid when the legatee reaches twen- ty-one or some other age named, the courts construe the gift as an absolute one to the legatee, his executors and administrators, and the direction for payment as given solely for the benefit of or on ac- count of the legatee; that is, they regard the legacy as certain to be- come payable in any event, — paya- ble when the legatee reaches twenty- one (or other age), if he so long lives; but, if he dies before that time, payable immediately to his executors or administrators. Such a legacy is properly called vested, because it is certain to take effect at some time, although the time may be earlier in one event than in another, exactly as a remainder after an estate to k widow until her death or marriage is vested. Now the fact that such a legacy is vested is brought out in practice by the circumstance that the executor of the legEitee takes it, and the incident of transmissibility has thus come to be regarded as the essential char- acteristic of a vested interest, and has given rise to the secondary meaning of the term " vested." See Hawkins, Wills, 222, 223. 74 THE KTJLB AGAINST PERPETUITIES. primary sense it is not vested, but contingent, — that is, it is subject to a condition precedent.^ 1 Another use of the term "vested interest " should be noticed. " When it is said that the Legislature ought not to deprive parties of their ' vested rights,' all that is meant is this: that the rights styled ' vested ' are sacred or inviolable, or are such as the parties ought not to be deprived of by the Legislature. Like a thou- sand other propositions which sound speciously to the ear, it is either purely identical and tells us noth- ing, or begs the question in issue." 2 Aust. Jur. (3d ed.) 887, 888. See Lewis, Use of Political Terms, 32-34. This use of "vested " has passed from the domain of politics to that of law, by reason of the provisions in the 14th Amendment to the Constitution of the United States, and in most of the State Constitutions, that no one shall be deprived of his property "without due process of law," or " but by the law of the land." These provisions have generally been construed by the courts to prevent any general or special legislation taking away " vested rights," and have therefor^ called forth a somewhat more pre- cise determination of the term. The cases will be found collected in Cooley, Const. Limit, c. 11. They do not concern us here. postpujSiemenx of enjoyment. 76 CHAPTER IV. POSTPONEMENT OF ENJOYMENT. § 119. Neithee the common law nor equity allows re- straints on the alienation of property, save in the case of property settled or devised to the separate use of married women. 1 The restraints imposed on estates tail by the Stat- ute Be Bonis have long ceased to operate.. It is true that life estates and estates for years may be terminated by an attempt at alienation; but no interest, real or personal, legal or equitable, can be held by any person in such a way that he can enjoy the income or benefits thereof, but cannot alien- ate it or subject it to his debts.^ § 120. One result of this doctrine calls for attention in connection with the Rule against Perpetuities. When a person is entitled absolutely to property, any proidsion post- poning its transfer or payment to him is void. Thus suppose property is given to trustees in trust to pay the principal to A. when he reaches thirty. When any other person than A. is interested in the property, when, for instance, there is a gift over to B. if A. dies under thirty, the trustee will retain the property for the benefit of B. ; but when no one but A. is interested in the property, when, should he die before 1 On the conflict between the attached to equitable life interests. Rule against Perpetuities and pro- In the Federal Courts the dicta are visions restraining anticipation by conflicting. In several States, e. g. married women, see §§ 432-439, New York, such restraints are more post. or less permitted by statute. See ^ Pennsylvania and Massachu- the whole matter discussed in Gray's setts are exceptions. In those States Restraints on the Alienation of restraints against alienation can be Property. 76 THE BULB AGAINST PEEPETUITIES. thirty, his heirs or representatives would be entitled to it, when, in short, the direction for postponement has been made for A.'s supposed benefit, such direction is void, in pursuance of the general doctrine that it is against public policy to restrain a man in the use or disposition of property in which no one but himself has any interest.-' § 121. As such provisions are void, the question of remote- ness cannot be raised with regard to them. If such a direc- tion to pay or convey to a legatee at, a period beyond the limit of the Rule against Perpetuities was, apart from the Rule, valid, it would be bad as violating the Rule, and the property could never be paid over or conveyed ; but as it is invalid, ' Josselyn v. Josselyn, 9 Sim. 63. Saunders v. Vautier, 4 Beav. 115; Cr. & Ph. 240. Cui-tis v. Lukin, 5 Beav. 147, 155, 156. Kooke V. Rocks, 9 Beav. 66. Swaffield V. Orton, 1 De G. & Srn. 326. Ee Young's Settlement, 18 Beav. 199. Gosling v. Gosling, H. R. V. Johns. 265. Re Jacob's Will, 29 Beav. 402. Coventry v. Coventry, 2 Dr. & Sm. 470. Christie v. Gos- ' ling, L. R. 1 H. L, 279, 282. Ma- grath V. Morehead, L. R. 12 Eq. 491. Hilton ». Hilton, L. R. 14 Eq. 468, 475. Sanford v. Lackland, 2 Dill. 6. Daniels v. Eldredge, 125 Mass. 356. See Talbot v. Jevers, L. R. 20 Eq. 255; Weatherall v. Thorn burgh, 8 Ch. D. 261. The oases of Peard v. Kekewich, 15 Beav. 166, and Rhoads V. Rhoads, 43 111. 239, cannot, it would seem, be supported. As to the latter case, see Gray, Restraints on Alienation, § 124. The invalidity of such directions is simply one instance of the general principle that all rights of property are alienable. This principle is or- dinarily held to be (save in the sep- arate estates of married women) of universal application. Jn Pennsyl- vania and Massachusetts, however, as is said in the note to the preced- ing section, its universality is de- nied. The old boundaries having been effaced in those States, it is impossible to say where the new ones will be established, and whether the class of cases here considered will fall within them or not. Actual decision can alone determine. The cases of Sparhawk v. Cloon, 125 Mass. 263; Daniels v. Eldredge, lb. 356 ; and Keyser's App. 57 Pa. 236, point against the validity of such restrictions; but Braman v. Stiles, 2 Pick. 460, and Russell v. Grinnell, 105 Mass. 425, lean in favor of them. See Gray, Restraints on Alienation, §§ 114-116, 120, 122, 123. If in those States such directions are not considered invalid as against public policy, the remarks in the next sec- tion do not apply to them, and they will be subject to the operation of the Rule against Perpetuities. POSTPONEMENT OF ENJOYMENT. 77 apart from the Rule, the objection of remoteness does not apply to it. This has been decided again and again. ^ 1 Parmer v. Francis, 2 Bing. 151 ; 9 Moore, 310 ; 2 S. & St. 505. Murray v. Addenbrook, 4 Russ. 407. Bland o. Williams, 3 Myl. & K. 411. Doe d. Dolley v. Ward, 9 A. & E. 582. Blease v. Burgh, 2 Beav. 221. Jackson v. Marjoribanks, 12 Sim. 93. Greet v. Greet, 5 Beav. 123. Davies v. Fisher, lb. 201. Milroy v. Milroy, 14 Sim. 48. Har- rison V. Grimwood, 12 Beav. 192. Tatham v. Vernon, 29 Beav. 604. Knox V. Wells, 2 H. & M. 674. Sau- marez v. Saumarez, 34 Beav. 432. Edmondson's Estate, L. B. 5 Eq. 889. Willson v. Cobley, Weekly N. (1870) 46. Fox V. Fox, L. R. 19 Eq. 286. Mappin v. Mappin, Week- ly N. (1877) 207. See Taylor v. Frobisher, 5 De G. & Sm. 191 ; Bax- ter's Trusts, 10 Jur. N. s. 845; Lane V. Lane, 8 All. 350; Odell v. Odell, 10 All. 1, 13, 14; Kimball v. Crocker, 53 Me. 263 ; Lewis, Perp. c. 22, and Suppl. 170, 171 ; Marsden, Perp. c. 11; Harg. Thel. Act, § 83; Gray, Restraints on Alienation, § 298. The case of Bute v. Bar- man, 9 Beav. 320, is wrongly re- ported. See Boreham v. Bignall, 8 Hare, 131, 133, note (rf) ; Southern ». Wollaston, 16 Beav. 166. The case of Lunt v. Lunt, 108 111. 307, presents a curious confusion of the law. Divested of immaterial circumstances, the case was this: A testator devised his estate to trustees in trust to support the testator's wife and his two daughters, the youngest of whom was, at the tes- tator's death, only a year old (see pp. 311, 312), until the daughters or the survivor should reach twenty-one, when one third of two thirds of the property should vest absolutely in each of the children or the survivor ; when the children or the survivor should reach thirty, if the wife still survived, the remainder of said tWo thirds should vest in the children or in the survivor and the issue, if any, of the deceased child, or if both children should die leaving issue, then at the time when the youngest child would have reached thirty, the said remainder should vest in their issue, and if both should die without issue, then to the testator's heirs; and in case the wife should die within thirty years from the birth of the youngest child, then at the expiration of said thirty years the estate should go to the testator's heirs ; but if the wife died after the children reached thirty, then the remaining third should go and vest like the other two thirds. The wife died, the youngest daughter became of age, and the daughters demanded a transfer of the property from the trustees, either as being given to them by the will, or under a result- ing trust (it is not clear which). They contended that the gift over was too remote. The Court con- strued the will to mean that on the death of the widow the income of the property should be paid to the children, until they or the survivor of them reached thirty, and then the principal was to be paid to them or their issue; but if neither of 78 THE ETJLB AGAINST PEEPETUITIES. § 122. Equitable life interests are alienable, but sometimes property is given to a trustee in trust to pay tlie income among one or more of a class of persons at his discretion. In such a case no member of the class has any rights, nor consequentlj' anything, which he can alienate. The class, however, taken as a whole, has rights against the trustee. How far such provisions conflict with the Rule against Perpetuities will be considered later.^ § 122 a. In Sarbinv. Masterman,^ Sir John Wickens,V. C, refused to order accumulations stopped in a case where a charity had a vested indefeasible right to the principal. The case is discussed in the chapter on Accumulations." them reached thirty, then when the would have been void; had it been youngest would have reached thirty otherwise good, it would have been if living, the principal to be paid too remote. But the daughters' over. The Court said that the daugh- interest was not indef easibly vested ; ters' interest vested at once, and there were gifts over in certain con- therefore the postponement of the tingencies to their issue or to the payment was not too remote, and testator's heirs. Whether these the daughters were not entitled to gifts over were good or not de- have the principal at once paid over pended upon the time when they to them. The confusion of thought must take effect, and not in the is hard to disentangle. If the daugh- least upon whether the preceding ters' interest had been indefeasibly gift to the daughters was vested vested, the provision for postpone- or not. ment would not have been too re- ^ § 246, post. See § 119, ante. mote, but this only because, apart ^ L. R. 12 Eq. 559. from all question of remoteness, it ^ See § 679, post. OEIGIN AND HISTOKY. 79 CHAPTER V. OEIGIN AND HISTOEY OP THE EULB AGAINST PEEPETUITIES. 1. No Questionof Remoteness in Early Times. — Possibility on a Possibility. § 123. Befoee the enactment of the Statute of Uses^ (1535) and the Statute of Wills ^ (1540), no question of remoteness in the creation of estates and interests seems to have come before the courts. It is true that freehold estates could not be granted in futuro except by way of remainder ; but this arose from the necessity of livery, not from any idea of re- moteness. It is also true that existing incorporeal heredita- ments, e. g. reversions, rents, &c., could not be granted in futuro; but this again v^as not on the score of remoteness.^ And to the interests which could be created in futuro, such as rents, chattels real, uses in equity, we never hear of an objection that they were too remote.* § 124. There was a mode before the Statutes of Uses and Wills in which a freehold estate could be created in futuro. By the custom of gavelkind, and by the customs in many lo- calities, e. g. in London, land was devisable. Land passed under a will without livery, and it was repeatedly held that a power to executors to sell the testator's land was good; that until the sale the land was in the heir or devisee ; but that upon the execution of the power the estate passed to the vendee, by virtue of the will, without livery, and even without 1 27 Hen. VIII. c. 10. ' lington, 22 Edw. III. 19; Fitz. Ab. 2 32 Hen. VIH. c. 1. Condicion, 11, 12; 10 Hen. VII. 12; 8 See § 17. Lewis, Perp. c. 29. * See Everwike v. Prior of Brid- 80 THE KTXLE AGAINST PBEPETUITIES. a deed, from the executors.^ The right of the executors to thus create an estate, when they had no estate themselves, was felt to be a singular one ; ^ but no objection appears to have been made on the score of remoteness, although the will sometimes provided that the sale should be made by the ex- ecutors, and, should they all die, then by the executors of the executors.^ So in Farington v. Barrel'^ Martin, J., says : " It has been adjudged that if one devises that his executor or the executor of his executor may sell his land, and at the time of this devise the executors of the executor were not in rerum natura, yet their sale has been held good and sufficient." To which Paston, J., replies : " That may well be ; for they were in esse at the time that the first executors died." 5 § 125. It has been a common notion that to a certain ex- tent remoteness of limitation was prevented in the early times by means of a supposed rule that no future interest could be limited to the unborn child of an unborn person, because such .a limitation would be a possibility upon a possibility. But the idea that there cannot be a possibility on a possibility 1 Lit. §§ 169, 58.5, 586. 19 Hen. 6 See 38 Ass. pi. 3; 2 Harg. VI. 23. Co. Lit. 118 a. Jurid. Arg. 28, 29 ; 1 Chance, '^ Babington, C. J., in Farington Pow. § 307. It does not appear V. Barrel, 9 Hen. VI. 23, 24, says: that executory devises raised in any " Est marvellous Ley deraison: mes other way than by powers given ceo est le nature d'un devis, et de- to executors were ever held valid, vise ad este use tout temps en tiel Thus in the Prior of St. Bartholo- forme; et issint on aura loyalment mew's Case, Dyer, 33 o, which was franktenement de cesty qui n'avoit determined in 1537, before the rien, et en mesne le maniere come Statute of Wills, it was held by the on aura fire from flint, et uncore Court of Common Pleas that a rm\ fire est deins \e flint: et ceo est shifting executory devise, on breach pour performer le darrein volonte of condition by the first devisee, de Je devisor." s. c. 11 Hen. VI. was bad, because the heir only could 12,13. So 19 Hen. VI. 24 J. enter for breach of condition. The ' Rex V. Croyden (Gowdchep's land was devisable by custom. See Case), 49 Edw. III. 16. Lewis, Perp. 77, 78. * 9 Hen. VL 23, 24. OEIGIN AND HISTORY. 81 seems to have been a conceit invented by Chief Justice Pop- ham.^ The idea is expressed in different forms. Thus, it is said, a lease could not " commence upon a contingent which depended upon another contingent." ^ "A possibility which shall make a remainder good, ought to be a common possibil- ity and potentia propinqua." ^ " A possibility cannot increase upon a possibility." * " Sometimes one possibility shall not beget another."^ "The law will never intend a possibility upon a possibility." ^ But in none of these shapes does it meet with any countenance in the earlier cases.'' § 126. The authorities referred to for this doctrine in the places above cited are as follows : 12 Ass. pi. 5. A. let land to B. on condition that if A. or his heirs paid B. or his heirs ten pounds within a certain time, it should be lawful for them to re-enter ; and if they did not pay within the term, and B. paid A. ten pounds on a certain subsequent day, that then B. should have the fee " sans plus en la condition." Neither A. nor B. paid. A. entered after both times {apres Pun terms et Vauter'), and B. ousted him. A. brought an assise, but took nothing by his writ. There is only a short note of the case. It would seem that A. failed because the condition did not provide that, on failure to pay by B., A. might enter. Whatever the ground of the decision, there is not the slight- est reason to suppose it to have been that a contingent "depended upon/ another contingent."^ § 127. William v. Florence.^ Osbern and Florence his wife levied a fine of land, and the conusee conveyed the land to Osbern and Florence for life, remainder to Geoffrey 1 Eector of Chedington's Case, ' 2 Co. 51 b. 1 Co. 153 a, 156 6. Cholmley's ^ 8 Co. 75 a. Case, 2 Co. 50 a, 51 b. Stafford's ^ 3 Bulst. 108. Case, 8 Co. 73 b, 75 a. Lampet's « Co. Lit. 184 a. Case, 10 Co. 46 b, 50 b. Blamford ' See Wms. Real. Prop. (13th V. Blamford, 3 Bulst. 98, 108. Co. ed.) 274-276. Lit. 184 a. 8 1 Co. 156 b. 2 1 Co. 156 6. 5 10 Edw. III. 45. 82 THE RITLB AGAINST PEKPETTJITIES. the son of Osbern in tail, remainder to Austin the brother of Geoffrey in tail, renaainder to the heirs of Osbern. In an action against Florence, after the death of her husband, for possession of the land, she made default ; and then came one John, saying that Florence had only a life estate, that Geof- frey and Austin had both died without issue, and that he was entitled after the death of Florence as the heir of Osbern, and praying that he might be allowed to come in and defend. The demandant replied that Geoffrey the son of Osbern was alive, and Austin his brother. Ash, of counsel for John, said : " Your plea is not properly pleaded, if you do not say that Geoffrey to whom the remainder was limited is alive." To which Pole, for the demandant, replied : " You have simply alleged that the remainder was given in tail to Geoffrey the son of Osbern and Austin his brother, and that they are dead, and to that we say that Geoffrey the son of Osbern is alive, and Austin, and it is enough for me to-traverse what you have said in the same wOrds as you have used to me." The counsel for John rejoined : " I acknowledge that Geoffrey the son of Osbern is alive and Austin his brotlier also, but I say that their being so ought not to oust me, for I say that they were not born at the time of the fine levied, but were born long time after the fine." Pole then said: "You have ac- knowledged that they are alive who bear the same name and surname as those to whom you have said the remainder was given, and before by your plea you made no mention of them." To which John's counsel rejoined: "By our plea we have not undertaken to plead of any others than those to whom the remainder was given in tail, and that cannot be to others than those who were alive at the time of levying the fine, but as to your pleas of the others, that by their being alive I shall not be received, now for the time it is enough for me to say that their being alive does not oust me from being received." The reporter adds : " And afterwards he was received." The fact seems to be that the land was ORIGIN AND HISTOEY. 83 conveyed, after the life estates, in remainder to two persons — Geoffrey and his brother Austin — who were then living. A limitation to two persons, one of the name of Geoffrey and the other his brother of the name of Austin, neither of whom had been born, might suggest itself as a hypothetical case to a lawyer of the sixteenth century, but it is inconceivable that a baron of the fourteenth should ever have actually settled his estate in that fashion. This Geoffrey and Austin died, and another Geoffrey and Austin were born, very likely of the same parents ; but these latter could not be the persons for whom the remainder was intended, for they were not even born when it was created.^ § 128. In 18 Edw. III. 39, pi. 34, an estate was given to a man and his sister and the heirs of their bodies ; in 24 Edw. III. 29, pi. 17, an estate was given to two men and their wives and the heirs of their bodies; in 44 Edw. III., Fitz. Ab. Taile, pi. 13, an estate was given to brothers and a sister and the heirs of their bodies ; and in 7 Hen. IV. 16, pi. 9, the case was put of a devise to two men, or to a man and his mother, or to a man and his daughter, and the heirs of their bodies ; and in all these cases it was held that the grantees had sepai-ate inheritances, because, as the reason is given on the last case, the will of the donor should be preserved, — there is nothing about a possibility on a possibility .^ § 129. In Farington v. Barrel':^ Babington, C. J., to illus- trate the position that the validity of a devise must be deter- mined at the death of the testator, says that if ■ a devise is made to a chantery or college, and there is no such chantery or college, the devise is void, though a chanter}' or college of that name be afterwards founded. Here the gift purports to be to an existing corporation ; if there is no such corporation the gift fails ; and of course it cannot be claimed by a subse- 1 See Cholmley^s Case, 2 Co. 50 a, ^ Co. Lit. 184 a. 51 h; Wma. Real Prop. (13th ed.) » 9 Hen. VI. 23, 24. 275 A. 84 THE EULB AGAINST PERPETUITIES. quently established corporation, not because there could not be a gift to such a corporation, but because it was not, in fact, the corporation for which the gift was intended.^ § 130. 2 Hen. VII. 13. The passage referred to here is a remark of Serjeant Keble. He says : " The remainder to the right heirs of J. at S. is good, because it can be a good re- mainder by common intendment; but if the King grants to an abbot, and there is none such, the grant is void notwithstand- ing that he is made afterwards. And in the case of the heirs of J. at S., suppose when the remainder is created that there is no J. at S., and afterwards a J. at S. is born, it [the remainder] is void, notwithstanding J. at S. dies and has heirs at the time of the remainder." This remark of Serjeant Keble lends no aid to the notion of the invalidity of a possibility upon a possibility. If the remainder; instead of being to the heirs of J. at S., had been to J. at S. himself, and there was no such person as J. at S. alive, the learned Serjeant would have con- sidered the remainder just as invalid ; this is clear from the case he puts of the abbot. He means that a gift to a person tanquam in esse will not take effect if there is no such per- son living, for there is no one answering the description of the donee.2 § 131. In Lane v. Cowper^ (1575), Wray, Chief Justice of the Queen's Bench, and Gawdy, J., " took the diversity, to wit, that a person not in esse at the beginning can take a remainder by purchase, if he is in esse before the end of the particular estate, so that the limitation of the remainder is in general words, as ' to the right heirs of J. S.,' or ' to him who shall first come to St. Pauls,' ' to the wife that shall be,' and the like. But if the limitation be in special words, as to ' Jane, the first wife of J. S.,' where he has no wife at the time, or to ' the Mayor and Commonalty at Islington,' where 1 1 Prest. Abs. 128. See Corpus Southwood, 1 Roll. E. 253, 254. Christ! College Case, 4 Leon. 223. 1 Prest. Abs. 128. 2 Per Lord Coke in Simpson v. » Moore, 103, 104. OKIGLN AND HISTOKY. 85 there is none such at this time, then although before the end of the particular estate J. S. takes one Jane to wife, or Isling- ton is incorporated by the name of the Mayor and Common- alty, yet they will not take the remainder." Here again the gift is void, because made to persons or corporations tanquam in esse who are not in esse.^ § 132. The above §§ 126-131, contain all the cases referred to as authorities for the theory that a possibility upon a pos- sibility is invalid, but Manning v. Andrews ^ (1576) also de- serves attention. In that case there was a feoffment before the Statute of Uses to the use of W. and his wife J. for their lives, and after their death to the use of the heir of the bodies of W. and J. for life, then to the use of the heir of the same heir, and in default of such issue to the use of the heirs of the body of W. and J. for the life or lives of every such heir or heirs, and for default of such heirs to the heirs of the body of W., and in default, &c., to the heirs of W. Condition, that if " any of the said heirs " should attempt to alienate his in- terest, the use limited to such heir should be void during his life, and the feoffees should be seised to the use of the heir apparent of the offender. After the feoffment W. had issue T. and died. T. had issue F. and P. After the Statute of Uses, T., and afterwards F., levied a fine to the defendant. The feoffees entered to revive the use to P., who was F.'s heir apparent, and then P. entered. Jeffrey, J., thought that an entry by the feoffees was necessary, and that they were debarred from entering by the fine. Wray, C. J., and South- cote, J., agreed that no entry b}'' the feoffees was necessary ; but the Chief Justice seems to have thought that P. was de- barred from entry by the fine. Soutbcote, J., held that P.'s entry was effectual to vest the estate in him; and neither of the other judges seems to have had any doubt that the shift- ing use over on alienation was valid, — they differed only on 1 See Jeffrey, Serj., arguendo, in Mutton's Case, 2 Leon. 223; Dal. 91; Brent v. Gilbert, Dal. Ill, 112. 2 1 Leou. 256. 86 THE BULB AGAINST PEEPBTtJITIES. the effect of the fine.^ The case is important as showing that the notion of the impossibility of limiting an estate to the issue of an unborn person had no existence at that ■ time. § 133. Lord Coke has admitted that as a general proposi- tion the statement that there cannot be a possibility upon a possibility is bad law. " Coke moves another matter in this case on Popham's opinion, Co. 1, Rector de Chedington, that a possibility on a possibility is not good, for here in our case is a possibility on a possibility . . . yet it seems that it is good, for if Popham's opinion should be law, it would shake the common assurances of the land . . . but I agree that in divers cases there shall not be possibility upon a possibility, and he puts the diversities put in Lampefs Case, 10 Co. 50 5." ^ The notion which may have been sometimes ex- pressed that a rent or other incorporeal hereditament could 1 See 1 Sugd. Pow. (7th ed.) 16. 2 See Blamford v. Blamford, 3 Bulst. 98, 108, better I'eported in 1 Roll. R. 318, 321. As the notion of a possibility on a possibility had no roots in the law, so it flourished but a, short time. In 1681, Lord Chancellor Nottingham, in the great Case of the Duke of Norfolk, said "that there may be a possibility upon a, possibility and that there may be a contingency upon a contingency is neither unnatural or absurd in it- self; but the contrary rule given as a reason by my Lord Popham in the Rector of Chedington's Case, 1 Co. 156 b, looks like a reason of art; but in truth has no kind of reason ill it, and I have known that rule often denied in Westminster Hall." 3 Ch. Cas. 29. See Mayor of Lon- don jj. Alford, Cro. Car. 576, 577; Love V. Windham, 1 Sid. 450, 451 ; Thellusson v. Woodford, 4 Ves. 227, 327. And although the doctrine was enunciated by Lord Mansfield, C. J., and Wilmot, J., in Chapman d. Oliver v. Brown, 3 Burr. 1626, 1634, 1635, and has been mentioned without disapproval by esteemed writers, Fearne, C. R. 250; 2 Bl. Com. 169, 170; 2 Cas. & Op. 435; yet it is now admitted to be without force, except as the doubtful parent of the alleged rule that life estates cannot be limited to successive gen- erations. Fearne, C. R. 251, But- ler's note. Cole v. Sewell, 4 Dr. & W. 1,32. Third Real Prop. Comm. Rep. 29. 1 Brest. Abs. 128. 1 Leake, Land Law, 835. Sugd. Pow. fSth ed.) 393, 394. Wms. Real Prop. (13th ed.) 274-277. §§ 191-199, post. See Challia, Real Prop. 91, 92. OEIGIN AND HISTOEY, 87 not be limited at common law to an unborn person is super- abundantly refuted by Mr. Lewis.^ § 134. The true reason why before the time of the Stat- utes of Uses and Wills no objection of remoteness appears to have been made to limitations is, that in fact no need of any such restriction on the creation of future estates is known to have been felt. Incorporeal hereditaments would seldom be created to begin in futuro. Terms for years were gener- ally short, present interests. Our knowledge of the dealing of the Court of Chancery with uses before the Statute is meagre in the extreme. Executory devises under powers given to executors could arise only in those comparatively rare localities where land was devisable. Contingent re- mainders were probably for a long time unknown to the law.^ It had been adjudged, however, before 1430 that a remainder to the heirs of a living person was good.^ But contingent remainders, though declared legal, were seldom employed, even after the Statute of Uses. Mr. Williams says that in all marriage settlements prior to the reign of Queen Mary, who came to the throne in 1553, " the remain- ders appear to be uniformly vested, the estates tail being given to living parties, and not to sons or daughters un- born."* From Chudleigh's Case^ it appears that in 1556 a 'feoffment was made to uses giving estates tail to the succes- sive (unborn) children of living persons, substantially in the form of a modern English settlement ; and 1556 is also the date of the earliest settlement traced by Mr. Williams in which contingent remainders to unborn persons occur.^ Even had contingent remainders been more frequent, the ease with which the tenant for life could destroy them by feoffment, 1 See Lewis, Perp. 603-608. Hen. VI. Fitz. Ab. Feofi. & Faits, 2 Wms. Real Prop. (13th ed.) pi. 99. 265, 266 * 1 Jurid. Soc. Papers, 47. ' Anon., cited in Farington v. ^ 1 Co. 120a. Barrel, 9 Hen. VI. 23, 24. 32 « 1 Jurid. Soc. Papers, 47. 88 THE ETJLE AGAINST PEEPETTJITIES. fine, or recovery would have prevented their becoming prac- tically inconvenient, however remote.^ 2. Introduction of Conditional Limitations. § 135. As has been shown,^ executory devises had long been recognized as possible in localities where lands were devisable, but it was not until after the passage of the Statutes of Uses (1535) and of Wills (1540) that contin- gent future limitations of freeholds, other than remainders, became valid generally. §136. Springing uses seem first to have been recognized in Anon.^ (1538), where a covenant to stand seised to the use of B. on the performance of an act by B. was held to raise the use on the happening of the contingency.* § 137. In Anonfi (1552), there was a feoffment to the use of W. and his heirs until A. paid a sum of money, and then to A. and his heirs.^ It was assumed by all that this was a good shifting use.^ ' Williams on Seisin, 190, 191. ' Tlie question discussed was ^ § 124, ante. whether the estate could vest in A. I ' Bro. Ab. Feoff, al Uses, 340, without an entry on the part of pi. 50. the feoffees to uses. This point * See Gilb. Uses (Sugd. ed.), was often afterwards mooted. See 164, note. So Wood's Case, in the Brent's Case, 2 Leon. 14 ; Dyer, Court of Wards (1560), cited 340 a; Manning v. Andrews, 1 1 Co. 99 a; and see Mutton's Case, Leon. 256; Chudleigh's Case, 1 Co. Dyer, 274 h; 2 Leon. 223; Dal. 120; 1 And. 309; Pop. 70; Jenk. 91; Moore, 96, 376; 1 And. 42 276; and the other cases cited 1 (1573) ; Woodliff v. Drury, Cro. El. Sugd. Pow. (7th ed.) 10-39. It 439; sub nom. Woodlet v. Drury, is now generally conceded that no 2 Roll. Ab. 791, pi. 1 (1595); entry by the feoffees is necessary. Mills V. Parsons, Modre, 547 (1595) ; The matter does not concern us Blaokbourn v. Lassels, Cro. El. 800 here. (1600); Wood v. Eeignold, Cro. ' See Brent v. Gilbert, Dal. Ill El. 764, 854 (1601); Lewis, Perp. (1574); Brent's Case, 2 Leon. 14; 57, 58. Dyer, 340 a (1575) ; Manning i.-. ^ Bro. Ab. Feofi. al Uses, 330,' Andrews, 1 Leon. 256 (1576); pi. 30. Bracebridge's Case, 1 Leon. 264; OEIGIN AND HISTORY. 89 § 1S8. In Anon.^ (1555) and Wilford v. Wilford^ (1555) til ere were executory devises, but in neither case does their validity appear to have been drawn in question.^ In Oclie's Case* (1567), the validity of an executory devise is said to liave been decided. Later eases in which executory devises were recognized as valid are given in the note.^ sub nom. Harwell v. Lucas, Moore, 99 (1578) ; Stonley v. Bracebridge, 1 Leon. 5 (1583) ; Smith v. Warren, Cro. El. 688 (1599); Auon. Moore, 608; Anon. 13 Co. 48 (1609); s. c, semhle, Jenk. 328 ; Sympson v. Sothern, Cro. Jac. 376 ; 2 Bulst. 272 ; sub nom. Simpson's Case, Godb. 264; sub nom. Simpson v. Southwood, 1 Roll. R. 109, 137, 253 (1615) ; Allen's Case, Ley, 55 (1617); Lewis, Perp. 58-60. Rostock's Case, Ley, 54 (1616). In the Court of Wards. Fine to the use of Edward Rostock for life, remainder to the use of his heirs male on the body of his wife Mar- gery begotten, with remainders over. " And if the said Edward should fortune to die (living the said Margery), that then the said fine should be ... to the use of the said Margery, for term of life, and after her decease to the uses afore- said." Edward Rostock died, leav- ing Margery his widow, and an infant son. Held, by Coke, C. J., Hobart, C. J., and Tanfield, C. R , that the King was not entitled to wardship or marriage of the son dui-iug the life of Margery. Mr. Lewis; Perp. 150, 151, speaks of this case as "a clear adj udication of the validity of a shifting use." But the use to Margery, though somewhat inartificially expressed, was not a shifting use at all, but simply an ordinary vested remain- der for life, limited by way of use. Such evidently was the opinion of the Court. They say, " The estate of Margery is an immediate estate for life." 1 Dyer, 124 a. This case seems to be the same as Hinde v. Lyon, reported 2 Leon. 11 ; 3 Leon. 64, 70, as having been decided in 1578. 3 Dyer, 128 a. 3 See also Roulton's Case (1564), cited by counsel from Egerton's Reports in Pells v. Rrown, 2 Roll. R. 216, 217; Palm. 131, 132. « Cited in Pells v. Rrown, 2 Roll. R. 216, 220 ^ Wellock V. Hammond, Cro. El. 204; 2 Leon. 114 (1590) (see Roras- ton's Case, 3 Co. 19 a, 20 6). Hoe V. Garrell (1591), cited in Pells v. Brown, 2 Roll. R. 216, 220; Palm. 131, 136. Fulmerston v. Steward (1596), cited in Pells «. Rrown, Cro. Jac. 590, 592; Palm. 131, 135; 2 Roll. R. 216, 218. Purslowe v. Parker, 2 Roll. Ab. 253, pi. 2; lb. 793, pi. 2 (1600); cited sub nom. Pinsloe v. Parker, in 2 Roll. R. 218, 219; sub nom. Mullineux's Case, in Palm. 136. Pay's Case, Cro. El. 878; sub nom. Payne u. Ferrall, Noy, 43 (1602). See Lewis, Perp. 80, 81. 90 THE KULE AGAINST PERPETUITIES. § 139. No question as to the remoteness of a conditional lim- itation of a freehold estate in freehold or copyhold land, either by way of use or devise, appears to have ever come before the courts until Snow v. Cutler,'^ in 1664. The doctrine of re- moteness was brought to the attention of the courts in other ways. In most of the cases of conditional limitations they were not in fact such as are forbidden by the modern Rule against Perpetuities, but in Manning v. Andrews ^ the limita- tion was what would now be considered too remote. Perhaps this was also the case with Fubnerstony. Steward.^ In Pays Case* there was a devise to A. from Michaelmas follow- ing the testator's death for five years, and then to B. and his heirs. It was held by all the judges of the Court of Queen's Bench, without argument, that the springing ex- ecutory devise (or remainder, as it was called) to B. was good. It will be observed that this executory devise might possibly not have vested within the life of any person living ^ 1 Lev. 135; 1 Keb. 752, 800, executors was held a good execu- 851; 2 Keb. 11, 145, 296; T. Raym. tory devise. Palmer states the de- 162; sub nom. Snow v. Tucker, 1 vise as being "sur condition que Sid. 153 ; § 165, post. Cleere faiera divers acts, et sur ^ 1 Leon. 256, stated in § 132, condition que si Cleere ou his heirs ante. ne perform le condition, que son ' Cited in Pells v. Brown, Cro. estate cessera, et les executoi-s Jac. 590, 592; Palm. 131, 135; 2 averont le terra, et ceo convey al Roll. R. 216, 218. The doubt as ascun de son nosme." RoUe gives, to Fulmerston v. Steward arises the devise to Sir Edward and his from the lack of agreement in the heirs, as on condition "that if he reports. As stated by Croke, Sir does not perform," &c. Here, if the Richard Fulmerston devised to Sir condition was one that the heirs of Edward Cleere and his wife, and Sir Edward could perform (which the heirs of Sir Edward, certain is doubtful on the reports), the lands in Elden, '' upon condition limitation over would now be con- they should assure lands in such sidered too remote. If, on the other places to his executors and their hand, it was to be performed, if heirs to perform his will; and if he at all, in his lifetime, it would be (^sic) failed, then he devised the said , valid. lands in Elden to his executors and * Cro. El. 878; sub nom. Payne their heirs." The limitation to the t. Ferrall, Noy, 43. OEIGIN AND HISTOEY. 91 at the death of the testator, although it must have vested at Michaelmas following the testator's death.^ 3. Double Meaning of Perpetuity. § 140. It was not, as has just been said, in the considera- tion of conditional limitations of freeholds, that the Rule against Perpetuities had its origin. It owes its birth and the shape that it has assumed to executory devises of chattels real. But before considering its development, a perpetuity itself should be defined. The ambiguity of terms, which is sucli a prolific source of confusion in the law, is present here. The natural, the original, meaning of a perpetuity is "an inalienable, indestructible interest." The second, artificial, meaning is, "an interest which will not vest till a remote period." This latter is the meaning which is attached to the term when the Rule against Perpetuities is spoken of. As has been said, § 2, ante, it is to be regretted that the Rule has not become known as the Rule against Remoteness. More than one erroneous decision would probably have been then escaped. The natural meaning of the word "perpetuity" as an inalienable, indestructible estate, is the sense in which we find it first used in the law. Thus a condition not to suffer a recovery of an estate tail was declared to be bad as tending to create a perpetuity.^ § 141. Contingent remainders to unborn persons were not perpetuities in the natural meaning of that term, for although they could not, of course, be alienated before the birth of the 1 See § 176 e< sey., joos^ conditions were declared void no ^ Corbet's Case, 1 Co. 83 b objection on the ground of perpe- (1599). Mildmay's Case, 6 Co. 40 a tuity was taken. They were held (1605). Poole's Case (1608), cited bad as repugnant. Gerinin u. Ascot, in Tatton V. Mollineux, Moore, 809, Moore, 364; 4 Leon. 83; 1 And. 810. Mary Portington's "Case, 10 186; 2 And. 7. Cholmeley v. Hum- Co. 35 6 (1613). Poy v. Hynde, ble, Moore, 592; Cro. El. 379; 1 Cro. Jac. 697 (1624). And. 346 (1595). In earlier cases in which such 92 THE BtJLE AGAINST PEEPETUITIBS. remainder-men, yet they could be easily destroyed by a feoff- ment on the part of the tenant for life. But when the Statute of Uses was passed it was doubted whether contingent re- mainders limited to unborn persons by way of use were de- structible. If they were not destructible, as they were not alienable, they were perpetuities. The question came up first in the Earl of Bedforofs Case ^ (1592), and the Court of Wards there held that a contingent remainder limited by way of use failed by the termination of the particular estate, just as a remainder limited at common law would fail. This was fol- lowed by Chudleigh's Case ^ (1595). That great case was heard in the Exchequer Chamber before all the judges. There had been a feoffment to the use of C. for life, remainder to the use of C.'s unborn children in tail. Before C. had any children born, the feoffees conveyed to C. in fee. The question was whether this feoffment destroyed the contingent remainders to C.'s children limited by way of use. The Court held that the remainders were destroyed, just as they would have been if limited at common law. No distinction on this point is suggested by the Court in future uses, dependent on whether they are remainders limited by way of use, or are shifting- or springing uses. Indeed it does not seem clear that they thought any future uses would be valid and executed by the Statute, except remainders. Nor is any reference made to the remoteness of a use as a reason for not giving it effect. The case is instructive as showing the difference between the natural conception of a perpetuity and the artificial meaning now attached to the word. The judges, in ChudleigJi's Case, to avoid the objection of perpetuity, held all future uses de- structible. The modern rule, to avoid the objection of per- petuity, holds future interests beyond a certain period invalid. 1 Moove, 718; 2 And. 197; v. Frain, 1 And. 309; sub mm. Pop. 3. See Chudleigh's Case, 1 Dillon v. Fraine, Pop. 70; Jenk. Co. 120 a, 130 u. 276. See 1 Sugd. Pow. (7th ed.) ^ 1 Co. 120 o; sub nom. Dillam 17. OETGIN AND HISTOEY. 93 In ChudleigKs Case future uses were held valid, but de- structible ; in modern times they are held indestructible, but, beyond a certain limit, invalid. The different result comes from the changed meaning of perpetuity : formerly it meant an indestructible, inalienable interest; now it means a remote interest. Following Ghudleigh^s Case, contingent remainders limited by way of use 'were held destructible by feoffment in Smith V. Belay ^ (1598). 4. Conditional Limitations at first held destructible like Contingent Remainders. § 142. It is said in the preceding section that no difference was at first felt to exist between remainders limited by way of use and conditional limitations on the score of destructibility. In Brent v. Gilbert'^ (1574) there was a feoffment to the use of A. and of such woman as should be his wife at his death, for their lives, with remainders over. A. levied a fine, married B., and died. The feoffees entered. It was held by the Court of Queen's Bench that the entry of the feoffees revived the shifting use to B. The same result would have followed had B. had a remainder limited by way of use. In Brent'' s Case'^ (1575) the facts were the same, except that it appeared that A., before levying the fine, made a feoffment in which the feoffees joined. In the Common Pleas, Dyer, C. J., Manwood, and Monson, JJ. (Harper, J., dissenting), held that if the entry of the feoffees was necessary to revive the use, they were de- barred from entry ; and Dyer, C. J., and Manwood, J., thought 1 Cro. El. 630. See Palmer's see Barton's Case, Moore, 742 Case, Moore, 81.5; Noy, 102; Wegg Bould v. Wynston, Cro. Jac. 168 V. Villars,. 2 Roll. Ab. 796, 797, sub nom. Bolls v. Winton, Noy, 122 pi. 11-16 ; Heyns v Villars, 2 Sid. differently reported 2 Roll. Ab. 793 64, 98, 129, 157 ; 1 Sugd. Pow. 1 Sugd. Pow. (7th ed.) 29, 30 (7th ed.) 26. On the effect of § 146, post. a lease in destroying a contingent " Dal. 111. remainder limited by way of use, * 2 Leon. 14; Dyer, 340 a. 94 THE EULE AGAINST PERPETUITIES. such entrj' was necessary. There is no indication that the opinions of the judges would have been altered if B. had had a remainder instead of a shifting use. Indeed it is said that B. " shall take by way of remainder." ^ § 143. In Woodliff v. Drury? decided in 1595, not long after Ghudhiglis Case, there was a feoffment to the use of the feoffor " and A. his feme that should be after their marriage, and of the heirs of their bodies," and the feoffor married A. It was held in the Queen's Bench that A. would take by this limitation of the use. All the justices said : " By the mar- riage the new use shall arise and vest, if there be no act in the mean time to destroy that future use (as it was in Chud- le-ifs Gase)^'' thus showing that no distinction had then oc- curred to the Court between remainders limited by way of use and conditional limitations. They were supposed to be alike destructible. § 144. The first indication of the idea that a conditional limitation of a freehold interest ^yas indestructible appears in Smith V. Warren^ (1599). In that case a fine was levied to the use of the conusee and his heirs on condition that he should pay an annuity to the conusor, and on default of payment the land should be to the use of the conusor for his life, and one year over. The couusee made a feoffment in fee ; the annu- ity was not paid, and the conusor entered on the feoffee's lessee. The Court of Common Pleas held that the feoffment had not destroyed the use to the conusor, " for it is a charge or burden upon the land, which goes along with the land, in whosesoever hands it comes. And being limited to the conu- sor himself, Glanville [J.] conceived it to be a condition unto him ; but if it had been to a stranger, to have arisen upon 1 2 Leon. 16. See Dillon v. " Cro. El. 439; sub nom. Wood- Fraine, Pop. 70, 76; 1 Sugd. Pow. let i;. Drury, 2 Roll. Ab. 791, (7th ed.) 13-15 ; and cf . Hoe v. Gar- pi. 1. rell (1591), cited in Pell v. Brown, = Cro. El. 688. 2 Roll. R. 216, 220; Palm. 181, 136. OEIGTN AND HISTORY. 95 such a condition, the non-performance thereof had been a springing [or, as we should say now, 'shifting'] use unto him ; for now it is merely a tie and charge upon the land, which is not destroyed by the feoffment ; and although it be a future use, it may be well raised upon non-performatice of the condition ; as it was adjudged in Bracehridge s Case.'''' ^ The springing use here was preserved under circumstances in which, according to CJiudleigJi' s Case, a remainder limited by way of use would have been destroyed. The fact that the use arose as a penalty for breach of a condition in favor of the grantor seems to have had some influence — it is hard to sa}"- precisely what — on the decision. § 145. Purslowe v. J^arher"^ (1600). Devise of rents out of land; if the heir pay the "said annuities," he to have the land ; if he do not pay them, then the executors to have it. The heir made a feoffment of the land, and the annuities were not paid. It was held by the Court of Queen's Bench that the feoffment had not destroyed " the contingent remainders," " for there is a diversity between a contingent remainder which depends on a limitation and contingent uses, for the feoffment in this case has not done away the limitations which are to persons known with certainty, between whom there is a priv- ity as in this case." ^ In the account given 2 Roll. E. 219, the distinction is still more clearly stated to be between a limitation to persons certain which is not destroyed by a feoffment, and a limitation to a person uncertain which is de- stroyed. No difference between remainders limited by way of use and conditional limitations is taken.* 1 This is not Bracebridge v. » 2 Roll. Ab. 793. Cook, Plowd. 416, as stated in the * This notion that contingent margin, but Bracebridge's Case, 1 interests are destructible when the Leon. 264. contingency has reference to per- 2 2 Roll. Ab. 253, pi. 2; lb. 793, sons, but are not destructible when pi. 2; cited sub nom. Pinsloe v. the contingency has reference to Parker, 2 Roll. R. 218, 219; sub events, emerges here for the sole nom. Mullinenx's Case, Palm. 186. time in the law. Archer's Case, 96 THE EULB AGAINST PBKPETUITIES. § 146. Wood V. Reignold'^ (1601). A. covenanted, in con-: templation of marriage with B., to stand seised of land to the use of himself and his heirs until marriage, and then to the use of himself and B. and the heirs of his body. A. then let the land for years to C, married B. and died. Popham, C. J., and Gawdy and Clench, JJ., were of opinion that the lease bound the springing use but did not destroy it. Fenner, J., thought the use was neither destroyed nor bound. This was because the making of a lease did not destroy or affect the seisin of the freehold. Remainders limited by way of use are not destroyed by a lease. This was held six years later hj the same court in Bould v. Wynston? It is assumed that if A. had made a feoffment instead of a lease, the shifting use would have been destroyed. " If a freehold be conveyed to one upon consideration, the future use shall not rise ; for there is not any person seised to that use when it should arise." ^ § 147. The case of Smith v. Warren * is the only one whith favors any distinction on the score of destructibility between remainders and conditional limitations, and no suggestion that the invalidity of a future limitation of real estate is dependent upon its remoteness appears until much later. 5. Executory Devises of Terms introduced. § 148. As has been said, it was in the discussion of execu- tory devises of chattels real that the Rule against Perpetuities had its origin and took its shape. Although chattels real were always devisable at common law, no attempt to limit an executory devise of them is to be found in the books till about the time of the Statute of Wills. But there is a case where 1 Co. 66 h, which is cited, is no 793 (1607). But see Barton's Case, authority for such a distinction. Moore, 742, contra. 1 Cro. El. 764, 854. s Per Fenner, J., Cro. El. 765. 2 Cro. Jac. 168; sub nom. Bolls * Cro. El. 688; § 144, anie. V. Winton, Noy, 122; 2 Roll. Ab. ORIGIN AKD HISTORY. 97 an executory bequest of the use of a chattel personal was held good.-^ A distinction was taken between the bequest of a chattel personal to A. for life, which passed the absolute interest to A., and admitted no executory bequest ; and a gift of the use of a chattel personal to A. for life, which gave A. the occupation only, and left the title in the executor. But in Paramour v. Yardley^ it is said that a devise of the occupation of a term was the same as a devise of the land itself, so that this distinction could not be availed of for the (establishment of executory devises of leaseholds. It now remains to trace the history of their gradual introduction. lb will be remembered that the Statute of Uses did not apply to leaseholds, and that therefore the only conditional limita- tions of chattels real in England were executory devises. § 149. In Anon? (1536) a term was devised to A. and the heirs of her body, the remainder, if she died without issue within the term, to B. The Court of Common Pleas held that a term could not be " limited in remainder." The limi- tation was undoubtedly bad, because after an indefinite failure of issue; but the objection made at the time was apparently to an executory devise of a term under any circumstances. In Anon.* (1543) a slight advance seems to have been made on this. It was there said that if a term was devised to one for life, the remainder over, the remainder over is good ; but if the devisee for life aliens, the remainder-man is without remedy.^ § 150. In CeciVs Case^ (1566) an executory limitation of a term by deed was held bad, as it would be in England at the present day;'' but in Anon.^ (1568), Weston, Walsh, and 1 37 Hen. VI. 30. See § 80, ante. « Dyer, 253 6. '■* Plowd. 589, 542. ' And see Green v. Edwards, 8 Dyer, 7 a. Cro. El. 216; 1 Leon. 218; 1 And. * Bro. Ab. Chat. 140, pi. 23. 258; Moore, 297. 6 So Anon. Dyer, 74 b, pi. 18 8 Dyer, 277 b. (1552). And see North v. Butts, Dyer, 139 6 (1556). 98 THE EULB AGAINST PEEPETUITIES. Harper, JJ., are reported to liave said : " The remainder of a term devised to one for term of life is good by devise, but not by estate executed in the lifetime." The reporter, how- ever, who was then Chief Justice of the Court, adds, "■ Yet qucere the first." § 151. Ten years afterwards, in Welcden v. Elkington'^ (1578), it was distinctly held that an executorj- devise of a term on the death of the first taker was good and could not be destroyed by anj- act of the first taker ; and in the thirty years following, the same or a similar point was frequently decided in the same way.^ The current of opinion, however, was not unbroken. In Anon? (1587) there are dicta by Anderson, C. J., and Rhodes, J., that an executory devise of a term after a life interest therein is void, and sucli a devise was held bad by the Court of Common Pleas in Rayman v. aoW^ (1592). In WoodcochY. Woodcock^ (1600) the judges of the Court of Common Pleas expressed opinions that such a devise was void. Walmslej', J., said: "There are divers judgments against my opinion, but upon what reasons I un- derstand not." In Mallet v. Sackford^ (1607) the Court of Queen's Bench was divided on the question. Coke, C. J., and Walmsley, J., thought such executory devise not to be good. Warburton and Daniel, J J., thought that it was good.'' § 152. But in Manning's Case ^ (1609) and Lampefs Case * 1 Plowd. 516; Dyer, 358 6. (1587). Handall v. Brown, Moore, 2 Paramour v. Yardley, Plowd. 748 (1603). 539 (1.579). Amner v. Luddington, = 3 Leon. 195 ; 4 Leon. 192. 2 Leon. 92; 3 Leon. 89; Godb. 26; 1 « Moore, 635. And. 60(1.584). Vincent Lee's Case, ^ Cro. El. 795. 3 Leon. 110; sub nom. Lee v. Lee, ^ Cro. Jac. 198; 1 Roll. Ab. 610, Moore, 268 (1584). Hannington v. pi. 4, 5. See § 82, ante. Ryder, 1 Leon. 92; sui nom. Haver- ' See Rector of Chedington's ington's Case, Owen, 6 ; sub nom. Case, 1 Co. 153 a ; sub nom. Lloyd Hannington v. Richards, Golds. 59, v. Wilkinson, Moore, 478. 65; sub nom. Rudiard v. Hannington, ^ g Qq. 94 b. 1 And. 162; Moore, 249, pi. 393 » 10 Co. 46 6; sub nom. Lampitt V. Starkey, 2 Brownl. 172. ORIGIN AND HISTORY. 99 (1612) it was solemnly adjudged that after a devise of a term for life, an executory devise over was good, and not destruc- tible by the first taker ; and although these decisions have been grumbled at^ they have never been overruled.^ liam- pet's Gase^ is the first case in which a perpetuity is mentioned in connection with an executory devise, and the term is there used in its original sense of an inalienable interest. Loi'd Coke, C. J., in arguing against the proposition that an execu- tory devisee cannot release his interest to the first taker of the term, says that " it would be inconvenient that such manner of perpetuity should be made of a chattel, whereof an inheritance neither by act executed by the common law, nor by limitation of an use, nor by devises in last wills, any perpetuity can be established." 6. First Suggestions at the Bar of the Mule against Perpetuities. § 153. In Anon.^ (1636) a limitation of a term after an in- definite failure of issue had been held bad ; but the objection ' E. g. by all the judges of the ning's Case, yet do not think it safe Common Pleas and barons of the to stretch the law against the oi'di- Exohequer (except Tanfield, C. B.), nary rules of law further than in who said, " that the first grant or that case it is done." Pearse v. devise of a term made to one for Reeve, Pollexf. 29, 30. life, remainder to another, hath " 2 Harg. Jurid. Arg. 41 et seq. been much controverted, whether Lewis, Perp. 83-89. Even after such a remainder might be good, Manning's Case it was held in Price and whether all may not be de- v. Atmore, 1 Bulst. 191 ; 4 Leon, stroyed by the alienation of the first 246 ; sub nom. Price v. Almory, party; and if it were now first dis- Moore, 831, that if the executory puted, it would be hard to maintain ; devisee of a term died during the but being so often adjudged, they life of the .first taker, his executor would not now dispute it." Child would not take his interest. But V. Baylie, Cro. Jac. 459, 461 (cf. see Welcden v. Elkington, Plowd. W. Jones, 15). Per Hide, Twis- 516, 52.5, in marp., and cases cited, den, and Browne, JJ., " Though we » 10 Co. 46 I, 52 a. do not hold it fit to call in ques- * Dyer, 7 o. tion the judgment in Matthew Man- 100 THE EULB AGAINST PERPETUITIES. apparently was not to the remoteness of the executory devise, but to any executory devise of the term whatever.^ And in Forster v. Brown^ (1604), on a devise of a term to A. and the heirs^of his body, but if A. died without issue, then to B., it seems to have been held, although the ease is obscurely reported, that the gift over was bad. But in Tatton v. Mol- lineux^ (1610), Lord Ellesmere, C, assisted by Warburton and Coke, J J., ruled that if a term was devised to A. and the heirs of his body, and on failure of A.'s issue to B., A. took an interest which passed not to his issue, but to his executors or assignees, and that these last took subject to the gift over, which would take effect on the failure of A.'s issue. The language of the opinion is: "If the remainder of such a term be limited over, the particular donee in tail or for life cannot sell it to the prejudice of the remainder ; but such a remain- der will be preserved by the common law', as has been ad- judged in the Court of Common Pleas,* and also in Chancery, as divers decrees are there made." And so in Retherick v. CJiappel ^ (1612) it was held, on the authority of Manning's Case, that, on a devise of a term to A. so long as he should have issue, and if he died without issue, then to B., the remainder to B. was good.^ § 154. Thus far there had been no distinction between an executory devise of a term after a life interest and after an indefinite failure of issue. Both limitations were at first thought alike bad ; and now Manning's Case was supposed to make them alike good. In Bennet y. Lewknor'' (1616} the distinction between them was first clearly insisted on. Here there was a devise of a term to A. and his heirs male, with 1 See § 149, ante. . ^ But see Bennet v. Lewknor, 2 Moore, 758. 1 Roll. R. 356, where it is said that ' Moore, 809; Pollexf. 24. this point was not argued in Reth- * Probably Manning's Case, § 152, eriok v. Chappel ; and cf . Child v. ante, which had been decided the Baylie, Cro. Jac. 459, 461, 462 ; previous year, is meant. Palm. .3.33, 335, 336. 6 2 Bulst. 28. ' 1 Roll. R. 356. ^« m ORIGIN AND HISTORY. ioK^;n#^ an executory devise over on failure of such heirs to a person living at the testator's death. The only report of the case contains nothing but the arguments of counsel in the Ex- chequer and a statement that the case was adjourned.^ Ser- jeant Finch, who argued against the executory devise, gave three reasons for its invalidity. 1. That by intendment an estate tail continues forever. 2. " If it is a good remainder, then there will be a possibility on a possibility." 3. " If it is a good remainder, then there will be a perpetuity of a chattel where there cannot be of a freehold, and there will be no means to dock it." Here we first meet the idea of remoteness as an objection to a limitation struggling to find expression. § 155. Child V. Baylie? This case, which came' before the King's Bench in 1618, was as follows : A devise of a term to A. and his assigns, provided, that if A. died without issue living at his death, then the term should go to B.^ A. as- signed the term and died without issue ; and B. brought ejectment against the assignee. This case raised clearly the question whether the reason why a gift of ii term after a general failure of issue was bad was to be found in its remote- ness. If remoteness was the reason, then the gift here to B. 1 In the reports of Child v. Baylie, Cro. Jac. 459, 460; Palm. 48, 50, 333, 834; W. Jones, 15, it is said that the Court held the executory- devise void ; but in the report of that case in 2 Koll. K. 129, 130, it is said that this Was only the remark ohiler of one of the barons. 2 Cro. Jac. 459; Palm. 48, 333; \V. Jones, 15; 2 Roll. 129. See Duke of Norfolk's Case, 3 Ch. Cas. 1, 34. ' This is the correct form of the devise. It is so given in Croke, and in Palm. 48. In the report of the case in the Exchequer Chamber, Palm. 333, the proviso is said to be that if A. dies within the term, without issue then living, which is substantially the same. In W. Jones it is given thus: "If A. dies without issue during the life ef B." In 2 Roll, alone is it given simply, "If A. dies without issue during the term." The words "living at the death " must have been in the devise, for the argument in the Ex- chequer Chamber turns largely upon them. And in the Duke of Nor- folk's Case, 3 Ch. Cas. 1, 34, Lord Chancellor Nottingham caused the record to be examined, and fdund that Croke's report was correct. 102 THE EITLE AGAINST PEEPETXJITIES. was good, because it must take effect on the death of A., and that was not more remote tlian the gift which had been held good in Manning's Case. In the Court of King's Bench no attention was paid by counsel or court to the fact that the gift over was in case A. died without issue living at his death, it was treated as if the gift had been on failure of issue generally ;i and the gift to B. was held bad because the gift was to A. and his assigns ; because a term cannot be entailed ; because it was the gift of a possibility on a possibil- ity ; 2 and because if the gift to B. was good it could not be barred by A., and thus future interests in chattels would be less destructible than they were in freeholds, " and if the law will not suffer such perpetuities of inheritances, then much less will it suffer perpetuities of chattels."^ § 156. The evils arising from the Statute De Bonis, creating inalienable estates tail, were familiar to the courts, and after their predecessors had, by the doctrine of Taltarum's Case, broken down the "perpetuities" of estates tail,* the only perpetuities which they had had occasion to consider, they were resolved not to have them surreptitiously introduced by entailing long terms, to which the device of common re- coveries could not be applied. Having been warned by the history of estates tail, they timely took the matter in hand, and in Bennet v. Bewhnor^ as devises after failure of issue could not be docked, thej^ held such devises void ah initio. If there was present to the mind of the Court in Bennet v. Lewknor and Child v. Baylie any idea that a limitation might be objectionable because it was to begin at too distant a day, such idea was still extremely vague. § 157. The case of Child v. Baylie was carried to the 12 Roll. 129; Palm. 48; Cro. meant " improbable," not " distant Jac. 459. in point of time." 2 This is sometimes called a ^ 2 Roll. 129 ad fin. " remote possibility ; " but the con- * See § 140, ante. text shows that by "remote" is ° § 154, an(e. OEIGIN AND HISTORY. 103 Exchequer Chamber in 1623.1 There the attention of the Court was called by counsel to the fact that the limitation over to B. was not on the death of A. without issue generally, but on the death of A. without issue living at his death. But the judges ^ held " for the case in question, where there was a devise to one and his assigns, and if he died without issue then living, that it would remain to another, it is a void devise ; and it is all one as the devise of a term to one and the heirs of his body, and if he die without issue, that then it shall remain to another, it is merely void ; for such an entail of a term is not allowable in law, for the mischief which otherwise would ensue, if there should be such a per- petuity of a term."3 It is clear that " perpetuity " is not used here in its secondary sense of remoteness, for obviously there is a great difference between the two devises on the matter of remoteness.* Of Retherick v. Ohappel^ the Court say, " And though there be such a judgment given in the King's Bemh as allows the remainder to be good, yet time has dis- covered the inconvenience that such limitations have intro- duced in the republic."® § 158. The case of Child v. Bat/He is important as showing that none of the twelve judges of England, except Chief 1 Cro. Jac. 459, 460; Palm. 333; over to such other is bad; and they W. Jones, 15. a'dmit this. They say, " The first 2 Tanfield, C. B., dissented ; grant or devise of a term made to Palm. 334, adds, " totis viribus." one for life, remainder to another, W. Jones, 15, says Denham, B., also hath been much controverted, dissented; but the other reporters vfhether such a remainder might do not agree with this. Palm. 835. be good, and whether all may not Cro. Jac. 461. be destroyed by the alienation of " Cro. Jac. 461. the first party; and if it were now * It might be fairly urged that first disputed, it would be hard to the ground taken by the court would maintain ; but being so often ad- require them to hold that if a term judf;ed, they would not now dispute is given for life to one, and on his it." Cro. Jac. 461. death to another, as in Manning's '' 2 Bulst. 28; § 15.3, ante. Case, 8 Co. 94 b, § 152, ante, the gift « Palm. 335, 336. 104 THE RULE AGAINST PERPETUITIES. Baron Tanfield,' were disposed to recognize the question of remoteness as having anything to do with the validity of a limitation. But it is also important because, in the argument before the Court of Exchequer Chamber for the validity of the gift over, Davenport (afterward Chief Baron of the Ex- chequer) was the first person to enunciate clearly the princi- ple on which the Rule against Perpetuities rests. He said : " There is no danger of perpetuity by such a conveyance. For he took a divei'sity when the contingency is such as can or ought [(^oei] to happen in the life of the devisee.^ There a remainder limited on such an estate in case of a devise of a chattel is good, as in our case, if he should die without issue of his body living at the time of his death, so that it does not exceed his life. But if the contingency be such as is foreign, \_forrei71] or is to commence in futuro after the death of the first devisee, there, because such limitation tends to make a perpetuity, a remainder limited on it is bad, as, if he should die without issue or without heir, that then it shall remain over. And on this diversity they strongly \_fortment\ rely." ^ 7. Slow Judicial Recognition of Remoteness as the Essential Point in Judging Future Limitations. § 159. After the decision of Child v. Bailie in the King's Bench, but before the argument in the Exchequer Chamber, came in 1620 the case of Pells v. Brown in the King's Bench.* A testator seised in fee devised the land to A. and his heirs, and if A. died without issue living B., then to B. and his heirs. A. suffered a recovery and died without issue, living B. ^ Except also, possibly, Bavon Palmer, now in the Library of the Denham, see note to the preceding Law School of Harvard University, section. ^ Palm. 331. 2 It is printed "devisor," but * Cro. Jac. .'J90; 2 Roll. R. 193, clearly " devisee " is meant. It is 216; Godb. 282; sub nam. Pills v. corrected by an old hand into " dev- Brown, Palm. 131; sub nom. Petts isee " in Judge Story's copy of v. Brown, J. Bridg. 1. ORIGIN AND HISTORY. 105 It was held by Montagu, C. J., Chamberlajme and Houghton, JJ., that B. was not barred. Doderidge, J., dissented on the ground that if the executory devise to B. was not de- stroyed by the recovery, " it would be a mischievous kind of perpetuity which could not by any means be destroyed." i His brethren replied : " There is no such mischief that it should maintain perpetuities, for it is but in a particular case, and upon a mere contingency, whicli peradventure never may happen, and may be avoided by joining him in the recoveiy who hath such a contingency." ^ The devise to B. was in fact good within the Rule against Perpetuities as now estab- lished, but no such point was mooted in the case. It was assumed that the gift to B. was good ; the question discussed was whether it was destructible. The remark of the Court that the objection of perpetuity might be avoided by joining B. in the recovery, shows that " perpetuity " was not used as meaning a remote interest, but in its original meaning of an inalienable interest. Although no question of remoteness was presented in Pells v. Brown, it is hard to overestimate its influence on the subsequent history of conveyancing. Had it been held that conditional limitations could be destroyed like contingent remainders, the need of a rule against remote- ness might never have been felt ; even if some such rule had finally been evolved, it would probably have been in other than its present form. But when conditional limitations were declared indestructible, the need of distinguishing between those which could be allowed and those which must be con- demned as too remote was sure, sooner or later, to present itself to the courts.^ ^ Cro. Jac. 592. Magna Charta, of this branch of ^ Cro. Jao. 593. the law," refers not, however, to its ' See 2 Harg. Jurid. Arg. 32 et deciding that an executory devise s^q. Lewis, Perp. 128-134. Lord is indestructible, but to its deciding Kenyon's "nervous expression " in that the failure of issue intended Porter v. Bradley, 3 T. R. 143, that was definite and not indefinite, the case of Pells v. Brown " is the See Marsden, Perp. 198. foundation, and as it were the In the case of Gay v. Gay, or 106 THE EDLE AGAINST PERPETUITIES. § 160. After, however, as before the case o? Pells v. Brown it was the consideration of chattels real to which the Rule of Perpetuities owed its growth. Down to and including the Jay I'. Jay, Styles, 258, 274 (1651), iu the Upper Bench, there was a devise of a copyhold to A. and his heirs, but if A. died during the life of his mother then to B. and his heirs. The question is said to have been whether A. took an estate tail or a fee simple executory. " RoUe, Chief Justice, said, it is an incon- venience to devise such a contin- gent estate. Nicholas [J ] doubted, for he said it would shake many wills, if it might not be." The judg- ment is not reported. Latch, of counsel, is said to have "confessed that in the case of Pell and Brown, 17 Jac. rot. 44, the contrary was adjudged; but that there did appear such apparent inconvenience in it, that upon it the Court was after- wards divided, and 21 Jac, in the Serjeant's Case,* it was made a flat qucere, and ever since it hath been disputable, whether a contingent de- vise be good or not, and in Jacob and Telling's Case it is not determined, and Hanbury and Cookrell's Case is not adjudged, but if it be, it is on my side; and Mich. 37 & 38 C. B. rot. 1149, it was adjudged upon solemn argument at the Bar, and on the Bench, contrary to the judgment in Pell and Brown's Case, if lands be devised to one and his heirs, and if he die without issue, that the land shall be to another and his heirs, this is no estate tail; for it cannot stand with the rules of law to devise such an estate, for it is but a possi- bility, and if it should be more, it must be a fee upon a fee, and so a perpetuity, and it cannot be known within what bounds it shall end, either in case of years or life or other contingencies, and the com- parison of Lamport's [Lampet's] Case is not like to this case, for that was of a term." These statements of Latch find no support in the printed books, and both counsel and reporter bear rather an eVil name for accuracy. See per Twisden, J., in Foxwith V. Tremain, 1 Mod. 296; Palmer, Preface ; O. Bridg. Pref. p. ix; Wallace^ Reporters (4th ed.) 262, 288. It is not unlikely, how- ever, that the judges felt anxious about the consequences of their de- cision in Pells V. Brown, that ex- ecutory devises were indesti'uctihle. The notion that an executory de- vise was not barred by a recovery "went down with the judges like chopped hay." Per Powell, J., Scat- tergood v. Edge, 12 Mod. 278, 281. " These executory devises had not been long countenanced when the judges repented them; and if it were to be done again, it would never prevail. " Per Treby, C. J., lb. 287. * " It is true, it was made a question the mts of the Serjeants is not a govern- afterwards in the Serjeant's Case; but ing opinion to decide the law." Per Lord what then? We all know that to be no rule Chancellor Nottingham, in the DuKe of to judge by; for what is used to exercise Norfolk's Case, 3 Ch. Cas. 1, 31, 32. ORIGIN AND HISTORY. 107 great Case of the Duhe of Norfolk,^ in the year 1681, there were, besides Cray v. Gay,^ mentioned in the note to the pre- ceding section, only two cases in which the validity of execu- tory devises of freeholds came in question, — Snow v. Cutler and Taylor v. Biddal. They are discussed below.-'' The de- cisions on executory devises of terms wei'e numerous. The principle announced by Davenport in Child v. Baylie^ that the validity of an estate on condition precedent depended not on the character but on the time of the contingent event, al- tliough ultimately to prevail, was, as we have seen, at first rejected by almost the entire bench, and won its way but slowly to judicial recognition. § 161. Two classes of executory devises of terms came be- fore the courts, — those after a life interest, and those after a failure of issue. In the latter class of cases, where the failure of issue was indefinite, the executory devises were held bad.^ In Wood V. Sanders ^ (1669) a term was assigned in trust for A. for sixty years, if he lived so long; then to B. for sixty years if she lived so long ; then the trustees to assign to C. in case he survived A. and B. If C. died in the lifetime of A. and B., leaving issue who were living at the death of A. and B., tiien the trustees to assign to the one who should then be C.'s eldest son ; if C. died without issue before such assign- ment, then to D. and the heirs of his body, and in default of such issue then to E. C. died before A. and B. without issue, and E. was appointed his administrator. Then A. and 1 3 Ch. Cas. 1. 1 Sid. 450; 1 Lev. 290; 1 Ventr. 2 Styles, 258, 274. 79; 2 Ch. Rep. 14 (1670). Surges 3 §§ 165, VII, post. V. Burges, 1 Ch. Cas. 229; 1 Mod. * See § 158, ante. 115; Pollexf. 40; Finch, 91 (1674). 6 Sanders v. Cornish, Cro. Car. See § 166, post. Knight v. Knight, 2-30(1631). Backhouse V. Belling- Pollexf. 42; Finch, 181 (1674). hara,Pollexf. 33 (1664). See § 361, Warman w. Seaman, Pollexf. 112; post. Wood V. Sanders, 1 Ch. Cas. 2 Ch. Cas. 209; Finch, 279 (1675). 1.31; Pollexf. 35 (1669). _ Love v. « 1 Ch. Cas. 181; Pollexf. 35. Wyndham, 1 Mod. 50; 2 Keb. 637; 108 THE ET7LB AGAINST PERPETUITIES. B. died, and D. entered and afterwards died without issue. Lord Keeper Bridgman, assisted by Twisden, Rainsford, and Wilde, JJ., held that as C.'s interest had never vested, D.'s administrator was entitled to the trusts of the term. The case is very shortly reported. Its decision is inconsistent with any theory of a gift of a possibility upon a possibility being bad. Here the gift to D. was held good ; and yet it took effect only in case C. died, only in case he died in the lifetime of A. and B., and only in case he died in the lifetime of A. and B. without issue. On the other hand the case falls short of deciding that remoteness is the only objection to the creation of a future interest ; indeed it seems to have been the opinion of the Court that had the interest of C. vested, the gift over would have been bad ; and yet it would have been no more remote than if C.'s interest had not vested, — the contingency would have been the same. It was appar- ently still the opinion of the Court that if a term was given to A. and the heirs of his body, and A.'s interest vested, no gift over was good even though it was made contingent on the ex- tinction of A.'s issue during a life in being.i And this is con- firmed by Boucher v. Antram? There a legacy was given to A. "for her to have the use of it during her life, and her child or children to have it after her decease, but if she happens to die, leaving no child surviving her," then to B. It was held by Lord Keeper Bridgman that the gift to B., "it being a per- sonalty, is in the nature of a perpetuity," and was void.^ § 162. The other class of executory devises of terms which came up for consideration were gifts after life interests. In accordance with Manning's Case * such gifts continued to be held good.s In Cotton v. Heath ^ (1638) a case was referied 1 See Howard v. Norfolk, 2 Ch. * 8 Co. 94 6; § 152, ante. Eep. 229, 239; 2 Swanst. 454, 467, ^ E. g. Veizy v. Pinwell, Pol- 468. lexf. 44. 2 2Ch.Eep.65;Pollexf.37(1671). « 1 Roll. Ab. 612, pi. 3; Pol- ^ See also Pearse v. Reeve, Pol- lexf. 26. lexf. 29. ORIGIN AND HISTOKY. 109 out of Chancery to Jones, Croke, and Berkeley, Justices of the King's Bench. A. devised a term to his widow for eigh- teen years, then to C. for life, and then to the eldest issue male of C. for life. The judges resolved without question,* and the Lord Keeper Coventry agreed,^ that " although C. has not any issue male at the time of the devise and death of the devisor, yet if he has issue male before his death, this issue male shall have it as an executory devise, because although it is a contingency on a contingency, and the issue not in esse at the time of the devise, yet inasmuch as it is limited to him only for life, it is good, and all one with Manning'' s Case ;'^ and further,^ that a feoffment by C. after the birth of issue male did not destroy the executory devise. § 163. Twenty-three years later, however, in 1661, Lord Chancellor Clarendon, assisted by Twisden and Browne, JJ., held, in Apprioc v. Flower^ that after the devise of a term to A., a devise of it to the unborn children of A. was void, because it " fended to raise and create a perpetuity contrary to the rules of law." As such limitations were the ordinary form in which freehold land was settled and devised, the objection would seem to be the indestructibility of chattel interests. In accordance with Apprice v. Flower it was said by Hyde, Twisden, and Browne, JJ., in Pearse v. Reeve^ (1661): "Though we do not hold it fit to call in -question the judg- ment in Matthew Manning's Case, yet do not think it safe to stretch the law against the ordinary rules of law, further than in that case it is done ; and, therefore, if the devisor by his will doth limit the remainder of it to his children, or to' the issue of his bodj', whereby his intention appears to limit it in a kind of perpetuity to his issue or to his children, we hold such limitation to be void." And in Goring v. Bickerstaffe^ _ 1 Pollexfen says that the certifi- * Pollexf. 27; 1 Ch. Rep. 175. cate was signed by two of the ^ Pollexf. 29. judges. » Freem. Ch. 163; 1 Ch. Cas. 4; 2 See Pollexf. 26. Pollexf. 31. « See Pollexf. 26. 110 THE RULE AGAINST PERPETUITIES. (1662), before Lord Chancellor Clarendon, assisted by Foster, C. J., Wyndham, J., and Hales, C. B.,i the Court " did all agree in one uniform opinion, that the limitation of a term to several persons in remainder, one after another, if those per- sons were in being, and particularly named, could not tend to a perpetuity ; otherwise, if the persons were not in being, and that a man might declare the trust of a possibility in remain- der, but that the limitation of a trust of such possibility to the heir of the limiter was a void limitation." ^ § 164. In Sackvile v. Dolson-^ (1663), however, there vi^as a limitation of the trust of a term to husband and wife, and the longest liver of them, for life, and after to the eldest issue of them, none being then born. It was held that though a gift to an unborn person, after two limitations to persons liv- ing, was void, yet a gift to an unborn person after one such limitation was good, and that the limitation to husband and wife was but one limitation, and therefore the gift over in this case was good.* § 165. In the series of cases on chattels real must be inter- calated the case oi Snow v. Cutler^ (1664). A., having the reversion of copyhold land after his wife's death, devised it to the heirs of his wife's body, if he or they should attain fourteen years. A. died without leaving issue bj' his wife. She married again and liad a son who reached fourteen. She then died. The question was whether the son was entitled. The judges seem to have been in great doubt. Kelyng, C. J., and Twisden, J., thought the devise good. Wyndham and Morton, JJ., contra. The objection of the two latter seems to have been that the devise was in form a present devise to 1 So in Chancery Cases; in Pol- decided on a misunderstanding of lexfen, Bridgman, C. J., is given Goring v. Biokerstaffe. instead of Wyndham. » 1 Lev. 135; 1 Keb. 752,800, 2 Freem. Ch. 166. 851; 2Keb. ll, 145, 296; T. Raym, 8 1 Ch. Cas. 33. 162; sub nom. Snow v. Tucker, 1 ' The case seems to have been Sid. 153. ORIGIN AND HISTORY. Ill a person not in esse. Thus Wyndham says : " A present de- vise to an infant in ventre sa mere is void ; contra if it be said ' when he shall be born ; ' so to J. S. when he shall marry my daughter, this is executory and good ; so had our devise been to the heir, when he shall be born, [it] had been good; but this being to the heirs of the wife, it 's intended present, and so void."i But the judges are said to have been all agreed that an executorj' devise "may well be allowed to take place within the compass of a life, but not after a dying without issue, for that would make a perpetuity." ^ This is the clear- est statement given up to this time of the proposition that the validity of an executory devise depends upon the question whether it must happen within a lifetime.^ § 166. Returning now to cases of terms for years, the next is Surges v. Burges^ (1674). There a term was settled in trust for A. for life, then for his wife for life, then for their first and other sons successively and the heirs of their bodies, and then for their daughters. Lord Keeper Finch, while hold- ing that the limitation to the daughters was void,^ yet " would allow one contingency to be good, viz. that to the first son, though the first son was not in esse at the time of his de- cease."^ In Oakes v. Ohalfont (1674) Lord Keeper Finch went a step further, and held that the limitation of a term after limitations to unborn children was good, if the children took life interests only, and the limitation over was to a person in esse. § 167. In the case of Groring v. Bicleerstaffe^ (1662) we 1 1 Keb. 802. * 1 Ch. Cas. 229; 1 Mod. 115; 2 1 Lev. 136. Pollexf. 40; Finch, 91. ' Kelyng, C. J., is reported to ^ See § 161, ante. have said, "Where the intent is ' 1 Mod. 115. expvest to be in future, it is an ex- ' Pollexf. 38 ; sub nom. Chalfont ecutory devise; and if an ordinary v. Okes, 1 Ch. Cas. 239. contingency be thereupon limited, ^ Freem. Ch. 163; 1 Ch. Cas. 4; which may determine within one life Pollexf. 31. or such time, it 's good." 2 Keb. 300. 112 THE KTJLE AGAINST PBRPETTJITIES. found the first distinct enunciation of the proposition that the number of executory limitations of a term is immaterial if they are all to persons in being.^ But in Love v. Wyndham ^ (1670) it was more emphatically expressed. In this case there was a devise of a term to A. for life, then to B. for life, but if B. should die without issue to C. It was held that an indefinite failure of issue was meant, and this being so, of course the devise to C. was void. The case is noteworthy on account of some remarks of Twisden, J. Tliey are diffei-ently reported. In 1 Mod. 54, thus : " If a tenant of a term devise it to B. for life, the remainder to C. for life, the remainder to D. for life, I have heard it questioned, whether these re- mainders are good or not. But it hath been held, that if all the remainder-men are living at the time of the devise, it is good : if all the candles be light at once, it is good. But if you limit a remainder to a person not in being, as to the first- begotten son, &c., and the like, there would be no end if such limitations were admitted, and therefore they are void : and some judges are of the same opinion to this hour." In 1 Sid. 451 : " Note by Twisden, J., that the law is now settled, and if a term be devised to one for life, remainder to another for life, remainder to a third for life, &c., and so to twenty, one after the other, that it is a good devise to them all, notwith- standing the objection of possibilities upon possibilities, if all the persons were in esse at the time of the devise, because all the candles are lighted at once. But if the devise be to one for life, who is not then in esse (as to the first son), there no limitation of a term can be after that. And ot this opinion seemed all the court." ^ § 168. The law up to this time may be summed up thus : Any number of life interests could be given in succession to 1 See passage cited in § 163, an The inconsistency of this ex- s e § 172, ante. tension with legal principle and ^ 2 Dong. 487, 508. analogy is discussed, §§ 187, 188, ^ E. g. GuUiver v. Wickett, 1 post. 122 THE E0LE AGAINST PBEPETUITIES. 10. Extension of Rule so as to cover a Term in Gross. § 176. The period within which future limitations could v be created was therefore extended beyond lives in being to cover minorities. Could it be extended where minorities did not exist ? and if so, to what limit ? In Pay's Case ^ (1602) there was a devise to A. from Michaelmas following the tes- tator's death for five years, and then to B. in fee. It was held, without argument, that the devise to B. was good. The objection of remoteness was not raised, nor at that early day was it likely to be raised. § 177. In Davis v. Speed (1692), in which case a springing use after the indefinite failure of A.'s issue was of course held too remote, Lord Holt, C. J.,^ said that a springing use to commence at the end of four j'ears was good, and so one to begin after the death of A. without issue, if he die without issue within twenty years. But this was oliter dictum? § 178. The case of Lloyd v. Carew,* finally decided in 1698, is the foundation of that part of the Rule against Per- petuities which allows a future interest to be created beyond the termination of a life in being without regard to the minor- ity of any person. There was a conveyance to A. and his wife for life, remainder to their children successively in tail, remainder to A. in fee, provided that if at the death of the survivor of A. and his wife there should be no issue of theirs then living, and if the heirs of the wife should, within twelve months after such death without issue, pay to the heirs of A. £4,000, then the estate should go to the heirs of the wife for- ever. A. and his wife both died without leaving issue living 1 Cro. El. 878; suh nom. Payne 351; Carth. 262, the remark is not V. Ferrall, Noy, 43; §139, ante. given. The decision was affirmed 2 As reported in 2 Salk. 675, and in the House of Lords. Holt, 730. 1 Free. Ch. 72, 106 ; Show. P. C. 2 In the other reports of the case, 137. 4 Mod. 153 ; 12 Mod. 38 ; Skin. ORIGIN AND HISTOET. 123 at the death of the survivor, and the heir of the wife ten- dered the £4,000. The question was, whether the executory- devise to the heir of the wife was good. In favor of the ex- ecutory devise it was argued " that it was within the reason of the contingent limitations allowed in the Duke of Norfolk's Case; . . . ih&t the ultimum quod sit oi a. iee \npon a, iee is not yet plainly determined; that there could not in reason be any difference between a contingency to happen during life or lives in being, and within one year after; and the reason of allowing them to be good, if confined to lives in being, or upon their decease, was, because no inconvenience could fol- low, and the same rule will hold to a year after; and that the true rule to set bounds to them is, when they prove incon- venient and not otherwise." Against the executory devise it was urged that the life of one or more persons in being was " the furthest the judges have ever gone in allowing contin- gent limitations upon a fee, and if they should be extended to contingencies to happen within twelve months after the death of one or more persons in being, they may as well be extended to contingencies to happen within one thousand years ; and so all the inconveniences of a perpetuity will be let in." 1 Sir John Somers, C, assisted by Treby, C. J., and Rokeby, J., held that the executory devise was bad. But the Chancellor's decree was reversed on appeal by the House of Lords, Jan. 13, 1698. It is worthy of notice that at this time, with the exception of the Chancellor, there was no law lord in the House.^ 1 Prec. Ch. 73, 74. ment of Lord Brougham in Cadell 2 16 Lords' Journals, 192 a, 193 b. v. Palmer, 1 CI. & F. 372, 422, that The Earl of Macclesfield mentioned the House of Lords, in deciding as being in the House was not the Lloyd v. Carew, were assisted by- Chancellor of that name, "who -was " the then Chief Justice of the not raised to the peerage till the Common Pleas," is wrong. It was reign of George I. This peer be- the Chancellor, whose decree was longed to an earlier creation, which reversed, that was assisted by Chief became extinct in 1702. The state- Justice Treby, 124 THE EULB AGAINST PfeBPETUITIES. § 170. In Marks v. Marks'- (1718), an executory devise to arise on the payment of a sum of money within three months after the death of a person living at the death of the testator was held good by Lord Chancellor Parker, assisted by Sir Joseph Jekyll, M. R. The Master of the Rolls said : " Though before the case of Lloyd v. Carew, it seems to have obtained for law, that no executory devise of a fee upon a fee should be allowed of, unless upon a contingency to happen during the life of one or more persons in being at the time of the settlement . . . yet sinee that case which went through the House of Lords, and is reported Shower's Cases in Parlia- ment, 137, the law is now settled, that in case of a contin- gency that cannot in the nature of it precede the death of a person, a reasonable time may be allowed subsequent to the decease of that person for performance of the condition ; and a fee limited thereupon is good. In that case, a year was held no unreasonable time ; a fortiori not three months, which is the present case."^ § 180. Although Lloyd v. Carew, followed by Marks v. Marks, settled that a future interest might be created within a " reasonable time " after the expiration of lives in being, the question of what that " reasonable time " was remained undetermined for more than a century. In Massingberd v. Ash,^ decided in 1685, thirteen years before Lloyd v. Carew, the judges of the Court of Common Pleas had declared of certain limitations that " being limited and confined to fall within the compass of twenty-one years " they were good.* But the devise in question was given over during minority, and the remark must be taken in suhjectam materiem. In Scatter- wood V. Edge^ decided in 1699, the year after the House of 1 10 Mod. 419; 1 Stra. 129; ^ 2 Ch. Rep. 282, 283. Free. Ch. 486. 6 i gaik. 229; svh mm. Scatter- 2 10 Mod. 422. good u. Edge, 12 Mod. 278 (see 8 2 Ch. Rep. 275; mh nom. Mas- Gore v. Gore, 2 Batnard. E. B. senburgh v. Ash, 1 Vern. 234, 257, 209). 304 ; § 173, anU. OEIGIN AND HISTORY. 125 Lords had overruled Lord Spijiers's decree in Lloyd v. Carew, there was a deyise to A. for eleven years, and subject thereto to the first issue male of B. and the heirs male of his body, provided they should take upon |;hemselves the surname of B. B., at the time of the devise, had no issue. As Lord Thurlow remarks,^ the case of Scatterwood v. Hdge "is so ill reported, that it is not easy to discover what points were de- termined." Blencowe, J., thought the devise to the issue male of B. good. Treby, C. J., and Neville and Powell, JJ., thought it bad. The opinion of the two latter on the point of remoteness is not clear; but that of the Chief Justice, at any rate, is emphatic. " There are bounds," he says, " set to them [executory devises] , viz. a life or lives in being ; and further they shall never go, by my consent, at law, let Chan- eery do as they please," ^ — an obvious reflection on Lloyd v. Oarew, where the decree rendered in accordance with his advice had been overruled by the House of Lords. The case was affirmed in the Kiqg's Bench on error. Lord Holt is declared there to have ^aid that " the time in which an exec- utory devise was to arise was not then settled." ^ § 181. In Grore v. Gore* the judges of the King's Bench, in their second certificate, given in 1734, said " that a^ conven- ient time after the life was to be allowed, according to the case of Lloyd v. Carey." In Stanley y. Leigh^ Sir Joseph Jekyll, M. R., defined " a perpetuity, as it is a legal word or term of art," as " the limiting an estate either of inheritance 1 In Doo B. Brabant, 3 Bro. C. C. perpetuity as far as it goes, that is 393, 398. to say, an estate unalienable, though ^ 12 Mod. 287. all mankind join in the convey9,nce," ' Gore V. Gore, W. Kel. 254, though inoprrect, has often been 259; 2 Barnard. K. B. 209, 212. cited with approval, and has more See also Gore v. Gore, 2 Barnard, than one wrong decision to answer K. B- 229, 230. The statement in for. See § 268, post. Salkeld's report of Scatterwpqd v. * 2 Stra. 958. See .§ 174, ante. Edge, attributed to all the judges, « 2 P. T^ms. 686, 688 ; § 175, that every exeoutqry deyise is " a ante. 126 THE EULB AGAINST PERPETUITIES. or for years, in such manner as would render it unalienable longer than for a life or lives in being at the same time, and some short or reasonable time after." § 182. Following these is a series of cases in which the courts are generally passing upon or considering executory gifts arising during a minority, but in which they express themselves in general terms. Thus in Goodtitle v. Wood^ (1740) " the rule has in many instances been extended to twenty-one years after the death of a person in being." So in Marlborough v. Crodolphin^ (1759) : " It is true that by ex- ecutory devise an estate may be locked up for a life arid lives in being and twenty or twenty-one years after." So Lord Mansfield in Croodman v. GoodrigJit^ (1759) said: "The al- lowed compass of a life or lives in being, and twenty-one years after, which is the line now drawn, and very sensibly and rightly drawn." * So again Lord Mansfield in Buckworth V. Thirkell ^ (1785) : " I remember the introduction of the rule which prescribes the time in which executory devises must take effect to be a life or lives in being and twenty-one years afterwards."^ Lord Mansfield was called to the bar in 1730. In Jee v. Audley'' (1787) Sir Lloyd Kenyon, M. R., said : " The limitations of personal estate aie void, unless they necessarily vest, if at all, within a life or lives in being and twenty-one years or nine or ten months afterwards. This has been sanctioned by the opinion of judges of all times, from the time of the Buhe of Norfolk'' s Case to the present ; it is grown 1 Willes, 211, 213. life and twenty-one years after is ^ 1 Eden, 404, 418. the utmost extent for an executory » 2 Burr. 870; 1 W. Bl. 188. devise; and is no more than the » 2 Burr. 879. See Doe v. Fon- common law allows in legal limita- nerau, 2 Doug. 487, 502, 507, note, tions, which restrains the heir from That Lord Mansfield had the case aliening till twenty-one." 2 Harg, of a minority in his mind is shown Jurid. Arg. 102, 103. by his remark during the argument ' 3 B. & P. 652, note ; 10 J. B. of this case as given by Mr. Har- Moore, 235, note. grave, ex relatione Mr. Filmer. « 3 B. & P. 654, note. " That point is well settled; and a ' 1 Cox, Ch. C. 324. ORIGIN AND HISTORY. 127 reverend by age, and is not now to be broken in upon." And the same learned judge, when Chief Justice of tlie Court of King's Bench, in Long v. Blachall^ (1797) said: "It is an established rule that an executory devise is good if it must necessarily happen within a life or lives in being and twenty- one j'ears, and the fraction of another year, aHowing for the time of gestation." And in Thellusson v. Woodford'^ (1799) Mr. Justice Buller said: " Tiie rule allowing ajiij number of lives in being, a reasonable time for gestation, and twenty-one years, is now the clear law, that has been settled and followed for ages ;^ and we cannot shake that rule without shaking the foundations of the law." * § 183. In none of these cases, however, was the attention of the Court drawn to the distinction between a terra in gross and a minority, and in most of them the circumstances, and in many of them the language of the expressions themselves, show that the judges were thinking only of minorities. And in Thellusson v. Woodford Lord Alvanley, M. R., said that the period of twenty-one years had never " been considered as a term, that may at all events be added to such executory devise or trust. I have only found this dictum; .that estates may be unalienable for lives in being and twenty-one years, merely because a life may be an infant, or en ventre sa mere.'"^ And Macdonald, C. B., in delivering the opinion of the judges in the House of Lords, said : " The established length of time, during which the vesting may be suspended, is during a life or lives in being, the period of gestation, and the infancy of such posthumous child." ^ § 184. In Beard v. Westcott'^ there were devises over after limitations which were too remote, and on a contingency of 1 7 T. R. 100, 102. See a. c. 3 * 4'Ves. 319. Ves. 486, 489; Thellusson u. Wood- « 4 Ves. 337. foi-d, 11 Ves. 112, 150. » 11 Ves. 143. 2 4 Ves. 227; 11 Ves. 112. ' 5 Taunt. 393; 5 B. & Aid. 801 ; » The " ages " were less than a T. & R. 25. hundred years. 128 THE BULB AGAINST PEEPETTJTTIES. the deatk under twenty-one of unborn persons who took no interest under the will. Two objections were made to the devises over : in the first place, that they were after remote limitations;! and, secondly, that the contingency had no reference to the minority of persons who took an interest under the will. Sir William Grant, M. R., sent the case to the Court of Common Pleas, who in 1810 ^ certified that the limitations over were good.^ Sir William Grant doubted how far this term of twenty-one years could be thus taken, and ordered the Court to be again attended with the case on this particular question ;'' and in 1813 the Court returned a cer- tificate to this additional query, that the case was not affected by the fact that the gifts over might take effect " at the end of an absolute term of twentj'-one years after a life in being at the death of the testatpr, without reference to the infancy of the person intended to take." ^ I^ord Eldon, not being satisfied with these certificates, sent the case in 1822 to the Court of King's Bench.^ The case sent called particular attention to the fact that the period of twenty-one j^ears did not correspond to the infancy of any person who took an interest under the will;'^ and this question of a limitation after a gross term was elaborately argued by Mr. Sugden for the plaintiff, and Mr. Preston for the defendant. The Court sent a short certificate that the limitations over were bad.^ Upon the hearing in Chancery it Was urged on their behalf that it could not be collected from the certificate " whether 1 As to the validity of this ob- also Oadell v. Palmei-, 1 CI. & F. jection see § 252 et seq., post, where 372, 394. the case is more fully stated. ^ See this first certificate of the 2 The date of the certificate is Court of Common Pleas criticised given, 5 Taunt. 407, as 28 November, by Sugden in his edition of Gilbert 1812, but it is printed at length in on Uses, 274, 275, note. Gilbert's Uses (Sugd. ed.), 272-274, * 5 Taunt. 407, 408. note, and is there dated 28 Novem- ^ 5 Taunt. 413. ber, 1810 ; and this last must be cor- ' 5 B. & Aid. 801. rect, because Sugden's edition of ' 5 B. & Aid. 805, Gilbert was published in 1811. See 8 5 b_ & ^Id. 814, 815. ORIGIN AND HISTORY. 129 the cu■cum^5tance that the limitations were to take effect at the end of a term of twenty-one years, without reference to the infancy' of the person intended to take, created such a suspense of the vesting as to render the limitations void ; " but the Lord Chancellor said it was "impossible that the Court of King's Bench should not have considered that point," and confirmed the certificate, adding: "The inclina- tion of my opinion is that the Court of King's Bench is right." ^ Mr. Justice Bayley, however, who signed the cer- tificate, afterwards delivered the opinioa of the judges in Cadell- V. Palmer^ and in that opinion said that the founda- tion of the certificate of the Court of King's Bench " was that a previous limitation, clearly too remote, and which was so considered by the Court of Common Pleas, made those limita- tions also void which the Common Pleas had held good. The subsequent limitations were considered as being void, not from any infirmity existing in themselves, but from the in- firmity existing in the preceding limitation ; and because that was a limitation too remote, the others were considered as being too remote also. Whether the Court of King's Bench gave any positive opinion on that, I am unable to say. I tiiink the Court of King's Bench would have taken mucli more time to consider that point than they did, and have given it greater consideration than it received, if they had intended to differ from the certificate that had been given by the Court of Common Pleas ; but when it became totally im- material, in the construction they were putting upon the will, to consider whether the}' were or were not prepared to differ from the Court of Common Pleas, it is not to be wondered at that that point was not so fnlly considered as it might other- wise have been."^ § 185. Mr. Justice Bayley may or may not have been right in his recollection of the ground of the certificate of the Court of King's Bench given eleven years before. But it seems 1 T. & K. 25. 2 1 CI. & F. 372. « 1 CI. & F. 420, 421. 9 130 THE RULE AGAINST PERPETUITIES. clear that Sir William Grant and Lord Eldon were both in- clined to agree with Lotd Alvanley's opinion, expressed in Thellusson v. Woodford} that agross term of twenty-one years could not be taken in fixing the limits of remoteness ; and the point was not settled until the ease of Bengough v. Udridge;^ s. C. in Bom. Proc. sub nom. Cadell v. Palmer? This case was argued in the fullest manner before Sir John Leach, V. C, and on appeal to the House of Lords, by Mr. Preston and Mr. Sugden. The Vice-Chancellor held,^ in 1826, that the term of twenty-one years could be taken without reference to the minority of any one.^ In the House of Lords, in 1832, the judges were summoned, and eleven attended,^ and declared that the term of twentj^-one j'ears need have no reference to a minorit}'. The Lords, in accordance with this, affirmed the decree. Lord Brougham, C, moving the affirmance of the decree, said that the decision of the House in Lloyd v. Carew'^ " settled the rule." 11. Extensions of Pule not to be Justified on Principle. § 186. Cadell v. Palmer, of course, closed all controversy in England, nor does any question ever seem to have been made in America of the propriety of allowing a gross term. Certainly the allowance of a gross term of some length is highly convenient. But the result seems to have been arrived at by accident rather than by any process of judicial reason. In the Puke of NorfoWs Case^ it was held that any limitation is good which must take effect within lives in being. Soon after this an attempt was made to extend the period beyond lives in being, but two of the most eminent lawyers of the time (indeed, with the exception of Sir John Holt, longo 1 4 Ves. 227, 337; § 183, ante. ^ See Sugd. Law of Property, 2 ISim. 173. 314. ' ICl. &F. 372; 7B1. n. 8.202; « 1 CI & F. 411. 10 Bing. 140. ' Show. P. C. 137; § 178, ante. 4 1 Sim. 267. « 3 Ch. Cas. 1; § 169, ante. OEIGIN AND HISTOEY. 131 intervallo above their contemporaries), Lord Somers and Chief Justice Treby (assisted by Mr. Justice Rokeby), decided, in Lloyd V. Carew, that it could not be done. They were, how- ever, overruled by a body of laymen.^ Then came the case of Stephens v. Stephens,^ where there was a gift over on the death of a devisee under twenty-one. The Court allowed tlie gift over unwillingly, upon the authority of Taylor v. Biddal ^ (a case decided before the Duke of Norfolk's Case, and of which the reports are inconsistent), and because there was no real restraint on alienation, as the devisee was an infant.* And finally came Gadell v. Palmer,^ where a gross term of twenty- one years was allowed on the strength of Lloyd v. Carew? 1 Free. Ch. 72, 106; Show. P. C. 137; §178, ante. ' •'■ Cas. temp. Talb. 228; §§ 172, 175, ante. » 2 Mod. 289; Freem. K.B. 243. 1 § 172, ante 5 1 CI. & F. 372. ^ Lord Brougham, who gave the opinion in Cadell u. Palmer, subse- quently more than once pointed out the illogical process by which the allowance of a gross term of twenty- one years was arrived at. Cadell o. Palmer "went, in my opinion, no further than at least one case of great authority, and decided in this House, though it may have gone further than the original reason of the rule authorized." ToUe- mache v. Coventry, 2 CI. & F. 611, 621. " The Courts, and even this House, . . . have sanctioned what even plainly appeared to be erroneous principles, introduced and long assumed, as law, rather than occasion the great inconvenience vfhich must arise from correcting 'the common error, and recurring to more accurate views. Accordingly, when Cadell v. Palmer was argued in this House, I advised that your Lordships should abide by the re- ceived extension which had for a great length of time been given to the period within which an execu- tory devise might be held good." Phipps V. Ackers, 9 CI. & F. 583, 598. " The rule of law is the term in gross of twenty-one years after the life or lives in being; that was clearly laid down by your Lordships upon my recommendation, after hearing the learned judges in the case of Cadell v. Palmer, and it is quite unnecessary to go back to the foundation of the law; I have a strong opinion, which I believe is joined in by the profession at large, that it arises out of an accidental circumstance, out of a confusion, I may say, a misapprehension in con- founding together the nature of the estate with the remedy at law by fine and recovery, which could not be applied till a certain life came to twenty-one years." Dungannon 1S2 THE ETJLE AGAINST PERPETUITIES. § 187. The true theory of the Rule against Perpetuities, so far as any artificial rule can be said to have a theory, is that no future interest must begin beyond lives in being. The question to be asked of any estate on condition prece- dent is : " When must the contingency happen, if at all ? " But the mistake which is constantly recurring, and which has caused so much confusion, is that judges and legislators have considered, not when will the future estate begin, but how long will it be before an absolute fee. can be conveyed. That mistake occurred here : the judges did not consider when the future interest would begin ; they considered how long it would be before a fee simple could be conveyed, and they said : "An executory devise may be postponed, it is conceded, to the end of a life estate. There can be no harm in extend- ing the time till the person who takes the land on the termi- nation of the life estate reaches twenty-one, for until he becomes of age he could not convey the land, even if there were no executory devise." This step the judges took, though unwillingly, in Stephens v. Stephens. And this is all for which the}' are really responsible. The allowance of a gross term can be traced to the unlearned peers overruling the sages of the law in Lloyd v. Carew. V. Smith, 12 CI. & F. 546, 629, 630. the estate cannot be affected, and The rule that you can take a gross for that reason, says the law, you term " most clearly arises from a shall have the twenty-one years mistake. The law never meant to added, because that is the fact and give a. further term of twenty-one not the law, namely, that till a per- years, much less any period of ges- son reached the age of twenty-one tation. The law never meant to he could not cut off the entail. For say that there shall be twenty-one that reason and in that way it has years added to the life or lives in crept in by degrees; Communit error being, and that within those limits facit jus ; and that rule never was you may entail the estate; but what applied more accurately than in the law meant to say was this: until Cadell w. Palmer." Cole t. Sewell, the heir of the last of the lives in 2 H. L. C. 186, 233. See Lord St. being attains twenty-one, by law a Leonards, in Sugd. Law of Pi'op- recovery cannot be suffered, and erty, 315, 316; and Gilbert, Uses consequently the discontinuance of (Sugd. ed.), 260 et seq. and note. OEIGIN AND HISTORY. 133 § 188. How unjustifiable was the step taken in Stephens v. Stephens is easily shown. Every reason which could be then urged for extending the period for creating an executory de- vise to a minority after a life in being could now be used for extending it to a minority after an absolute term of twenty- one years. Suppose a devise is made to such of the great- grandchildren of the testator as are alive twenty-one years lifter his death, what objection can there be to adding a pro- vision that if any. such great-grandchild dies under twenty- one his share shall go over? Until such, great-grandchild reaches twenty-one he cannot convey his share whether there is a gift over or not: what harm, then, in extending the time till he reaches twenty-one? But such reasoning would not be considered valid now ; it ought not to have been consid- ered valid then. To take account of the disability of infancy in considering the validity of limitations is entirely contrary to the analogy of the law. An estate tail may pass from infant to infant for centuries without being at any time bar- rable, and in like manner property may accumulate indefi- nitely. In fact, the Rule, in its present shape, by which an arbitrary term of twenty-one years is taken, is less inconsist- ent with legal principle and analogy than it was to make the validity of the extension of the period for creating future interests depend upon the actual presence or absenpe of a minority. 12. Any Number of Lives in esse allowed. § 189. Notwithstanding the statements in G-oring v. Bick- erstaffe ^ and Love v. Wyndham,^ that any number of lives in being might be taken to compose the period during which the creation of future estates would be lawful, Treby, C. J., is eaid, in Luddington v. Kime^ to have been of opinion "that 1 Freem. Ch. 163, 166; § 163, ante. 2 1 Mod. 50, 54; 1 Sid. 450, 451; § 167, ante. » 1 Ld. Raym. 203, 207. 134 THE EULE AGAINST PERPETUITIES. the time allowed for executory devises to take effect ought not to be longer than the life of one person then in esse." But in Scattergood v. Edge ^ the Court of Common Pleas is said to have agreed in holding that " the compass of a life or lives " was a reasonable time, " for let the lives be never so many, there must be a survivor, and so it is but the length of that life." And Lord Hardwicke, in Hopkins v. Hopkins? said: "It is not (in my opinion) material to restrain it to the life of tenant for ].ife of the land, provided it be restrained to the life of a person in being." ^ § 190. Finally, in 1798, came the great case of Thellusson V. Woodford.* A testator gave a large fortune to accumulate until all of his sons and grandsons and grandsons' children who were living at his death were dead, and then to be paid over. He left three sons and six grandsons him surviving. Lord Loughborough, assisted by Lord Alvanley, M. R., and Buller and Lawrence, JJ., held the gift over good, and the House of Lords, on the unanimous opinion of the judges, afBrmed tlie decree. The eccentricity of the will and the large amount involved excited great interest in the case. The arguments were of the most elaborate character,^ and the judges did not conceal their dislike of the will, but no one of the many eminent lawyers who took part in the decision seems to have felt any doubt in the case.® 1 1 Salk. 229. of his Juridical Arguments. It is 2 1 Atk. 580, 596. an agreeable duty to recognize the ^ See Low y. Burron, 3 P. Wms. debt which every student of the 262, 265; 2 Harg. Jurid. Arg, 135, history of the Rule against Perpe- note (iv) ; and Humberston v. Hum- tuities owes to it. berston, 1 P. Wms. 332; 2 Vern. ^ Lord Eldon in his opinion said : 738; Pree. Ch. 455; Gilb. Eq. 128. "It is well known that the late * 4 Ves. 227 ; 11 Ves. 112. Chief Justice of the Court of King's 5 The three days' argument of Bench [Lord Kenyon] could hardly Mr. Hargrave against the validity be brought to think any of the ques- of the executory devise was pub- tions in this case fit for argument." lished by him in the second volume 11 Ves. 144. ORIGIN- AND HISTOEY. 1S5 13. The Invalidity of Remainders for Life to Successive G-en- erations not the Origin hut the Result of the Rule against Perpetuities. § 191. One point only remains to be considered. It is sometimes said that there is a rule of the common law that you cannot limit legal remainders for life to successive gen- erations, and that from this rule the Rule against Perpetui- ties is derived. The opposite is believed to be the case, and that the former rule is simply an" instance of the latter. No suggestion of the rule that you cannot limit life estates in re- mainder to successive generations makes its appearance until the last century, long after the Rule against Perpetuities was firmly established. It has been alleged that the doctrine that you cannot limit a remainder to the issue of an unborn person is an instance of the doctrine that you cannot have a possibil- ity upon a possibility. But this notion of a possibility upon a possibility was an innovation in the law, and was repudi- ated in the Buke of NorfoWs Case} The only instance^of an invalid possibility on a possibility, as given by Lord Coke, which is a remainder to the issue of an unborn person, is a remainder to the heirs of J. S. He says that if J. S. is borti and dies during the particular estate, the remainder is void. But such a remainder takes effect, if at all, at the termina- tion of the particular estate, and would therefore be undoubt- edly held good at the present day.^ In fact, to say that you cannot give a remainder to the issue of an unborn person is not correct. On a gift to a man now unmarried for life, a remainder toliis grandchildren is good. Tlie true expression of the rule, even supposing it to be distinct from the Rule against Perpetuities, is that j'ou cannot give successive con- tingent remainders for life, unless the contingency must occur within lives in being. And that even such limitations were 1 3Ch. Cas. 1,29; §§125-133. 2 See Koutledge v. Doi-ril, 2 Ves. Jr. 857, 366. 136 THE RULE AGAINST PERPETUITIES. not considered bad until after the establishment of the Rule against Perpetuities, appears from the case of Manning v. Andrews.^ § 192. That for a long time no question with regard to remoteness arose on remainders is not surprising. Remainder there could be none after an estate in fee simple, a remainder after a fee tail could be barred at will ; a contingent remain- der after a life estate could practically be barred by a fine, and no contingent remainder was good after an estate for years. The reason why so many cases of remoteness arose concerning executory devises and other conditional limita- tions is that they were indestructible. The destructibility of legal remainders prevented any question arising concerning their remoteness.^ § 193. The first case in which any question of the validity of successive remainders for life came before the courts was Humherston v. Humherston,^ in 1717, more than thirty years after the doctrine of remoteness had been settled in the Buke of Norfolk's Case.* " One Matthew Humberston (reported to have been formerly'- a Christ-Hospital-Boy) devised his estate, which was ver^' considerable, to the Drapers' Company and their successors, in trust to convey the premises to his godson Matthew Humberston for life, and afterwards upon the death of the said Matthew to his first son for life, and so to the first son of that first son for life, &c., and if no issue male of the first son, then to the second son of the said Matthew Humberston for life, and so to his first son, &c., and on failure of such issue of Matthew, then to another Mattliew Humberston for life, and to his first son for life, &c., 1 1 Leon. 256, .stated § 132, ante, of the seventeenth century. Gavth 2 The device of giving the free- v. Cotton, 1 Dick. 183, 188, 191; hold to trustees to preserve contin- 1 Ves. Sr. 524. 1 Jurid. Soc. Paper.«, gent remainders, and thereby pre- 53-55. venting the tenant for life from ^ 1 P. Wins. 332; 2 Vern. 738; destroying ■ the contingent remain- Free. Ch. 455; Gilb. Eq. 128. ders, was not invented till the middle ^ 3 Ch. Cas. 1. i ORIGIN AND HISTORY. 137 with remainders over to very many of the Humberstons (I think about fifty), for their lives successively, and their re- spective sons, when born, for their lives, without giving an estate in tail to any of them, or making any disposition of the fee." Lord Cowper, C, said that an attempt to make a perpetuity for successive lives was vain ; that is, he based his objection on the remoteness of the limitations. There is not a word about a possibility on a possibility. This case furnishes no reason for supposing that remainders are sub- jected to any other rule than are conditional limitations. § 194. In Hopkins v. Hopkins'^ (1738) Lord Hardwicke said that he did not see how an estate could be devised to trustees and their heirs to hold until the birth of a son of a daughter of A., which daughter was unborn at the testator's death, and then to such son;^ but there is nothing said about a possi- bility on a possibility, nor any indication that a different rule would apply in case of a remainder than in case of an execu- tory devise ; and indeed the gift to the daughter's son, if good, would have been an executory devise, and not a remainder.^ § 195. The first suggestion to be found in the books that the doctrine of the invalidity of successive remainders for life is an iudependent original rule, and that the provisions of law concerning remoteness in conditional limitations have been copied from it, is to be found in Lord Keeper North- jngton's judgment in Marlborough v. Crodolphin^ In that case, decided by the Lord Keeper in 1759, there was a devise to trustees for the use of several persons for life, remainder to the use of their first and other sons successively in tail male, with a diiection to the trustees on the birth of each of such sons to revoke the use to him, and limit the use i West, 606; 1 Atk. 580; 1 Ves. 2 ^West, 629; 1 Atk. 596. Sr. 268 ; Co. Lit. 271 b, Butler's » See Lewis, Perp. 413-415. note VII. 2. See Abbiss v. Bur- * 1 Eden, 404; in Dom. Proo. ney, 17 Ch. D. 211 ; 70 L. T. . 10 Allen, 355. Shepard, 130 Mass. 180. See also 2 ggg § 282, anie. Merrifield u. Cobleigh, 4 Cush. 178; ' But see Jones v. Habersham, Voris V. Renshaw, 49 111. 425; Hunt 107 U. S. 174, 183, 184. u.Beeson, 18Ind. 380 ; JefEersonville, * 72 Me. 155. &c. R. Co. V. Barbour, 89 Ind. 375; ^ 51 Conn. 352. See also Hunt v. Den d. Southard v. Central R. R. Wright, 47 N. H. 396; §.305(5), anif. 224 THE RULE AGAINST PEEPETUITIES. § 312. (4.) Possibilities of Reverter. — Possibilities of re- verter after determinable fees were probably put an end to by the Statute Quia Emptores} Where the Statute Quia Umptores is not in force, and tenure exists, i. e. in South Car- olina and, perhaps, Pennsylvania,^ such interests can be cre- ated unless they are too remote. But they would seem to be too remote. The only reasons why they should not be too remote are that they are common-law interests, and that they are releasable. Neither of these is a good reason.^ There is no distinction between them and conditions ; and conditions have been recognized in England as within the Rule against Perpetuities.* But as in America conditions have not been subjected to the Rule against Perpetuities, so in those cases, as well in as out of Pennsylvania, where possibilities of re- verter have been held or assumed to be valid, no objection has been made to them on the ground of remoteness. Whether the American courts, now that the real effect of the Statute Quia Emptores and of the Rule against Perpetuities on com- mon-law interests has been rscognized in England, will carry out the true theorj^ or whether they will think it a proper occasion to apply the maxim communis error facit jus, can only be determined in the future. § 313. The possibility of reverter as it exists after that form of a determinable fee known as a conditional fee, — that is, an estate to a man and the heirs of his body, as it existed at common law before the Statute De Bonis, and as it still exists in South Carolina,^ — can never be too remote ; for if the grantee has no issue, the estate terminates with his life; and if he has issue born, the estate can be at any time alienated, and the possibility of reverter destroyed.^ 1 See § .31 et seq., ante. ^ § 44, ante. ■■' §§ 26, 27, ante. » See Jones v. Postell, Harp. 92, 8 See §§ 296-298, 300-302, ante; 99, 100, note. On executory devises §§ 315, 316, 319, 321, 328, jBost. after fees simple conditional, see * §§ 301, 302, ante. But see Pol- § 14, ante, and § 455, post. lock, Land Laws, 215. INTERESTS SUBJECT TO THE ETJLE. 225 § 314. (5 ) Rights less than ownership in land of others, such as profits, easements^ rents, could be granted at common law de novo to begin infuturo} These rights were probably sel- dom granted to begin at any distant date, and no objection on account of remoteness seems to have been taken to them in early times, any more than to contingent remainders or to conditions. It is not improbable that a common-law grant to a person not in esse is void, and that therefore no such grant could be made except to a living person ; ^ but a grant to A. and his heirs of a profit to begin fifty years or a thousand 3'ears from the date of the deed is good, unless it violates the Rule against Perpetuities. § 315. The only reasons given for exempting such a right so granted from the operation of the Rule against Perpetuities are that a grant is a common-law conveyance, and that the right is releasable. Neither of these is a valid reason.^ So remote a right is greatly against public policy. If created by will it would be an executory devise void for remoteness ; and such a distinction between a common-law grant and a devise is, to say the least, undesirable. § 316. In Grilhertson v. Richards,^ it was held that a rent to begin at a possibly distant day was good ; but no ques- tion was raised of the effect of a common-law grant, as the rent in that case was created by way of use.® ^The Real Prop- erty Commissioners in their Third Report® seem to havecon- sidered that grants of incorporeal hereditaments were not within the Rule against Perpetuities, although they ought to be. But the leading text-writers all agree that they are within the Rule.'' Rents indeed, although incorporeal hereditaments 1 § 16, ante. & S. W. R. Co. v. Gomm, 20 Ch. D. 2 Perk. Grant, 52. 562; § 275, ante. 8 See §§ 296-298, 302, 312, ante; « P. 36. §§ 319, 321, 323, post. ' Lewis, Perp. c. 29. Gilbert, ■> 4 H. & N. 277. Rents, 59, 60. Fearne, C. R. 529, ^ As to Gilbertson v. Richards, Butler's note. Gilbert, Uses (Sugd. see §§ 271-273 a, ante, and London ed.), 195, note. 1 Sand. Uses (5th 15 226 THE EULE AGAINST PEKPETUITIES. in the contemplation of the common law, may be .perhaps most fairly considered as obligations, and therefore their crea- tion as not within the scope of the Rule against Perpetuities; the only right in any property given by a rent is a right to distrain, and this is matter of remedy to which the Rule does not apply ; ^ but grants of profits or easements infuturo seem to give true rights in property, and should therefore be sub- jected to the Rule. § 317. (6.) Shifting and springing uses and executory de- vises are all, without question, subject to the Rule against Perpetuities. § 318. Copyholds. — There appear to be no cases concern- ing the remoteness of limitations of copyholds. But so far as future limitations of copyholds are allowed,^ they would seem to be subject to the same rules as the corresponding limitations of freehold.^ B. PERSONAL PROPERTY. § 319. Chattels real may be created, and chattels real and personal transferred, in futuro.^ Unless the Rule against Perpetuities applies to them, they may be created or trans- ferred fifty or a thousand years from the date of the instru- ment creating or transferring them. The same considerations show that the Rule should govern them as show that it should govern incorporeal liereditaments.^ ed.), 203-205. Sanders indeed, Zoc. i See §273 a, ante; %%1%,'post. cit., refers to Hartopp v. Carbery, in ^ See § 70, ante. the King's Bench in Ireland, as de- ' Surrenders to future uses, i£ ciding the point; but in that case, allowed, which is doubtful, give which is not reported, the rent common-law interests; but it is seems from his statement to have highly improbable that they would been created by executory devise, be exempted from the operation of In Hope !». Gloucester, 7 De G. M. the Rule against Perpetuities on this & G. 647, a covenant to grant leases ground. §§ 296-298, 300-302, 312, at remote periods was held invalid 315,316,an/e; §§ 319, 321, 323, jaosJ. as creating a perpetuity. And see as * §§ 71, 72, 77, an. Hancock, 16 Sim. 371; Bull v. Pritchard, 5 Hare, 567; Lewis, Perp. 424,425; 1 Jarm (4th ed.) 262; 3 Dav. Prec. Couv. (3d ed.) 338-340. In Abbiss V. Burney, two of the judges of the Court of Appeal, it is true, thought there was no particular equitable estate preceding the estate over, which was held too remote ; but they all agreed that had there been, the (so called) equitable remainder •would have been too remote. See Marsden, Perp. 167 et seq. Viee-Chancellor Malins rested his decision largely upon Lord Hard- wicke's opinion in Hopkins v. Hop- kins, West, 606. Lord Hardwicke, indeed, in that case discussed the question whether a future equitable interest was a contingent remainder or an executory devise, and held it to be a contingent remainder; but he then went on to say that an equi- table contingent remainder wanted the essential characteristic of a legal contingent remainder, viz. the need of a freehold to support it. Now it is this very characteristic which re- quires a legal remainder to vest, if at all, at the termination of a life estate. Lord Hardwicke's judg- ment therefore amounts to this: that the limitation in question, if legal, would be a contingent re- mainder, but that in equitable es- tates there is no difference between contingent remainders and execu- tory devises. But see Mar.sden, Perp. 169, note. 2 Bui) V. Pritchard, 1 Russ. 213. Wms. Pers. Prop. (11th ed.) 318. 8 Abbiss V. Burney, 17 Ch. D. 211, 221, 223. 230 THE RULE AGAINST PEEPETlTrTIES. § 327. As rights to enter for breach of condition and pos- sibilities of reverter are purely legal interests, the question above discussed ^ as to the exemption of such rights from the Rule against Perpetuities cannot arise in considering equi- table interests. But an equitable interest analogous to such legal rights exists in a resulting trust on a future contingency to the creator of a trust. In England, doubtless, such a re- sulting trust would be deemed bad, if it might take effect beyond the limits fixed by the Rule against Perpetuities. A trust aiising to the settlor at a remote time is as objectionable on principle as a trust then arising to a third person. In America there are two cases involving the question .^ Iii both the resulting trust was sustained, but in neithei' was the ob- jection of remoteness brought to the attention of the Court. How far the American courts would sustain remote resulting trusts in cases wliere the effect of the Rule against Perpetui- ties was argued before them is uncertain. The idea that con- ditions are not subject to the Rule has taken pretty deep root in this country, with however little reason, and it may be urged that resulting trusts should follow the analogy. But on the whole it would seem wisest to extend the Rule as far as possible to meet the cases which fall within the mischief at which it was aimed, and to confine the exception (uncon- sidered as it was in its growth) to the narrowest limits which the adjudications will admit. § 328. In the case of a charitable trust there is generally no defined cestui que trust, but this undefined interest or right is subject to the Rule against Perpetuities, and cannot begin in futuro.^ When one charitable trust follows another there is an exception to the Rule. Although a charitable trust is to begin at a remote period, yet if it is preceded by 1 §§ 299-313, ante. 2 Easterbrooks v. Tillinghast, 5 Gray, 17, and Daniel v. Jackoway, Freem. Ch. (Miss.) 59. 3 §§ 595, 596, post. INTERESTS SUBJECT TO THE ETJLE. 231 another charitable trust, it will not be void ; indeed, such is the case even if there bfe a change of the trustee. This, which, at least when there is a change of trustee, is a real exception to the Rule, is considered in the chapter on Chari- table Trusts.^ III. CONTRACTS. § 329. The Rule against Perpetuity concerns rights of property only, and does not affect the making of contracts which do not create rights of property. Thus a promise to A. to pay him or his executors or administrators a sum of money on a future event is good, although such event may not happen within twent3'-one years after lives in being ;2 and this is not altered by the fact that the covenant runs with the land (as, for instance, a covenant of warranty), or can, in any way, be enforced by or against other persons than the origi- nal parties and their representatives,^ nor that the obligation has a right of distraint attached to it, for that is only mat- ter of remedy, and not a future limitation of any particular property.* § 330. Where, however, a contract raises an equitable right in property which the obligee can enforce in chancery by a decree for specific performance, such equitable right is subject to the Rule against Perpetuities. This was decided by the 1 §§ 597-603, post. contingency, such bequest would be 2 See Walsh ». Secretary of State void. The creation of an obligation for India, 10 H. L. C. 367; Witham is no part of the law of property; V. Vane, in Dom. Proc, Challis, but the transfer of such obligation Real Prop. 341, 351, 353; Marsden, when created is as much part of the Perp. 25, 26 ; Challis, Real Prop, law of property as the transfer of a 150. Although the Rule does not house or of a table. affect the creation of such a con- ' See Aspden v. Seddon, 1 Ex. D. tract, it does apply to a transfer of 496; Morgan v. Davey, 1 Cab. & El. the contract when created. Thus 114; § 273o, an But see Miles v. Harford, § 349, 2 16 Sim. 395. post. 8 1 K. & J. 296. ' 25 Beav. 409, 414. * See § 480, post. 8 12 Ch. D. 691. » 7 E. is B. 650. 16 242 THE RULE AGAINST PEKPETTTITIES. issue male should be then living, then, and in that case, and so often as the same should happen, the use limited to or in trust for R., and to or in trust for his issue male, should abso- lutely cease. The testator also devised his leasehold land to trustees upon and for such trusts, interests, and purposes, and with, under, and subject to such powers, provisos, and direc- tions as, regard being had to the difference in the tenure of the premises respectively, would best and most nearly corre- spond with the uses, trusts, powers, provisos, and directions in the will declared and contained concerning the testator's freehold estates. R. became entitled to the said certain estates. It was held by Jessel, M. R., that the gift over of the leaseholds took effect. The Master of the Rolls thought that the gift of the leaseholds was executory, and could there- fore be framed so as to avoid the objection of remoteness; but he also went on to say that he thought the gift could be split in two, one on the contingency of R. getting the estates, the other on the contingency of the heirs male of R. getti..g the estates, and that the former was good. The case is a strong one, but the opinion seems correct.^ 1 See Attenborough v. Attenbor- against Perpetuities, you cannot ough, 1 Kay & J. 296; § 480, post. split the expression so as to say if The language of the learned the event occurs which is within the judge in Miles u. Harford so well limit the estate shall go over, al- expresses the law, that it is worth though, if the event does not occur, quoting at length. " This only dis- the gift over is void for remoteness, poses of the question in one view, In other words, you are bound to but there is another view, and as I take the expression as you find it, take an adverse view to the defend- and if, giving the proper interpreta- ants on tliis also, I think I should tion to that expression, the event express my views on that. As I may transgress the limit, then the understand the rule of law, it is gift over is void, a question of expression. If you " What I have said is hardly in- have an expression giving over an telligible without an illustration; estate on one event, and that event On a gift to A. for life, with a gift will include another event which over in case he shall have no son itself would be within the limit of who shall attain the age of twenty- perpetuities, or, as I say, the Kule five years, the gift over is void for SBPAEABLB LIMITATIONS. 243 § 3-19 a. The case of Watson v. Toung^ has been previously discussed.^ remoteness. On a gift to A. for life, with a gift ovei' if he shall have no son who shall take priest's orders in the Church of England, the gift over is void for remoteness ; but a gift superadded, ' or if he shall have no son,' is yalid, and takes effect if he has no son. Yet both these events are included in the other event, because a man who has no son cer- tainly never has a son who attains twenty-five or takes priest's orders in the Church of England, still the alternative event will take effect, because that is the expression. " The testator, in addition to his expression of a gift over, has also expressed another gift over on another event although included in the firs!, event, but the same judges who have held that the second gift over will take effect where it is ex- pressed have held that it will not take effect if it is not expressed, that is, if it is really a gift over on the death before attaining twenty-five or taking priest's orders, although, of course, it must include the case of there being no son. That is what they mean by splitting, they will not split the expression by dividing the two events, but when they find two expressions, they give effect to both of them, as if you had struck the other out of the will. That shows it is really a question of words and not an ascertainment of a general intent, because there is no doubt that the man who says that the estate is to go over if A. has no son who attains twenty-five, means it to go over if he has no son at all, it is, as I said before, because he has not expressed the events separately, and for no other reason. That is my view of the authorities. This is a question of authorities. " Now, we come to the case we have before us. The estate is to go over if any of his sons get another estate, that is, if any one of his sons who ha§ got possession of this estate gets one of the other estates, or if any of the issue male of the body of any of the sons gets the estate. Here you have two events expressed. He might have said, if any of the issue male of my body get the estate, which would have included both events^ and then you could not have split it up; but he has not said so. He has divided it for some reason or other, probably a conveyancer's one, because it is an alteration of a conveyancer's form. The words ' sons ' and ' issue male ' are both added, but he has divided that and suggests two events, then and in any of the events ' and so often as the same shall happen the uses hereby limited of and concerning my free- hold hereditaments to or in trust for any such younger son or whose issue male shall for the time being be- come entitled as aforesaid, and to or in trust for his issue male shall absohitely cease.' That is, there is a cesser of the estate either of the younger son or the issue male of the younger son. Why should I alter 1 28 Ch. D. 436. See § 310 a, ante. 244 THE BULB AGAINST PEEPETUITIES. § 350. Attorney- General v. Wallace} Gift by will on the death of A. without child or children, or should she not have any child alive at her death, or should her child or children die without issue, in either event over. A. died without leaving issue at her death. Held, that the gift over took effect. § 351. Armstrong v. Armstrong? Gift by will in the case of A. " departing this life without issue, or such issue dying 'themselves." A. died without leaving issue at his death. It was held that " departing this life without issue " meant "dying without leaving issue at death," and that the gift over took effect. § 352. Acherman v. Vreeland? Bequest to A. in fee, but if she died without issue, or her children died before her with- out issue, then over. A. died without leaving issue living at her death. Held, that the gift over took effect. the words? Why should I say that the event of the younger son prop- erly expressed succeeding to the es- tate being in due time is to be void for remoteness? The reason sug- gested to nie is this, it is quite plain he means it to go along the whole line, I agree. " So in the case of a man dying . without a son attaining twentj'-five. That is not good although he means it to apply to the case of his having no son, and there is none. It is not what he means as to the event, but whether he has expressed the event on which the estate is to cease, so as to bring one alternative within the limits, and if he has chosen to say the estate is to cease first of all, as he might have said if a younger son becomes a peer or attains the age of fifty, or any other event within the limits, or any of the issue male of my younger sons shall be- come a peer, one gift over might be valid, he might have said if any of my issue male shall become a peer, or if the issue male of my younger son become a peer thereupon the estate shall go over, that would have been different, but I think I have no right to alter the expression. The law is purely technical. The expressions are there, and using them gives effect to the real inten- tion. Why should I go out of my way to extend technical law to a case to which it has not hitherto been extended? It seems to me that I ought to read the expressions as I find them. The event which is expressed has happened. It is within legal limits, and I think the estate should go over." Pp. 702- 705. 1 7 B Monr. 611, 616. MlrB. Monr. 333,343-348. » 1 McCart. 28. SEPARABLE LIMITATIONS. 245 § 353. Jackson v. Phillips^ and Schettler v. Smith,^ the latter a case under the New York statutes, are to the same effect.* § 354. The statement in the Third Report of the Real Property Commissioners,* that " if an executory estate be limited to take efPect, either in case A. shall die in the life- time of B., or in ease there shall be an indefinite failure of issue of C, the whole will be void," if it is intended to apply to a case where the contingencies are expressed separately, is certainly incorrect.^ § 355. The rule that you cannot split a gift must not be extended to the case of gifts to a class, where the gift to each member of the class is entirely independent of the gifts to the other members. Thus under a bequest of $1,000 to each one of the testator's grandchildren who reaches twenty-five, grand- children living at the testator's death will take the legacy, although those born afterwards cannot.® § 356. There is a special class of cases which seems to form an exception to the rule that a gift not split by the donor cannot be split by the law, but which, from its peculiar character, is not likely to be extended. When personal prop- erty is bequeathed to a series of person^ not in esse by words which would create successive estates tail if the subject of the gift were real estate, and the first person does not come in esse, the next will take. For instance, suppose the bequest takes this, which is the usual form : Leaseholds or other per- sonal property are given to A. for life, remainder to the first and other sons of A. in succession, and the heirs male of their respective bodies; and in default of such issue of A. to B. for life, remainder to the first and other sons of B. in succession, and the heirs male of their respective bodies. Here if A. 1 14 Allen, 539, 572. ' As is remarked in Marsden, 2 41 N. Y. 328. Perp. 78. 5 Cf. Meller v. Stanley, 2 De G. J. » See these cases discussed, §§ 389 & S. 183, 192. et seq., post. * P. 42. 246 THE EULE AGAINST PERPETUITIES. and B. die, and A. has no sons, then the first son of B. will take. § 357. Mr. Lewis ^ and Mr. Jarman^ do not seem to regard^ this as any exception to the ordinary mode of applying the Rule against Perpetuities. But an exception, it is submitted, it really is. If there were no Rule against Perpetuities the limitations over would take effect not merely if A. never had sons, but also if A. had sons whose issue afterwards failed. Now applying the Rule' against Perpetuities, the limitation on the latter contingency is certainly too remote, and the limitation over in case A. has in fact no sons can only be preserved in one of the two following ways: — § 358. First. The gift over in case A. dies without ever having had male issue may be separated from the gift over in case such issue becomes extinct. B}- doing this the former gift can be sustained, although the latter is bad. But to do this is in conflict with the principle that a gift expressed as one cannot be separated into two, for there is certainly but one gift here expressed. § 359. Secondly. The gift over may be construed to be a gift only in case A. never has any male issue. But apart from the Rule against Perpetuities no such construction would ever be adopted, and it is settled law that the Rule ought not to affect construction.^ § 860. Whichever mode, therefore, of supporting the gift over under the circumstances that A. dies without ever hav- ing had issue is adopted, there seems to be an exception to the general rule. § 361. Such limitationtj were originally held void for re- moteness.* But in Higgins V. Bowler^ (1707) Lord Cowper, 1 Pei-p. 509; Suppl. 169. lexf. 33 (1664). Surges v. Burges, 2 2 Jarm. Wills (4th ed.), 576. Pollexf. 40; 1 Mod. 115; 1 Ch. Cas. 8 See Chap. XIX., ;)osf; andalso 229; Finch, 91 (1674); § 166, ante. Lambe v. Archer, 1 Salk. 225 ^ j p, Wms. 98; 2 Vern 600; sub * Backhouse v, Belliiigham, Pol- nom. Higgins v. Derby, 1 Salk. 156. SEPARABLE LIMITATIONS. 247 C, held such a limitation to be good ;i and so did Sir Joseph Jekyll, M. R., in Stanley v. Leigh"^ (1732). In 1734, how- ever, in Clare v. Clare ^ and Sabharton v. Sahharton,^ Lord Tal- bot, C, refused to follow Higgins r. Bowler and Stanley v. Leigh, and held such limitations to be too remote. But after- wards he sent a case arising under the same will as was in question in Sabharton v. Sahbartoti to the Court of King's Bench, who certified that the gift over was good ;° and Lord Hardwicke, who succeeded Lord Talbot, made, in 1739, a decree accordingly,^ and in Grower v. Crrosvenor'^ (1740) he expressed a strong opinion to the same effect.^ § 362. In the mean time the House of Lords, in Brett v. Sawbridge^ (1736), had held such a limitation too remote. But in Pelham v. Gregory i" (1760) they held it good when- ever the persons to whom the prior interests were given did not in fact come into existence ; and the law has been so set- tled in England ever since.^^ The fact that this limitation of personalty follows the ordinary form of limiting realty in English settlements and wills has probably given rise to this exception. 1 See Stanley v. Leigh, 2 P. Wms. issue was meant, and so did Lord 686, 694-698; Clare v. Clare, Cas. Hardwicke. See Gower v. Grosve- temp. Talb. 21, 26; Wyth v. Black- nor, 5 Mad. 337, 346, 347; Barnard, man, 1 Ves. Sr. 193, 202. Ch. 54, 61, 62. 2 2 P. Wms. 686. ' ' 5 Mad. 837; Barnard. Ch. 54. s Cas. temp. Talb. 21. ^ But see Lord Hardwicke's re- * Cas. temp. Talb. 55. marks in Wyth v. Blackman, 1 Ves. 6 Sabbarton v. Sabbarton, Cas. Sr. 19fi, 202. temp. Talb. 245, 250. ' 3 Bro. P. C. (Toml. ed.) 141. 6 See 2 P. Wms. 699, note. The " 3 Bro. P. C. (Toml. ed.) 204. gift over in Sabbarton v. Sabbarton ^^ Knight v. Ellis, 2 Bro. C. C. 570. was On dying without leaving i.ssue. Phipps v. Mulgrave, 3 Ves. Jr. 613. This is now held in the case of per- Boydell v. Golightly, 14 Sim. 327. sonalty to refer to a definite failure Lewis v. Hopkins, 3 Drew. 668; sub of issue, Forth v. Chapman, 1 P. nam. Williams v. Lewis, 6 H. L. C- Wms. 663; 2 Jarm. Wills (4th ed.), 1013. Lewis, Perp. Suppl. 87, 88, 498, 499; but Lord Talbot consid- 169. Marsden, Perp. 127. 3 Dav. ered that an indefinite failure of Free. Couv. (3d ed.) 602, note. 248 THE RULE AGAINST PEEPETTJITIES. § 363. In those cases where personalty is given to go ac- cording to limitations of realty, the words " so far as law and equity will permit," or like expressions, are often used, and, in connection with the exception just discussed, have given rise to a series of cases. § 364. It was once held by Lord Hardwicke, C.,^ that such a trust was executory, and that the personalty ought to be so settled that if the first tenant in tail died under tw-enty-one it would go over to the person who should succeed him in the realty.^ § 365. But this is now overruled, and it is settled that where personalty is placed in trust to go with settled land, " so far as the rules of law or equity will permit," every one who takes a life estate in the realty takes a life interest in the personalty until you come to a person in whom vests an estate tail in the realty. Such a person takes an absolute interest in the personalty.^ It has often, however, been regretted that these trusts are not still deemed executory.* 1 Gower v. Grosvenor, 5 Mad. 564; L. R. 5 H. L. 87, 101, 107; 337; Barnard. Ch. 54. Inre Exmouth, 23 Ch. D. 158; In 2 He made a like ruling in Traf- re Johnston, 26 Ch. D. 538; Lewis, ford V. Trafford, 3 Atk. 347. See Perp. 585, 644, 645; 2 Jarm. Wills Scarsdale v. Curzon, IJ. & H. 40, (4th ed.), 578; Theob. WiUs (2d 59-61. ed.), 552, 553; 3 Dav. Free. Conv. 8 Foley u. Burnell, 1 Bro. C. C. (3d ed.) 600, 601; Lewin, Trusts 274, 285; 4 Bro. P. C. (Toml. (7th ed.), 113; 1 L. C. iu Eq. (5th ed.) 319. Vaughan v. Burslem, 3 ed.) 25, 35. Cf. Montagu v. Inchi- Bro. C. C. 101. Fordyoe v. Ford, quin, 23 W. R. 592; In re Bute, 2 Ves. Jr. 536. Carr v. Erroll, 14 27 Ch. D. 196. Ves. 478. Stratford v. Powell, 1 « Per Lord Eldon, Lincoln v. Ball & Beat. 1. Rowland v. Morgan, Newcastle, 12 Ves. 218, 236. Per 6 Hare, 463; 2 Phil. 764. Doncaster Lord Cottenham, Rowland v. Mor- 0. Doncaster, 3 K. & J. 26. John- gan, 2 Phil. 764, 767. Per Lords son's Trusts, L. R. 2 Eq. 716. See Westbury and Cairns, Harrington especially Scarsdale v. Curzon, 1 J. v. Harrington, L. R. 5 H. L. 87, & H. 40, where the cases are fully 101, 107. discussed; and also Christie v. Gos- As to the provisions which will ling, L. R. 1 H. L. 279 ; Harring- make such a trust executory, and as ton V. Harrington, L. R. 3 Ch. to how such a trust, when executory, SEPAKABLE LIMITATIONS. 249 § 366. Som'etimes an express provision prevents such an executed trust of personalty from vesting absolutely in the first tenant in tail before he reaches twenty-one. ^ § 367. A gift of personalty which would be otherwise good under the preceding sections is not rendered bad by a provi- sion that it shall not vest absolutely in any tenant in tail unless he shall attain the age of twenty-one years. Such provision is only applicable to those who might otherwise have taken, viz. tenants in tail by purchase ; it does not have the effect of extending the number who could take, and there- by rendering the gift remote.^ § 368.' The separableness of gifts to classes and to series will be considered in the two following chapters. will be executed, see Newcastle v. Lincoln, 3 Ves. Jr. 387; 12 Ves. 218; Soarsdale v. Curzou, 1 J. & H. 40; Holmesdale v. West, L. R. 3 Eq. 474 ; suh nom. Sackville-West V. Holmesdale, L. E. 4 H. L, 543; Shelley v. Shelley, L. R. 6 Eq. 540 ; Miles V. Harford, 12 Ch. D. 691; Marsden, Perp. 131-135; 1 L. C. in Eq. (5th ed.) 26; Lewin, Trusts (7th ed.), 105, 106, 112-114; § 418, post. The usual form of executing such a ti'ust is to suspend vesting in the first tenant in tail until he reaches the age of twenty-one years. 1 See Newcastle v. Lincoln, 3 Ves. Jr. 387; 12 Ves. 218; Potts V. Potts, 3 J. & Lat. 353; 1 H. L. C. 671 (Sugd. Law Prop. 293-299) ; Scarsdale v. Curzon, 1 J. & H. 40; Cox V. Sutton, 25 L. J. Ch. 845; 2 Jur. N. s. 733; Hogg v. Jones, 32 Beav. 45; Johnson's Trusts, L. R. 2 Eq. 716; Harrington v. Harring- ton, L. R. 3 Ch. 564; L. R. 5 H. L. 87,93, note; HoUoway u. Webber, L. R. 6 Eq. 523 ; sub nom. Martelli V. Holloway, L. R. 5 H. L. 532; 1 L. C. in Eq. (5th ed.) 36; 2 Jarm. Wills (4th ed.), 579, 581 and note (t); Theob. Wills (2d ed.), 553; 3 Dav. Prec. Conv. (3d ed.) 625, note ; Hayes & Jarm. Forms of Wills (8th ed.), 411-413. 2 Gosling V. Gosling, 1 De G. J. & S. 1; sub nom. Christie u. Gosling, L. R. 1 H. L. 279 (overruling Gos- ling V. Gosling, 32 Beav. 58). Hol- loway V. Webber, L. R. 6 Eq. 523; sub nom. Martelli u. Holloway, L. R. 5 H. L. 532. Harrington u. Har- rington, L. R. 3 Ch. 564; L. R. 5 H. L. 87. Marsden, Perp. 124^131. As to a gift of the principal of a fund "after the law admits of no further division " of the income, see Pownall V. Graham, 33 Beav. 242 ; § 219, ante. 250 THE KULE AGAINST PEEPETUITIES. CHAPTER X. LIMITATIONS TO CLASSES. § 369. There is often a gift to a class of persons, for ex- ample, to the grandchildren of a testator, upon a contingency which may happen beyond the limits of the Rule against Perpetuities ; as, for instance, a bequest of money to be divided among those of the testator's grandchildren who reach twenty- five. Such a gift is bad, although the testator has grand- children living at his death. For although if the living grandchildren reach twenty-five, they must do so during lives in being at the testator's death, namely, their own lives, yet as they may all die before reaching twenty-five, the class may ultimately be composed of grandchildren not born at the testator's death, and the bequest may therefore vest more than twenty-one years after the end of all lives then in being. § 370. A devise to the testator's grandchildren as a class is good if the vesting is not postponed after they become of age, for they must all become of age within twenty-one years after the death of their parents (the testator's children), and the parents must all have been born (or begotten) in the testator's lifetime.^ What is true of a ddvise to grandchildren of the testator is true also of a devise to grandchildren of a person who has died before the testator ; but a devise to all 1 Gifts, however, have often testator's child may marry some per- f ailed by being made to such grand- son unborn at the testator's death, children as sui'vive both their pai-- such a gift to graudohildreu is too ents, viz. the testator's child, and remote. See § 214, ante. his or her wife or husband. As the Li:.:iTATIONS TO CLASSES. 251 the grandchildren of a person who is living at the testator's death is bad, for such person may have children born after the testator's death, and the children of such children may not be born within twenty-one years after the death of all persons living at the testator's death. § 371. In a marriage settlement limitations to the grand- cliiklren of the parties of the marriage are not good, and limitations to the children, in order to be good, must vest in them not later than twenty-one. § 372. The usual case of a gift to a class which violates the Rule against Perpetuities is that of a devise to such of the grandchildren (or of the children of some living person) as reach an age over twenty-one, say twenty-five ; and this will serve as a typical case. The first point to consider is whether the devise is to vest at twenty-five, or whether it vests at the death of the parent (or other period not too remote), subject to be divested if a devisee dies under twenty-five. In the former case the devise is bad ; in the latter the devise is good, and the divesting gift over bad.i § 373. Assuming then that the devise is not to vest until the remote period, the devise to the whole class is bad; and it is immaterial that some persons are in esse who, should they reach twenty-five, would be entitled to share, for none of them may reach twenty-five, and the whole class may ultimately be composed of persons who are not born at the testator's death. This seems to have been first held by Lord Kenyon in Jee v. Audley ^ (1787) ; but the most important case is Leake v. Robinson^ (1817), in which Sir William Grant, M. R., clearly showed that the whole gift was void, and so the law has stood ever since. 1 The cases on this question of kins, Wills, c. 18; Marsden, Perp. consti'uction are very numerous, c. 11. See Chap. 111., ante, and §§ 205-209, ^ i Cox, 324; ante; IJarm. Wills (4th ed.), c. 25; » 2 Mer. 363, 388 et seq. Theob. Wills (2ded.), c. 33; Haw- 252 THE EULE AGAINST PERPETUITIES. § 374. The later cases in which gifts by will to grandchil- dren of the testator (or to children of living persons) on their attaining an age greater than twenty-one have been held void for remoteness are numerous.^ So limitations in a marriage settlenaent to the children of the marriage at an age beyond twenty-one are too remote.^ And a gift by will to be divided between such grandsons as reach twenty-eight, and such granddaughters as reach twenty-one, is bad altogether.^ § 375. In gifts to those members of a class who reach a required age, which all the members of the class may not reach till a period beyond the limits of the Rule against Per- petuities, there often is a member of the class who, if he ever reaches the required age, must do so within the limits of the Rule ; e. g. a grandchild of the testator born before the latter's death. When such member reaches the required age, say 1 Bull V. Pritohard, 1 Russ. 213; 5 Hare, 567. Vawdry v. Geddes, 1 Kuss. & M. 203. Judd v. Judd, 3 Sim. 525. Dodd v. Wate, 8 Sim. 615. Newman v. Newman, 10 Sim. 51. Cromek v. Lumb, 3 Y. & C. 565. Comport v. Austen, 12 Sim. 218. Blagrove v. Hancock, 16 Sim. 371. Boughton v. James, 1 Coll. 26; sub nom. Boughton v. Boughton, 1 H. L. C. 406. Ring V. Hardwick, 2 Beav. 352. Grif- fith V. Blunt, 4 Beav. 248. Bute V. Harman, 9 Beav. 320 (head- note wrong, see Boreham v. Bignall, 8 Hare, 131 ; and Southern v. Wol- laston, 16 Beav. 166, 168, note b). Palmer v. Holford, 4 Russ. 403. Williams leaving issue, or leaving issue and all of them should die under age and unmarried, then the 1 18 Ch. D. 441. 260" THE EULE AGAINST PERPETUITIES. share of money which would have been payable to him under the aforesaid trusts should be paid over to X., and also that if W. should die without leaving any issue, or leaving any all of them should die under age and unmarried, then the share which would have been payable to the children of W. under the trusts aforesaid should be paid over. The Court of Appeal held that although the trust for sale might be bad, as it was not to take effect until the death of the son's widow, who might not have been born in the testator's lifetime, yet that the right to the property was in all the children of W. and of M., and not merely in those who should be living at the death of the son's widow, and the issue of those who had then deceased ; in other words, that the children had vested inter- ests, which on their death without issue would pass to their representatives; that the gift to the issue of such as should then be dead leaving issue was substitutional, although there was here "a difficulty, the words used not being appropriate to a clause of substitution," ^ and was bad as being too remote, leaving the gifts to the children indefeasible. The decision is near the line.^ § 389. Independent Grifts. — When gifts are made to sev- eral persons by one description, but the amount of the gift to one is not affected by the existence or non-existence of the others, then the gifts are separable. Thus if the testator gives Xl,500 to each one of X.'s children who reaches twenty -five, each child born before the testator's death upon reaching twenty-five will take the legacy, although those 1 Per Jessel, M. R., p. 446. or ought to affect the application 2 See Speakman v. Speakman, 8 of rules of construction or conven- Hare, 180 ; Taylor v. Frobisher, o ience as to the time for determining De G. & Sm. 191; Gooch v. Gooch, a class, see Chap. Xl'S.., post. 3 De G. M. & G. 366; Baldwin v. A convenient list of the English Eodgers, lb. 649. cases in which gifts to classes have On the question how far the Rule been held too remote will be found against Perpetuities has affected in Marsden, Perp. 107-111. LIMITATIONS TO CLASSES. 261 Tdoiii after will not. Boughton v. James} Storrs v. Benhow? Wilkinson v. Duncan.^ And again, although the amount of each legacy is dependent upon the number of legatees, yet if this number must be determined within the required limits the gifts are separable. Thus if a fund is given to be divided into as many shares as there are children of A. who survive A., one share to be paid to each child for life, and on his death to its children, the children of those children of A. who were born in the testators life will take the share in which their parent had a life interest, while the children of such children of A. as were not born until after the testator's death will take nothing.* § 390. In Me MichaeVs Trusts ^ there were bequests to the children of the testator's brother, the shares of those daugh- ters who were married women not to be anticipated. The children seem all to have been alive at the testator's death, 1 1 Coll. 26. The report of this case in Collyer's Reports does not show that the point was so decided, but it appears frotn the report of the case on appeal. Boughton v. Boughton, 1 H. L. C. 406, 414. 2 3 De G. M. & G. 390. In this case a testator directed his execu- tors to pay £500 apiece to each child that might be born to either of the children of either of his brothers. Lord Cranworth, C, held that a grandchild of a bi-other of the testator, which grandchild was living at the testator's death, was entitled to his legacy. Unless the gift was to be confined to such grandchildren as had been born at the testator's death (as Sir John Leach, M. E,., thought, Storrs v. Benbow, 2 Myl. & K. 46), it would Bcem that all the gi-andchildren whose parents had been born at the date of the testator's death ought to take. s 30 Beav. 111. See Blandford V. Thackerell, 2 Ves. Jr. 238, com- mented on in Leake v. Robinson, 2 Mer. 363, 392. * Griffith V. Pownall, 13 Sim. 393. Cattlin V. Brown, 11 Hare, 372. Wilson V. Wilson, 4 Jur. N. s. 1076; 28 L. J. Ch. 95. (See 4 Jur. N. e. pt. 2, 497, 512, 520.) Bell v. Bell, 13 Ir. Ch. 517. Knapping v. Tomlinson, 34 L. J. Ch. 3; 10 Jur. N. 8. 626; 12 W. R. 784. See Bentinck v. Portland, 7 Ch. D. 693, 700. Cf. Cromek v. Lumb, 3 Y. & C. 565. The case of Arnold v. Con- greve, 1 Russ. & M. 209, § 424, post, is contrary to the later authorities, and must be considered as not cor- rectly stating the law. See Knapp- ing V. Tomlinson, ubi sup. 6 46 L. J. Ch. 651. 262 THE ETJLE AGAINST PERPETUITIES. but Hall, V. C, held that the restraint on anticipation was bad ; and in Re Ridley, Buckton v. Say^ Jessel, M. R., de- cided a similar case in the same way. But in neither of these cases do the learned judges seem to have had the poiut in question brought to their attention ; and in Herbert v. Weh- ster,^ upon the same question arising again before Hall, V. C, he pointed put his own error in Re Michael's Trusts, and overruled it.^ § 391. The case of G-reenwood v. Roberts^ has been much discussed. There was a bequest to A. for life, and on his deatli to such of his children as might be then living, in equal shares, for their respective lives, and on the death of any of them its share of the principal to be divided among its chil- dren when they should become of age ; and the testator further directed that if any of A.'s children should at A.'s decease be dead and have left issue, such issue should be entitled to the share of the principal to which their parent would have been entitled had he survived A. A. had children born in the tes- tator's lifetime. Sir John Romilly, M. R., held that the gifts to the children of those children of A. who were born before the testator's death were not separable from the gifts to the children of those children of A. who were not born till after the testator's death, and that therefore none of the grand- children of A. could take any share. He said the gift was "distinctly to a class." In Cattlin v. Brown^ Wood, V. C, approved the decision in Greenwood v. Roberts, on the ground that the children of A. in esse at the testator's death might all die before A. ; but surely that circumstance is immaterial, — the important matter is that the shares must be definitely fixed at the death of A. ; and as is pointed out by a writer in 1 11 Ch. D. 645. when void for remoteness, see " 15 Ch. D. 610. §§ 432-438, post. 8 See Gray, Restraints on Aliena- * 15 Beav. 92. tion, §§ 272, e, f. On the treat- 6 n Hare, 372. ment of restraints on alienation LIMITATIONS TO CLASSES. 263 the Jurist,^ and by Kindersley, V. C, in Knapping v. Tomlin- son^ the reason given and approved by Wood, V. C, as the ground for the decision in Greenwood v. Roberts, would have required him to decide Cattlin v. Brown precisely contrary to what he did. In Webster v. Boddington ^ Sir John Romilly, M. R., defended Greenwood v. Roberts on a ground which is not suggested in the original opinion. He said the time for determining the shares was not when A. died, nor when his children reached twenty-one, but when a class composed of all the children of A. who reached twenty-one, and also of all the children who reached twenty-one of children of A. who died before reaching twenty-one, reached twenty-one, and that as this might not happen till beyond the required limits the whole gift was too remote. It is hard to see how such a construction could be put on the will, but on such a con- struction of course the decision was correct.* The cases cited in § 389, ante, as well as the reason of the thing, show that when, on a gift to a class, the number of the shares is definitely fixed within the time required by the Rule against Perpetuities, the question of remoteness is to be considered with reference to each share separately. § 392. There are cases in America to the same effect. In Lowry v. Muldrow^ there was a devise to A. for life, remain- der to his children for life, the share of each child to go to its children in fee. All of A.'s children were in fact born at the death of the testator. It was held that the limitation to their children was not too remote. In Hills v. Simonds ^ there was a devise to the children of the testator's brothers and sisters for life in equal shares, and after the death of each to its chil- dren or legal representatives. The testator's brothers and 1 4 Jur. N. s. pt. 2, 512, 520. wood v. Roberts is discussed in Bell 2 34 L. J. Ch. 3. V. Bell, 13 Ir. Ch. 517; Maisden, 3 26 Beav. 128. Perp. 285^286; 1 Jarm. Wills (4th * Besides the case of Knapping ed.), 267-271. V. Tomlinson and the letters in the ' 8 Rich. Eq. 241. Jurist, meutioned above, Green- ^ 125 Mass. 536. 264 THE kule; against peepettjitibs. bisters were living at his death. It was held that the gift to the children or legal representatives of such of the children of the testator's brothers and sisters as were, in fact, born in his lifetime was not too remote.^ § 393. In two cases, however, in Massachusetts the princi- ple has been overlooked. In Sears v. Russell'^ property was devised in trust for the testator's daughter A. for life, and on her death for her children and their heirs in equal shares ; but if any of A.'s children should die after her, but in the lifetime of any husband of hers, without issue, then the share of such child sliould go to the testator's heirs. A. survived the testator, and died leaving two children, one of whom was born before the testator's death. The Court held (1) that dying without issue referred to a definite failure of issue ; (2) that the gift over to the testator's heirs should be con- strued to be to those who should then be the testator's heirs, and was therefore contingent ; and (3) that as the contin- gency might occur at any time in the lifetime of any husband of A., and as such husband might not be born at the death of the testator, tlie whole gift over was too remote. But as the shares of A.'s children must have been fixed definitely at her death, and as the fate of one did not in any way affect that of the others, thej' might and ought to have been considered separately ; and therefore the gift over of the share of that child of A. who was born in the testator's lifetime, upon the death of such child without issue, was good. § 394. In Lovering v. Lovering^ land was devised to trus- tees in trust to pay the rents to the testator's daughter Nancy for life, and on her death to her children during their lives. " And as the children of said Nancy shall successively decease," the land or its proceeds to be conveyed in fee or paid "to and among the heirs at law of all the children of said Nancy, that is to say, that as said Nancy's children shall successively 1 See Pleasants v. Tleasants, 2 Call, 319, 3.38. 2 8 Gray, 86. 3 129 Mass. 97. LIMITATIONS TO CLASSES. 265 decease, a proportion of said estate, or the proceeds, are to be conveyed or distributed to and among the respective heirs at law of each child so deceasing, said Nancy's grandchildren to take in right of representation of their deceased parents." Nancy's children were in fact all born in the lifetime of the testator. The Court say : " It is conceded that, if the devise of life estates to the children of " Nancy " would include chil- dren born after the death of the testator, the limitation over to the heirs of such children is void for remoteness." And the Court decided, undoubtedly quite correctly, that the de- vise did include after-born children. But this concession should not have been made. The gifts to the heirs of Nancy's children were not too remote. The shares must have been determined at her death. The heirs of each child took her share, and only her share. Nothing after the death of Nancy in any way affected the amount of any share. The question of remoteness was to be considered with regard to each share separately. And as the children of Nancy were all alive at the testator's death, their heirs were entitled to their shares. Bu-t the rights of the heirs were " conceded" away.' § 395. The same mistake into which the Massachusetts court fell in Sears v. Russell and Lovering v. Lovering was made by the Supreme Court of Pennsylvania in Smith's Ap- peal.'^ In that case property was devised by A. in trust to pay the income to B. for life, and after her death as she 1 Mr. Crocker, in his Notes on point decided in Hills v. Simonds, Common Forms (3d ed.), 437, 438, and the court, not having the mat- says that in Lovering v. Lovering ter drawn to theii' attention until " the rule laid down in Hills v. after the case had been decided, Simonds appears to have been ig- altered an opinion previously writ- nored, the opinions in both, eases ten so as to say, ' It is conceded,'" being given by the same judge; it &c., "thus endeavoring to avoid is understood, however, that in making a decision that should con- Lovering i'. Lovering the counsel tradict the earlier one." failed to suggest to the court the ^ 88 Pa. 492. 266 THE EXILE AGAINST PERPETUITIES. should by will appoint. B. by her will appointed that the income should be divided among her children, then living, for life, and that " after their several and respective deaths " the share of the piincipal producing the income of the one dying should be transferred to such person or persons as he or she should by will appoint, and in default of such appoint- ment over. B.'s children were all born at A.'s death. It was held that the appointment by B. was " wholly void." But the appointment to B.'s children was good, because their interest took effect at her death ;i and as their shares were then made separate and independent, they were to be treated separately, and the gifts over of the shares of those who were born at A.'s death were good ; and as they were all born at A.'s death, the gifts over of all the shares were good.2 § 396. There are two or three other cases in the United States on gifts to classes which call for attention. In Moore V. Moore ^ a testator directed that his property should be kept by his executor as a fund, and added : " Should any of my chil- dren, or grandchildren, come to suffering, in any other way, save by idleness, drunkenness, or anything of the kind, so as to become an object of charity, I want the said executor to give a part of this to such child or grandchild." The provision was held void. In order that any child or grandchild should take an interest it must come to suffering ; this, in the case of a grandchild, might be beyond the required limits. The grandchildren formed one class with the children; the share of each "beneficiary might depend upon the number of bene- ficiaries ; this might not be determined till a remote time. Consequently the whole gift was too remote. The decision therefore seems correct. 1 See § 239, ante. post. Cf. also Stephens v. Evans, ^ This case is also bad for an- 30 Ind. 39. other reason. See §§ 523, 523 a, s 6 Jones, Eq. 132. LIMITATIONS TO CLASSES. 267 § 397. In Croldsborough v. Martin ^ property was devised to a trustee iu trust to pay the income to H., or to use it, in the discretion of the parties, for the support and maintenance of H. ; and in case H. should die leaving issue, "the trust hereby created shall extend to and be executed for said issue in the same manner as directed for, and on behalf of " H. The Court held that " issue " embraced all the lineal descend- ants of H., and that the trust was therefore void. Such a gift would certainly be too remote. But to hold that all the issue of H. would have taken appears to have been erroneous. The issue took as purchasers, and according to fundamental principles of construction, when an estate is given to a class, that class will not include any persons who are born after the interest vests in possession.^ There would seem, therefore, to, have been here a good gift either of an equitable fee or an equitable life estate to those issue of H. who were in esse at her death.^ § 398. So in Caldwell v. Willis,^ where there was a bequest to A., and after his death to his "child or children then living, and the descendants of such child or children and their heirs forever," the Court, having reached the conclusion that the gift was to all descendants to the remotest generations as a class, naturally held it void as to all ; but the construction put on the bequest seems extraordinary, and, entirely apart from any question of remoteness, impossible to carry out.^ 1 41 Md. 488. bad, seems to have been in the mind 2 Theob. Wills (2d ed.), 259-262. of the Court in deciding Goldsbor- 8 The idea which found expres- ough v. Martin. sion in Barnum u. Barnum, 26 Md. ^ 67 Miss. 555. 119, and Deford ». Deford, 36 Md. ^ In connection with the preced- 168, §§ 234-237, 240, ante, that a ing sections, and on the question trust continuing more than twenty- how far a series constitutes a class, one years beyond lives in being is see the following chapter. 268 THE KUIiE AGAINST PERPBTtJITIBS. CHAPTER XL LIMITATIONS TO A SEEIES. § 399. Pkopeety is sometimes given to, or in trust for, the person who, from time to time, may fill a certain position, or answer a certain description. Thus chattels may be given in trust to pay the income to A. during his life, and on A.'s death to such person for life as may be, from time to time, the owner of a certain estate. Here we have a series of life interests to the successive owners, beginning with the death of A. and continuing indefinitely. No one of this series, ex- cept the first, can take effect, for every owner, except the first, may not become owner until more than twenty-one years after a life in being. But can the first take? It is certain that his interest will not begin at too remote a period, for it will begin at the death of A. It has been suggested that the whole series form a class, and that unless all can take, none can take. But the reason why one member of a class ordina- rily cannot take, where the gifts to other members are too remote, is that the share of one member is dependent upon those of the others, and so long as the shares of some are un- determined they are all undetermined. But in the case we are now considering, the gift to the first taker is entirely unaffected by the question whether the gifts to his successors are good or bad. His interest is affected by them neither in extent nor duration.^ There seems no good reason why the 1 In Mackworth v. Hinxman, 2 person on whom the baronetcy Keen, 658, personalty was be- should devolve, so that each baro- queathed to Sir G. A., Baronet, for ne); should take the interest for life, life, and after his death for the Sir G. died, and Sir J. succeeded LTMITATIONS TO A SERIES. 269 first one of the series should not take. The authorities will now be examined. § 400. Bacon v. Proctor} Land was devised in trust to pay the rents to, or for the benefit of, such person as for the time being should succeed to the testator's baronetcy, to the end that the estate might be continued in his family, and be enjoyed with the title, so long as the rules of law and equity would permit. It was held by Graham, B., sitting for the Master of the Rolls, that the testator's son and heir toolj a life estate. Nothing was decided as to the subsequent interests. Lord St. Leonards, who was of counsel in the case, says : " This decision was acquiesced in simply because it was the general opinion of the bar that it could not be disturbed.- § 401. Deerhurstv. St. Albans;^ S. C. ^uh nam. Tollemache v . Coventry^ Lord V., having a peerage in tail male, bequeathed chattels to trustees in trust for A. for life, and on A.'s death " for such person as shall from time to time be Lord V. ; it being my will and intention " that the chattels shall " from time to time go and be held and enjoyed with the title of the family, as far as the rules of law and equity will permit." A. enjoyed the chattels, and died, leaving a son, B., born before the testator's death, who enjoyed the chattels and died, leav- ing a son, C, born after the testator's death;^ C. afterwards died. The question was whether the representatives of B. or of C. were entitled to the chattels. The case was elaborately argued before Vicfi- Chancellor Leach, who held that as B. him in the baronetcy. Lord Lang- Perpetuities has been allowed to dale held, " for the purpose of ac- affect construction, see Chap. XIX., complishing the intention," that Sir post. J. took an absolute interest in the i T. & R. 31. property. Lord St. Leonards ques- ^ Sugd. Law of Prop. 341. See tions this decision, and with reason. Lewis, Perp. 470-473, 649; Mars- Ker V. Dungannon, 1 Dr. & W. 509, den, Perp. 122. 537, 538. Sugd. Law of Prop. 341, » 5 Mad. 232. note. As to the cases in which * 2 CI. & F. 611; 8 Bligh, n. s. the existence of the Rule against 547. 270 THE RULE AGAINST PEEPETTJITIES. was in fact born at the testator's death, the rules of law per- mitted an interest to be given to C, and that therefore C.'s representatives were entitled.^ An appeal was taken, and was argued before Lord Eldon, C, who never decided it, and then before Lord Lyndhurst, C, who, on the day of his quitting office, affirmed the decree, without giving any rea- sons.^ An appeal was taken to the House of Lords, where, by Lord Brougham (no other law lord being present), the decree was reversed.^ § 402. Two questions arise on this much-discussed case. 1. Did C. take ? 2. Did B. take ? § 403. 1. Did C. take ? Sir John Leach, V. C, held that the limitation to C. was good, because it took effect on the death of B., who was living at the testator's death. But the answer to this is, that A.'s successor might not have been born in the lifetime of the testator, and consequently a gift on the death of such successor might not have taken effect within lives and twenty-one years after the testator's death^* § 404. Lord Brougham did not bring this out very clearly, but seemed to prefer to rest his judgment on the circumstance that, by means of an attainder, it might happen that after A. no one would be entitled to the peerage for centuries. This argument, as he himself admitted,^ is suicidal, for it destroj^s B.'s claim equally with C.'s; and as Lord St. Leonards^ points out, an attainder, " although it would operate as a forfeiture of the dignity, could not render the whole trust void in its crea- tion, but like any subsequent accident, it would affect the 1 5 Mad. 232. note (e) ; Sugd. Law of Prop. 335, 2 See 2 CI. & F. 632. note (I). 8 2 CI. & F. 611; 8 Bligh, n. 8. * See 8 Bligh, n. s. 566, 567; 547. See Dungannon v. Smith, 12 Dungannon v. Smith, 12 CI. & F. CI. & F. 546, 630; Sugd. Law of 546, 585, 620, 630, 634; Lewis, Prop. 335. The remarks attrib- Perp. 469, note, uted to Lord Lyndhurst in 8 Bligh, ^ 2 CI. & F. 633. N. 8. 567, are a mistake. He was ° Sugd. Law of Prop. 339. not present. See 12 CI. & F. 555, LIMITATIONS TO A SBKIES. 271 rights of the parties." But while the reasons on which Lord Brougham mainly rested in declaring against any rights of C. will not bear close examination, the decision on this point seems sound and in full accordance with Dungannon V. Smith} § 405. 2. Did B. take ? Tollemaohe v. Coventry has been regarded as deciding that B. did take.^ But Mr. Justice Creswell in Dungannon v. Smith,^ and Lord St. Leonards,* point out that the only thing decided was that C. was not entitled, and indeed that Lord Brougham's reasoning would destroy B.'s claim equally with that of C. As has just been said, however, the invalidity of C.'s claim rests upon a reason which is sounder than that given by Lord Brougham, and which does not apply to the interest of B. § 406. Why should not B. take as filling the character of first member of a series, the Lords V. succeeding A. ? The first member of this series must take on the death of A., and therefore at not too remote a period, although the second and all the later members might take beyond the limits fixed by the Rule against Perpetuities. § 407. Ihhetson v. Ibbetson^ and Dungannon v. SmitJi^ are not opposed to this view. In those cases there was a gift to a person who might first come into existence beyond the limits of the Rule. In ToUemache v. Coventry there was a gift to a series, the first member of which, if the series began at all, must take within the required time. There was there- fore no reason why such first member should not take.'' 1 12 CI. & F. 546. See Sugd. « 10 Sim. 495; 5 Myl. «e Cr. 26; Law of Prop, 339-342; Theob. § 334, anie. Wills (2d ed.), 438; 1 Jartn. Wills « 12 CI. & F. 546; § 335, ante. (4th ed ), 276-278. ' ToUemache v. Coventry, in 2 Dunganon v. Smith, 12 CI. & connection with Dungannon v. F. 546, 593, 608. Lewis, Perp. 647, Smith, is discussed in Sugd. Law 648. of Prop. 330-349. And see Lewis, • 8 P. 566. Perp. 466-470, 647-649, 654-656; * Sugd. Law of Prop. 335, 336. Suppl. 49, 50; 1 Jarm. Wills (4th 272 THE ETJLB AGAINST PEEPETTTITIES. § 408. Liley v. Rey} A testator devised land to trustees on trust to receive the rents, make certain annual payments thereout, and apply the remainder, if any, as follows : namely, on every December 1 " to distribute amongst certain families according to their circumstances, as, in the opinion of the said trustees, they may need such assistance, whose names are hereinafter mentioned : viz." A., B. [and twent3'-two others]. Sir James Wigram, V. C, \\e\^, first, that the de- vise was not for a charity within the Mortmain Act ; secondly, that it was not void for uncertainty ; and thirdly, which con- cerns us here, that it was not void for remoteness. He said: " I incline strongly to think that, upon this will, the persons the testator has named in the will are the objects of his bounty, and that I should only be following the testator's direction, in putting this construction upon the will. But if that were not so, the cases of Barnes v. Patch? Crmvys v. Coleman,^ and Grrant v. Lynam* are authorities that the Court can and will put a construction upon the word ' family,' where it may be reasonably done, rather than that a devise should be void. This view of the case disposes of the third objec- tion, at least during the lives of the parties named in the will, who, under a construction to be put upon the word 'family,' might claim an interest under the will, immediately upon the death of the testator. I admit that where a future interest in an estate is so given, that by possibility it may not take effect in possession until a period more remote than the law allows, that devise may be void from the beginning, as tending to a perpetuity. But where the will declares that objects are to take in succession, there is no reason why I should hold the will void, as to those objects to whom an interest not ed.), 276-278; Marsden, Perp. 122, Exmouth, 23 Ch. D. 158; In re 123; Ker v. Dungannon, 1 Dr. & Johnston, 25 Ch. D. 538. W. 509, 536; Dungannon v. Smith, i 1 Hare, 580. ^ 8 Ves. 604. 12 CI. & F. 546 el passim; Montagu » 9 Ves. 319. V. Inchiquin, 23 W. R. 592; In re * 4 Rwss. 292. LIMITATIONS TO A SEEIES. 273 extending beyond their own lives is given immediately at the testator's death." § 408 a. In Dillon v. Reilly ^ a testator directed the income of £400 to be paid to the clergymen attached to a parish at the time of his death from time to time forever therefrom, on condition of the celebration of masses. Sullivan, M. R., ruled that the income was to be paid to the clergymen attached to the parish at the time of the testator's death, and the survi- vors and survivor of them ; and that on the death of the survivor the .£400 should fall into the residue of the testator's estate.^ § 409. Wainman v. Field? A testator devised freehold land to A. for life, remainder to B. for life, remainder to B.'s first and other sons successively in tail male, remainders over; and he bequeathed leaseholds to trustees in trust to permit the rents to be taken by such person or persons as should for the time being be entitled to the freehold land until the person so entitled for the time being should, by good assurance, become seised of the said land in fee simple in possession, and then in trust to convey to such person. A. entered into possession of the estate and died. B. brought a bill praying that it might be declared that he was abso- lutely entitled to the leaseholds. Sir "W. P. Wood, V. C, held (1) that B. took only a life interest ; (2) that the be- quest to the person who should first be entitled in fee simple was void, following Dungannony. Smith; (3) that all interests beyond the life interest of B. were void. There can be no doubt of the correctness of (1) and (2) ; but as to (3), which was not called for, it seems far from clear. Here was a gift to a series, which began immediately, on the' tes- tator's death, with A. ; then came B., then the successive tenants in tail. The Vice-Chancellor decided that the gifts to A. and B. were good, but it would seem as if the gift to 1 Ir. R. 10 Eq. 152. ^ See Dorrian v. Gilmore, 15 L. R. Ir. 69. 8 Kay, 507. 18 274 THE BULE AGAINST PERPETUITIES. the first tenant in tail who must take on B.'s death was good also. It is submitted that on this point the case is wrong.^ § 410. On the whole, when the gift to one member of a series is unaffected by the existence or non-existence of the gifts to the other members, and the gift to such member must take effect, if at all, within the limits fixed by the Rule against Perpetuities, such gift, on reason and authority, is not void for remoteness. 1 See Meller w. Stanley, 2 De G. borough v. Martin, 41 Md. 488; J. & S. 183, 192; and cf. Moore v. Caldwell v. WilUs, 57 Miss. 555; Moore, 6 Jones, Eq. 132; Golds- §§ 396-398, anie. TRUSTS. 275 CHAPTER XII. TEtrSTS. § 411. The Rule against Perpetuities applies to equitable as well as to legal interests.^ There are one or two matters which arise in applying the Rule to trust interests which deserve attention. § 412. The mistaken idea that a trust violates the Rule against Perpetuities because it is to last indefinitely has been before discussed,^ as has the application of the Rule to cases where trustees have a discretion in selecting the objects to be benefited by the trust ;^ and in subsequent chapters will be considered trusts in connection with Estates Tail,* Powers,® and Charitable Trusts.® § 413. When an estate is given to trustees, but it is possi- ble that no equitable interest under it may arise within the limits of the Rule against Perpetuities, the whole trust is bad. Thus when a term for a thousand years was given to trustees in trust, upon the- alienation of the estate by anj'' tenant in tail, to raise £5,000 out of the estate in favor of certain persons, the trust was decreed to be void. Mainwaring v. Baxter? § 414. "When, by reason of an equitable interest being too remote, there is a legal interest vested in trustees, without 1 §§ 202, 322-328. In Speak- = §§ 232-245, ante. man v. Speakman, 8 Hare, 180, no ^ § 246, ante. question was made of the validity * Chap. XIV., post. of the trusts of the fifty years ^ Chap. XV., post. term. Some of them were clearly * Chap. 'XXlll., post. bad. . '' 5 Ves. 458. 276 THE ETJLE AGAINST PEKPETUITIES. any corresponding equitable interest, there is a resulting trust to the heir or next of kin.^ § 415. Trusts for the Payment of Debts. — A devise contin- gent on the payment of the testator's debts is too remote, for it is uncertain when the debts will be paid. It is important to see how this affects gifts connected with, or subject to, trusts for the payment of debts. If a term is given to trustees to pay debts, and, subject to the term, the property is devised to A., A.'s estate is vested, and, like all vested interests, is not obnoxious to the Rule against Perpetuities.^ If, however, the fee is given to trustees to pay debts, and, subject to the payment of debts, the land is devised to A., here, at law, A. has an executory devise which is bad for remoteness.^ But, in equity, the trustees are regarded as holding in trust for A., subject to the payment of debts, so that A. has an immediate equitable fee, which is, of course, not too remote.* § 41G. If the intention is clear that no interest, legal or equitable, is to vest until the debts are paid, then any such 1 There is nothing in this pe- s Lewis, Pei-p. 623-638. See culiar to the law of remoteness. Bagshaw v. Spencer, 1 Ves. Sr. 142, From whatever cause the trust is 144. void, there is a resulting trust to ^ Bacon v. Proctor, T. & R. 31, the heir. This was decided in the 40. Lewis, Perp. 626-632. 2 case of Tregonwell v. Sydenham, Fearne, C. E. (Powell's ed.) 282- 8 Dow, 194. In that case the House 299, note. 1 Collect. Jurid. 214. of Lords (Lords Eldon and Redes- 1 Jarm. Wills (4th ed.), 820. On dale) thought that the trusts were the question whether trustees to pay- not wholly void, but were of opinion debts take, in any particular case, that the result would be the same the fee or only a chattel interest, if they were wholly void. 3 Dow, see Carter v. Barnardiston, 1 P. 205,206,210,215. 1 Jarm. Wills Wms. 505, 509; suh nom. Bar- (4th ed.), 576-580. Marsden, Perp. nardiston v. Carter, 3 Bro. P. C. 161,291. See Sugd. Law of Prop. (Toml. ed.) 64; 2 Jarm. Wills 362; § 419, joosi. (4th ed.), 296-299, 310-314; Haw- 2 Lewis, Perp. 622, 623. Third kins, Wills, 148-152; Lewin, Trusts Rep. Real Prop. Comm. 35. (7th ed.), 196, 197. TRUSTS. 'Ill interest will be too remote. But it would require the most unmistakable language to postpone the vesting of a gift after a trust for payment of debts, until the debts were paid. As the land of a deceased person can now be taken for his debts in England as well as in America, trusts .for the payment of debts are not so necessary nor so common as formerly. ' § 417. In Massy v. O'DeW^ A. conveyed Blackacre to B. in fee, with a covenant for quiet enjoyment free from quit rent and Crown rent, and on the same day conveyed White- acre to trustees in trust to let A. take the rents until B. had to pay quit rent and Crown rent on Blackacre, and then in trust'^to raise money to pay off those charges. Smith, M. R., held that this last trust was not too remote. He sustained himself by citations from Lewis on Perpetuities,^ to the effect that where land is devised to trustees for the payment of debts, the persons to whom the land is given after payment of debts take an equitable fee. But the cases do not seem analogous. Where land is devised for pajrment for debts, there is an immediate equitable fee in favor of those who are to take subject to the debts, and there is also an immediate charge for payment of the debts; but in Massy v. 0''Dell, while there was an immediate trust in favor of the settlor, the trust to indemnify B. only arose if B. was subjected to the charge, which might first happen at a remote period. Massy v. O'Dell seems to be mentioned nowhere but in Marsden on Perpetui- ties.^ It is submitted that it was wrongly decided. Lord St. Leonards* says: "In exchanges, by a conveyance operat- ing under the statute, it has been sometimes attempted, in case of eviction, to limit the other estate to the uses to which the estate evicted should stand limited at the time of the eviction ; but such provisos are clearly void if considered as creating shifting uses, because they are too remote." 1 10 Ir. Gh. 22. » P. 60. 2 Pp. 626, 631. * Sugd. Pow. (8th ed.) 44. 278 THE EULE AGAINST PEEPETUITIES. § 418. Executory Trusts. — In executing an executory trust the Court will of course avoid limitations which run counter to the Rule against Perpetuities, just as it would any other illegal provisions. The presumed intention of the testator or settlor to have his arrangements legal and valid will overrule any expressions of a contrary tendency.^ If the main object of an executory trust were to create too re- mote limitations, so that apart from such object there re- mained nothing substantial to carry out, it is probable that the whole trust would fail, although there is no case so holding. 2 § 419. This seems the best place to consider Tregonwell v. Sydenham,^ a case of extraordinary difficulty. A testator gave his X. estate to his son and only child A. for life, re- mainder to A.'s sons and daughters successively in tail, with remainders over; and his Y. estate to A. for life, remainder to A.'s sons successively in tail male, remainder to B. for life, remainder to B.'s sons successively in tail male, remainders over. The Z. estate he devised in like manner as the Y. es- tate, except that after the remainder to the sons of A. succes- sively in tail male, and before the remainder to B. for life, was a devise to trustees for sixty years in trust to receive the rents and profits, until they should have received £17,500, which they were to apply as follows : when they should have 1 On the mode of carrying out Curzon, 1 J. & H. 40, 51 ; Lyddon executory trusts so as to avoid the v. Ellison, 19 Beav. 565 ; Holmesdale objection of remoteness see New- v. West, L. R. 3 Eq. 474; sub nom. castle V. Lincoln, 3 Ves. Jr. 387; sub Sackville-West ». Homesdale, L. R. nom. Lincoln v. Newcastle, 12 Ves. 4 H. L. 543; Shelley v. Shelley, 218; Dorchester v. Effingham, 10 L. E. 6 Eq. 540; Lewis, Perp. c. 27, Sim. 587, note; 3 Beav. 180, note; pp. 574-589; Suppl. 173, 204, 205; Woolmore w. Burrows, 1 Sim. 512; Marsden, Perp. 133-139; 3 Dav. Bankes v. Le Despencer, 10 Sim. 576 ; Prec. Conv. (3d ed.) 601 , 602 ; § 365, 11 Sim. 508 (the settlement in this note, ante. caseisgivenmorefuUy in7 Jur. 210; ^ Lewis, Perp. 584, 585. Lewis, Perp. App. 32) ; Scarsdale v. '3 Dow, 194. TEUSTS. 279 ,£2,500, to lay out the same, with any interest they should have made therefrom, in land, and settle the land on such per- son for life as should then be in possession of the X. estate ; or in case, by suffering a recovery or otherwise, the X. estate should be in other hands, then on such person as would have been.in possession had such recovery or other proceeding not been had ; and so, from time to time, as soon and as often as the further sum of ,£2,500 should be raised, the same should be laid out and settled in like manner, with such remainder that on each of said settlements the estates should be so set- tled as to continue in the blood of the A.'s ; and after raising the £17,500, then in trust to raise and apply in like manner £2,500 in trust to be settled in like manner on the persons entitled to the Y. estate. § 420. A. entered upon the estates aiid died, leaving his grandson C, the child of his daughter, as his heir. C. was entitled to estate X. as tenant in tail ; but as he claimed through a female, he was not entitled as tenant in tail male to Y. or Z., and B. became entitled for life to Y. and, subject to the term for sixty years to trustees, also to Z. C. was not born till after the testator's death. B. and his eldest son then brought a bill praying that the trusts of the term might be declared void, and that the trustees might be declared to hold it and directed to convey it for the benefit of the plaintiffs. The Court of Exchequer made a decree accordingly, and C. appealed. The House of Lords (Lords Eldon, C, and Redes- dale) reversed the decree, and declared " that, in the events which have happened at the time of failure of issue male of the body of the testator, such of the uses [to] which the tes- tator by his will directed, the estates so to be purchased should be conveyed, as would otherwise have been capable of taking effect, were too remote, and therefore void ; and that there- fore the trusts of the real estates, directed by the testator's will, to be purchased with the said two sums of £17,500 and £2,500, resulted to the heir at law of the testator, as undis- 280 THE EULE AGAINST PERPETUITIES. pt)sed of by the testator's will." ^ The House of Lords and the Court of Exchequer agreed that the trusts upon which the land to be purchased was to be held were too remote, but they differed as to the consequence of the invalidity. The Court of Exchequer thought the term should sink for the ben- efit of the devisee ; the House of Lords thought there was a resulting trust for the heir. Several points are to be noticed. § 421. (1.) It was first suggested by the devisees that the legal estate of the trustees was bad, because it was not to begin until the expiration of the estates tail male limited to A.'s sons.^ But this objection was overruled, and was clearly unsound ; as a recovery by any one of A.'s male issue, tenants in tail, would have destroyed the term, it could not be too remote." (2.) The Court of Exchequer considered that the trusts of the term were void ah initio. Lords Eldon and Redesdale were of the opposite opinion, but they thought, even had the trusts been void ah initib, there would still have been a resulting trust to the heir.* (3.) It appears to have been the intention of the testator that each £2,500 accumulated should be settled for life on the person who was entitled to the estate when the accumula- tion was finished. As the accumulation might not take place till a remote period, such a trust would be wholly void. This was perhaps the view taken by the Court of Exchequer. (4.) But the construction which seems to have been put oa the will in the House of Lords was that the land to be purchased was to be settled, not on those who should be enti- tled to the estates when the land was purchased, but on those in whom they were vested when the term began ; that is, in those persons who took the estates on the extinction of A.'s male issue. This construction, though nowhere expressly 1 3 Dow, 217. * 3 Dow, 205, 206, 210, 215, 2 3 Dow, 201, 202. 216. See 1 Jd.rm. Wills (4th ed.), 8 3 Dow, 202; § 448, post, 578. TETJSTS. 281 given in the report 6f the ease, seems to be assumed through- out, as also in Lord St. Leonards' discussion.^ (5.) Did the testator intend that the land purchased should be settled so that each successive holder would have a life estate; or did he mean that it should be settled in the ordi- . nary manner, the first taker having a life estate, with re- mainder to his issue in tail? The latter would seem to have been the construction adopted^^ (6.) The view upon which the House of Lords went seems to have been that if the person who was entitled to the X. estate when the term began, had been within the limits of the Rulfe against Perpetuities, then the trusts for settling the pur- chased land on such person would have been good. Or, in other words, if an executory trust must be executed, if at all, within required limits, and the trust, when executed, is such as Would have been good if executed by the testator, it is valid ; although under other circumstances the trust, if exe- cuted as directed, would have been bad.^ This is the impor- tant question in the law of remoteness decided by the case of Tregonwell V. Sydenham. (7.) But, as Mr. Marsden* has remarked, there is a difiS- culty here. It seems to have been assumed that a life estate to aii unborn person is bad, and that as C. was not born at the testator's death, the trust for him for life was bad. But a life interest to an unborn person is not of itself bad. If it begins within the limits of the Rule against Perpetuities, it is good. And here the life interest in C. began with the term, and the term was not too remote.^ Therefore although the 1 Sugd. Law of Prop. 326. See Leonards favored the former con- Marsdeii, Perp. 136, 137. struotion. 2 3 Dow, 207. 1 Jarm. Wills « See 3 Dow, 206, 207, 215, 217; (4th ed.), 276, note, 578. Lewis, Sugd. Law of Prop. 328, 329 ; Lewis, Perp. 586 et seq. Mr. Marsden Perp. 589 ; 1 Jarm. Wills (4th ed.), (Perp. 138) seems to be under a 276, note; Marsden, Perp. 137, 138. misapprehension in supposing that * Perp. 137. the House of Lords and Lord St. ^ See (I) , supra. 282 THE ETJLE AGAINST PERPETUITIES. trusts for C.'s issue were bad, the life interest of C. would seem to have been good ; and then why should not the pur- chased land have been settled ey pres by giving C. an estate tail ? 1 In this case C. was held to be the person entitled as heir if the trusts were bad, and was the only person entitled as being in possession of X. estate if they were good, which may perhaps account for the point being apparently over- looked. Observe the remark of Lord Redesdale : " The point at which the illegality commences is where the testator limits for life to persons not in existence at the time of his death, as these could not be made tenants for life, at least not with remainders to their first and other sons, but must take a larger estate." ^ § 422. The important bearing of Tregonwell v. Sydenham, on remoteness in connection with executory trusts, then is this.^ An executory trust is invalid unless its execution must take place, if at all, within twenty-one years after lives in being. But if it must be executed within that time it is good, so far as it can, according to its .terms, be executed in favor of objects not too remote from the date of its creation. The pos- sibility that it may not be capable of such execution does not render it wholly void.* § 422 a. Here, perhaps, is the fittest place to note the deci- sion that if property is devised on several trusts, some of which are too remote, the trustee will take only such estate as is necessary to carry out the valid trusts.^ ' See §§ 643 et aeq., post. dioated was born when the trust ^ 3 Dow, 207. "The result of was created, and void for remote- the case may perhaps be thus stated: ness if he waa not." Marsden, That a trust to convey land, upon Perp. 138. On the effect of holding the failure or expiration of previous the trust void, see § 414, ante. estates for life and in tail, to a ° § 421 (6), ante. person to be ascertained at the time * Marsden, Perp. 138. of such failure, with remainders to ' Doe d. McDonnell v. Mclsaac, his issue, is valid as to the ulti- Hasz. StWarb. 353; Peters (P. E. I.), mate remainders, if the person in- 236. MODIFyiNG AlfO QTJALIPYIITG CLAUSES. 283 CHAPTER XIII. MODIFYING AND QUALIFYING CLAUSES. § 423. Although the construction to be put upon an in- strument is not affected by the existence of the Rule against Perpetuities,^ yet when there is a good absolute gift, and the settlor or testator goes on, in an •additional clause, to modify the gift, and, by modifying it, makes ' it, in part, too remote, the modification is rejected in toto, and the original gift stands. Thus if land is devised to an unborn child in fee, and by a subsequent clause of the will the testator directs that the land so devised shall be settled on such child for life, remainder to its children in fee, which remainder is void for remoteness, the whole modifying clause is disregarded, and the child takes a fee simple. "The particular ground on which the construction in question is rested is, that the author of the limitations intends the prior absolute gift to prevail, except so far only as it is effectually superseded b}'' the subsequent qualifying one."^ Mr. Lewis suggests^ a doubt how far this treatment can be applied to provisions in deeds, but it seems unlikely that any distinction between deeds and wills would be made at the present day. 1 See Chap. XIX., ^os«. power adds that the property so 2 Lewis, Perp. 535. See Lewis, appointed shall be settled on the Perp. c. 24; 1 Jarm. Wills (4th child for life, remainder to its ed.), 295-297 ; Marsden, Perp. c. 14. children, this additional clause is A precisely analogous class of ques- rejected, and the child takes the tions presents itself in the execution absolute interest. Cases thus aris- of powers. When, for instance, a ing in the execution of powers are power is confined to children, and directly applicable to questions of it is executed by appointing to a remoteness. child, and then the donee of the ' Perp. 540. 284 THE EULE AGAINST PERPETUITIES. § 424. The first case in which a modifying clause was so dealt with was Arnold v. Congreve^ (1830). There a testa- trix by her will gave legacies to her grandchildren. By a codicil she directed that the share of each grandchild should be settled on it for its life, and afterwards on its children. Sir John Leach, M. R., held that the limitations to the great- grandchildren were too remote, and that " the intention of the testatrix would be best effectuated by holding that the absolute interests given to the grandchildren by the will were not destroyed by the codicil." ^ § 425. In Carver v. Bowles^ (1831) a testator, having power by his marriage settlement to appoint by will a trust fund to such one or more of his children, " at such time or times, in such shares, proportions, manner, and form, and with, under, and subject to such powers, provisos, conditions, re- strictions, and limitations over (such limitations over to be for the benefit of some one or more of such children, or his, her, or their issue)" as he should choose, did, by will, "appoint, give, and bequeath " the fund to his five children, equally to be divided between them ; and declared, " so far as I law- fully or equitably may or can," that the shares of the daugh- ters should be held for themselves for life without power of anticipation, and on their death to go to their issue. The gift to the issue was bad for remoteness ; ^ and it was held by Sir John Leach, M. R., that the daughters took an absolute in- terest in the property appointed, and not a life estate.® 1 1 Kuss. & M. 209. such issue were not objects of the 2 As all the grandchildren of the power. But this is a mistake; the testatrix were alire at her death, issue were objects of the power, — it the gifts to the great grandchildren was for remoteness that the gift to were not too remote, and on this them was bad. See Lewis, Perp. point the case has been overruled. 535. See § 389, ante. ^ The words, " so far as I law- 8 2 Russ. & M. 301, 304, 307, 808. fully or equitably may or can," may ^ In the case itself, p. 307, the ap- have influenced the decision. (Cf. pointment to the issue of the daugh- Church v. Kemble, 5 Sim. 525). ters is said to have been bad, because As to the restraint on anticipa- MODIFYING AND QITALIPYING CLAUSES. 285 § 426. In KampfY. Jones ^ (1837) a testatrix, having power to appoint a fund of personal property to her children or re- mote issue born in her lifetime, "subject to such conditions, "with such restrictions, and generally in such manner " as she pleased, by will appointed that the fund " should go and be divided between " her children A., B., C, D., and E. ; and she directed that the share of E., who was not then married, should be vested in the~~trustees of the will in trust for E. for life, and on her death for her issue. It was held that the gift to the issue of E. being bad, the whole modification ought to be rejected, and that E. took an absolute interest.^ Here the modifying clause was bad, because the issue of E. were not objects of the power, not being born in the lifetime of the testatrix.^ Whether, if within the power, the gift to them would have been too remote would have depended upon whether E. was alive at the creation of the power, which does not appear. § 427. In Ring v. Rardwick^ (1840) a testator directed his trustees to make a division of all his personal estate be- tween all and every of his children, viz. his two sons and his two daughters ; the division to be equal, share and share alike, the shares of his sons to be paid to them, " but as touch- ing and concerning the shares of my said personal estate which will become the property of my said daughters," the share of each daughter was to be invested in the names of trustees, in trust to pay the income to her during her life, and on her death to her children, to become vested in them re- spectively at twenty-five, with gifts over in case any of such children died under twenty-five. Lord Langdale, M. R., said : ' " I think that there is sufficient to be collected from the prior words in this will to give an absolute interest to the daughters; tion by the daughters, see § 433, Macn. & G. 551, 567, 568; 2 H. & post. Tw. 115, 131 ; Lewis, Perp. 536. 1 2 Keen, 756. s § 423, note, ante. ^ See Lassence v. Tierney, 1 * 2 Beav. 352. 286 THE ETJLE AGAINST PEEPETUITIES. and those prior words are so connected with what follows as to show that the testator intended a restriction of that abso- lute interest; and the restriction not having become effectual, the whole interest remained according to the original gift." ' § 428. Several later cases to the same effect are given in a note.-' § 429. In Sears v. Putnam ^ a testator gave his property to and amongst his nephews and nieces (children of his deceased sisters), and directed that the portion of each niece should be held in trust for her during the term of twenty-five years from his death, the income payable to her ; on her death her por- tion of the income to be paid to her children, if any, otherwise to the remaining cestuis que trust, during said term ; at the end of said term the capital to be paid to her, or, if she be dead, to her children ; and should she die leaving no child surviving at the end of said term, her share to go to any sur- viving nieces, and to the children of any who should pre- viously have died. It was held that the limitations over being void for remoteness, the whole provisions concerning the trust should be disregarded, and that the nieces took absolute interests. § 430. In Slade v. Patten^ a similar course was pursued with provisions declared by the Court to be remote ; but as there was in truth no remoteness, the provisions were unobjectionable.* § 431. In order, however, to apply this rule of rejecting modifications which are too remote, there must be an absolute 1 Harvey v. Stracey, 1 Drew. 73, On election in such cases see 139, 140. Stephen v. Gadsden, 20 §§ 541 et seq., post. Beav. 463. Gerrard this reason also the decision was peal that not only the gifts over on wrong. See § 395, aiite. the death of B.'s children, but that The author is indebted to the the life estates appointed to them kindness of William Henry Rawle, by their mother, were too remote. Richard M. Cadwalader, and R. This was certainly wrong. See Mason Lisle, Esquires, of the Phil- § 239, ante. Cf. Gardette's Estate, adelphia Bar, for an instructive 13 W. N". C. (Pa.) 315; §239a, anie. correspondence on Smith's Appeal. Further, the shares of B.'schil- His learned friends are not, how- dren wei'e separate and independent ever, to be considered as in any way at the time of her death, and for responsible for his conclusions. 332 THE ET7LB AGAINST PEKPETUITIES. absolute control over it. There is, in truth, no future inter- est ; the life tenant can deal with the propert}^ as if he owned it in fee. Therefore, in the execution of such a power, the remoteness of an appointment under it is to be judged from the point of time of its exercise, and not from the time of its creation. In Bray v. Hammer sley^ under a power in a marriage settlement to appoint to the children of the marriage, a fund was appointed to a child of the marriage for life, and after her death as she should by deed or will appoint. It was held by Vice-Chancellor Shadwell and, on appeal, by the House of Lords that an appointment by S. was good. The question of remoteness was not suggested either from the bench or at the bar, but the modern text- writers all agree that the law is so settled;^ and this opinion is so emi- nently sensible and so in accordance with the spirit of the Rule against Perpetuities, that a contrary decision is not to be anticipated. The view of Mr. Powell in his note to Fearne,^ that the exercise of general powers is the same in the matter of perpetuity as that of special powers, has not had an}' following. § 525. A power which a life tenant can execute by deed or will, but which in its exercise is confined to certain objects, must, of course, be so exercised that the appointment will be good from the time of the creation of the power. The donee of the power never has the absolute control. § 526. Whether appointments by life tenants under pow- ers, general in their scope, but to be exercised only by will, must be referred to the date of the creation of the power, is a question not free from difficulty. In PowelVs Trusts^ prop- 1 3 Sim. 513; mh nom. Bray o. .440. 8 Dav. Prec. Conv. (3d ed.) Bree, 2 CI. & F. 453. 154, 155. Tud. L. C. in Real Prop' 2 Lewis, Perp. 483, 484i Sugd. (3d ed.) 485, 486. Leake, Land Pow. (8th ed.) 394-396. Co. Lit. Law, 458, 459. 271 J, Butler's note VII., 2. Mars- » 2 Fearne, C. K. (4th ed.) 374. den, Perp. 2o0. 1 Jarra. Wills (4th « 37 L. J. Ch. 188. ed.), 290. Theob. Wilis (2d ed.), POWERS. 333 erty was devised by A. to B. for life, remainder as she should by will appoint. James, V. C, held that the validity of an appointment by B. must be determined with reference to A.'s death. So when, under a power in a marriage settlement to appoint to children, an appointment is made to a child for life, remainder as the child shall by will appoint, it has been held that any appointment by the child must be referred to the date of the settlement, and is therefore bad.^ On the other hand, in Davidson's Precedents of Conveyancing,^ it is said that until Wollaston v. King, an appointment such as was made in that case would have been considered not too remote ; and in Rous v. Jackson'^ Chitty, J., decided that when property was settled on C. for life, and at her death as she should by will appoint, the validity of an appointment by C. was to be determined only with reference to the date of C.'s will, and not of the settlement. § 526 a. When the donee of a general power of appoint- ment by will is himself the appointee under a special power, it seems clear that the validity of the general power and of its exercise must be determined with reference to the date of the creation of the special power ; for the donee of the special power can only appoint to particular persons, and the ap- pointee under the special power cannot appoint until his own death, so that no one has absolute control over the property until the death of the appointee under the special power. Notwithstanding, therefore, the remark cited from Davidson's Precedents, the cases of Wollaston v. King and Morgan v. Gronow appear to have been rightly decided. § 526 h. When a life tenant with a general power of ap- pointment by will takes the power, not by virtue of the exer- cise of a special power, but directly by deed or devise, the case is more doubtful. Take, for instance, a devise by A. to 1 Wollaston ». King, L. R. 8 Eq. =3 Dav. Free. Conv. (3d ed.) 165. Morgan v. Gronow, L. R. 16 156, note. Eq. 1, 9, 10. ' « 29 Ch. D. 521. 334 THE RULE AGAINST PEEPETUITIES. B. for life, remainder as B. shall by will appoint, and B. ap- points to C, who was not born when A. died, for life, remain- der to such of C.'s issue as survive him. Here, at the end of a life in existence at A.'s death, namely, B.'s, B. has an abso- lute power of alienation; he can do what he pleases with the property ; ought not the Rule against Perpetuities to run from his death ? It was so held in Rous v. Jackson,^ but it is submitted that the earlier case of PowelVs Trusts ^ is correct. Strictly, the appointment is to be considered as if made at the date of the original instrument. If that is done, then we have an estate to B. for life, remainder to C. for life, remain- der to those of C.'s children who survive him. Such a gift to C.'s children would be bad. Now, it is true that when a life tenant can exercise a power by either deed or will, the question of remoteness does not date from the creation of the power; but this exception to the strict operation of the rule is made because the life tenant is practically the owner. But here B. is not practically the owner; he cannot transfer to himself; he is, indeed, the only person to whom he cannot possibly transfer, for he must die before the transfer of the property can possibly take place. Or, to put it in another way, the Rule against Perpetuities forbids the creation, directly or indirectly, of any future gifts upon a remote con- dition precedent ; but it is a practical rule devoted to a practical object. When a man has the present unconditioned absolute interest in property, he can deal with it without regard to the previous history of the title. In applying the Rule against Perpetuities to any settlement or devise he may make, it is unnecessary to consider what limitations the prop- erty was subject to before it came into his hands. And if a man who has a vested limited interest in property has the present unconditioned right to turn that limited interest into an absolute interest, and thus to acquire the present uncon- ditioned absolute interest, he is regarded by the Rule against 1 29 Ch. D. 521. 2 37 L. J. Ch. 188. POWERS. 335 Perpetuities as already having such interest. A tenant in tail is such a person ; a life tenant with a general power exercisible by deed is also such a person. To this extent the Rule sacrifices form to substance ; but the substance must be there. There must be a person with a vested limited interest who has the immediate right to become the present absolute owner. Such is not the case when a life tenant has a power which he can exercise only by will. The general rule must govern unless the exception is made out, and the exception is not made out unless there be a present right to acquire the present absolute interest. § 627. A general power exercisible by deed, but only by consent of third persons, is not equivalent to the ownership in fee, and is therefore treated like a special power.^ § 528. If, by an indenture to which a person to whom an appointment can lawfully be made is party, an appointment is made to persons to whom it could not have been directly made, yet the appointment is good if such party to the in- denture could have lawfully made a transfer to those persons, had the property been appointed to him. That is, the inden- ture is considered as being really two instruments, — one an appointment to the person to whom the appointment could lawfully be made, and the other a conveyance or settlement by him. § 529. The question has always been discussed in the form whether the actual appointees were objects of the power. But it is obvious that in many of the cases the Rule against Perpetuities has been involved, although Jarman on Wills ^ seems to be the only book, among either the reports or trea- tises, where attention is called to this.* Thus suppose A., by his marriage settlement, has a power of appointing among his 1 Webb V. Sadler, L. R. 14 Eq. ^ IJarm. Wills (4th ed.),289,note. 533; L. R. 8'Ch. 419. See Mars- ^ gee, however, Morgan v. Gro- den, Perp. 253. now, L. R. 16 Eq. 1, 10, 11. 336 THE RULE AGAINST PERPETUITIES. issue, and that, on the marriage of a daughter, by a settlement to whicli she and her husband are parties, A. appoints to her for life, with remainder to her children, the children will take, although a simple appointment to them would have been bad for remoteness.-' § 530. As at common law the personal property of a married woman passes to her husband, his joining in a deed of set- tlement of such property without her seems to have been sufficient.^ Of course this will be otherwise under the mod- ern Married Women's Acts.^ In Daniel v. Arkwri'ght,^ under a power in a marriage settlement to appoint to children, an appointment was made to trustees on the trusts of a con- temporaneous marriage settlement of a daughter executed by her. It was held that the appointment was good. In the same case there was an appointment by a deed poll in favor of another daughter, who was already married, for life, and after her death to her husband and children. This ap- pointment was held bad, but on evidence that the appointor's intention failed, by the mistake of his solicitor, to be carried out, the deed was rectified so as to appoint to the daughter absolutely.^ 1 The following decisions seem Sugd. Pow. (8th ed.) 670, 671 ; Tud. to involve the proposition that such L. C. in Real Prop. (3d ed.) 412, appointments are not too remote. 413; 1 L. C. in Eq. (5th ed.) 426, Langston v. Blackmore, Amb. 289. 427; 3 Dav. Conv. (3d ed.) 145, Routledge v. Dorril, 2 Ves. Jr. 357. note. Gosset's Settlement, 19 Beav. 529, ^ ggg pjtzroy 'v. Richmond, 27 537. See White v. St. Barbe, 1 Beav. 190. V. & B. 399 ; Trollope v. Rout- 8 cf, Wombwell v. Hanrott, 14 ledge, 1 De G. & Sm. 662 ; Wright v. Beav. 143. Goff, 22 Beav. 207; Thompson v. * 2 H. & M. 95. Simpson, 1 Dr. & W. 459, 487 ; ^ The limits of this apparent ex- Irwin V. Irwin, 10 Ir. Ch. 29; ception to the rules governing the Conolly u. M'Dermott, Beat. 601 exercise of powers is well stated in (see Sugd. Law Prop. 513-515) ; Morgan v. Gronow, L. R. 16 Eq. 1, 1 Jarm. Wills (4th ed,), 289, note; 10, 11. I POWERS. 837 4. Consequences of an Appointment being too remote. § 531. (1.) If an appointment which is not too remote is followed by aa appointment which is too remote, if, for in- stance, under a power given by will to appoint among issue, ah appointment is made to a grandchild of the testator un- born at the testator's death, for life, and on its death to its children, although the latter appointment is too remote, the appointment to the grandchild is good.^ § 532. (2.) The validity of limitations to take effect after prior limitations which are too remote has been before dis- cussed.2 Appointmeu'ts should be governed by the same rules." § 533. (3.): When an appointment of persotial property fails as being too remote, the property passes under a residu- ary appointment.* Under the Wills Act,^ which provides that void devises shall fall into a residuary devise, it was held by Jessel, M. R., in Freme v. Clement,^ that on an ap- pointment of real estate, bad for remoteness, the estate passed uiailer a- residuary appointment. The learned judge seemed to assume that had it not been for the Wills Act the land would not have passed under the residuary appointment, but would have gone as limited- in default of appointment. And this appears to be correct. The provision of the Wills Act has been largely adopted in America.'' § 534. When there is no residuary appointment, property appointed too remotely,, whether real or personal, goes as in default of appointment.^ ' Roitledge v. Dorrili 2 Ves. Jri. » ggg also Lewis, Perp. 496, 497; 337. See Wollaston v. Ring, L; R. Marsden, Perp. 258. 8 Eq. 165; Morgan- ti;Grdnow, L. R. * Wollaston v. King, L. R. 8 Eq. 16 Eqi I; D'Abbadie v. Bizouii 165. Ir. R. 5 Eq. 205; Sugd. Pow. ('8th « 1 Vict. c. 26, § 25. edi.) 503; Lewis, Perp. 496; Mars' • 18 Ch. D. 499. den, Perp; 258. ' ^ See § 248, ante. ' §§ 251-258, ante. » Webb v. Sadlei*, L. R. 14 Eq. 22 338 THE KULB AGAINST PEKPETUITIES. § 535. So when the power itself is void, limitations in de- fault of appointment, being vested, take effect as if the power Jhad been omitted.^ § 536. (4.) The connection of the doctrine of cy pres in the exercise of powers with the Rule against Perpetuities is discussed later.^ § 537. (5.) The rules concerning gifts to classes are the same whether the gifts are direct or by way of appointment. Therefore an appointment to a class of persons some of whom cannot take because they do not come within the limits of the Rule against Perpetuities is bad altogether. G-ee v. Audley? Routledge v. Dorril.* But, also as in case of a direct gift, an appointment to a person within the limits of perpetuity is not rendered bad by being accompanied by an appointment to persons who are not within those limits, provided the amount of the gift to the former is not affected by the existence or non-existence of the latter.^ § 538. In the first edition of Jarman on Wills ^ it was said: " Where a power does in terms authorize an appointment to issue only who are born within due limits, an .appoint- ment to a more extensive range of issue would be good pro tanto, though made to the whole as a class ; for, as the issue who are beyond the line are also strangers to the power, the 533. Sugd. Pow. (8th ed.) 639. direct, and not by way of appoint- Maisden, Perp. 259. ment under a power. 1 Marlborough v. Godolphin, 1 * 2 Ves. Jr. 357. Lewis, Perp. Eden, 404; sub nom. Spencer v. 493-496. Sugd. Pow. (8th ed.) 505, Marlborough, 3 Bro. P. C. (Toml. 506. Marsden, Perp. 254, 255. See ed.) 232. See Carr v. Atkinson, Harvey v. Straeey, 1 Drew. 73, 126, L. R. 14 Eq. 397; Marsden, Perp. 127; §§ 369 et seq. 259, 260; §§ 112, 258, an?e. ^ Qriffith v. Pownall, 13 Sim. 2 §§ 643 ee novelty of the question, the -courts may perhaps s.ustain ,tlie ystliditj^ of such mort- gages. It is to be hoped, should this be the case, that they will frankly declare them an exception to the Rule against Perpetuities, and not, by attempting. to reconcile them with the Rule, bring confusion jnto the Rule itself.^ § 571. Supposing such a jnortgage should chance to be held bad, what would be the consequences? WJiere a mort- gage passes a legal fee tp the mortgagee, the court, before ordering a recopveyance, wpuld compel the niortgagor to ^account for any considerationTe^cpived. Where no, legal title passes to the mortgagee, as is, the case in several of tl;i,e United States, it would seem that the mortgagee would be without security. the gift to B. was too remote. Yet an onerous condition, then it comes A. by paying the money at any time withjn the scope of the iRule agajnst qquld, idestrqy the gjft. When the Eerpetuitjes. owner of the present estate can de- > Cf. London & S. AV. R. Co. v. stroy a future interest at his pleas- Gomm, 20 Ch. D. 562, § 275, ante, ure, suqh future ,esta|te js pot too ^phich shakes ,badly GiJ,bertsop v. remote ; thus,a rejmainder after.sui Riqhards, 4 H. & N. 277; 5 H. & estate tail is never itqo remote; hut N. 453; §§ 271-27,3, ^a^te. See if he can avoid it, only by fulfilling Sugd. Pqw. (8th ed.) ^.6. 28 354 THE RULE AGAINST PERPETUITIES. CHAPTER XVII. CUSTOMARY RIGHTS. § 572. There is in England a class of legal rights which seem to be exempt from the operation of the Rule against Perpetuities, namely, easements acquired by custom. § 573. A right is acquired by custom when it belongs to the inhabitants of a particular town or other place,^ and is to be distinguished from a right acquired by prescription, which is a right belonging to a particular person, or to the owner of a particular parcel of land.^ § 574. When a man has a present right by prescription, all persons who may at any time enjoy the right will take under him, and being a present right it is not obnoxious to the Rule against Perpetuities. But when a man has a right by cus- tom, since he has it only as an inhabitant, he loses it when he ceases to be an inhabitant ; and no future possessor of the right holds under any former possessor, for he does not take as heir or assignee, but as inhabitant. The right of a future inhabitant is not in the control of anj'' present inhab- itant.^ It is really a new right arising for the first time to each owner when he becomes an inhabitant ; it is subject, in other words, to the condition precedent of his becoming an inhabitant : and as this may not happen till a remote period, such a right seems to be in violation of the Rule against Perpetuities. ' Sometimes when it belongs to ' See Smith v. Gatewood, Cro. persons following a particular call- Jac. 152; Jacobson v. Fountain, 2 ing. § 577, post. Johns. 170, 176. 2 Co. Lit. 113 b. 2 Bl. Com. 263. Hall, Commons, 108-112. CUSTOMARY EIGHTS. 355 § 575. Yet certain of these rights are held good in Eng- land. The question of perpetuity seems never to have been considered with regard to them. And, indeed, all of them in theory, and probably most of them in fact, go back to a time when the Rule against Perpetuities did not exist. § 576. Thus the inhabitants of a village may have a right of way, e. g. to church or to market.^ So to dance on a green.^ So to have games or horse-races on certain land.^ So to take water.* § 577. Such customs have been held good even when not confined to the inhabitants of a particular locality, but ex- tended to all of a certain occupation. Thus a custom for victuallers to erect booths on the land of A. during a fair has been held good.^ In like manner a custom for fishers to dry their nets on shore \^hich is private property is good.® 1 See 7 Edw. IV. 26; Boteler v. Bristow, 15 Edw. IV. 29; 18 Edw. IV. 3; 21 Edw. IV. 54; Withers v. Iseham, Dyer, 70 a, 71 a ; Goodday V. Michell, Cro. El. 441; Owen, 71; Baker v. Brereman, Cro. Car. 418, 419 ; Gateward's Case, 6 Co. 59 b ; sub nom. Smith v. Gatewood, Cro. Jac. 152; Bell v. Wardell, Willes, 202; Poynton v. Wilson, 2 Lutw. 1506 ; Grimstead v. Marlowe, 4 T. R. 717, 718; Co. Lit. 110 J. 2 Abbot V. Weekly, 1 Lev. 176. Hall V. Nottingham, 1 Ex. D. 1. Williams, Commons, 149. s Fitch i,'. Rawling, 2 H. Bl. 393. Mounsey v. Ismay, 1 H. & C. 729; 3 H. & C. 486. See Millechamp v. Hudson, Willes, 205, note. * Race V. Ward, 4 E. & B. 702, See Boteler v. Bristow, 15 Edw. IV. 29; Goodday ,j. Michell, Cro. EL 441; Owen, 71; Pain v. Pat- rick, 3 Mod. 289, 294 ; Weekly v. Wildman, 1 Ld. Raym. 405, 407; Fitch V. Rawling, 2 H. Bl. 393, 395. 5 Tyson v. Smith, 6 A. & E. 745; 9 A. & E. 406. 8 See 8 Edw. IV. 18, 19; Bote- ler V. Bristow, 15 Edw. IV. 29 Baker v. Brereman, Cro. Car. 418 Pain V. Patrick, 3 Mod. 289, 294 Mayor of Linn Regis v. Taylor, 3 Lev. 160; Fitch v. Rawling, 2 H. Bl. 393, 398; Blundell v. CatteralJ, 5 B. & Aid. 268, 295-298; Tyson v. Smith, 9 A. & E. 406, 411, 412; Hale, De Port. Harg. Law Tracts, 86; Hall, Sea Shore, 176, note; Coulson & Forbes, Waters, 344. This tas been said to be a common-law right. Case of Tanis- try, Davis, 32 b. Callis, Sewers, 73. But the contrary is now settled. See 8 Edw. IV. 18, 19 (discussed in Blundell v. Catterall, 5 B. & Aid. 268, 295-298, and in Tyson v. Smith, 9 A. & E. 406, 411, 412; translated. Hall, Commons, 159 et seq.); Baker 856 THE KULE AGAINST PERPETUITIES. § 578. And there are other eases whkh illustrate this class of customary rights.^ § 579. But although the Rule against Perpetuities was not applied to customary rights of this sort, the inconvenience which might arise from these unreleasable rights hampering land was felt ; and it was early decided that such rights could arise by custom only when they were in the nature of ease- ments, and that no profits a prendre, such as commons, could have their oiigin in custom. The authorities to this point are many.^ § 580. In Tyson v. Smith^ there is a suggestion that if compensation be paid for such a profit a prendre it may be good ; but the right in that case seems to have been an ease- V. Bi-ereman, Cro. Car. 418; Anon. Sav. 1 1 ; Gray v. Bond, 2 Brod. & B. 067; 5 J. B. Moore, .527; Blun- dell u. Cattevall, uU sup. ; Duncan II. Sylvester, 24 Me. 482; Locke v. Motley, 2 Gray, 265; Cortelyoa v. Van Brundt, 2 Johns. 3.57; Brink V. Richtmyer, 14 Johns. 255; Whit- aker v. Burhans, 62 Barb. 237 (see 65 N. Y. 5."i9); Shrunk u. Schuyl- kill Nav. Co 14 S. & R. 71, 81; Hoyle V. M'Cunn, 21 D. 96; Wool- rych, Waters (2d ed.), 163, 164; Hall, Sea Shove, 176, note; Coul- son & Forbes, Waters, 344; Gould, Waters, § 100. 1 Fowler i>. Dale, Cro. El. 362. Shelton V. Montague, Hob. 118. Bond's Case, March, 16. King v. Ecclesfield, 1 B. & Aid. 348, 360. Sowerby v. Coleman, L. R. 2 Ex. 96. Forbes v. Eccl. Commissioners, L. R. 15 Eq. 51. Dyoe v. Hay, 1 Maoq. 305, 311. '■' The following are the principal. Boteler V. Bi-istow, loEdw. IV. 29; I'b. -32 (see '7 Ap. Oas. 659, 660; Hall, Commons, 159-162). Gate- ward's Case, 6 Co. 59 b; sub nnm. Smith y. Gatewood, Cro. Jac. 152; 3 Leon. 202 (see 7 Ap. Cas. 660). Fowler v. Dale, Cro. El. 362. Weekly v. Wildman, 1 Ld. Raym. 405. Bean v. Bloom, 2 W. Bl. 926; sub nom. Beau v. Bloom, 3 Wils. 456 (which is not contra). Selby v. Robinson, 2 T. R. 758. Grimstead V. Marlowe, 4 T. R. 717. Blewett V. Tregonning, 3 A. & E. 554; 5 N. & M. 234. Lloyd v. Jones, 6 C. B. 81. Race v. Ward, 4 E. & B. 702. Bland v. Lipscombe, lb. 713, note. A. G. V. Mathias, 4 K. & J. 579. Constable v. Nicholson, 14 C. B. n. s. 230. Knight v. King, 20 L. T. n. s. 494. Chilton v. London, 7 Ch. D. 735. Rivers v. Adams, 3 Ex. D. 361. See Mayor of Saltash v. Good- man, 5 C. P. D. 431 ; 7 Q. B. D. 106; 7 Ap. Cas. 633, et passim ; 1 Wms. Saund. 340 c, note 3; Hall, Commons, 159-212; Williams, Com- mons, 194-197, 278-280. • 9 A. & E. 406, 425. CUSTOMARY BIGHTS. 357 ment, and nothing of a like effect appears anywhere else. In Mayor of Linn Regis v. Taylor"^ a custom for the owners of ships in a certain town to take ballast was held good.^ But in the light of later cases this can hardly he supported. § 581. It has sometimes been attempted to support a profit, a prendre for inhabitants on the ground of a grant from the Crown. In Willingale v. Maitland^ the bill alleged that a profit a prendre had been granted by Queen Elizabeth to the inhabitants of a certain parish. The defendant demurred to the bill, thus admitting the actual grant. Lord Romilly, M. R., held, in accordance with some old authorities, that a grant from the Crown to, the inhabitants of any place, ipso facto, incorporated them. In Chilton v. London ^ Sir George Jessel, M. R., held that a bill to enforce such an alleged right, if it could be brought at all, must be brought by, or at least on behalf of, all the inhabitants. And in Rivers v. Adams^ it was held that no presumption of a grant by the Crown to inhabitants would be made to support an immemorial custom. Rivers v. Adams has been approved in Mayor of Saltash v. Goodman.^ § 582. In Mayor of Saltash v. Goodman'' the plaintiffe claimed a several oyster fishery, and sued the defendants for disturbing it. The defendants justified under an alleged custom for all free inhabitants of ancient tenements in the borough of Saltash to take oysters at certain times. It was admitted by the plaintiffs that the custom had existed from time immemorial ; and by the defendants it was admitted, and by all the judges declared, that the custom could not be good as a profit in alieno solo. In the Common Pleas Division 1 aL3v. 160. 448; by Denman, J., lb. 454; by 2 Hall, Commons, 240, 241; and; Lord Selborne, C, 7 Ap. Cas. 637; see Padwick v. Knight, 7 Ex. 864. by Lord Blackburn, lb. 662 ; and by s L. K. 3 Eq. 103. Lord Watson, lb. 664. ^ 7 Ch. D. 735. ' 5 C. P. D. 431 ; 7 Q. B. D. 106; ^ 3 Ex. D. 361. sub nom. Goodman v. Mayor of Salt- « By Grove, J., 5 C. P. D. 445- ash, 7 Ap. Cas. 633. 358 THE KTJLE AGAINST PERPETUITIES. Grove and Denman, JJ., held that the custom was bad. In the Court of Appeal Baggallay, L. J., held that the plahitifPs did not have a several oyster fishery ; but Brett and Cotton, L. JJ., agreed with the Court below that the custom could uot be supported. The case was then carried to the House of Lords, and was there twice argued. Lord Blackburn held that the judgment of the courts below should be aiErmed, but Lord Selborne, C, and Lords Cairns, Watson, Bramwell, and Fitzgerald thought it should be reversed.^ § 583. The ground on which the House of Lords supported the custom was this : If the custom could have had a lawful origin, such origin must be presumed ; and such lawful origin would have been a grant to the borough, with a condition in favor of the free inhabitants. This so-called condition seems to have been considered by the law lords to have given an equitable interest. Lords Selborne, Cairns, and Watson dis- tinctly supported the custom as a charitable trust.^ And it seems clear that it is only as a charitable trust, if at all, that such a right can be supported. If the Crown, in a branch of the sea where every one can fish (or where no one can fish — it matters not which), grants a several fishery to a bor- ough, with a condition that the inhabitants of a certain place can fish also at a time certain, it is just as much a grant to those inhabitants as it is to the borough, and therefore, in ac- cordance with Rivers v. Adams,^ cannot be assumed as the basis for an immemorial custom. § 584. In America the decisions that no profit a prendre can be created by custom have been often and uniformly followed.* 1 It is to be observed that of the opinion for them ; and that of these ten judges who passed upon the valid- last, one, Lord Watson, was a Scotch ity of the defence (Baggallay, L. J., judge, who owned he did not know alone holding that the plaintiffs had much 'about the matter, not made out their title), five, Grove, * This is considered §§ 682, 685, Denman, Brett, Cotton, and Black- note, po.it. burn, were of opinion against the ^ § 581, ante. defendants, as many as were of * Littlefield v. Maxwell, 31 Me. CUSTOMARY EIGHTS. 359 § 585. A more doubtful and difficult question is to deter- mine whether in America easements can be created by cus- tom in inhabitants. It has been shown ^ that they can be so created in England. In New Hampshire it has been held^ that easements in inhabitants can be created by custom, and in several of the cases where it has been held that profits a prendre cannot be created by custom, it is said that easements can be.3 In New Jersey and Virginia it has been held that no right can arise from custom, for no custom in America can have existed from time immemorial.* § 586. As a practical matter, the doctrine held in New Jer- sey and Virginia seems preferable to that adopted in New Hampshire. The objection which exists to allowing profits a prendre by custom really applies, though in a less degree, to allowing easements by custom. In England the latter have been recognized by the law, probably owing to the great antiquity of many of them, and to the fact that they have not been found burdensome. But in a country like most parts of America, where a population, sparsely scattered at first, has rapidly increased in density, such rights might become very oppressive. The clog that they would put on the use and transfer of land would far outweigh any advantage that could be acquired from them. Especially it should be remembered that they cannot be released, for no inhabitant, or body of 134. Hill V. Lord, 48 Me. 8.3. « E. g. Littlefield v. Maxwell, 31 Perley v. Langley, 7 N. H. 233. Me. 134; Hill v. Lord, 48 Me. 83; Nudd V. Hobbs, 17 N. H. 524. Perley v. Langley, 7 N. H. 233; Waters v. Lilley, 4 Pick. 145, 148. Smith v. Floyd, 18 Barb. 522; § 584, Knowles v. Nichols, cited in Kenyon ante. See also Coolidge v. Learned, V. Nichols, 1 R. L 106, 110, 111. 8 Pick. .504 ; Kent u. Waite, 10 Pick. Smith V. Floyd, 18 Barb. 522. 138, 142. Cobb V. Davenport, 3 Vroom, 369, ^ Ackerman v. Shelp, 3 Halst. 389. See Ackerman v. Shelp, 3 125 (see Allen u. Stevens, 5 Dutch. Halst. 125. 509, 513). Ocean Beach Ass. v. 1 §§ 575-578, ante. Brinley, 34 N. J. Eq. 438. Harris 2 Nudd V. Hobbs, 17 N. H. 524. ». Carson, 7 Leigh, 632. Delaplane Knowles v. Dow, 22 N. H. 387. v. Crenshaw, 15 Grat. 457. 360 THE RULE AGAINST PEEPEtUITIES. inhabitants; is entitled to speak for future inhabitants; Such rights form perpetuities of the most objectionable character. § 587. Cases whefe all the world hdve rights over a man's land, of which the most striking instance is that of a high- way, might be considered' as exceptions to the Rule against Perpetuities. But this would be incorrect. Although the Sovereign does not strictly have an easement in th« highway (notwithstanding the expression, the King's highway), yet it has a present, absolute control, and must be considered as representing the rights' q£ all persons, future as well as present.! § 588. Easements may be attached to land by local custom ; of course to such rights the present remarks do not apply. Whoever owns the land owns the easements. They do not differ, as to remoteness, from easements created by prescript tion or by grant.^ ^ As to what rights the public '^ Carlyon v. Lovering, 1 H. & N. can gain by prescription, see Pearsall 784. SeeGaved w. Martyn, 19 C. B. V. Post, 20 Wend. Ill ; 22 Wend. n. s. 732 ; Ivimey v. Stocker, L. R. 425; Curtis v. Keesler, 14 Barb. 511; 1 Ch. 396. Smirke, Report of Vice State V. Wilson, 42 Me. 9; Talbott v. Thomas. V. Grace, 30 Ind. 389 ; Coolidge v. Leatned, 8 Pick. 504. CHABMABLE TEUSTS. 361 CHAPTER XVIII. CHAEITABLE TRUSTS. § 589. It is commonly said that gifts to charities are not subject to the Rule against Perpetuities. This is to a certain extent correct, but the subject is involved in considerable confusion owing to the ambiguity of the terms employed. § 590. As has been shown,^ the original, natural meaning of " a perpetuity" is "an inalienable indestructible interest." In this sense charitable trusts are perpetuities. And this is no arbitrary doctrine, but arises from the nature of such trusts. For while, generally, a trust is not good unless there be a natural or artificial cestui que trust, charitable trusts are an exception. They are recognized as valid, but yet they do not ordinarily have any definite cestuis que trust? They are therefore inalienable, because there is no one to alienate them. No one has any alienable rights, because no one has any rights.^ 1 §§ 140, 141, ante. See also §§ 2, 3, 236, 269, ante. ''' The question whether a trust for definite persons can ever be con- sidered a charity is discussed App. A, ipost. 8 When it is said that property given on charitable trusts is in- alienable, it is not meant that such property cannot be alienated by the paramount action of the sovereign, through the Legislatureor the courts. By tlie Legislature. — In England, the power of ParUament being un- limited in such matters, it can un- doubtedly take property devoted to a charitable trust and apply it on other trusts, or give it to individ- uals; although this last, o£ course, would not at the present day be done. See A,. G. v. Buller, Jae. 407, 412. In the United States, under the provision of the Constitution (art. I. § 10), that no State shall pass any law impairing the obligation of contracts, as interpreted by the case of Dartmouth College v. Woodward, 4 Wheat. 518, charitable gifts can- 362 THE EtJLE AGAINST PERPETUITIES. § 591. But in the Rule against Perpetuities the term has not this original, natural meaning, but a secondary, artificial one. A perpetuity in this secondary sense means " an inter- est which will not vest till a remote period." ^ The Rule against Perpetuities is not directed to preventing the aliena- tion of present interests, but against the creation of remote not be destroyed. See Tharp v. rieming, 1 Houst.' 580. But the Legislature can authorize a sale for change of investment. Stanley v. Colt, 5 Wall. 119. Pine St. Soc. V. Weld, 12 Gray, 570. See Sohier V. Trinity Church, 109 Mass. 1; Ould V. Washington Hospital, 95 U. S. 303, 312. Contra, Tharp v. Fleming, 1 Houst. 580. By a Court of Equity. — Equity, of course, has no authority to de- stroy a charitable trust, but it can order a sale of the property and re- investment. This has been some- times done in England. A. G. v. Nethercoat, 1 Hare, 400, note. Parke's Charity, 12 Sim. 829. Re Overseers of Ecclesall, 16 Beav. 297. A. G. I). Archbishop of York, 17 Beav. 495, 501. Re Ashton Charity, 22 Beav. 288. Re Colston's Hospi- tal, 27 Beav. 16 Be North Shields Old Meeting House, 7 W. R. .541. And the power to do it has often been asserted. A. G. v. Warren, 2 Swanst. 291, 302, 303; 1 Wils. Ch. 387, 411, 412. A. G. v Newark, 1 Hare, 395, 400, 402. A. G. w. Kerr, 2 Beav. 420, 428. A. G. v. South Sea Co. 4 Beav. 453. Tud. Char. Trusts (2d ed.), 297, 298. Lewin, Trusts (7th ed.), 491. The Eng- lish Court of Chancery is, how- ever, very cautious in exercising the power. A. G. v. Duller, Jac. 407. A. G. V. Newark, 1 Hare, 395, 412. Re Suir Island School, 3 J. & Lat, 171. Me Lyford's Charity, 16 Beav. 297, note. Re Newton's Charity, 12Jur. 1011. Be North Shields Old Meeting House, 7 W. R. 541. See also A. G. V. Cross, 3 Mer. 524, 539 ; A. G. V. Huugerford, 8 Bligh, 437, 457 et seq. ; 2 CI. & F. 3!57, 374 et seq. (cf . Sugd. Law of Prop. 535) ; A. G. V. Brettingham, 3 Beav. 91 ; Governor St. Thomas Hospital v. Charing Cross R. Co. 1 J. & H. 400, 406 ; and cases collected in 14 Beav. 120, note. In America, owing to the rapid changes in the country, the power has to be more frequently called into requisition. See Stanley v. Colt, 5 Wall. 119; Brown v. Meet- ing St. Soo. 9 'R. I. 177; Ould v. Washington Hospital, 95 U. S. 303 ; Jones V. Habersham, 107 U. S. 174, 183; Odellu. Odell, 10 Allen, 1, 6; Shotwell V. Mott, 2 Sandf. Ch. 46, 55; Franklin v. Armfield, 2 Sneed, 305; 2 Perry, Trusts (3d ed), 737. For cases under statutes, see Wells V. Heath, 10 Gray, 17, 27; Dutch Church V. Mott, 7 Paige, 77, 84; Burton's Appeal, 57 Pa. 213. The only case on either side of the At- lantic in which the power is denied to Courts of Equity is Tharp v. Fleming, 1 Houst. 580. 1 § 140, ante. CHAEITABLE TEUSTS. 863 future interests.^ Now while it is true that the nature of charitable trusts makes them inalienable, and therefore perpe- tuities, in the natural sense of that term, it is by no means a necessary incident of charitable trusts that they should be al- lowed to begin in the remote future ; or, in other words, that they should be exempt from the operation of the Rule against Perpetuities. The law may have exempted them, but such exemption is not involved in the conception of a charity .^ § 592. The question of remoteness may present itself in connection with charitable trusts in three shapes : A gift to a charity may be followed by a remote gift to an individual; a gift to an individual may be followed by a remote gift to a charity ; and a gift to a charity may be followed by a remote gift to another charity, — and in each of these cases there may or may not be a change of trustee. So that we have six typi- cal forms : (1.) To A. on a charitable trust, — on a remote contingency to B. for his own use. (2.) To A. on a charita- ble trust, — on a remote contingency in trust for B. (3.) To A. for his own use, — on a remote contingency to B. on a charitable trust. (4.) To A. in trust for B., — on a remote contingency on a charitable trust. (5.) To A. on a charitable trust, — on a remote contingency to B. on another charitable trust. (6.) To A. on a charitable trust, — on a remote con- tingency on another charitable trust. § 593. In the first two cases, where the gift is from a char- itable trust over to an individual, the gift over to the indi- vidual is subject to the Rule against Perpetuities. This has never been doubted.^ 1 As has been before remarked, Pa. 9, 26; Yard's Appeal, 64 Pa. 95; the name which has become affixed Challis, Real Prop. 157. to the Rule is unfortunate; if it " Brattle Sq. Church v. Grant, had been known as the Rule against 3 Gray, 142. Wells v. Heath, 10 Remoteness, its real character would Gray, 17. Theological Education have been indicated, and much con- Soo. v. A. G. 135 Mass. 285. See fusion avoided. Odell v. Odell, 10 Allen, 1, 7. " See Philadelphia v. Girard, 45 S64 THE BULE AGAINST PBEPETUITIES, § 594. In the third case, where the gift is from- an indi- vidual over to a corporation or person on a charitable trust, it is equally well settled that the Rule against Perpetuities applies.^ § 595. In the fourth case, where a trustee who holds prop- erty in trust for an individual is directed, on the happening of a remote contingency, to hold it on a charitable trust, it might fairly be contended that no question of the applica- tion of the Rule against Perpetuities arises. That Rule con- cerns itself with the beginning, not with the end, of estates.^ There is therefore no harm in the equitable estate of the indi- vidual ending at a remote period. There is no change in the legal estate, and the only matter which can be thought ob- noxious to the Rule against Perpetuities is that the charitable trust begins at a remote period. But under the charitable trust no one has any rights, and as the purpose of the Rule against Perpetuities is to prevent the creation of remote rights, it miglit be argued that the Rule has no application. § 596. But although this contention is plausible, the better opinion certainly seems to be that for the purpose of deciding questions of remoteness a charitable trust must be considered as an entity which can be subject to a condition precedent. This question came before Sir E. B. Sugden, when Lord Chan- cellor of Ireland ; and it was conceded by counsel and decided by him that such a change of trust on which land was held from individuals to a charity was within the Rule against Perpetuities.^ Besides it will appear* that a charitable trust does sometimes vest a right in a definite person. § 597. The first four cases, therefore, form no exceptions to the Rule against Perpetuities. But in the last two cases, where the change is one from charity to another, it seems to 1 A. ©. V. Gill, 2 P. Wms. 369. = §§ 932 et seq., ante. Johnson's Trusts, L. R. 2 Eq. 716. ^ Commissionevs v. De Clifford, Leonard v. Burr, IS N. Y. 96, 107, 1 Dr. & W. 245, 254. ILS. Stnithi). Towuaend, 32Pa.434. * App. A, ^osf.. CHARITABLE TETJSTS. 365 be settled that there is an exception to the Rule. Where there is no change of trustee it might indeed be urged, on the grounds stated above,^ that no questiop of remoteness arises, but the reason and decision given above seem to for- bid this ; and in Christ's Hospital v. Grrainger^ it was dis- tinctly ruled that a direction in a will that on a contingency, which might be in the indefinite future, a legacy, given to the town of Reading on a charitable trust, should be trans- ferred to the city of London on another charitable trust, was good. The law of tliis case has been spoken of with approval in Odell V. Odell^ and Jones v. Habersham,^ and so are the text-books generally.® § 598. Although this case of Christ's Hospital v. Grainger is the only decision in which the gift of a legal interest to be held on a charitable trust coming after a prior gift of the legal interest to another trustee on another charitable trust has been held valid,^ and although the case where there is no change of trustee might possibly be distinguished, yet the decision has stood so long unquestioned that it is likely to be followed. § 599. But in any jurisdiction where the matter is not closed by authority the correctness of' the decision in Christ's Hospital V. Grainger deserves careful consideration. As an original question it seems Imrd to support the case. Lord Cottenham's argument was as follows: "It was then argued that it was void as contrary to the Rules against Perpetuities. These Rules are to prevent, in the cases to which they apply, property from being inalienable beyond certain periods. Is 1 § 595, ante. 307. 4 Kent, Com. (12th ed.) 283, 2 16 Sim. 83; 1 McN. & G. 460; note 1. 1 H. & Tw. 583. 6 In the earlier case of Society 3 10 Allen, 1, 8, 9. for the Propagation of the Gospel ■• 107 U. S. 174, 185. V. A. G. 3 Russ. 142, no question 5 IJann. Wills. (4th ed.), 291, of perpetuity' was raised, and the 292. Theob. Wills (2d ed.), 424. property seems to have been trans- Tud. Char. Trusts (2d ed.), 251, ferred to the plaintiffs, not as of 252. Tud. L. C. in Real Prop, right, but as the best scheme of (3d ed.) 495. Marsden, Perp. carrying out the trust. 366 THE RULE AGAINST PBRPET 01TIES. this effect produced, and are these Rules invaded by the trans- fer, in a certain event, of property from one charity to an- other ? If the corporation of Reading might hold the property for certain charities in Reading, why may not the corporation of London hold it for the charity of Christ's Hospital in Lon- don ? The property is neither more nor less alienable on that account." ^ § 600. But here, with submission to so great an author- ity, is the common confusion between perpetuity in the sense of inalienability and perpetuity in the sense of remoteness. Property dedicated to a charity is inalienable necessarily ; but there is no need of allowing a gift to charity to commence in the remote future. The prevention of propertj^ from in- alienability is simply an incident of the Rule against Perpe- tuities, not its object.^ The true object of the Rule is to restrain the creation of future conditional interests. § 601. If a remote gift to a charity after a gift to another charity is good, because they are by nature inalienable, then a gift to a charity after a gift to an individual should be good; the individual can alienate the whole of his present interest, and the remote interest is no more and no less inalienable than when limited after a gift to another charity. Yet after a gift to an individual a gift to a charity may be unquestion- ably bad for remoteness.^ § 602. Suppose land is devised to A. upon charitable trusts, with an executory devise on a remote contingency over to B. upon other charitable trusts, and it has become desirable to gell the land and reinvest the proceeds, how can title be made. The approval of a Court of Equity will extinguish any claim by the Attorney General on behalf of the charities ; but the legal title must be transferred, and B. has as yet no legal title. It may be said that the Court may order B. to join in the conveyance; but suppose the executory devise over is to a person who will not be ascertained till the contingency 1 1 McN. & G. 464. 2 Chap. VII., ante. ' §§ 594-596, ante. CHAEITABLB TRUSTS. 367 happens, e. g. to one who shall then be president of a college. Here no title can be passed until the contingency occurs, and therefore it seems undesirable that the Rule restraining the limits pf that contingency should not have full scope. § 603. It has been often said that a charitable trust is necessarily indefinite.^ If this were so it would be perhaps possible considerably to limit the extent of the exception formed by charitable trusts to the Rule against Perpetuities ; for where there is no change of trustee, but only a shifting of the charitable trusts, it might be said that, as there were no cestuis que trust to have future rights, so there were no rights to which the Rule could apply.^ But although it is generallj^ true that charitable trusts are indefinite, there seem to be certain cases where trusts in which defined cestuis que trust have rights have been held charitable ; and no such explana- tion as that suggested can be given to save these cases from raising the question of renioteness.^ § 604. There is another class of cases which must be con- sidered. An executory gift to a charity after a gift to an in- dividual may be bad for remoteness.* But suppose there be a gift to a corporation or association for a charitable object, not preceded by any gift to an individual, and that the corpo- ration or association is not in existence, — is the gift good ? § 605. If a gift is made to a charity on a contingent event, and the happening of the event is a condition precedent to ^ Charitable gifts "may, and a characteristic of charity, for per- indeed, must be for the benefit of sonal or individual certainty has an indefinite number of persons; often been held fatal to it." 2 for if all the beneficiaries are per- Kent,'Com. 288, note (a), sonally designated, the trust lacks ^ § 595, ante. the essential element of indefinite- ^ A discussion on the existence ness, which is one characteristic of of such cases will be found in App. a legal charity. " Russell o. Allen, K, post. 107 U. S. 163, 167. " Uncertainty of * §§ 594-596, ante. individual object would seem to be 368 THE ETJLE AGAINST PERPETUITIES. the gift, then, if the condition is too remote, or for any other reason illegal, the gift to the charity is void.^ § 606. " If the gift in trust for charity is itself conditional upon a future and uncertain event, it is subject, in our judg- ment, to the same rules and principles as any other estate depending for its coming into existence upon a condition pre- cedent. If the condition is never fulfilled, the estate never arises ; if it is so remote and indefinite as to transgress the limits of time prescribed by the rules of law against perpetui- ties, the gift fails ab initio. We agree with what was said by the Master of the Rolls in Cherry v. Mott,^ that ' there may no doubt be a conditional legacy to a charity as well as for any other purpose.' " ^ § 607. But if the Court can see an intention to make an unconditional gift to charity (and the Court is very keen- sighted to discover this intention), then the gift will be re- garded as immediate, not subject to any condition precedent, and therefore not within the scope of the Rule against Perpe- tuities. The mode pointed out by the testator is only one way, though the preferable way, of carrj'ing out the charitable purpose ; and if it cannot, with regard to the general chari- table intention, be carried out in that way, it will be carried out cy pres. Thus while the Court will allow the fund to be transferred to a corporation not in existence at the time of the gift, if such corporation is constituted in a reasonable time, it will not recognize the right of such non-existent corporation to keep the fund locked up until such time as it may please 1 Cherry v. Mott, 1 Myl. & Cr. Bonneval, 5 Russ. 288 ; Jocelyn 123, 131, 132. See A. G. v. Gould- o. Nott, 44 Conn. 55; A. G. v. ing, 2 Bro. C. C. 428; A. G. v. Jolly, 2 Strob. Eq. 879; 1 Javm. Bishop of Oxford, cited 4 Ves. 431 Wills (4th ed.), 245 et seq. ; Tud. et seq ; A. G. v. Whitchurch, 3 Ves. L. C. in Real Prop. (3d ed.) 580, Jr. 141 ; Corbyn v. French, 4 Ves. 581. 418; Clark I). Taylor, 1 Drew. 642; " i Myl. & Cr. 132. Carbery v. Cox, 3 Ir. Ch. 231 ; » Per Lord Selborne, C, in Cham- Sims V. Quinlan, 16 Ir. Ch. 191; berlayne ». Brookett, L. R. 8 Ch. 17 Ir. Ch. 43; De Themmines v. 206, 211. CHAEITABLE THTJSTS. 369 itself to be incorporated. The formation of the corporation is not a condition precedent to the charitable trust, and there- fore the trust is not too remote. The cases where charitable gifts to non-existent corporations or societies have been sus- tained are numerous.^ 1 A. G. V. Bishop of Chester, 1 Bro. C. C. 444. A. G. v. Bowyer, 3 Ves. Jr. 714, 727, 728. A. G. i>. Craven, 21 Beav. 392. Martin v. Margham, 14 Sim. 2,30. Henshaw t). Atkinson, 3 Mad. 306. Siunett o. Herbert, L. R. 7 Ch. 232. Cham- berlayne v. Brockett, L. R. 8 Ch. 206, 211. Inglis v. Sailors' Snug Harbor, 3 Pet. 99. Ould v. Wash- ington Hospital, 1 McArth. 541; 95 U. S. 303, 313.* Russell v. AUen, 5 Dill. 235; 107 U. S. 163. Jones v. Habersham, 3 Woods, 443; 107 U. S. 174, 190, 191. Swasey v. Am. Bible Soc, 57 Me. 523. Odell u. Odell, 10 Allen, 1, 7, 8. Gumming v. Reid Memorial Church, 64 Ga. 105. Trustees Mclntire School v. Zanes- ville Canal Co. 9 Ohio, 203. AVil- liams V. First Presbyterian Soc. 1 Ohio St. 478, 500 et seq. Andrews V. Andrews, 110 111. 223. Re Tay- lor Orphan Asylum, 36 Wis. 534. Dodge ». Williams, ^ 46 Wis. 70. Gould 'w. Taylor Orphan Asylum, lb. 106. t Schmidt v. Hess, 60 Mo. 591. See Sanderson v. White, 18 Pick. 328; Heuser v. Harris, 42 111. 425, 434; Cromie v. Louisville Or- phans' Home Soc. 3 Bush, 365, 375; Tud. L. C. in Real Prop. (3d ed.) 581. * In Ould V. Washington Hospital the case arose in the District of Columbia, ' where the law of Maryland prevails. As the doctrine of cy pres has probably never prevailed in Maryland, see § 611, post, the correctness of the decision may be ques- In A. G. V. Downing, Wilm. 1 ; Dick. 414; Ambl. 550, 571, there was a gift to a college to be estab- lished. The case was argued before Lord Northington, C, assisted by Sir Thomas Sewell, M. R., and Lord Camden, C. J. ; and again before Lord Camden, C, assisted by Sir Thomas Sewell and Wilmot, C. J. The gift was decreed to be good. The brief reports in Dickens and Ambler do not show that any objec- tion of remoteness was raised; but Lord Chief Justice Wilmot in his Notes gives his opinion at length, and there discusses this objection. He says the gift is not too remote, because the King's license might be obtained in six months, which was "greatly within the time allowed by the law for the expecting execu- tory trusts to arise," viz. "the com- pass of a life or lives." Wilm. 16, 17. This rea.soning would not be held good at the present day. The Rule against Perpetuities was not then clearly settled. An event which by possibility may happen at a distant period is too remote. Such a gift would be now sustained on the ground stated in the text, that the incorporation of the college was tioned. But see Russell v. Allen, 107 U. S. 163, 171. t These last two cases must be taken to have overruled any dicta to the contrary in Ruth V. Oberbrunner, 40 Wis. 238; Heisg V. Murphey, lb. 276. See 46 Wis. 99, 100. 24 370 THE KULB AGAINST PEKPETUITIES. § 608. This mode of treating charitable gifts to bodies here- after to be incorporated as present valid gifts depends upon the doctrine of cy pres} In some States, however, the power to administer a charitable trust cy pres is declared not to ex- ist ; and therefore gifts to corporations not in being are void for remoteness. These States are as follows : — § 609. Wew York. — Under the Revised Statutes no power of carrying out a trust cy pres exists in the courts, and a gift for charitable purposes to any corporation or person not in being at the date of the gift is bad for remoteness.^ This re- sult has been reached only after great iiuotuation of judicial opinion.^ If a gift is made to a non-existent corporation, but it is a condition, express or implied, of the gift that the cor- poration shall come into existence within the period allowed for the vesting of future estates, the gift is good.* not a condition precedent. But see Inglis V. Sailors' Snug Harbor, 3 Pet. 99, 115, 144; Literary Fund v. Dawon, 1 Rob. (Va.) 402, 421 ; §§ 616-618, post. 1 The power to cany out a chari- table trust cy pres must not be con- founded with the prerogative power of the Crown. Under the latter, when property has been given for an illegal purpose, or simply to charity, without the indication of any trustee or of any class of ob- jects, the King, as parens palrice, directs the application of the fund. This royal pi-erogative is exercised through the Chancellor; but it is not a judicial power, and it is uni- versally agi-eed that no courts of equity in the United States possess it. 4 Kent, Com. (12th ed.) 508, note 1. Jackson v. Phillips, 14 Allen, 539, 574 et seq. 2 Bascomi). Nichols, 1 Kedf. 340; suh nom. Bascom v. Albertson, 34 N. Y. 584. Sherwood v. Am. Bible Soc. 1 Keyes, 561. White v. How- ard, 46 N. Y. 144. 8 Pearsall v. Post, 20 Wend. Ill ; 22 Wend. 425. Morgan v. Master- ton, 4 Sandf. S. C. 442. Williams V. Williams, 8 N. Y. 525. Owens V. Missionary Soc. 14 IST. Y. 380. Phelps V. Phelps, 28 Barb. 121 ; suh nom. Phelps v. Pond, 23 N. Y. 69. Beekman v. Bonsor, 23 N. Y. 298. Downing v. Marshall, lb. 366. See also Rose v. Rose, 4 Abb. Ct. of App. 108; Leonard v. Bell, 1 Thoraps. & C. 608; Burrill c. Boardman, 43 N. Y. 254; Marx v. MoGlynu, 88 N. Y. 357, 376; Ship- man V. Rollins, 88 Hun, 89; 98 N. Y. 311; Mapes v. Am. Home Mission- ary Soc 33 Hun, 360; § 268, arJc i Carpenter v. Historical Society, 1 Demarest, 606 ; 2 Demarest, 574. ^ Burrill v. Boardman, Shipman V. Rollins, ubisup. CHARITABLE TRUSTS. 371 § 610. Michigan and Minnesota. — Under like statutes the courts of Michigan and Minnesota have reached a like con- clusion.^ § 611. Maryland. — The courts here have come to the same result without the aid of statutes.^ The objection seems to have been put on the ground of uncertainty rather than of remoteness.^ § 612. Alabama. — It would rather seem from the language in Cater v. Balfour * that a charitable devise to a corporation not in being would not be good in Alabama.® § 613. Tennessee. — In this State it seems that a gift to a corporation not in being cannot be sustained.^ § 614. Indiana. — The doctrine of 01/ pres is repudiated in Indiana.' In that State, therefore, it is presumed, a chari- table gift to a corporation not in being would be void for remoteness. § 615. But although the disallowance of charitable gifts to corporations not in being seems to be the logical consequence of repudiating the doctrine of ci/ pres, yet there are some States whose courts repudiate the doctrine of ct/ pres, and yet support charitable gifts to corporations not in existence, or not having the necessary powers at the time of the gift. § 616. Virginia. — In Virginia the doctrine of ey pres does not exist.^ But in Literary Fund v. Dawson^ a testator 1 Methodist Churcli u. Clark, 41 170; Dickson v. Montgomery, 1 Mich. 730. Little v. Willford, 31 Swan, 348; White v. Hale, 2 Minn. 173. Coldw. 77. 2 State V. Warren, 28 Md. 338. ' Grimes v. Harmon, 35 Ind. 3 See Martin «. Needles, 33 Md. 198. 609 ; Barnum v. Baltimore, 62 Md. ^ gge Baptist Ass. v. Hart, 4 275. But cf . Ould V. Washington Wheat. 1 ; Gallego v. A. G. 3 Leigh, Hospital, 1 McArth. 541; 95 U. S. 450; Janey v. Latane,4 Leigh, 327; 303, 313; § 607, note, ante. Wheeler v. Smith, 9 How. 55; Sea- M9 Ala. 814, 830. burn v. Seaburn, 15 Grat. 423; s But see Williams v. Pearson, Kelly v. Love, 20 Grat. 124; Kain 38 Ala. 299. v. Gibboney, 101 U. S. 362. 8 See Green v. Allen, 5 Humph. » 10 Leigh, 147. 372 THE KULE AGAINST PERPETUITIES. directed that certain property should be used by his execu- tors " in constituting a part of the Literary Fund of the State " for certain purposes, and added : " An act of assem- bly for said object supposed can be obtained." The Literary Fund was a corporation, but it had no authority to employ money for the purposes indicated by the testator. The Court of Appeals decided that the executors held the fund in trust to procure an Act of Assembly authorizing the Literary Fund to receive it. The Court met the objection of remoteness, which had been raised, by saying that, as the executors were to procure the Act, it would be procured during lives in being. § 617. Afterwards an Act of Asse.mbly was passed author- izing the Literary Fund to take the gift ; but the executors objected to the Fund taking it, because the Act had been passed without their consent and against their wishes. The Court of Appeals held that their consent was unnecessary. This, however, knocked the ground from under the position which the Court had relied on to meet the objection of remote- ness. For if the consent of the executors was unnecessary, then the Act of Assembly need not be passed in their life- time. The Court was, therefore, obliged to find a new reason for supporting the gift, and they now said that it was the implied intention of the testator that the Act should be pro- cured within a reasonable time, and that whatever such rea- sonable time might be, it certainly did not exceed the limit fixed by the Rule against Perpetuities.* ^ Literary Fund v. Dawson, 1 able time,' could anyone doubt that Rob. 402, 421, 422, 429, 430, 434. the devise would have been defeated "I think it clear that it was the by an unreasonable delay in the testator's intention the Legislatwe passage of a law? And yet how should act upon the subject in a can it be supposed that his meaning reasonable time. If, when he said was otherwise? and ' to attain the ' an Act of Assembly for said ob- intent ' shall not ' implication sup- ject supposed can be obtained,' he ply verbal omissions ' ? " 1 Kob. had added the words, ' in a reason- 421, 422. CHAEITABLE TRUSTS. 3?3 § 618. It is to be observed that this decision imports into the will, as a condition precedent of the gift, that the Legislature shall act within a reasonable time, and imputes to the testa- tor the intention that if it does not act within such reasonable time the charitable gift shall be void. Surely a somewhat violent implication. One may doubt whether it would have commended itself to the learned Court, unless it had been a means of escaping from the fetters in which early decisions have confined the judicial administration of charitable trusts ill Virginia. 1 § 619. West Virginia. — The Virginia decisions will probably be followed in this State.^ § 620. North Carolina. — In North Carolina the doctrine of cypres appears to be denied.^ The following passage* sug- gests that the same device may be adopted to sustain a charitable gift to a corporation not in being as is employed in Virginia: " A bequest for religious charity must, like others, be to some definite purpose, and to some body or association of persons, having a legal existence, and with capacity to take. Or, at the least, it must be to some such body, on which the Legislature shall, within a reasonable time, confer a capacity to take." ^ § 621. Connecticut. — There is a Statute in this State, passed in 1784, which provides that " no estate in fee simple, fee tail, or any less estate, shall be given, by deed or will, to any persons but such as are, at the time of making such deed or will, in being, or to their immediate issue or descendants." ^ 1 It has been followed in Kin- Hawks, 96; Miller v. Atkinson, 63 naird v. Miller, 25 Grat. 107. N. C. 537.) 2 Carpenter v. Miller, 8 West * Bridges v. Pleasants, 4 Ired. Va. 174. Eq. 30. 8 McAuley v. Wilson, 1 .Dev. Eq. * ^jj,} ggg Griffin v. Graham and 276. Holland v. Peck, 2 h-ed. Eq. Miller v. Atkinson, ubi sup. 255. White v. University, 4 lied. « Conn. Gen. Sts. (Rev. of 1875) Eq. 19. Bridges v. Pleasants, lb. tit. 18, c. 6, pt. 1, § 3. 26. (But see Griffin v. Graham, 1 374 THE ETJLE AGAINST PERPETUITIES. And the doctrine of cy pres has been held not to be in force in Connecticut. 1 But in Coit \. Gomstock ^ there was a devise to trustees to receive the rents and income " until an act of incorporation can be obtained from the General Assembly of the State of Connecticut, by the name of the Smith Memorial 1 Home, ... and to convey, transfer, assign and deliver the said trust fund, virith its accumulations, to the corporation created by such act, as soon as such corporation shall be duly organized. The purpose and object of this bequest is the founding a home for aged, respectable indigent women, who have been residents of the City of New London, under such regulations as may be prescribed or provided by such act of incorporation." After the testator's death the Smith Memo- rial Home was incorporated. The Court of Errors held that it was entitled to the devise. § 622. However desirable it may have been to reach this conclusion, the mode taken to reach it is not clear. In Jocelyn V. Nott^ where a gift to a charity was held void as subject to a remote condition precedent,* the Court say: "The fact that this may be regarded as a charitable devise does not exempt it from the operation of the Rule [against Perpetuities]. The common-law Eule and our own Statute are without exception. All devises or grants, whether for charitable uses, or other- wise, must vest, if they vest at all, within the time limited. The devise in the present ease is vested only in the trustees, and no interest whatever has as yet vested in the party intended to be benefited." § 623. The Court in Coit v. Comstock say : " It is clear, therefore, that a reasonable time only for the act to be ob- tained was contemplated by the testator." * But (1) the Con- 1 White V. Fisk, 22 Conn. 31. ^ b\ Conn. 352. Hughes V. Daly, 49 Conn. 34. Fair- a 44 Conn. 55. field V. Lawson, 50 Conn. 501. See * See §§ 605, 606, ante. Treat's Appeal, 30 Conn. 113; Adye ' 51 Conn. 383. r. Smith, 44 Conn. 60. CHARITABLE TRUSTS. 375 necticut Statute^ provides that no estate shall be given except to persons in being, or their immediate issue or descendants ; and (2) to support incorporation within a reasonable time as a condition precedent of the devise, requires the imputation to the testator of the intention that if the incorporation is not had within a reasonable time the gift shall be void.^ This conclusion, however, the Court avoid ; they say : " What would have become of the property if an act of incorporation had not been procured within such reasonable time, it is not necessary to consider."^ § 624. Still more difficult is " another view of this ques- tion," which the Court take: "The testator," they say, "in this bequest declares his object and purpose to be the found- ing of a home for the aged, &c., which should endure forever. He realized that men must die, but coi'porations never die. He desired, therefore, to have the charity under the manage- ment and administration of a corporation that should endure as long as the home should exist. To carry out this object he gives the property to his executors, to be transferred to the corporation as soon as it should be chartered and organ- ized. The instrumentality of the executors was employed merely to pass the title to the corporation. Nothing is said in the will as to the beneficial interest in the property becom- ing vested in the beneficiaries when the property should be conveyed to the corporation. It became vested in them on the death of the testator, liable to be divested if a corporation should not be organized within a reasonable time under all the circumstances. There is no room for claiming that the property did not vest till the conveyance should be made to the corporation. The charity could not be administered till then, but its administration had nothing to do with the vest- ing of the property, any more than the possession of property by a devisee has to do with the vesting of the same in him. Reversionary interests vest in a party when the possession 1 § 621, ante. * See § 618, ante. » 51 Conn. 38i. 376 THE EXJLB AGAINST PBEPETUITIES. of the property is in another. So here, the property became vested ou the death of the testator, but the time when the beneficiaries should enjoy the charity was deferred till the corporation should become organized and the property con- veyed." There was certainly here an immediate intention to devote to charity, which, if it could not be carried out pre- cisely as directed, could be carried out cy pres ; but to repu- diate the doctrine of ey pres, and to say that all respectable old women who had lived in New London, or should live there to the end of the world, and who should be designated by a non-existent corporation, had a vested interest at the death of the testator is, it is submitted, playing with words.^ It would have been better to say frankly that the Court had erred in repudiating the doctrine of cy pres. § 625. Iowa. — It has been said in Iowa that the doctrine of cy pres is not there in force , nevertheless, a devise to a cor- poration to be organized is good.^ The objection of remote- ness does not seem to have occurred to the Court. The same criticism can be made on the Iowa cases as on those in Vir- ginia and Connecticut.^ § 626. That a charitable gift to a corporation not in esse is good has long been accepted doctrine in Pennsylvania.* In Zeisweiss v. James^ a devise to "the Infidel Society in Phila- delphia hereafter to be incorporated, and to be held and dis- posed of by them for the purpose of building a hall for the free discussion of religion, politics, &c.," was held bad. The objection to the devise was not that it was to a corporation not in esse, but that it was not charitable.^ 1 See White v. Howard, 38 Conn. ^ gg p^. 465. 342. 6 The "building a hall for the 2 Miller v. Chittenden, 2 Iowa, free discussion of religion, politics, 315; 4 Iowa, 252. See Johnson v. &e." seems hardly to come within Mayne, 4 Iowa, 180; Byers v. Mo- any of the definitions of a charity, Cartney, 62 Iowa, 339. even if the hall be not regarded, ^ §§ 615-624, ante. as it was by the Supreme Court of ^ Witman v. Lex, 17 S. & R. 88, 93. Pennsylvania, as " a nursery of vice, CHABITABLE TRUSTS. S77 § 627. In England it has been not uncommon to give ad- vowsons to trustees in trust to appoint clergy of particular opinions and no others. A sale of these advowsons would be a breach of trust on the part of the trustees. They are accord- ingly inalienable. It has been assumed that such gifts are good ; but Mr. Lewis points out, with great force, that they can be good only as charitable gifts, and that they are not charitable.! This question, however, concerns the inaliena- bility of present estates, and not the creation of future estates, and has therefore no real place in this treatise .^ § 628. Provisions directing accumulations for charitable trusts are discussed in the chapter on Accumulations.^ a school of preparation to qualify Shaw v. Thompson, 3 Ch. D. 233. young men for the gallows and The validity of these trusts has been young women for the brothel. " 63 assumed in them. See also A. G. Pa. 471. V. Webster, L. R. 20 Eq. 483, 491; 1 Lewis, Perp. 693-708. Faulkner v. Elger, 4 B. & C. 449; 6 ''Cases since Lewis are Carter D.&R. 517; Marsden, Perp. 309-311. V. Cropley, 8 De G. M. & G. 680; » §§ 677-679, post. 378 THE ETJLE AGAINST PERPETUITIES. CHAPTER XIX. CONSTEUCTIOK. § 629. The Rule against Perpetuities is not a rule of con- struction, but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to deter- mine intention. Its object is to defeat intention. Therefore every provision in a vi^ill or settlement is to be construed as if the Rule did not exist, and then to the provision so con- blrued the Rule is to be remorselessly applied. § 630. This is expressed by several of the judges in their opinions given to the House of Lords in the case of Dungannon V. Smith} Thus Mr. Justice Maule : " The existence of the Rule as to Perpetuities is certainly no reason for altering the construction of the bequest."^ Mr. Justice Patteson: [The will must] " be construed without reference to any rule of law respecting remoteness ; that is, in the first in- stance, and for the sole purpose of ascertaining the testator's meaning." ^ Baron Parke : " Our first duty is to construe the will ; and this we must do, exactly in the same way as if the Rule against Perpetuity had never been established, or were repealed when the will was made ; not varying the construction in order to avoid the effect of that rule, but interpreting the words of the testator wholly without refer- ence to it."* § 631. To the same effect is the language of many other 1 12 CI. & F. 546. '^ P. 578. « P. 588. * P. 599. CONSTRUCTION. 379 cases.^ So a provision void for remoteness is still to be re- sorted to for construing the rest of the will.^ § 632. But it is hardly in human nature for judges not to be influenced by the natural desire to construe deeds and wills so as to carry out, as far as possible, the intention of settlors end testators, rather than so as to defeat such inten- tion, particularly when the rule which threatens it is harsh in its application, which the Rule against Perpetuities, however beneficial its general operation, undoubtedly often is ; and therefore constructions have sometimes been put almost un- consciously on wills which the courts would never have adopted had the Rule against Perpetuities not existed.^ It is obvious that this irregular action of the judicial mind can- not be defined or foretold. § 633. But there is a legitimate use of the Rule against Perpetuities in matters of construction. When the expres- 1 Speakman v. Speakman, 8 Have, 180, 185, 186. Cattlin v. Brown, 11 Hare, 372, 375, 376. Taylor V. Frobisher, 5 De G. & Sm. 191, 197. Pearks v. Moseley, 5 Ap. Cas. 714, 719, 733. Compare Cun- lifEe V. Braiicker, 3 Ch. D. 393, 399; Harvey «. Stracey, 1 Drew. 73, 126, 127; Fei'guson v. Ferguson, 2 Can. S. C. 497 ; Marsden, Perp. 262 et seq. 2 " It is against the settled rules of construction to strike out any words from a will because they of- fend against the perpetuity rule. For all purposes of construction, the will must be read as if no such rule existed. Any dispositions which, so readmg and construing it, are found to be the testator's wishes must be taken to be his wishes, and if those wishes offend against the Rule, the gifts would fail, and must fail accordingly; but they are not the less part of his will, and to be resorted to as part of the context for all purposes of construction, as if no such rule had been estab- lished." Per James, L. J., Heas- man v. Pearse, L. R. 7 Ch. 275, 283, disapproving remarks of Ma- lins, V. C, in s. c. L. R. 11 Eq. 522, 535. See Marsden, Perp. 276. ^ The most striking instance of this is shown by the slight distinc- tions at which courts have clutched in construing gifts of personalty after failure of issue, for the pur- pose of cutting down failure of issue to failure of issue at a certain time, instead of giving it the meaning of indefinite failure of issue which it ordinarily bears, but which would have the effect of making a gift over of personalty too remote. See par- ticularly Forth V. Chapman, 1 P. Wms. 663; and compare §§ 211- 213, ante; and Marsden, Perp. 265 et seq. 380 THE BTJLE AGAINST PEKPBTUITIES. sioii which a testator uses is really ambiguous, and is fairly capable of two constructions, one of which would produce a legal result, and the other one that would be bad for remote- ness, it is a fair presumption that the testator meant to cre- ate a legal rather than an illegal interest. While it is not to be conclusively presumed that a testator knew the Rule against Perpetuities, for such a presumption would often in- volve the absurdity that a testator intended to make a will which he was aware the law would not carry into effect, there is on the other hand no presumption that he did not know it ; and therefore the fact that a provision would be too re- mote, if construed in a certain way, is a reason for supposing that it was not intended to be construed in that way, which, although it cannot avail against a clear form of words, may well be held to govern when the expression is ambiguous.' Especially is this the case when the testator shows, by other provisions of his will, that, when making it, he has had the Rule against Perpetuities in his mind.^ And probably estates void for remoteness would not be raised by implication.^ § 634. There are some cases deserving attention in which rules of construction have been, or are supposed to have been, unduly warped in order to prevent remoteness. They are Mogg V. Mogg^ Leach v. Leach,^ Kevern v. Williams,^ and Mliott v. MliottJ 1 See Co. Lit. 42 a, b; Atkin- (Pa.) 260; Hancock v. Butler, 21 son y. Hutchinson, 3 P. Wms. 258, Tex. 804, 806; Marsden, Perp. 260; Keileyj;. Fowler, Wilra. 298, 208. 307; ThelliisRonu. Woodford, 4 Ves. " Martelli v. HoUoway, L. R. 5 227, 312; Leach v. Leach, 2 Y. & C. H. L. 532, 548. C. C. 495, 499; Christie v. Gosling, " See Chapman i>. Brown, 3 Burr. L. R. 1 H. L. 279, 290; Pearks u. 1626; Lewis, Perp. c. 26; Suppl. Moseley, 5 Ap. Cas. 714, 719; But- 172. ler V. Butler, 3 Barb. Ch. 304, 310; * 1 Mer, 654. Post V. Hover, 33 N. Y. 593, 601 ; ^ g Y. & C. C. C. 495. ])u Bois V. Ray, 35 Jif. Y. 162, 166, « 5 gi^. 171. 167, 171; WoH's Estate, 9 W. N. C. ' 12 Sim. 276. CONSTKXJCTION. 381 § 635. (1.) Mogg v. Mogg?- In this case several matters under a will were referred to the Court of King's Bench. One was as to the construction of a devise of an estate called in the case the Lower Mark Estate. The testator had given it to trustees to apply the rents towards the maintenance " of the child and children, begotten and to be begotten," of his daughter S. " during his, her, and their life and lives; " and after the death of such children he " gave and devised the said estate to the lawful issue of such child and children " of said S., "to hold unto such issue, his, her, and their heirs, as tenants in common without survivorship." As to this Lower Mark Estate, as well as to others, several questions were put to the judges. The first three related to the interests of the children of S. (four of whom had been born in the lifetime of the testator, and five after his death) in tlie estates. The fourth question was this : " Whether the grandchildren of S. (being the issue of such of her children as were living at the date of the will, or of such of her children as were born after the date of the will, and prior to the testator's decease, or of such of her children as were born subsequently to the tes- tator's decease) take any and what estates in the several properties ? "^ The Court gave no opinion, but sent answers to the queries. To the fourth query they said " that the issue of such of S.'s children as were born prior to the testator's decease take an interest in the Lower Mark es- tate as tenants in common in fee simple expectant upon the determination of the estate limited" to the trustees, "but that none of the issue of such of S.'s children as were born after the testator's death, take any interest in the Lower Mark Estate, and that none of the grandchildren take any interest, except as issue in tail, in any of the other property." ^ 1 1 Mer. 654. See Lewis, Perp. judges may have meant that the 590; Marsden, Perp. 266. gift was of each child's share to its 2 P. 663. issue, and that the gifts to the issue 8 P. 689. It is possible that the of those children of S. who were 382 THE EULB AGAINST PERPETUITIES. Sir William Grant, M. R., confirmed the certificate. He deliv- ered no opinion, but the decree states that the nine children of S. took, as joint tenants, an equitable estate for their lives and the life of the survivor, with remainder in fee simple to the issue collectively of the four eldest of such children, as tenants in common.^ The elaborate and able arguments be- fore the King's Bench and the Master of the Rolls were directed to the question of the children's estate. The question vrho of the grandchildren were to take in remainder does not seem to have been discussed. § 636. No case approaches this in its disregard of ordinary- rules of construction for the purpose of avoiding remoteness. It might fairly enough have been contended that children of S., born after the testator's death, were not intended to take ; but to hold that it was intended that all the children should take life interests, and yet that the issue of only some should take in remainder, seems extravagant. The decision in Mogg V. Mogg is unlikely to be followed at the present day. § 637. (2.) Leach v. Leach? Here there was a gift, on the death of the testator's wife, brother, and sister, to E., the eldest daughter, and the other children of the testator's brother, in equal shares, for their lives, the principal to be divided among the issue of said E. and the other children of the testator's brother in equal shares. Vice-Chancellor Knight Bruce held, " though not without some doubt," that the tes- tator intended to give only to those children of his. brother who were alive at his own death. This seems to have been an unjustifiable straining of the construction. Ordinarily all children born before the time of vesting in possession (which born in the testator's lifetime were Mark Estate as tenants in common good, while the gifts to the issue of in fee simple," not that they take those children of S. who were not the whole estate. No such expla- born in the testator's lifetime were nation, however, can be given of too remote. It is to be observed the decree in Chancery. that their words are, that the former * 1 Mer. 706. issue " take an interest in the Lower ^ 2 Y. & C. C. C. 495. CONSTEUCTION. 383 the Court held was not until the death of the wife, brother, and sister) would be considered as intended to take. § 638. (3.) Kevern v. Williams.^ A testator gave his prop- erty to trustees, after the death of his wife, in trust for the grandchildren of his brother, to be by each of them received when they and each of them should severally attain twenty- five and not before. It was held that only those grandchil- dren who were born before the death of the testator's widow should share in the property. This case has often been spo- ken of as one where the ordinary canons of construction were violated to avoid the objection of remoteness.^ But it is submitted that the decision was correct. The general rule of construction is that, upon a gift to a class, only those are included who are in existence at the time of distribution ; and the time of distribution is considered to be when the first of the class is entitled to his share. Now here the brother's grandchildren took an absolute indefeasible interest ; there was no gift over ; the restraints imposed upon the reception of the fund were nugatory.^ Therefore all of the brother's grandchildren who were alive at the death of the widow were entitled at once to their shares; that was the time of distribution ; the class was then closed ; and no after-born grandchildren could take, entirely apart from any question of remoteness.* ' 5 Sim. 171. panied by a valid gift over on fail- ^ Marsden, Perp. 105, 106, 110. ure of any member of the class to Theob. Wills (2d ed.), 247. Tud. reach that age, all members of the L. C. in Real Prop. (3d ed.) 805. class coming into existence before See Lewis, Perp. 525. the eldest reaches the required age 3 See Chap. IV., ante; Gray, are allowecj to share. Andrews v. Restraints on Alienation, §§ 106- Partington, 3 Bro. C. C. 401. Bar- 112, 297, 298. rington v. Tristram, 6 Ves. 345. * See Berkeley y. Swinburne, 16 Whitbread v. St. John, 10 Ves. Sim. 275, 285, 286; 2 Jarm. Wills 1.52. Balm v. Balm, 3 Sim. 492. (4th ed.), 162. Emmet's Estate, 13 Ch. D. 484. When a gift to a class on This is not inconsistent with the reaching a certain age is accom- text, for the gift over prevents the 384 THE KULE AGAINST PEEPETUITIES. § 639. It has been suggest,ed that the rule determining the number of a class at the time when the eldest reaches the prescribed age is a rule of convenience and not of construc- tion of intention,! and therefore may well yield when it comes in conflict with the Rule against Perpetuities, although a rule based on intention would not.^ But if we apply neither this rule of convenience nor the Rule against Perpetuities, but consider only the intention of the testator, the whole class, whenever born, would take, and this would make the gift bad for remoteness. The rule of convenience cuts down the class somewhat, but not enough to obviate the objection of remote- ness. That is, the gift is too remote whether we apply the rule of convenience or not. It is not made remote by apply- ing the rule of convenience ; it continues remote in spite of the application of that rule. It is submitted that Kevern v. gift to the class being indefeasi- ble. In Blease v. Burgh, 2 Beav. 221, there was a gift to the children of A., but not to be paid them till they reached twenty-three. There was a gift over, but it was held bad for remoteness. A. had one child, B., at the death of the testator. After- wards he had another child, C. B. died under age, but C. reached twenty-three, and was appointed B.'s administrator. C. was held entitled to the gift. If he was to be included in the class, then he claimed partly in his own right, partly as administrator of his brother; if he was not to- be in- cluded, then, as administrator of his brother, he was entitled to the whole. The case, therefore, decides nothing as to the time of distribu- tion and the ascertainment of the class. It is submitted, however, that it was only as his brother's adminis- trator (though the opinion of Lord Langdale, M. R., seems to have been otherwise) that C. was enti- tled. Oppenheim v. Henry, 10 Hare, 441, undoubtedly conflicts with Kev- ern V. Williams. In that case the testator directed property to be held in trust for his grandchildren, to be divided equally among them at the end of twenty years after his death. Wood, V. C, held that the grand- children had a vested interest, but- that all bom before the end of the twenty years were entitled. It is submitted that Kevern v. Williams is better law, and that in Oppenheim V. Henry the grandchildren living at the death of the testator were im- mediately entitled, to the exclusion of any afterwards born. 1 See Emmet's Estate, 13 Ch/' D. 484, 490. 2 Marsden, Perp. 26S. CONSTRUCTION. 385 Williams must be upheld on the ground above stated,^ or must be taken to have been wrongly decided.^ § 640. (4.) Elliott V. Mliott.^ A testator gave his personal estate to his daughter's children, in equal shares, as and when they should attain their respective ages of twenty-two years ; the interest on their respective shares to be accumulated and to be paid to them as and when the principal should be pay- able. Shadwell, V. C, held that the gift in question was a gift to such only of the daughter's children as were alive at his death. If this was a vested interest, then, as remarked above with reference to Kevern v. Williams, the provision for delay in payment was void, and the gift went immediately on the testator's death, as a gift in possession, to the daughter's children then living. If it was a contingent gift, the decision would seem wrong. § 641. The case is near the line ; if it had not been the gift of a residue it would probably have been contingent ; but the fact that it was a residue is an argument in favor of vesting.* Perhaps this may fairly be considered a case of sufficient ambiguity to justify a reference to the Rule against Perpetui- ties as indicating intention.^ § 642. In previous chapters have been considered the con- struction of limitations of personalty to go along with realty, " so far as law and equity will permit," ^ the carrying out of executory trusts,^ and the rejection of modifying and quali- fying clauses when too remote.® 1 This involves the overruling of In Wetherell ^. Wetherell, 4 Oppenheim v. Henry, 10 Hare, 441 ; Giff. 51, 1 De G. J. & S. 134, some § 638, note, ante. of the class had reached majority 2 See Ker v. Hamilton, 6 Vict, at the testator's death (see 4 Giff. L. R. Eq. 172, 175. 54) ; and consequently the class was « 12 Sim. 276. then closed without calling for any < See 1 Jarm. Wills (4th ed.), aid from the Rule against Perpe- 833-855; Hawkins, Wills, 223-231; tuities. Theob. Wills (2d ed.), 409-416; = See §§ 368-367, an^e. Lewis, Perp. Suppl. 155, 171. ' See §§ 365, note, 418, ante. 6 § 633, ante. See also Gosling « See Chap. XHI., ante. V. Gosling, Johns. 265, 274. 25 386 THE EULE AGAINST PBKPETUITIES. § 643. Gy pres. — There is one well-recognized exception to the rule that the question of remoteness will not affect the construction of limitations expressed in unambiguous lan- guage. When land is devised to an unhorn person for life, re- mainder to his children in tail, either successively or as tenants in common with cross-remainders, the unborn person takes an es- tate tail ; and when land is devised to an unhorn person for life, remainder to his sons in tail male, either successively or as ten- ants in common with cross-remainders, the unhorn person takes an estate tail male} This is called the doctrine of cy pres?- § 644. The occasion for the construction cy pres of a devise to A. for life, remainder to his children in tail, as giving an estate tail to A., arises not only (1) when A. is unborn, and his children are therefore beyond the limits of the Rule against Perpetuities,^ but also (2) when A. is the object of a power, but his children are not. The same principles govern both classes of cases, and therefore both are in point here. § 645. (1.) The first cases in which the doctrine of cy pres was applied were instances of carrying out executory trusts.* In Nieholl v. Nicholl^ (1777) the doctrine of cy pres was ap- plied to the devise of a legal estate, though the propriety of its application under the circumstances of the case has been questioned.® In Pitt v. Jackson"! (1786) it was applied to a legal devise by Sir Lloyd Kenyon, M. R.* This case has 1 And a like method is to be pur- Hucks v. Hucks, 2 Ves. Sr. 568 sued when a perpetual series of life (17o4). See Marlborough u. Godol- estates is given. See §§ 652 et .leq., phin, 1 Eden, 404, 422, 423; Godol- pnxt. phin v. Godolphin,! Ves. Sr. 21,23; 2 This must not be confounded Mortimer v. West, 2 Sim. 274, 282, ■with the doctrine of cy pres in its 288; Lyddon v. Ellison, 19 Beav. application to charities. See §§607 565, 573; 1 Jarm. Wills (4th ed.), etseq., ante. 298, note (i); Marsden, Perp. 268 ^ As, for instance, in Vander- et seq. ; § 418, ante. plank V. King, 3 Hare, 1. = 2 W. Bl 11.59. * Humberston r. Humberaton, 1 ' See § 647, post. P. Wms, 332; 2 Vern. 7.37; Prec. '' 2 Bro. C. C. 51. Ch. 455; Gilb. Eq. 128 (1716). « The decree of the Master of the CONSTRUCTION. 387 always been spoken of as going to the verge of the law,^ but it has been always followed,^ and it is now settled that tlie doctrine of cy pres applies to direct devises, and not merely to executory trusts.^ The statement to the contrary in Mor- timer V. West^ is not law. § 646. (2.) The doctrine of cy jores is applied only in wills, not in deeds. ^ Any new distinction between the construction of deeds and of wills is certainly to be deprecated at the present day ; but the disposition of courts to confine the Rolls in this case was reversed, sub nom. Smith v. Camelford, 2 Ves. Jr. 698, by Lord Loughborough, C, on another point; but on the question of cy pres the Lord Chancellor said he should feel himself " very much inclined to adopt the idea he [the Master of the Rolls] pursued," p. 711. See Sugd. Pow. (8th ed.) 499-501; Prior, Lim. §§ 88, 89. It has been discu.ssed whether the doctrine of cy pres was applied in Hopkins v. Hopkins, West, 606; 1 Atk. 580; I Ves. Sr. 268; Co. Lit. 271 b, Butler's note (1739). See Vanderplank v. King, 3 Hare, 1, 12; Fearne, C. R. 206, Butler's note; Prior, Lim. § 90; 1 Jarm. Wills (4th ed.), 301; Lewis, Perp. 429, note (3). See also Chapman 0. Brown, 3 Burr. 1626. ' By Lord Kenyon himself, Bru- denell t. Elwes, 1 East, 442, 451. ByLordEldon, s. c. 7 Ves. 382, 390. By Lord St. Leonards, Stackpoole V. Stackpoole, 4 Dr. & W. 320, 350. By Sir J. L, Knight Bruce, Bough- ton V. James, 1 Coll. 26, 44. By Sir James Wigrara, Vanderplank v. King, 3 Hare, 1, 12. By Baron Rolfe, Monypenny v. Dering, 16 M. & W. 418, 432, 434. See Fearne C. R. 208, Butler's note; Lewis, Perp. 453, 454. 2 Griffith V. Harrison, 4 T. R. 737, 748 (see s. c. 3 Bro. C. C. 410, 415; Fearne C. R. 207, Butler's note; Sugd. Pow. (8th ed ) 499, 500). Stackpoole v. Stackpoole, 4 Dr. & W. 320, 350. Vanderplank V. King, 3 Hare, 1, 12, 16. Line v. Hall, 43 L. J. Ch. 107. Peyton v. Lambert, 8 Ir. C. L. .485. See Robinson v. Hardcastle, 2 Bro. C. C. 22, 344; 2 T. R. 241, 380, 781; Parfitt V. Hember, L. R. 4 Eq. 443 ; Hampton o. Holman, 5 Ch. D. 183, 190; Sugd. Pow. (8th ed.) 501; Lewis, Perp. Suppl. 146. 2 On a further point decided by Pitt V. Jackson, see § 649, post. * 2 Sim. 274, 282, 283. 5 Brudenell «. Elwes, 1 East, 442, 451 ; 7 Ves. 382, 390. Lewis, Perp. 440. See Stackpoole v. Stackpoole, 4 Dr. & W. 320, 348; 2 Prest. Abs.' 166. Cf. Adams v. Adams, Cowp. 651; Sugd. Pow. (8th ed.) 494, note (a), 502, 503; 3 Prop. Lawyer, 249. In the place last cited are printed the opinions of Sir John Scott, Sir John Mitford, Sir Samuel Romilly, and Mr. Hollist, taken when a re- opening of the case was mooted. 388 THE RULE AGAINST PBKPETUITIES. doctrine of cy pres within the narrowest limits, and the high authority of Lord Kenyon, Lord Eldon, and Lord St. Leon- ards as to the existence of this distinction, will probably cause it to be maintained. § 647. (3.) A devise will not be construed cy pres when such construction might have the effect of passing the estate to persons to whom no interest is given in the will. Thus a devise to an unborn person for life, remainder to his first son in tail male, cannot be construed cy pres into an estate tail male for the unborn person, for under such construction his second and other sons would inherit.^ So if the remainder to the children of the unborn person is in fee, the unborn person cannot take a fee cy pres, for that would let in his' collateral relations.^ And for a like reason the doctrine of cy pres cannot be applied to personalty.^ 1 MoTiypenny v. Dering, 16 M. & W. 418; 2 De G. M. & G. 145. See Griffith v. Harrison, 4 T. R. 737, 748; Seaward v. Willock, 5 East, 198. If Nicholl V. Nicholl, 2 W. Bl. 1159, is to be considered as deciding the contrary, it must be held to be overruled. Monypenny v. Bering, 16 M. & W. 418, 434-436; 2 De G. M. & G. 145, 175. Prior, Lim. § 91. 1 Jarra. Wills (4th ed.), 300, note (r)r 2 Hale V. Pew, 35 Beav. 335. Wood V. Griffin, 46 N. H. 230. Cf. Bristow V. Warde, 2 Ves. Jr. 336; Lewis, Perp. 430. In those of the United States, therefore, where estates tail are turned into estates in fee simple, the doctrine of cy pres should have no application. § 669, post. St. Amour v. Rivard, 2 Mich. 294; § 665, post. But see Allyn v. Mather, 9 Conn. 114; §§ 662, 663, post: Gibson jj. McNeely, 11 Ohio St. 131 ; §J 666, 668, post. ' Routledge v. Dorri), 2 Ves. Jr. 357, 364, 365. Lewis, Perp. 435 et seq. Sugd. Pow. (8th ed.) 502. Tud. L. C. in Real Prop. (3d ed.) 409. When personal property is given to an unborn person for life, re- mainder to his children and the heirs of their bodies (as, for in- stance, when a mixed fund of realty and personalty is given on such a limitation), the law is not entirely clear. Are we to say that if the subject of the gift was realty, the unborn person would take an estate tail, and that words which carry an estate tail in realty give an absolute interest in personalty; or'are we to apply the words, as they stand, di- rectly to the personalty? In the former case the unborn person will get an absolute interest, in the latter he will take a life in- terest and the gift over will be CONSTECCTION. S89 § 648. (4.) A devise will not be construed cy pres when such construction would have the effect of excluding persons to whom an interest is given in the will. Thus if there is a devise to an unborn person for life, remainder to his sons suc- tion is hard to answer; cases raising it have been usually, like that above given, where the Rule in Shelley's Case would govern a devise of realty. In a long series of cases a bequest of personalty to A. for life, reinaiii- der to the heirs of his body, has been held to pass an absolute inter- est, Theob. Wills (2ded.). 371; and probably this is a, settled rule of construction which would not now be departed from; but the courts have of late indicated that such decisions are to be now followed only on the principle of stai-e decisis, and that where the language varies they will follow out the intention of the testa- tor and not give an absolute interest in personalty, simply because an arti- ficial rule, overthrowing the inten- tion, would give an estate tail in realty. Thus in Ex parte Wyncb, 5 De G. M. & G. 188, a bequest to A. for his life, remainder to his issue, was held to give A. a life in- terest only. See Foster v. Wybrnnts, I. R. 11 Eq. 40; 2 Jarm. Wills (4th ed.), 572; Prior, J>im. §§ 3U1-316. So a bequest to A. for life, and after his death to his heirs, was considered by Jessel, M. R. , to give only a life interest. Smith v. Butcher, 10 Ch. D. 113. According to this more modern and more reasonable view, a gift of personalty should be construed with- out j'egard to the ei^eot that the doctrine of cy prex would have upon a similar devise of realty. void. Sir J. L. Knight Bruce states the question without deciding it, although his inclination seems to be to favor the latter mode of treat- ment. Boughton V. James, 1 Coll. 2G, 44. Mr. Prior, in his treatise on Limitations, § 96, seems inclined to the former. Mr. Lewis (Perp. 437-439) states the argument iu favor of the former view, but leaves the reader uncertain as to his own opinion. The grounds of the de- cision in Mogg V. Mogg, 1 Mer. 654, which is sometimes referred to as favoring the former view, are too uncertain to make it of value as an authority. Prior, Lim. §§ 96,314; Lewis, Perp. 431, 432, 438, 439. The decision of the matter de- pends on the answer to be given to this question : " Is a legatee to take an absolute interest when such words are used as would, if used in ii devise of i-ealty, giue, as matter of law, an estate tail, or is a legatee to take an absolute interest only when such words are used as would, if used in a devise of realty, nhow an intent to gioe an estate tail." Thus if personalty is bequeathed to A. for life, remainder to the heirs of the body of A. , is A. to take the absolute interest because, by the Rule in Shelley's Case, a devisee of realty would take the fee? Or is A. to have only a life estate, be- cause that is all that the tpstator has int^-nded that he shall take? Unfortunately this general ques- 390 THE EULE AGAINST PERPETUITIES. cessively in tail general, an estate tail male will not be given by cy pres to the unborn person, because that would exclude the daughters of his sons. This proposition is probably cor- rect, as it is in accordance with the decisions and language of the courts in the cases referred to in the preceding section i^ but there is no clear decision on the point; and indeed it seems not so objectionable to exclude some of a class, all of whom would be excluded except for the doctrine of cy pres, as to let in persons to whom nothing has been given.^ § 649. (5.) An estate tail can be given by cy pres to an ancestor if all his issue are given by the devise vested inter- ests in tail in the whole of the estate as purchasers, although they will not inherit from him in the same order in which the estate is devised to them as purchasers. Thus if an estate is given to an unborn person for life, remainder to his children as tenants in common in tail, with cross-remainders in tail, such person can take an estate tail by cy pres, for every de- scendant has the possibility, both under the devise as framed (apart, of course, from the question of remoteness), and as heir in tail of A., of taking the whole estate.^ If in such case ' And see Adams v. Adams, reports to hare decided that G. Cowp. 651. took an estate tail by cy pres. This 2 In Line v. Hall, decided in was correct according to statement 3873, there was a power in A. to (1). If the facts were as given in appoint to his children; he ap- statement (2), G. would have taken pointed to his son G. for life, with an estate tail male. If statement a remainder (1) (according to 43 (3) had been correct, the doctrine L. J. Ch. 107) to G.'s first and of c?/ /)rcs could not have been ap- other sons successively in tail, re- plied. G. could not have taken an mainder to G 's daughters* in tail; estate tail male, for that would have but (2) (according to Weekly N^ excluded his sons' daughters (see (1873) 198) to the first and other the text); and he could not have sons of G. successively in tail male ; taken an estate tail, for that would but again (.S) (according to 22 have included his daughters, see W. R. 124) to the first and other § 647, ante. sons of G. successively in tail. " Pitt v. Jackson, 2 Bro. C. C. Jessel, M. R. , is declared in all the 51. Vanderplank i\ King, 3 Hare, 1. * The book says " daughter," but this is assumed to be a misprint. CONSTETTCTION. 391 there were no cross-remainders, and consequently no cTiance for every child of the unborn person to take the whole estate, the doctrine of oy pres could not have been applied. § 650. (6.) When estates for life are devised to a class, and the share of each member is given to his or her children in tail, and some of the members are born, and some are not, the doctrine of cy pres vpill be applied to the shares of the latter, although not to those of the former.^ § 651. (7.) The doctrine of ey pres is not to be extended.^ § 652. (8.) When a series of successive life estates is de- vised to one and his issue forever, with cross-remainders, the first generation that is unborn at the testator's death takes an estate tail by cy pres. Thus, if an estate is devised to A. for life, remainder to his children as tenants in common Fearne, C. R. 206, 207, Butler's note. 1 Jarm. Wills (4th ed.), 299. Lewis, Perp. 431. 1 This seems to have been the effect of Vanderplank v. King, 3 Hare, 1, as construed by the Court. It is so understood by Mr. Marsden, Perp. 271, and in 1 Jarm. Wills (4th ed.), 300. But the case is con- fused by the learned VicerChan- .cellor. Sir James Wigram, who decided it, speaking of the gift to the grandchildren as being a gift to a single class, so that the share of each would remain undetermined until the whole class was closed. 3 Hare, IS-l.'J. This would seem to indicate a gift to all the grand- children per capita. On such a con- struction, the doctrine of cy pres, if applied at all, would have to be ap- plied to the whole estate, for the shares of those grandchildren whose parents did not take estates tail could not be determined. This appears to have been the understanding by Mr. Lewis of the construction put upon the devise in Vanderplank v. King ; and on this construction his criticism against the partial appli- cation of the doctrine of cy pres seems sound. Lewis, Perp. Suppl. 146-148. But on the whole the in- terpretation of the case given in the text is probably the correct one. 3 Hare, 17, 18. See Lewis, Perp. Suppl. 59. See also Huraberston v. Hum- berston, 1 P. Wms. 332 But cf. Williams v. Teale, 6 Hare, 239, 253; Lewis, Perp. 149-151. 2 Brudenell tT. Elwes, 1 East, 442, 451; 7 Ves. 382, 390. Boughton u. James, 1 Coll. 26, 44. Hale v. Pew, 25 Beav. 335, 338. See Bris- tow V. Warde, 2 Ves. Jr. 336 ; Mony- penny v. Dering, 16 M. & W. 418, 428, 434; Dennehy's Estate, 17 h: Ch. 97 ; Lewis, Perp. 453, 454 ; Suppl. 152 ; Fearne, C. R. 208, Butler's note; § 645, ante. 392 THE RULE AGAINST PEEPETtTITIES. for their respective lives, remainder, as to the share of each child, to its children as tenants in common for their lives, and so on, successive generations taking estates for life for- ever, with cross-remainders; and A. has tvro children, one B., born before, and another C, born after the testator's death, then B.'s children v^ill take estates tail, and C. will take an estate tail. Humberston v. Mumherston} This was a case of an executory trust ;^ but in Parfitt v. Hemher? where it was considered that the testator had intended to create a series of life estates in perpetuity. Lord Romill}', M. R., by cy pres gave the unborn issue an estate tail,* declaring that the doctrine was not confined to executory trusts ; and this declaration was approved in Hampton v. Solman} § 653. If the effect of applying the doctrine of cy pres might be to give an interest as heir in tail to a person to whom no estate for life is given, it will not be applied. Thus in Seaward v. Willock,^ where there was a devise to A. and his issue for ten generations successively for life, although only the estate of A. was in question, it is conceived that his children could not have taken an estate tail by cy presJ 1 1 P. Wras. 382; 2 Vern. 737; eldest son in tail male." L. R. Prec. Ch. 455; Gilb. Eq. 128. 4 Eq. 446. It is conceived, how- 2 See Mortimer v. West, 2 Sim. ever, that the doctrine of cy pres can 274, 282; 1 Jarm. Wills (4th ed.), be applied only-when the intention 298, note (i) ; Lewis, Perp. 450. is clear that all the issue are to take, 8 L. K. 4 Eq. 443. and not merely the eldest in each ■*" When the Court finds that the generation. ^ 653, post. Probably object expressed by the testator is the Master of the Rolls, in this to give to A. an estate for life, to somewhat carelessly put instance, A.'s eldest son another estate for had no intention of suggesting the life, and so on, the Court will carry contrary. that intention into effect as nearly « 5 ch. D. 183, 190, 191. See as it can, by giving to A. an estate Lewis, Perp. 434, 435; Theob. Wills for life, and to his eldest son, if un- (2d ed.), 442. Cf. Manning v. born at the death of the testator, an Andrews, 1 Leon. 256, 258. estate in tail male, or, if he be alive ^ 5 East, 198. at the death of the testator, an estate ' See § 647, ante; Lewis, Perp. for life, with a remainder to his 433; Prior, Lim. § 87; Sugd. Pow. OONSTETJCTION. 393 § 654. If the issue take successively leasehold estates determinable by death, the doctrine of cy pres will not be applied.^ § 655. It has been sometimes supposed that when a series of life estates is given to A. and to successive generations of his issue, it is A. who takes the estate tail by ci/ pres, and not the first generation of unborn issue ; but this, it is conceived, is erroneous, and contrary to the true principles which govern the doctrine of ei/ pres.^ § 656. The difficulty has arisen from not distinguishing these cases from those in which an estate of inheritance is clearly given to A., but coupled with a pi'ovision that the tenants shall hold for life. A. in those cases takes an estate tail, not by ci/ pres, but by rejecting the words which are repugnant to an estate of inheritance.^ So when the estate tail, although not expressly given, arises by implication.* § 657. In WoHen v. Andrews ^ the first taker, a child, was (8th ed.) 498, note; Fearne, C. R. Forsbrook v. Forsbrook, L. E. 3 208, Butler's note ; Monypenny v. Ch. 93. Bering, 2 De G. M. & G. 145, « Mortimer v. West, 2 Sim. 274 178. (in which the application of the 1 Somerville v. Lethbridge, 6 T. R. doctrine of cy pres is expressly nega- 213. Beard v. Westcott, 5 Taunt, tived. Pp. 282, 283). Brooke v. 893; 5 B. & Aid. 801; T. & R. 25. Turner, 2 Bing. N. C. 422 (see Lewis, Lewis, Perp. 441. Prior, Lim. § 92. Perp. 444-446). Trash u. Wood, 4 2 And see 1 Jarm. Wills (4th Myl. & Or. 324 (see Lewis, Perp. ed.), 298, note («). 446, 447). Theob. Wills (2d ed.), 3 Doe d. Cotton v. Stenlake, 12 442. Prior, Lim. §§ 86, 264. But East, 515. Reece v. Steel, 2 Sim. see Lewis, Perp. 444, note. Cf. 233. Hugo V. Williams, L. R. 14 Monypenny v. Dering, 2 De G. M. Eq. 224. IJarm. Wills (itb ed.), & G.' 145, 177-179. 480, 481. See Monkhouse v. Monk- Goodtitle d. Cross v. Wodhull, house, 3 Sim. 119 ; Mack worth v. Willes, 592, did not call for any ap- Hinxman, 2 Keen, 658 (cf. Ker v. plication of ci/ pres at all. It was Dungannon, 1 Dr. & W. 509, 537, simply an instance of the applica- 538 ; Sugd. Law of Prop. 341, tion of the Rule in Shelley's Case, note); Thompson v. Thompson, 1 See Lewis, Perp. 447-450. Cf. Coll. 381, 388; Towns v. Went- Prior, Lim. §86. worth, 11 Moore, P. C. 526, 545; « 2 Bing. 126. SQi THE EULE AGAINST PBEPETUITIES . given an estate tail, but this was because the life estates to the unborn grandchildren were held too remote, an error long since exploded; ^ besides, in this case the child took an estate tail by implication, as pointed out by Best, C. J., without any aid from cy pres? § 658. In Forshrook v. Forsbrook ^ the testatrix devised land to her nephews C. and T. during their lives, and after their death it was her will that their eldest sons should inherit the land during their lives, and so on, the eldest son of the two families to inherit the land forever ; each two of the succeed- ing inheritors to inherit it free from any incumbrance. A bill was brought to obtain the opinion of the Court whether the nephews C. and T. could commit waste. The Lords Justices decided that the nephews had only life estates in possession, and therefore could not commit waste. This was the point before them, but they also went on and declared that the nephews' life estates were followed by remainders to their eldest sons for life, remainder to themselves in tail.* The case was not argued nor decided on any oi/ pres ground. 1 § 232, ante. * This had been the contention 2 See Lewis, Perp. 442, 443. The on neither side. The counsel for treatment of the question when, on the nephews urged that they had the one ,hand, the first taker is to estates tail in possession ; the coun- have, either expressly or by implica- sel for the eldest sons of the nephews tion, an estate tail, and when, on the argued that their clients were en- other hand, unborn children are to titled to estates tail in remainder. take estates tail by cy pres, by Mr. In Hampton );. Holman, 5 Ch. D. Lewis, is not marked by his wonted 183, 187, Sir George Jessel, M. R , clearness. It is confused by the speaking of Forsbrook v. Forsbrook, mistaken theory — afterwards aban- remarks that thus to go on and de- doned by him, Suppl. 27 et seq. — clare the rights of parties when im- that the Rule against Perpetuities mediate relief could not be given is to be applied to the state of was against the settled law of the things at the date of the will, Court; that to decide that "there and not at the time of the tes- was an ultimate remainder in tail tator's death. Lewis Perp. 441 in the tenant for life," " trans- et seq. gressed the well-established rule of 8 L. R. 3 Ch. 93. the Court," and was " a mere slip." CONSTRUCTION. 395 Indeed, Rolt, L. J., said : " I think that effect may be given -to all the words of the will, without having recourse to the doctrine of cy pres.'' At the end, however, of his opinion, after saying that the nephews took life estates, remainder to their eldest sons for life, remainder to the nephews them- selves in tail male, he added : " The same result would be arrived at if we held it to be a perpetual succession of life estates — which we might have done if it had not been for the direction respecting incumbrances — and then applied the doctrine of ct/ pres, which would give the nephews an estate in tail male." ^ § 659. The Lord Justice cannot have meant that by ey pres the nephews could have taken an estate tail in posses- sion ; for the " result " was that they took an estate for life in possession, remainder to their eldest sons for life, remain- der to themselves in tail ; and the real point in issue was that the nephews did not take an estate tail in possession, and therefore could not commit waste. Whatever the Lord Jus- tice meant, he could not have meant that by cy pres the first of a series of life ibenafits can take an immediate estate tail. § 660. He probably used the term " cy pres" not as mean- ing a method of modifying a testator's intention when it comes in conflict with the Rule against Perpetuities (which is the meaning commonly attributed to it, and which it bears in this chapter), but as meaning a method of harmonizing two con- flicting intentions. What he apparently meant was that when there are limitations to certain only of A.'s issue, and yet it is clear that the testator wishes the estate^ not to go over until A.'s issue is exhausted. A., to effectuate this, will be held to have an estate tail in remainder after the limitations to the 1 In 16 VV. R. 290, 291, the only true construction but for the words other place where the case seems to as to taking the property free from be repoi'ted, the language is : "A incumbrances, and then, by apply- perpetual succession of life estates ing the doctrine of cy pres, you would have produced the same -would arrive at the same result." effect, and might be adopted as the 396 THE RULE AGAINST PEEPBTUITIES. particular issue.^ This is the meaning attributed to him by Jesse], M. R., in Hampton v. Holman? § 661. The American cases involving any question of cy pres are few. In Wood v. Crriffin ^ there was a devise to J. for life, remainder to J.'s children and the survivors of them for life, remainder to the grandchildren of J. in fee simple. It was held that the children of J. took only life estates. It was not suggested, apparently, that the doctrine of cy pres could be applied ; and it clearly could not, both because the grandchildren took fees simple,* and also because they seem to have taken per capita.^ § 662. Allyn v. Mather.^ Here there was a devise to the testator's son for life, remainder to the testator's grandsons A. and B. dtiring their lives, " and, after their decease, to each of the eldest sons ; and so from eldest son or sous forever ; and in case they should have none, to the eldest male child of any of my [the testator's] sons ; and so from eldest to eldest to the end of time." A. had three sons, E., H., and R. E. died before A., leaving a daughter, M. H. died before the testator, leaving sons and daughters. On the death of A., R. brought ejectment against M. Three judges thought that by " eldest son " of A. the testator meant the " eldest living at the death of A.," and consequently that R. was entitled to ' See Doe d. Gallini v. Gallini, as it is given to him. If the ulterior 5 B. & Ad. 621; 3 A. & E. 340; gifts require an estate tail in the 2 Jarm. Wills (4th ed.), 478- parent, it may be by way of re- 482. mainder after the son's life estate, 2 5 Ch. D. 183, 193, 194. as suggested by Rolt, L. J., Fors- In 1 Jarra. Wills (4th ed.), 298, brook v. Forsbrook, L. R. 3 Ch. 99." note (i), it is said that the cy pres But this estate tail is given to the , doctrine " never has been applied so parent because of "the ulterior as to give an immediate estate tail to gifts," not because of the doctrine a person, born in the testator's life- of cy pres, as that term is commonly time, who by the will is expressly and technically used, made devisee for life, with remainder ^ 46 N. H. 230. to his (unborn) son for life. There ^ § 647, ante. is no reason why the unborn son ^ § 650, note, ante. should not take the estate for life ^ 9 Conn. 114. CONSTETJCTIOK. 397 recover. Daggett, J., dissenting, held (^semhle correctly) that eldest meant "eldest born," and that consequently R. was not entitled. All that was necessary to decide was that R. was entitled to the seisin as tenant for life, but the judges who thought him entitled said that he took an estate tail by cy pres. This, on their construction, seems questionable, to say the least. If the eldest son of A. means the eldest surviving, the eldest son of such eldest son must mean the eldest surviving ; consequently the expressions of the will exclude the eldest son of an eldest born son, if the latter has died before his father. That is, if R. should have had two sons, N. and O., and N. had died before R. leaving a son P., 0. would take the estate on the death of R., and P. would be excluded. But if R. had an estate tail by ci/ pres, P. would take by descent. Consequently as an estate tail by ez/ pres would include per- sons whom the terms of the will did not include, it could not be applied.^ § 663. Mr. Justice Daggett, who thought that the first-born son E. was entitled, was of opinion that he took an estate tail male by ct/ pres. There is more reason for this view, for it is a possible, although a very strained, construction to hold that all the issue male of E. were to take. But it is hard to see how ci/ pres can ever be properly applied in Connecticut ; for by a statute in that State ^ " every estate, given in fee tail, shall be an absolute estate in fee simple, to the issue of the first donee in tail." Consequently any attempt to construe a devise cy pres lets in persons to whom nothing is given by the will.^ § 664. Jackson v. Brown} Here there was a devise to A. for life, remainder to the first son of A. for life, remainder to 1 § 647, ante. pel v. Brewster, lb. 175. Hamilton 2 Rev. of 1875, tit. 18, c. 6, pt. 1, v. Hempsted, 3 Day, 332). § 3, p. 352 (confirmatory, it is said, « §§ 647, ante; §§ 665, 667, 669, of the common law of the State, pout. Welles V. Olcott, Kirby, 118. Chap- * 13 M'end. 437. 398 THE EtJLB AGAINST PEEPETUITIBS. the first and every other son and sons of such first son of A. successively in tail male. A. was unmarried at the testator's death. It was held that the eldest son of A. took an estate tail by cy pres. This was an instance of the normal applica- tion of the doctrine.! § 665. St. Amour v. Rivard? A testator devised to his son L., " his life lasting, the use and benefit " of certain land, and made other like devises. He added : " It is well to be understood that all and every single disposal of real estate made in this my testament, is only for the use and benefit of him or her in whose favor it is made, his or her life lasting, and that it is my formal will that neither my real estate nor any parcel thereof, will ever be sold or alienated in whatso- ever manner — but that after the decease of those several to which shares or parcels of my real estate have been assigned, the said shares or parcels will remain for the use and benefit of the descendants of him or her to whom a share has been assigned, their lives lasting, and so on, and in ease of demise without posterity, the said share shall accrue to the use and benefit of the owner or of the owners being of my relation or descendants, their life lasting, of the next share or shares, and so long as any posterity will exist, and in case of extinc- tion to the next heirs." The persons to whom these devises were made were the children and heirs at law of the testator, and they transferred all their interest to the plaintiff. The Court held that the plaintiff took the entire title to the estate, and consequently must have been of opinion that the children took the entire interest in the land.^ The Court held that the doctrine of cy pres did not apply ; and although the 1 The testator died in 1780, and " 2 Mich. 294. ■ the New York statute turning es- ^ Whether the grandchildren did tates tail into fees simple was not not take life estates with remainders passed till Feb. 23, 1783, so that the to their parents in fee, qumre. See considerations arising under Allyn Forsbrook v. Forsbrook, L. R. 3 Ch. V. Mather, 9 Conn. 114, § 663, ante, 93; §§ 658-660, ante. are not applicable to this case. CONSTKUCTION. 399 reasoning is not very clear, this ruling seems correct, for by statute in Michigan ^ " all estates tail are abolished and every estate which would be adjudged a fee tail " according to the law of Michigan before 1821 " shall for all purposes be ad- judged a fee simple." To give the first issue of the children an estate in fee simple would let in persons to whom no interest was given by the will, and consequently the doctrine of cy pres could not be applied. - § 666. Gibson v. McNeely? A testator devised land to three persons, children of his deceased sister, for their lives, and at the death of any of the devisees who should have taken for life he gave his share to his issue, share and share alike, for their lives respectively ; and again, at the death of the issue last aforesaid, or any of them, he devised the respective share of said issue to the issue of such issue or any of them, share and share alike, for their lives, " and in this manner, down in entailment as far as may be allowed by the statute in such case made and provided." It was held that the issue of the children took estates tail. The attention of the Court was mainly directed to another question. § 667. In this case there appear to have been no cross re- mainders, and consequently persons might take by descent, under an estate tail to the issue, created hj cy pres, an inter- est in the whole estate which was not given to them by the words of the will ; and therefore, it would seem, the doctrine of cy pres ought not to have been applied.* § 668. Again, by a statute of Ohio,^ borrowed apparently from that of Connecticut,^ " all estates given in tail shall be and remain an absolute estate in fee simple, to the issue of the first donee in tail ; " and therefore an estate tail given 1 2 Comp. Laws (1871), § 4070. * § 647, ante. " §§ 647, 663, ante ; §§ 668; 669, « St. 1811, c. 260; Rev. of 1880, post. § 4200. 8 11 Ohio St. 131, affirming s. c. ^ § 663, ante, sub nom. Gibson v. Moulton, 2 Dis- ney, 158. 400 THE BtTLB AGAINST PERPETUITIES. to the sister's grandchildren might go to persons to whom nothing was given by the will, and for this reason also the doctrine of cy pres ought not to have been applied.^ § 669. In short, as the essence of the doctrine of cy pres consists in giving an estate tail, and as to give an estate in fee simple by cy pres violates the fundamental principle that you cannot by cy pres let iu persons to whom the will gives nothing, it would seem as if the doctrine had no scope in America, save in those comparatively few jurisdictions — e. g. Maine, Massachusetts, Rhode Island, Pennsylvania — where estates tail still exist.^ § 670. In Doe d. McDonnell v. Molsaac^ and Ferguson v. Ferguson * the term cy pres is used loosely. 1 §§647, 663, 665, an. 261. See Pride o. Fooks, 2 Beav. 430, 437. Keith e. Keith, 19 D. 1040; Lord Ellis V. Maxwell, 3 Beav. 587. v. Colvin, 23 D. Ill; Pursell v. A. G. V. Pouldeii, 3 Hare, 555. Elder, 4 Macq. 992. Elbonie u. Goode, 14 Sim. 165. ' Eyre «. Marsden, 2 Keen, 564. Morgan v. Morgan, 4 De G. & Sm. Ealph v. Carrick, 5 Ch. D. 984, 997, 164, 175. Wilson v. Wilson, 1 Sim. 998. See Talbot v. Jevers, L. E. N. s. 288, 300. Bourne v. Buckton, 20 Eq. 255. 2 Sim. N. s. 91. Jones v. Maggs, =" 1 Jarm. Wills (4th ed.), 312, 9 Hare, 605. Edwards v. Tuck, 3 313. De G. M. & G. 40. Burt v. Sturt, » So Marsden, Perp. 342. 10 Hare, 415. Drakeley's Estate, ^ 2 Keen, 564. 19 Beav. 395. Oddie v. Brown, 4 » Fitch v. Weber, 6 Hare, 145, De G. & J. 179. Mathews v. Keble, cited in Jarman, does not bear on L. R. 3 Ch. 691. Talbot v. Jevers, this question. APPBKDIX. 423 § 707. When there is a present gift to one for life, with remain- der over, and a void provision for accumulation, the released income goes to the life tenant during his life." § 708. When there is no present gift, and therefore the released income falls into the residue, but the residue is given to one for life, with remainder over, it was held in Crawley v. Crawley '^ that the released income was to form part of the capital of the residue.* But this seems wrong ; if the income directed to be accumulated in violation of the Act is added to the principal of the residue during the life of the life tenant, the income is being accumulated, though not compounded, until the life tenant's death; and therefore the decision of Malins, V. C, in Re Phillips* that the life tenant should have the whole of the released income, seems correct.* § 709. The second section of the Act exempts three classes of provisions from its operation. § 710. First. "Any provision for paj'ment of debts of any grantor, settler, or devisor, or other person or persons."" This includes the debts of persons other than those making the provi- sions. Such was the opinion of Lord" St. Leonards,'C., in Barring- ton v. Liddell,'' in opposition to that of Turner, V. C, in the same case.' The clause applies to contingent debts ^ and to future debts." The accumulation must be bona fide for paying debts only, and not for that and other purposes.'" §711. Second. " Aiij' provision for raising portions for any child or children of any grantor, settler, or devisor, or any child or chil- 1 Trickey v. Tricksy, 3 Myl. & 1 De G. F. & J. 211, 224; Mathews K. 560, 565. Coombe v. Hughes, v. Keble, L. R. 3 Ch. 691. 31 Beav. 127; 2 De G J. & S. 657. » Vailo v. Faden, 27 Beav. 255, 2 7 Sim. 427. 264. 8 So also in O'lfeill v. Lucas, 2 i" See Barrington v. Liddell, 2 De Keen, 313, 316. See 1 Jarm. Wills G. M. & G. 480, 498 ; Varlo v. Faden, (4th ed.), 312. 27 Beav. 255, 264. Cf. Smyth ». * 49 L. J. Ch. 198. Kinloch, 7 R. 1176. 5 See Morgan t'. Morgan, 4 De G. " Mathews v. Keble, L. R. 3 Ch. &Sm. 164. Harg. Thel. Act, § 71. 691, 698, 699. See Varlo w. Faden, 27 « Harg. Thel. Act, §§ 138 et seq. Beav. 255, 265; 1 De G. F. & J. 211, ' 2 De G. M. & G. 480, 497. 224, 225; Tewart v. Lawson, L. R. 8 10 Hare, 429, 434; and see 18 Eq. 490; IJarm. Wills (4th ed.), Vailo V. Faden, 27 Beav. 255, 264; 307; Marsden, Perp. 313, 344. 424 THE RULE AGAINST PERPETUITIES. dren of any person taking anj^ interest under any such conveyance, settlement, or devise." The portion may have been created bj' an instrument prior to that directing the accumulation,^ or^ it may be created by the instrument directing the accumulation.' But a gift of the whole of a testator's estate,* or of a residue comprising the bulk of It,^ is not a portion. A gift of a specific sum to be accu- mulated for children has been held to be a portion ; ° but the point is doubtful. A gift to the survivors of the children of a class of six or seven persons has been held not a portion.' If the parent is to share in accumulations which may extend beyond the time fixed by the first section of the Act, the gift is not a portion.^ If there is a trust to accumulate a portion for the children of A., and he never has any children, although the accumulation will continue through A.'s life, the accumulations will not go on his death as it is directed that they shall go in default of children, but they will belong to the persons who would have been entitled to them had there been no provision for accumulation.^ The children must be legitimate ; if any are illegitimate, the whole gift is within the Act." The inter- est taken by a person in order to bring a portion for his children ^ Barrington v. Liddell, 10 Hare, ^ Middleton v. Losh, 1 Sm. & G. 429, 431, 432; 2 De G. M. & G. 61. St. Paul v. Heath (before 480, 498, et seq. (see Halford v. Stuart, V. C), 13 L. T. n. s. 271. Stains, 16 Sim. 488, 496). See Barrington v. Liddell, 2 De G. 2 Kotwithstanding Halford v. M. & G. 480 ; 1 Jarm. Wills (4th ed.), Stains, ubi sup. 309, 310. Contra are Jones v. Maggs, 8 Beech v. St. Vincent, 3 De G. 9 Hare, 605; Morgan v. Morgan, 4 & S. 678. See Bourne v. Buckton, De G. & Sm. 164, 170, et seq. ; and 2 Sim. N. s. 91, 9G; Barrington v. seeTud. L. C. inRealProp. (3ded.) Liddell, 10 Hare, 429, 431 ; 2 De G. 515-517 ; Theob. Wills (2d ed.), 446 ; M. & G. 480, 498 et seq. ; 1 Jarm. Harg. Thel. Act, §§ 153 et seq. ; Wills (4th ed.), 308. Marsden, Perp. 345, 346; and of. 4 Wildes V. Davies, 1 Sm. & G. Burt v. Sturt, 10 Hare, 415. 475. ' Drewett v. Pollard, 27 Beav. 5 Shaw V. Rhodes, 1 Myl. & Cr. 196; and see Burtu. Sturt, 10 Hare, 135, 159 ; sub nom. Evans v. Hellier, 415, 426, 427. 5 CI. & F. 114. Eyre v. Marsden, 2 8 Watt ... Wood, 2 Dr. & Sm. Keen, 564, 573. Bourne v. Buckton, 56. 2 Sim. N. s. 91. Edwards v. Tuck, » Clulow's Trust, 1 J. & H. 639. 3 De G. M. & G. 40. Mathews v. w Shaw v. Rhodes, 1 Myl. & Cr. Keble, L. R. 3 Ch. 691, 696, 697. 135, 159. APPENDIX. 425 ■within this exception need not be an interest in the property of which the income is to be accumulated. It is enough if such per- son takes any interest, however small or remote, under the will.^ If the portions are for a class of children, some of whose parents take no interest under the settlement or will, the whole gift is void.^ § 712. Third. " Anj' direction touching the produce of timber or wood upon any lands or tenements." No cases have arisen under this clause.^ § 713. The question ^of costs in suits involving the application of the Thellusson Act has been discussed in several cases.'' § 714. Originally the Act did not "extend to any disposition respecting heritable property " in Scotland.^ Movable property in Scotland was, however, within the Act. In Ogilvie v. Kirk Session of Dundee^ land in Scotland was given to trustees with discretion to sell, and after payments of debts and legacies they were ditected to pay £2,000 or the "balance" of the estate to a charity. It was held that this gift was within the Thellusson Act as of movable property. In 1848, by St. 11 & 12 Vict. c. 36, § 41, the operation of the Act was extended to heritable property in Scotland. This last Statute does not affect deeds made before its passage.' The Thellnsson Act does not extend to Ireland.^ It seems to be in force in Victoria.' 1 Barrington v. Liddell, 2 De G. Cr. 231 (reversing on this question M. & G. 480, reversing s. o. 10 liare, s. c. 2 Keen, 564). Barrett v. Buck, 429. See Evans v. Hellier, 5 CI. & 12 Jur. 771; Elborne u.' Goode, 14 F. 114, 126, 127; Edwards v. Tuck, Sim. 165, 178; Ralph v. Carrick, 5 3 De G. M. & G. 40, 63; Bourne Ch. D. 984, 998; Green ». Gascoyne, V. Buokton, 2 Sim. n. s. 91, 101; 4 De G. J. & S. 565. Morgan v. Morgan, 4 De G. & Sm. ^ 40 Geo. III. c. 98, § 3. See 164,174; IJarm. Wills (4th ed.), 311. §§ 759, 760, /ios«. 2 Eyre v. Marsden, 2 Keen, 564, « 8 D. 1229. 573. ' Keith v. Keith, 19 D. 1040. 8 See Harg. Thel. Act, §§ 163, McLartyw.McLaverty,2Macph.489. et seq. ; Marsden, Perp. 346, 347. ^ On the conflict between Eng- * See Eyre v. Marsden, 4 Myl. & lish and Scotch and English and » Hastie v. Arsdie, 6 W. W. & The most elaborate treatise on A'B. Eq. 91. the Thellusson Act is by John F. 426 THE EULE AGAINST PEEPETXTITIES. § 715. Pennsylvania. — By the St. of April 18, 1853, § 9,^ a Statute suggested by the Thellusson Act, accumulations are re- strained. The text of the Statute is given in a note.^ By the Irish law on the subject of the Thellusson Act, see Fordyce v. Bridges, 2 Phil. 497, 515; § 264, ante ; Blacpherson v. Stewart, 28 L. J. Ch. 177 ; 32 L. T. 143 ; §§ 259, note, 264, note, ante; Freke v. Car- bery, L. R 16 Eq. 461; §§ 259, 264, ante; Ellis t>. Maxwell, 12Beav. 104; § 262, ante; Heywood v. Hey- ■wood, 29 Bear. 9; § 261, ante. 1 2 Blight. Purd. Dig. (1885) 1460, pi. 9. ^ " No person or persons shall, after the passing of this Act, by any deed, will or otherwise, settle or dis- pose of any real or personal property, so and in such manner that the rents, issues, interests or profits thereof shall be wholly or partially accumu- lated, for any longer term than the life or lives of any such grantor or grantors, settler or settlers, or testa- tor, and the terra of twenty-one years from the death of any such grantor, settler or testator; that is to say, only after such decease during the minority or respective minorities, with allowance for the period of gestation of any person or persons who, under the uses or trusts of the deed, will or other assurance directing such accumula- tion, would, for the time being, if of full age, be entitled unto the rents, issues, interests and profits so directed to accumulate. And in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void, in so far as it shall exceed the limits of this Act; and the rents, issues, interests and prof- its so directed to be accumulated, contrary to the provisions of this Act, shall go to and be received by such person or persons as would have been entitled thereto, if such accumulation had not been directed : Provided, That any donation, be- quest or devise for any literary, scien- tific, charitable or religious purpose, shall not come within the prohibition of this section ; which shall take effect and be in force, as well in respect to wills heretofore made by persons yet living and of competent mind, as in respect to wills hereafter to be made: And provided. That notwith- standing any direction to accumu- late rents, issues, interest and profits, for the benefit of any minor or mi- nors, it shall be lawful for the proper court as aforesaid, on the application of the guardian, -where there shall Hargrave, published in 1842; it has .here added. See also Tud. L. C. never been reprinted. in Real Prop. (3d ed.) 497-518; and This appendix is much indebted Theob. Wills (2d ed.), 443-449. A to Jarman on Wills and Marsden series of articles of slight value will on Perpetuities. The cases arising be found 64 Law T. 457 ; 65 Law in Scotland are not, however, in T. 41, 63, 80, 136. those treatises. They have been APPENDIX. 427 St. of April 26, 1855, § 12,* charitable corporations and associa- tions are forbidden to accumulate the income of their property so as to acquire a capital in excess of limits fixed by statute. § 716. Under the Pennsylvania Statute of 1853, as under the Thellussou Act, a provision for accumulation which transcends the statutory limits is not void in toto, but only for the excess.^ § 717. The Statute allows accumulation only during the minority of a person who would, for the time being, if of full age, be entitled to the income so directed to accumulate. Therefore income cannot be accumulated during the minority of A., unless A. would be entitled to the income if of full age. Suppose property is given in trust to pay the income to A. for life, and on A.'s death to transfer the principal to B., and there is a direction to accumulate the income during A.'s minority, and to add the accumulations to the principal. Such a direction would certainlj- appear to be authorized hy the Statute. If A. were of full age, he would be entitled to the income ; and that is enough, according to the Statute, to make the accumulation lawful. If A. would get the income if over age, accumulations made while he is under age ought to be good, to whomsoever they go, for there is nothing in the Statute requiring them to go to A. or any other person. Nevertheless, it has been held tliat such a direction is void altogether, and however little such a doctrine is justified hy the Statute, it is now settled.' be no other means for maintenance Stille's Appeal, 4 W. IT. C. 42; or education, to decree an adequate affirming s. c. 11 Phil. 31; 1 W. N. allowance for such purpose, but in C. 249. Howell's Estate, 5 W. N. such manner as to make an equal dis- C. 430. Carson's Appeal, 99 Pa. tribution among those having equal 325. Purness Minors' Estate, 14 rights or expectancies, whether, at W. N. C. 391. But see Grim's the time being, minors or of lawful Estate, 15 Phil. 603, 605; 12 W. N. age." C. 354, 356. Cf. McKee's Appeal, 1 1 Bright. Purd. Dig. (1885) 96 Pa. 277, 284, 285. 251, pi. 25. In Brown v. Williamson, 36 2 See Brown v. Williamson, 36 Pa. 338, property was devised to be Pa. 338; Butler v. Butler, 9 Phil, held by A. for the use of such chil-, 269; Conrow's Appeal, 3 Pennyp. dren as A. might have at his death, 356, 366. and if he should die without issue, 8 Washington's Estate, 75 Pa. then for the use of those who should 102; affirming s. c. 8 Phil. 182. then be the testator's heirs ; and it 428 THE ETJLE AGAINST PERPETUITIES. § 718. The released income goes, as under the Thellusson Act, to the heir, next of kin, or residuary devisee or legatee ; ' unless, however, there is a present gift in possession, in which case, as is also the rule under the Thellusson Act, the released income goes to the persons who would have taken it had there been no direc- tion to accumulate.^ § 719. Suppose propertj'' is devised to trustees in trust to apply so much of the income as they deem best for A. during his life, to add any surplus to the principal, and on A.'s death to convej' the principal, with all accumulations, to B. Does this direction con- travene the provisions of the Pennsylvania Statute? The same question might arise in England under the TheUussou Act, and modern conveyances in England recognize that such provisions for accumulation are obnoxious to that Statute.^ But the English Act sustains provisions for accumulation during twenty-one years, and was directed that A. should have a reasonable support out of the trust fund for personal services rendered. It was objected that this involved an accumulation during the life of A. ; but the Court answered that the trust might be transgressive, but that the Act avoided only the excess in transgressive trusts. The Court seem to have overlooked the fact that under the Pennsylvania Statute accumulation is allowed only during the actual minority of a person who would be entitled to the income if of full age. It does not appear that A.'s children were minors, and they were certainly not entitled to the income until the death of A. In Williams's Estate, 13 Phil. 325, 8 W. N. C. 310, a te.statrix gave the residue of her estate in trust for her son, in case he could be found within twenty years after her death. It was held by the Orphans' Court of Philadelphia that this provision did not contravene the Statute. The case is blindly reported, but it would seem that under the Statute the income should have gone as intestate property. 1 Matter of Sergeant, 11 Phil. 8. Mellon's Estate, 41 Leg. Int. 54. See Grim's Estate, 15 Phil. 603; 12 W. N. C. 354; 42 Leg. Int. 464; Thouron's Estate, 11 W. N. C. 285; Mitcheson's Estate, 15 Phil. 523; 11 W. N. C. 547. See as to void de- vises, 2 Bright. Purd. Dig. (1885) 1713, pi. 24 ; and Act of July 7, 1885. 2 See Washington's Estate, 75 Pa. 102; Stille's Appeal, 4 W. N. C. 42; Carson's Appeal, 99 Pa. 325; Matter of Sergeant, 11 Phil. 8. In Howell's Estate, 5 W. N. C. 430, was not the gift of the residue contingent, and ought not, there- fore, the accumulations to liave gone to the next of kin ? Perhaps the re- siduary legatee was the next of kin. 3 4 Dav. Prec. Conv. (3d ed.) 168. Hayes & Jarm. Forms of Wills (8th ed.), 215, 216. APPENDIX. 429 it is therefore only in that part of a life tenant's interest which falls more than twenty-one years after the testator's death that a.uj accu- mulation can be objected to. It is not strange, therefore, that the point does not seem to have actually come before the English courts. But in Pennsylvania, under the narrow construction of the Act vrhich has been adopted,^ directions to accumulate, and to add the accumulations to the principal of the fund during the life of a life tenant, are bad altogether. In Matter of Sergeant,^ $20,000 were bequeathed to trustees in trust to pay so much of the income as they should deem necessary for the maintenance of the testator's son, and to accumulate the balance, and add it to the principal, which was given over, on the son's death, to certain specified per- sons. The Orphans' Court of Philadelphia held that this provision was in violation of the Act of 1853, and that the balance, not spent for the son, was part of the residuary estate. § 720. There is a class Of trusts peculiar to Pennsylvania,^ but of very common occurrence in that State, called spendthrift trusts, bj' which trustees are authorized to apply the income of a fund to the support of a certain person for life, with a gift over on his death. There is no express direction what shall be done with any income not required for the support of such person ; but it is held that neither the cestui que trust nor his creditors can compel the trustees of such a trust to pay the whole income to him or them,^ and that any accumulated balance does not belong to the cestui que trust or his legal representatives.^ How can the allowance of such accumulations be reconciled with the Act of 1853 ? 1 § 717, ante. 522 ; Streaper v. Fisher, 1 Rawle, 2 11 Phil. 8. 155, 162; Rickert v. Madeira, 1 « They exist also in Massachu- Kawle, 325, 328, 329; Webb v. setts. See the Pennsylvania cases Dean, 21 Pa. 29; Drake v. Brown, discussed in Gray, Restraints on 68 Pa 223, 225. But he still thinks Alienation, §§ 214-235. The author that the early want of equity juris- takes this opportunity to correct the diction had much to do with the statement there made that in Penn- rise of spendthrift trusts in Penn- sylvania an equitable interest could sylvania. not be taken on execution by a * Horwitz v. Norris, 49 Pa. 213, creditor of the cestui que trust. See 222. CarkhufE v. Anderson, 3 Binn. 4, 8; ' Huber's Appeal, 80 Pa. 348. Pullen V. Rianhard, 1 Whart. 514, 430 THE EULE AGAINST PERPETUITIES. § 721. In Ashhurst v. divert,'^ which was decided before the pas- sage of the Act of 1853, the Court seem to have supposed that such an accumulation would be held void under the Thellusson Act ; and in Brown v. Williamson,^ where the trust created seems to have been considered of this nature, the Court said that it might be transgressive, but onlj- for the excess ; " but since that time such trusts have been repeatedly before the courts, without any sugges- tion tliat they violated the Ac^t of 1853. § 722. In Bargefs Appeal^ a testator empowered his trustee, at the end of seven years from his death, to divide the residue of his estate among his children (or if any should die, to their children the parents' share), and gave the trustee the power to retain anj' part of a cliild's share tiU then, and their interest not to vest till tlien. It was held that this discretionary right in the trustee to accumu- late did not conflict with the Act. The ground would seem to be that the power was discretionary,^ and' the same reason would sus- tain spendthrift trusts. There appears to be no particular cause why a discretionarj- power to accumulate should be made an ex- ception, — the Statute is in verj' positive terms ; and in Matter of Sergeant ^ such an express discretionarj' power was held to violate the Statute ; yet certainly there should be no difference between an express and an implied discretion.' § 722 a. A case, JEberly's Appeal, has been recently decided, but not j'et reported, in Pennsj'lvania.' A testator gave the residue of Ms property, mostly real estate, to a trustee in trust to manage it as if it were his own property, to keep up the repairs of the home- stead, to provide for the maintenance and education of the testator's son J., and upon J.'s reaching twentj'-one to pay him $500 an- nually until he reached twenty-flve ; then if J. was " a sober and well-doing man, competent to take care and manage his estate," to convey and transfer the property to him ; but if J. should not be a 1 5 W. & S. 323, 329, 330. ' See Barger's Appeal, justly '^ 86 Pa. 338, 341. criticised in Grim's Estate, 15 Phil. 8 See § 717, note, ante. 603; 12 W. N. C. 354. * 100 Pa. 239. » The author is indebted for the ' See also Conrow's Appeal, 3 opinion in this case to the kindness Perniyp. 356, 366. oi A. B. Sharpe, Esq., of Carlisle, » 11 Phil. 8; § 719, ante. Pa. APPENDIX. 431 fit person to take charge of the estate, the testator directed that he should receive $500 annually for life ; and on his death the testator gave all the property to the heirs of J. When J. reached twenty- one the accumulations in the trustee's hands amounted to about $5000, and J. filed a petition to have them paid over to him. The Court ruled that it did not appear that the $5000 were more than it was judicious and proper for the trustee to keep on hand to meet the charges on the estate, and dismissed the petition. § 722 h. The Court therefore had not to consider the question whether the Act of 1853 affected spendthrift trusts. They saj', however, that "the language of the Act is very comprehensive, and while it is perhaps to be regretted that it is so sweeping in its terms we are constrained to adhere to the construction that has heretofore been given to it. . . . It is not essential that the direction to accu- mulate should be expressed. If the estate is disposed of so or in such manner that accumulations clearly beyond what may be rea- sonablj' required to fullj' and effectually carry out the provisions of the trust must necessarily exist, it amounts to an implied direction to accumulate." This rather points in the direction of disallow- ing accumulations under spendthrift trusts. § 723. Whether accumulation can be allowed during a succession of minorities for twentj'-one years after a testator's death, has been doubted.' § 724. The Act expressly excludes accumulations for charity from its operation.^ But accumulations will not be saved from the effect of the Statute because they are, on a certain contingency, to be given to a charitj-.' § 725. The Act has been held not to affect lands out of the State, although, semble, the title was in a Pennsylvania trustee.* In De Eenne's Estate ^ a citizen of Georgia bequeathed personal property to a Pennsylvania corporation on such trusts as would not be allowed by the Pennsylvania Statute. The Orphans' Court of Philadelphia held that the Statute did not apply. This ruling seems ' Furness Minors' Estate^ 14 W. » See De Renne's Estate, 12 \V. N. C. 391. N. C. 94. '' Curran v. Philadelphia Trust * Estateof Mellon, 41 Leg. Int. 54. Co. 15 Phil. 84. 6 12 W. N. C. 94. 432 THE EULE AGAINST PERPETUITIES. questionable. Does not the Statute forbid the doing of certain acts in Pennsjivania as against public policy ? § 726. Alabama. — A Statute of this State* provides that "no trust of estates for the purpose of accumulation onl^^ can have an J' force or effect for a longer term than ten j-ears, unless when for the benefit of a minor, in being at the date of the conveyance, or if by will, at the death of the testator ; in which case the trust may extend to the termination of such minorit}'." No ease appears to have arisen under this Statute. § 727. In New York an elaborate system of rules as to future interests and accumulations has taken the place of the common law ; they are given later.'' Some States have copied the whole sj'stem.' In Indiana the New York rules as to accumulation, and singularly enough only in relation to personal propertj^ have been separately adopted.* c. LEGISLATIVE CHANGES IN THE UNITED STATES. § 728. The Rule against Perpetuities is judge made law. In England the only Statute affecting it is the Thellusson Act.* The Real Property Commissioners, in their Third Report, recommended numerous changes, but none of them have been adopted. § 729. The legislation in the United States is of three kinds : it is either — I. A general provision that perpetuities shall not be allowed. II. A short and simple statute declaring or modifying the law. III. An elaborate scheme to be substituted for the common law. 1 Rev.Codeof 1867, §1580; Rev. ■» 2 G. & H. Sts. 482, § 2. See Sts. (1876) § 2189. Dyson v. Repp, 29 Ind. 482. 2 § 747, pnst. 6 39 & 40 Geo. III. c. 98. This ' At least as to real estate. See Act and the cases arising under it §§ 751, 752, post. have been dealt with in Appendix B. APPENDIX. 433 § 730. I. A General Provision that Perpetuities shall not he allowed. — The Constitutions of Arkansas, North Carolina, Tennessee, and Texas, contain respectively the following provisions : — Arkan- sas: "Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed."^ North Carolina: "Perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed." ^ Tennessee: " Perpetui- ties and monopolies are contrary to the genius of a free State, and shall not be allowed." ° Texas: "Perpetuities and monopo- lies are contrary to the genius of a free government, and shall never be allowed." * These provisions seem to be simply pieces of declamation without juristic value, at least on any question of remoteness. ° § 731. The twentj'-third section of the Declaration of Rights in the North Carolina Constitution of 1776 was the first place, appar- ently, in which this clause occurred, and it has served as a model for the rest. It has been said to refer only to estates tail, and has been held not to affect gifts to charities.'' And that a gift to a charity is good notwithstanding the clause in the Constitution has also been held in Tennessee.' § 732. The Florida Constitutions of 1838 = and 1865 ' contained a provision identical with that of North Carolina ; but the Constitu- tion of 1868 had the good sense to omit it." § 733. The Constitution of Vermont, 1793," provides that " the Legislature shall regulate entails in such manner as to prevent per- petuities." This was copied from the Pennsylvania Constitution of 1 Const, of 1874, art. 2, § 19. ' Franklin v. Armfield, 2 Sneed, 2 Const, of 1876, art. 1, § 31.. 305, 353 et seq. In White v. Hale, s Const, of 1870, art. 1, § 22. 2 Coldw. 77, a provision that land * Const, of 1876, art. 1, § 26. given to a charity should never be ^ But see § 773, post; Gortario sold was held to be avoided by this ),'. Cantu, 7 Tex. 35, 46, 47. Cf. clause in the Constitution; but, semWe McLeod V. Dell, 9 Fla. 427, 447. that apart from this clause it would As to the Constitution of Cali- have been invalid, fornia, see § 752, post. s j^t^ i^ § 24. « Griffin v. Graham, 1 Hawks, » Art. 1, § 23. 96, 130 et seq. State v. McGowen, i<> See McLeod v. Dell, 9 Fla. 2 Ired. Eq. 9. State v. Gerard, lb. 427, 447. 210, 221. 11 C. 2, § 36. 28 434 THE RULE AGAINST PERPETUITIES. 1776 ; '■ but there is no such provision in the later Constitutions of Pennsylvania. This clause appears to have had no effect on the law.^ § 734. The statute provision in Marj-land ^ seems more idle even than the constitutional clauses above quoted. It reads thus : ' ' No will, testament, or codicil shall be effectual to create any interest or perpetuity, or make any limitation, or appoint any uses not now permitted by the Constitution or laws of this State." That is, an illegal will shall be an illegal will. If this were a constitutional provision, it might be important as tying up the hands of the Legis- lature from changing the common law ; but as the Legislature can alter it at any time, it seems to be empty words. § 735. II. A Short and Simple Statute declaring or modifying the Law. — In Georgia, Iowa, and Kentucky, Statutes have been passed which were probably intended to be declaratory of the common law. Tliej' are as follows : — Georgia. — '■'■Perpetuities. Limitations of estates may extend through any number of lives in being at the time when the limita- tions commence, and twenty-one j-ears, and the usual period of gestation added thereafter. A limitation bej'ond that period the law terms a perpetuitj', and forbids its creation. When an attempt is made to create a perpetuitj', the law gives effect to the limitations not too remote, declaring the others void, and thereby vests the fee in the last taker under the legal limitations." ^ What is meant by the words "limitations of estates may extend" ? If the}' mean "estates may extend," then a life estate to an unborn person is bad, and indeed a fee simple is impossible. And if a life estate to an unborn person is good, does such person take a fee as "the last taker under the legal limitations " ? And again, is an estate void which though vested in interest is not vested in possession till beyond the required limits, e. g. a remainder after a long term of years ? §736. Iowa. — ."Every disposition of property is void which suspends the absolute power of controlling the same for a longer M 37. s Rev. Code, art. 49, § 2. 2 Giddhigs V. Smith, 15 Vt. 344. ■> Code of 1873, § 2267. APPENDIX. 435 period than during the lives of persons then in being and for twenty- one years thereafter." * This seems based on the erroneous concei>- tion of the Rule against Perpetuities,^ that an alienable interest is never too remote.* In Todhuhter v. D. M. I. Sf M. R. Go.,'^ there was a lease of a railroad for nine hundred and ninety-nine years, and the Court held that it did not violate the Statute, on the ground that the lessor and lessee together might convey a perfect title ; but neither did it violate the common-law Rule against Perpetuities.' Is the statute provision a substitute for the common-law rule, or to be taken as an addition to it ? § 737. Kentucky. — "The absolute power of alienation shall not be suspended by anj' limitation or condition whatever, for a longer period than during the continuance of a life or lives in being at the creation of the estate, and twenty-one years and ten months there- after." ^ The remarlis on the Iowa Statute' are applicable here also. Is the period of gestation to be allowed beyond the twenty-one years arid ten months ? ^ § 738. In some of the other States short statutes have been passed modifj^ing the common-law Rule against Perpetuities. These States are Connecticut, Ohio, Pennsylvania, Alabama, Indiana; and Mississippi. § 739. Coiinecticut. — " No estate in fee simple, fee tail, or any less estate, shall be given, by deed or will, to any persons but such as are, at the time of making such deed or will, in being, or to their immediate issue or descendants."' A gift, therefore, to the heirs of a living person is void, because his heirs may not be his " immedi- ate issue or descendants." ^'' So a gift to those who shall be the 1 Code of 1873, § 1920. « Gen. Sts. (187.5) tit. 18, c. 6, 2 See Chap. VII., ante. pt. 1, § 3, p. 352. 8 See §§ 140, 278, ante; §§ 744, i" Alfred v. Marks, 49 Coim. 473. 748, po/!t. In this case, had not' Willis Jit: ■• 58 Iowa, 205. Marks died before the testator? If * § 209, ante, so, the devise to his heirs would ^ Gen. Sts. (1873) c. 63, art. 1, seem to be to those who answered § 27. that description at the death of thei ' § 736, ante. testator, and to be therefore goodi 8 The statute was obviously sug- 2 Jarm. Wills (4th ed.), 86-88, 12S- gested by N. Y. Rev. Sts. pt. 2, c. 1, 140. TheOb. Wills (2a ed.), 280- tit. 2, § 15. 283. Hawkins, Wills, 99-102. 436 THE ETJLE AGAINST PERPETUITIES. heirs of the testator on a future day is void.^ The Statute extends to personal property-. ^ § 740. Ohio. — "No estate in fee simple, fee tail, or any lesser estate, in lands or tenements, lying within this State, shall be given or granted by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will." ^ " Immedi- ate issue or descendants" are not limited to " children," but include all descendants who would take directly by descent. Thus if a man's children are dead, his grandchildren are his " immediate issue or descendants,'' within the meaning of the Statute.^ If a class will be determined within the limits fixed by the Rule against Perpetu- ities, there seems to be no reason why those of the class who are the immediate descendants of persons living at the testator's death should not take their shares, although some of the class are not such immediate descendants, and are therefore forbidden by the Statute to take ; for the Statute has no reference to time, but onlj' forbids gifts to certain persons.* The Statute, it will be observed, is expressl}- confined to "lands or tenements lying within this State," and therefore cannot be extended to personalty', as the Connecticut statute has been." § 741. Pennsylvania. — The Pennsj'lvania legislation' has affected onlj' questions of accumulation. It is dealt with in Appendix B.' § 742. Alabama. — '■'■ Extent of time for which lands may be con- veyed to certain persons ; perpetuity forbid. Lands may be convej'ed 1 Rand v. Butler, 48 Conn. 293. i;. Scott it was also conceded that the 2 Rand v. Butler, 48 Conn. 293. "time of making such will" means Alfred c. Marks, 49 Conn. 473. the death of the testator. P. 382. See the decisions in the following See § 231, ante. section on> substantially the same " Compare the decisions in the Statute in Ohio. preceding section on the Connecticut 8 Wcv. Sts. (1880) § 4200. Statute, from which the Ohio Statute * Turley v. Turley, 11 Ohio St. was copied. 173. See McAi-thur v. Scott, 113 See also Gibson v. Moulton, 2 U. S. 340, 383; Stevenson u. Evans, Disney, 158; suhnom. Gibson t). Mc- 10 Ohio St. 307; Brasher v. Marsh, Neely, 11 Ohio St. 131, § 666, ante. ISOliio St 103. 7 1 Bright. Purd. Dig. 251, pi. 6 Spp McAvthur v. Scott, 113 25; 2 Bright. Purd. Dig. 1460, pi. 9. U. S. 340, 382-384. In McArthur » §§ 715-722, ante. APPENDIX. 437 to the wife and children, or chUdrea only, severallj, successively, and jointly ; and to the heirs of the body of the survivor, if they come of age, and in default thereof over, but conveyances to other than the wife and children, or children only, cannot extend beyond three lives in being at the date of the conveyance, and ten j-ears thereafter." * " No leasehold estate can be created for a longer term than twenty years." ^ There do not appear to have been decisions on these sections. Is a lease for thirty years good for twenty j'eare, or void in toto? § 743. Indiana. — "The absolute power of aliening lands shall not be suspended bj- any limitation or condition whatever, contained in any grant, conveyance, or devise, for a longer period than during the existence of a life, or any number of lives, in being at the crea- tion of the estate convej'ed, granted, devised, and therein specified, with the exception that a contingent remainder in fee maj' be cre- ated on a prior remainder in fee, to take effect, in the event, that the person or persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contin- gency by which the estate of such person or persons may be de- termined before they attain their fuU age."' "Where a remainder for life shall be limited on any other than a life or lives in being at the creation of such estate, and the life estates, subsequent to those persons entitled to take life estates, according to the pro- visions of the last preceding section shall be void ; and upon the death of those persons entitled to take the remainder shall take eflfect, in the same manner as if such void estates had not been created." ■* § 744. The former of these two sections was suggested by the New York Revised Statutes,^ and is based on the conception of the Rule against Perpetuities, which lies at the root of the New York system ; namely, that the Rule is primarily intended to prevent re- straints on alienation.' The latter section is also taken from the 1 Rev. Code of 1876, § 2188 (Rev. » Rev. Sts. (1876) c. 82, § 40. Code of 1867, § 1579). The follow- * Rev. Sts. (1876) c. 82, § 41. ing section of the Code concerns ^ Pt. 2, c. 1, tit. 2, §§ 15, 16, accumulation. Its provisions are See § 747, note, post. given § 726, ante. e gee Chap. VII. ; and §§ 140, 2 Rev. Code of 1876, § 2190. 278, 736, 737, ante; § 74:8, post. 438 THE RULE AGAINST PEEPETDiTlES. New York Eevised Statutes,-' but so clumsily as to make nonsense af it. There appear to be no decisions on either of the sections. § 745. That part of the New York system which affects accumu- lation has also been adopted, so far, however, only as personal estate is concerned, in Indiana.^ § 746. Mississippi.— -'■'■ 'Estates in fee tail are prohibited; and every estate, which shall be created an estate in fee tail, shall be an estate in fee simple ; provided, that any person may make a con- veyance, or a devise of lands, to a succession of donees then living, not exceeding two ; and to the heirs of the body of the remainder- man, and in default thereof, to the right heirs of the donor, in fee simple."^ § 747. III. An Elaborate Scheme to he substituted for the Common Law. — In New York, by the Eevised Statutes of 1828, the rule of the common law on the subject of remoteness was abrogated, and an elaborate sj'stem established in its stead. This sj'stem con- sists of three parts. (1.) Provisions as to the remoteness of inter- ests in land.* (2.) Provisions as to the accumulation of rents and profits from land.* (3.) Provisions as to the remoteness of inter- ests in personal property and as to the accumulation of income therefrom.* The provisions are given in a note.' 1 Pt. 2, c. 1, tit. 2, § 17. ation for a longer period than is 2 See §§ 727, ante; § 747, note, prescribed iu this Article. Such post. Dyson v. Repp, 29 Ind. 482. power of alienation is suspended, 2 Rev. Code of 1871, § 2286. On when there are no persons in being, this odd and confused Statute see by whom an absolute fee in posses- Jordan V. Roach, 32 Miss. 481, 618 sion can be conveyed. et seq. ; Cannon o. Barry, 59 Miss. "§ 15. The absolute power of 289, 300 et seq. alienation shall not be suspended < Rev. Sts. pt. 2, 0. 1, tit. 2, by any lin)itation or condition what- §§ 14-21, 23, 24, 36. ever, for a longer period than during * Rev. Sts. pt. 2, c. 1, tit. 2, the continuance of not more than §§ 37-40. two lives in being at the creation of * Rev. Sts. pt. 2, c. 4, tit. 4. See the estate, except in the single case 25 Alb. L. J. 172. mentioned in the next section. ' Rev. Sts. pt. 2, c. 1, tit. 2. " § 16. A contingent remain- " § 14. Every future estate shall der in fee may be created on a prior be void in its creation, which shall remainder in fee, to take effect in suspend the absolute power of a,lien- the event that the persons to whom APPENDIX. 439 § 748. Upon the consideration of the New York Statutes two remarks suggest themselves. First. Those statutes evidently start the first remainder is limited, shall die under the age of twenty-one years, or upon any other contin- gency, by which the estate of such persons may be determined before they attain their full age. " § 17. Successive estates for life shall not be limited, unless to persons in being at the creation thereof; and wiiere a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons the remainder shall take effect, in the same manner as if no other life estates had been created. " § 18. No remainder shall be created upon an estate for the life of any other person or persons than the grantee or devisee of such estate, unless such remainder be in fee; nor shall a remainder be created upon such an estate in a term for years, unless it be for the whole residue of such term. "§ 19. When a remainder shall be created upon any such life estate, and more than two persons shall be named, as the persons during whose lives the life estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced. " § 20. A contingent remainder shall not be created on a term of years, unless the nature of the con- tingency on which it is limited, be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof. "§ 21. No estate for life shall be limited as a remainder on a term of years, except to a person in being, at the creation of such estate. "§ 23. AH the provisions con- tained in this Article, relative to future estates, shall be construed to apply to limitations of chattels real, as well as of freehold estates, so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be sus- pended, in respect to a fee. "§ 24. Subject to the rules es- tablished in the preceding sections of this Article, a freehold estate, as well as a chattel real, may be created, to commence at a futuVe day; an estate for life may be created, in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either con- tingent or vested, may be created expectant on the determination of a term of years ; and a fee may be limited on a fee, upon a contingency, which, if it should occur, must hap- pen within the period prescribed in this Article. "§'36. Dispositions of the rents and profits of lauds, to accrue and be received at any time subse- quent to the execution of the instru- ment creating such disposition, shall be governed by the rules established 440 THE EULE AGAINST PERPETUITIES. with the theorj- that the immediate object of the Rule against Per- petuities is to limit restraints upon alienation. This idea has been iu this Article, in relation to future estates in lands. " § 87. An accumulation of rents and profits of real estate, for the benefit of one or more persons, may be directed by any will or deed, sufiicient to pass real estate, as fol- lows: " 1. If such accumulation be di- rected to conmience on the creation of the estate, out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority : "2. If such accumulation be di- rected to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall com- mence within the time in this Article permitted for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority. " § 38. If, in either of the cases mentioned in the last section, the direction for such accumulation shall be for a longer term than during the minority of the persons intended to be benefited thereby, it shall be void as respects the time beyond such minority. And all directions for the accumulation of the rents and profits of real estate, except such as are herein allowed, shall be void. '■§39. Where such rents and profits are directed to be accumu- lated for the benefit of infants enti- tled to the expectant estate, aud such infants shall be destitute of other sufiicient means of support and education, the chancellor, upon the application of their guardian, may direct a suitable sum out of such rents aud profits to be applied to their maintenance and education. "§ 40. When, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation, or of the ownership, during the continuance of which, the rents and profits shall be undisposed of, and no valid di- rection for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate." Kev. Sts. pt. 2, c. 4, tit. 4. " Of Accumulations of Personal Property, and of Expectant Es- tates in such Property. " § 1. The absolute ownership of personal property shall not be sus- pended by any limitation or condi- tion whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition ; or if such instrument be a will, for not more than two lives in being at the death of the testator. " § 2. In all other respects, limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first Chapter of this Act, in re- lation to future estates in lands. " § 3. An accumulation of the APPENDIX. 441 commoQ, and decisions have been based upon it ; but the difficulties and confusion arising therefrom have caused the idea to be recog- nized as erroneous, and the decisions to be overruled or disap- proved.^ This erroneous theorj' is crj^stallized in the New York Statutes. § 749. Secondly. The common-law Eule of Perpetuities grew out of the ordinary usages of the community, and is fitted to them. A wiU drawn as testators generally wish their wills drawn does not ^iolate the Rule. The limit of lives in being is a natural limit. The Rule strikes down only unusual provisions. But the limit of two lives, fixed by the New York Statute, is an arbitrary limit. It cuts through and defeats the most ordinary provisions. To allow interest money, the produce of stock or other income or profits aris- ing from personal property, may be directed by any instrument suffi- cient in law to pass such personal property as follows: " 1. If the accumulation be di- rected to commence from the date of the instrument, or from the death of the person executing the same, such accumulation must be directed to be made for the benefit of one or more minors then in being, or in being at such death, and to ter- minate at the expiration of their minority: "2. If the accumulation be di- rected to commence at any period subsequent to the date of the instru- ment, or subsequent to the death of the person executing such instru- ment, it must be directed to com- mence within the time allowed in the first section of this title, for the suspension of the absolute ownership of personal property, and at some time during the mi- nority of the persons for whose benefit it is intended, and must terminate at the expiration of their minority. " § 4. All directions for the ac- cumulation of the interest, income or profit of personal pi'operty, other than such as are herein allowed, shall be void; but a direction for an accumulation, in either of the cases specified in the last section, for a longer term than the minority ot the persons intended to be bene- fited thereby, shall be void only as respects the time beyond such minority. " § 5. When any minor, for whose benefit a valid accumulation of the interest or income of personal property shall have been directed, shall be destitute of other sufficient means of support or of education, the chancellor, upon the application of such minor or his guardian, may cause a suitable sum to be taken from the monies accumulated or directed to be accumulated, and to be applied to the support or educa- tion of such minor." 1 See Chap. VII., and §§ 140, 278, 736, 737, 744, ante. 442 THE EULE AGAINST PERPETUITIES. future estates, and yet to confiae them within bounds so purely arbitrary, would seem to be an invitation to litigation. And so the event has proved. § 750. The joint effect of these two causes is that in no civilized eountr}' is the making of a will so delicate an operation, and so likelj' to fail of success, as in New York. Before the passage of the Revised Statutes there seems to have been but one case before the courts in that State in which the remoteness of a limitation was called in issue, and that presented only a simple question of construction.'' Since the passage of the Revised Statutes there have been over one hundred and seventy reported cases on ques- tions of remoteness. They are given in a note.^ This enormous 1 Moffat V. Strong, 10 Johns. 12. The case of Thomson y. Livingston, 4 Saudf. S. C. 539, was decided in 1851, but arose on a will made in 1825. It was, perhaps, not within the Revised Statutes, but under their influence seems to have been decided wrongly. See § 241, an.fe. 2 Vail V. Vail, 4 Paige, 317. Hannan ;;. Osborn, lb. 336. Loril- lavd V. Coster, 5 Paige, 172; 14 Wend. 265. Hawley v. James, 5 Paige, 318; 16 Wend. 61. Crom- well V. Cromwell, 2 Edw. 495. Craig V. Hone, lb. 554. Wood ii. Wood, 5 Paige, 596. Salmon v. Stuyvesant, 16 Wend. 321. Root V. Stuyvesant, 18 Wend. 257. Hone V. Van Schaick, 7 Paige, 221; 20 Wend. 564. Gott v. Cook, 7 Paige, 521 ; suJy nom. Kane v. Gott, 24 Werid. 641 . Thorn v. Coles, 3 Edw. 330. Van Vechten v. Van Vegh- ten, 8 Paige, 104. De Peyster v. Clendining, lb. 295; sub nom. Bulk- ley V. Depeyster, 26 Wend. 21. Maurice v. Graham, 8 Paige, 483. Butler V. Butler, 1 Hoff. Ch. 344; 3 Barb. Ch. 304. Parks v. Parks, 9 Paige, 107. Irving v. De Kay, lb. 521; 5 Denio, 646. Dayton v. Conk- lin, 2 Ch. Sent. 54. Child v. Child, 1 Isr. Y. Leg. Obs. 182. Temple v. Hawley, 1 Sandf. Ch. 153, 178. Hayes v. Kershow, lb. 258. Grout V. Schoonhoven, lb. 836. Thomp- son V. Carmichael, lb. 387. Boynton V. Hoyt, 1 Denio, 53. Mason v. Jones, 2 Barb. 229; 3 Comst. 375. Emmons v. Cairns, 2 Sandf. Ch. 369 ; 3 Barb. 243. Mason v. Mason, 2 Sandf. Ch. 432; 4 Sandf. Ch. 623. Arnold v. Gilbert, 3 Sandf. Ch. 531 ; 5 Barb. 190. McSorley v. McSorley, 4 Sandf. Ch. 414, McSorley v. Wilson, lb. 515. Field v. Field, lb. 528. Dorland v. Dorland, 2 Barb. 63. Haxtem o. Corse, 2 Barb. Ch. 506. Craig v. Craig, 3 Barb. Ch. 76. Jansen v. Cairnes, lb. 350. Burrill v. Shell, 2 Baib. 457. Banks v. Phelan, 4 Barb. 80. Dupre M.Thompson, lb. 279 ; 8 Barb. 537. Tucker v. Tucker, 5 Barb. 99 ; 5 N. Y. 408. Cruger v. Cruger, 5 Barb. 225. De Barante r. Gott, 6 Barb. 492. Vail o. Vail, 7 Barb. 226. Converse v. Kellogg, lb. 590. APPENDIX. 443 amount of litigation is peAaps as striking an illustration as could be found of the dangers attending radical legislation. Such legis- Morton v. Morton, 8 Barb. 18. Westerfield v. Westerfield, 1 Bradf. 137. Tayloe v. Gould, 10 Barb. 388. Morgan v. Masterton, 4 Sandf. S. C. 442. Thomson v. Living.ston, lb. 539. Harris v. Clark, 7 N. Y. 242. Jennings v. Jennings, 5 Sandf. S. C. 174; 7 N. Y. 547. Lang v. Ropke, 5 Sandf. S. C. 383 (see Lang v. Wil- braham, 2 Duer, 171). Williams v. Williams, 8 N". Y. 525. Amory v. Lord, 9 N. Y. 403. King v. Run- die, 15 Barb. 139. Hunter v. Hun- ter, 17 Barb. 25. McGowan v. McGowan,' 2 Duer, 57. O'Brien V. Mooney, 5 Duer, 51. Rogers v. Tilley, 20 Barb. 639. Kilpatrick v. Johnson, 15 N. Y. 322. Tucker V. Bishop, 16 N. Y. 402. Oilman V. Reddington, 1 Hilt. 492; 24 N. Y. 9. Fowler v. Depau, 26 Barb. 224. Doubleday v. Newton, 27 Barb. 431. Griffeu v. Ford, 1 Bosw. 123. Savage v. Burnham, 17 N. Y. 561. Leonard v. Burr, 18 N. Y. 96. Phelps V. Phelps, 28 Barb. 121; sub nom. Dodge v. Pond, 23 N. Y. 69, Beekman v. Bonsor, 23 N. Y. 298. Downing v. Marshall, lb. 366. Hull V. Hull, 24 N. Y. 647. Everitt o. Everitt, 29 Barb. 112; 29 N. Y. 39. Wilson v. Lynt. 30 Barb. 124. Post v. Hover, lb. 312; 33 N. Y. 593. Williams v. Conrad, 30 Barb. 524. Bean v. Hockman, 31 Barb. 78. Hunter «. Hunter, lb. 334. Forsyth y, Bathbone, 34 Barb. 388. Du Bois v. Ray, 7 Bosw. 244 ; 35 N. Y. 162. Brown v. Evans, 34 Barb. 594. Eels v. Lynch, 8 Bosw. 465. Titus V. Weeks, 37 Barb. 136. Persons v. Snook, 40 Barb. 144. Scott V. Monell, 1 Redf. 431. Levy V. Levy, 40 Barb. 585 ; 33 N. Y. 97. Bascom v. Albertson, 34 N. Y. 584. Rose 0. Rose, 4 Abb. Ct. App. 108. Harrison u. Harrison, 42 Barb. 162; 36 N". Y. 543. Lovett v. Kingland, 44 Barb. 560; sub nom. Lovett ti. Gillender, 35 N. Y. 617. Oxley V. Lane, 35 N. Y. 340. Moore v. Moore, 47 Barb.- 257. Woodruff v. Cook, lb. 304; 61 N. Y. 638. Es- tate of Thomas, Tuck. 367. Burke V. Valentine, 52 Barb. 412. Killam v. Allen, lb. 605. Bolton v. Jacks, 6 Robertson, 166. Schettler v. Smith, 41 N. Y. 328. Burrill v. Boardman, 43 N. Y. 254. Manioe v. Manice, 1 Lans. 348 ; 43 N. Y. 303. Levy V. Hart, 54 Barb. 248. King y. Whaley, 59 Barb. 71. Clemens V. Clemens, 60 Barb. 366. Estate of Ruppert, Tuck. 480. Tracy v. Ames, 4 Lans. 500. Robison v. Rob- ison, 5 Lans. 165. Adams v. Perry, 43 N. Y. 487. Woodgate v. Fleet, 44 N". Y. 1. Knox v. Jones, 47 N. Y. 38. Holmes v. Mead, 52 N. Y. 332. Leonard o. Bell, 1 Thomps. & C. 608. Donaldson v. Am. Tract Soc. 1 Thomps. & C. Add. 15. Am. Bible Soc. u. Stark, 45 How. Pr. 160. Graham v. Read, 57 N. Y. 681. Meserole v. Meserole, 1 Hun, 66. Simpson v. English, lb. 559. Bean v. Bowen, 47 How. Pr. 806. Van Schuyver v. Mulford, 59 N. Y. 426. Blanohard v. Blanohard, 4 Hun, 287; 70 N. Y. 615. ColtoU V. Fox, 6 Hun, 49; 67 N. Y. 348. Stevenson v. Lesley, 49 How. Pr. 229; 9 Hun, 637; 70 N. Y. 512. Matteson v. Matteson, 51 How. Pr. 444 THE ETJLB AGAINST PEEPETUITIES. lation is indeed sometimes necessaiy, but it is not the simple work those engaged in it often suppose. § 751. In Michigan, Wisconsin,' and Minnesota the first and second parts of the New York system ^ have been adopted with scarcely an alteration.^ Strangely enough, those States have not 276. Woodgate v. Fleet, 64 N. Y. 566. Clancy v. O'Gara, 4 Abb. ISr. C. 268. Morris v. Porter, 52 How. Pr. 1. Monarque v. Requa, 53 How. Pr. 438. De Peyster v. Beekman, 55 How Pr. 90. Thom- son V. Thomson, Jb. 494. Brewer 1/. Brewer, 11 Hun, 147; sub nom. Bremer v. Penniman, 72 N. Y. 603. Matteson v. Armstrong, 11 Hun, 245. Garvey v. McDevitt, lb. 457 ; 72 N. Y. 556. Van Embuvgh V. Ackerman, 3 Redf. 499. Moore v. Hegeman, 72 N. Y. 376. James V. Beasley, 14 Hun, 520. Bowers v. Beekman, 16 Hun, 268. Grant v. Grant, 3 Redf. 283. Gano v. Mc- Cunn, 50 How. Pr. 337. Giraud v. Giraud, 58 How. Pr. 175. Mo- narque V. Monarque, 19 Hun, 332; 80 N. Y. 320. Smith u. Edwards, 23 Hun, 223; 88 N. Y. 92. Robert V. Corning, 23 Hun, 299; 89 N. Y. 225. MoCormack v. McCormaok, 60 How. Pr. 196. McGrath u. Van Stavoren, 8 Daly, 454. Strang V. Strang, 4 Redf. 376. Kelso v. Lorillard, 85 N. Y. 177. Matter of Dey Ermand, 24 Hun, 1. Bing- ham v. Jones, 25 Hun, 6. Richards f. Moore, 5 Redf. 278. Dickie 0. Van Vleck, lb. 284. Barbour V. De Forest, 61 How. Pr. 181; 28 Hun, 615; 95 N. Y. 13. Wells V. Wells, 88 , N. Y. 323. Bliven v. Seymour, lb. 469. Ise- man v. Myres, 26 Huu, 651. Pray V. Hegeman, 27 Hun, 603; 92 N. Y. 508. Odell v. Youngs, 64 How. Pr. 56. Radley v. Kuhn, 28 Hun, 573; 97 N. Y. 26. Bailey v. Bailey, 28 Hun, 603; 97 N. Y. 460. Cook V. Lowry, 29 Hun, 20; 95 N. Y. 103. Prichard v. Thompson, 29 Hun, 295. Weeks v. Cornwell, 64 How. Pr. 276; 65 How. Pr. 413. Matter of Verplanck, 91 N. Y. 439. Purdy V. Hayt, 92 N. Y. 446. Mott V. Ackerman, lb. 539. Schmitt V. Kahrs, 1 Demarest, 114. Gil- man u. Healy, lb. 404. Leavitt V. Wolcott, 65 How. Pr. 51. Riker V. N. Y. Hospital, 66 How. Pr. 246. Matter of O'Hara's Will, 95 N. Y. 403. Hobson v. Hole, lb. 588. Tiers v. Tiers, 32 Hun, 184; 98 N. Y. 568. Ladd <,■. Mills, 20 Fed. Rep. 792. Matter of Starr, 2 Dema- rest, 141. Stevens v. Miller, lb. 597. Beardsley v. Hotchkiss, 96 N. Y. 201. Shipman v. Rollins, 33 Hun, 89; 98 N. Y. 311; sub nom. Ship- man u. Fanshaw, 15 Abb. N. C. 288. Crooke v. County of Kings, 97 N. Y. 421. Bailey J). Bailey, lb. 460. Benedict «. Webb, 98 N. Y. 460. Nellis v. Nellis, 99 N. Y. 505. 1 See § 747, ante. 2 2 Mich. Comp. Laws (1871), c. 147, §§ 14-21, 23, 24, 36-40. 2 Wis. Rev. Sts. (1858) o 83, §§ 14- 21,23,24,36-40. Minn. Gen. Sts. (1866) ^. 45, §§ 14-21, 23, 24, 36- 40. Toms V. WiUiams, 41 Mich. 552. Methodist Church of Newark I!. Clark, lb. 730. Dodge v. Wil- APPENDIX. 445 adopted the provisions of the third part of the New York system, that which relates to personal property.^ The Indiana Statutes are partly taken from the New York Statutes.^ § 752. California has taken a good deal from the New York Statutes, but has not copied them so servilely as the States named in the preceding section. It has not, for instance, restrained the time for creating future estates to two existing lives. ° The Con- stitution of California (1849) ^ provides that " no perpetuities shall be allowed except for eleemosynary purposes." ^ D. FOREIGN LAW. I. Scotch Law. § 753. Land. — The owner of land may tailzie (i. e. entail) it by a simple destination. "That sort [of entail] is called ^simple destination where the persons called to the succession are in the deed substituted one after another, but without any restraint laid upon the members or heirs of entail as they come to succeed, that they shall not alter the course of succession settled by the maker. They have therefore this only legal effect, that the order of succession contained in the entail is to be observed so long as no alteration is made bj' any of the heirs succeeding to the lands. But as these heirs are laid under no restraint in the exercise of their propertj', they are unlimited fiars, and consequently may either bring back the succession to the heirs-at-law or carrj^ it to any other order of liams, 46 Wis. 70. De Wolf v. ^ See §§ 743-745, ante. Lawson, 61 Wis. 469. Simpson v. » See Civil Code, §§ 715-718, Cook, 24 Minn. 180. 722-726, 770-777. 1 Toms V. Williams, 41 Mich. * Art. 11, § 16. 552, 562. Dodge v. Williams, 46 ^ gee Estate of Hinckley, 58 Wis. 70, 95 et seq. De Wolf v. Cal. 457, 470 et seq. ; Estate of Rob- Lawson, 61 Wis. 469, 474. See inson, 63 Cal. 620; §§ 730, 731, § 265, ante. ante. 446 THE EXILE AGAIKST PEEPETUITIES. heirs at pleasure, in the same manner that the maker himself could have done." ' § 754. Deeds of entail sometimes contain prohibitory, irritant, and resolutive clauses. Prohibitory clauses forbid the doing of cer- tain acts by the successive owners of the estate, such as alienation or changing the order of suecessiou. Irritant clauses avoid the acts prohibited. By resolutive clauses the interests of owners doing the prohibited acts are forfeited. It was questioned whether at common law such clauses were valid ; ^ but by St. 1685, c. 22, the Parliament " statutes and declares that it shall be lawful to his Majesty's subjects to tailzie their lands and estates, and to substi- tute heirs in their tailzies, with such provisions and conditions as they shall think fit, and to affect the said tailzies vrith irritant and resolutive clauses, whereby it shall not be lawful to the heirs of tailzie to sell, annailzie, or dispone the said lands, or anj' part thereof, or contract debt, or do anj' other deed whereby the samen may be apprized, adjudged, or evicted from the other substitute in the tailzie, or the succession frustrate or interrupted, declaring all such deeds to be in themselves null and void." But to have this effect the deeds had to contain irritant and resolutive clauses, and had to be produced in court and recorded. § 755. Life rents, corresponding to estates for life in the English law, and annuities charged on land could be granted only to speci- fied persons ; whether thCy could be granted to such persons before their birth, and if so within what limits, does not seem entirelj' clear.' No other kind of future interest in land appears to be known to the Scotch law, save that some conditions subsequent are valid in feudal grants.* § 756. By St. 11 & 12 Vict. (1848) c. 36, owners of entailed estates in Scotland are empowered to disentail, although the estates are held in trust for them ; and by § 48 of the Statute it is enacted that ' ' it shall be competent to grant an estate in Scotland limited 1 2 Ersk. Inst, book 3, tit. 8, ed.), § 1716. Erskine v. Wright, 8 § 22 (Nicolson's ed. 1871), p. 910. D. 863. Strathmore i>. Strathmore, 2 2 Ersk. Inst, book 3, tit. 8, 5 Wils. &Sh. 170, 180, note, 194^198. §25, pp. 912, 913. McNair v. McNair, lb. 187, note; 8 1 M'Laren, Wills and Succes- 19 Mor. Diet. 16, 210. sion, §588. Bell's Principles (eth < Bell's Principles (6th ed.),§ 861. APPBlTDIX. 447 to a liferent interest in favour only of a party in life at the date of such grant." ^ § 757. Movables. — Substitutions in movables (corresponding to executory limitations in the English law), if the movables are not placed in trust, are defeasible by the owner for the time being.^ Movables might, however, be vested in trustees, to be enjoyed by an indefinite series of persons for life ; nor does there seem to have been any limit on the time during which this might last." " In Scotland the law, instead of discouraging perpetuities, gives them all manner of encouragement, and instead of confining the time to the lives in being and twenty-one years, with the time of gestation beyond, permits j'ou, in every case, to tie up property for ever and ever." ^ § 758. This is now altered by St. 31 & 32 Vict. (1868) c. 84, § 17, which provides that "from and after the passing of this Act, it shall be competent to constitute or reserve, bj' means of a trust or otherwise, a liferent interest in moveable and personal estate in Scotland in favour onlj' of a party in life at the date of the deed constituting or reserving such life rent." § 759. Accumulation. — The Scotch common law put no limit to the time during which accumulation might continue,^ but it has been intimated that accumulation might be directed " to such an excess as would permit a court to interfere ; but the limit which might justify that interference was difficult to laj' down." ' In the case of Sfrathmore v. Strathmore, directions that rents should be accumulated for thirty years were held valid. ' § 760. The Thellusson Act' extends to Scotland," but the third ^ The statutes concerning Scotch Strathmore u. Strathmore, 5 Wils. entails are collected and annotated & Sh. 170, 193. in Rankine's Law of Land Owner- ^ Strathmore v. Strathmore, 8 ship in Scotland, 823-907. See Sh. 530; 5 Wils. & Sh. 170. 1 Lewis, Ferp. c. 34. M'Laren, Wills and Succession, 2 M'Dowall V. M'Gill, 9 D. 1284. §§ 593, 594. 8 Suttie V. Suttie, 18 Sc. Jur. 442. « 8 Sh. 538. McNair v. McNair, 5 Wils. & Sh. ' 39 & 40 Geo. IIL (1800) c. 187, note ; 19 Mor. Diet. 16, 210. 98; § 686, note, ante. 1 M'Laren, Wills and' Succession, * The Scotch cases arising under § 591. its provisions are cited Appendix B, * Per Lord Brougham, C, in ante. 448 THE EULE AGAINST PERPETUITIES. section provides: " That nothing in this Act contained shall ex- tend to any disposition respecting heritable property within that part of Great Britain called Scotland." i The St. of 11 & 12 Vict. (1848) c. 36, § 41, however, repeals the third section of the Thellusson Act, above quoted, and declares that the Act "shall in future apply to heritable propertj^ in Scotland." It has been held that this § 41 does not render the Thellusson Act applicable to accumulations of the income of real estate made after 1848, under the provisions of a deed going into operation before that date.^ n. EoMAN Law. § 761. Usufructs. — These might (by will at least) be created to begin at a future time, ex certo tempore? It is said in the Digest that a usufruct may be granted to a man and his heirs,' and that the heirs take a distinct usufruct, "licet diversi sintfructus."^ John Voet ^ saj's that a usufruct so granted expires with the heir, and does not pass to the heir of the heir. " Tainetsi auteni heredis ap- pellatione etiam heredum heredes in infinitum vulgo intelliguntur, attamen hie primi tantum heredes censeri debent comprehensi, ne alioquin inutilis proprietario esset proprietas, usufructu in per- petuum recedente;" and he relies on a Constitution of Justinian, in which it is declared that if a legacy is burdened with a usufruct in favor of the testator's heir, this usufruct shall come to an end at the death of the heir, and not pass to his heir.' On the other hand, in the case of annuities given by will to a man and his heirs, Jus- tinian enacted '■'• eorum exactionem omnibus heredibus et here- 1 On what is a " disposition re- MoLarty v. MoLaverty, 2 Macph. specting heritable property," see 489. Ogilvie V. Kirk Session of Dundee, = D. 7, 1, 4. D. 7, 1, 34. D. 7, 8 D. 1229, § 714, ante. 1, 54. D. 7, 3, 1, pr. D. 10, 2, 16, On the conflict between the Eng- 2. Vat. Frag. 48-50. 1 Deman- lish and Scotch law, see Fordyce v. geat, Cours de Dr. Rom. 510, 511. Bridges, 2 Phil. 497, 515, § 264, ^ D. 7, 4, 5. ante ; Macpherson v. Stewart, 28 ' D. 45, 1 , 38, 12. L. J. Ch. 177, 32 L. T. 143, §§ 259, « Ad D. 7, 4, 1. note, 264, note, ante. ' C. 3, 33, 14. 2 Keith V. Keith, 19 D. 1040. APPENDIX. 449 dum heredihus conservari pro voluntate testatoris ;" ^ it does not, however, appear but that such annuity might be alienated or sur- rendered by the person entitled to it for the time being. § 762. Substitutions. — Independently of fideicommissa, the onlj' future substitution allowed {substitutio pupillaris) was that a paterfamilias might, in his will, name the heir to his child in case the child should die before the age of puberty.'^ But by means of fideicommissa future substitutions were made general.' In the 159th Novel, Justinian decreed in the case of a particular will (set forth in the Novel) that property which the testator had provided should remain in his family forever, and which had, in fact, passed by substitution through four hands and generations, was freely alien- able ; but there has been much question whether it was intended by this Novel to lay down any general rule, and if so, what that gen- eral rule was.* III. French Law. 5 763. To take by gift or legacy, the donee or legatee must be begotten at the time of the gift or of the testator's death. ^ Prop- erty may be conveyed inter vivos or by will on condition precedent, and so may a usufruct.^ And the right to a legacy on condition may, when the condition is certain to be fulfilled,' pass to the heir of the legatee, but not when the fulfilment of the condition is un- certain.^ The right of return (droit de retour) of gifts upon the death of the donee, or of the donee and his descendants, is valid in favor of the donor alone.' 1 C. 6, 37, 22. Windscheid, Lehrbuoh des Pandek- ^ 1. 2, 16, pr. Legacies, however, tenr. § 637. might be on condition precedent. For the German Familienfi- And an insane child or grandchild deicommissen, see 1 Holzendorf , in whose place there had been a smJ- Rechtslex., sub voc. stitutio exemplaris took the property ^ Cod. Civ. § 906. on recovering its reason. C. 6, 26, 9. ° Cod. Civ. § 580. ' See examples from the Digest ' E. g. when a legacy to A. is to collected in Hunter, Rom. Law be paid upon the death of B. (2d ed.), 823. « Cod. Civ. §§ 1040, 1041. * Cujac. Novell. Expos, ad loc. ' Cod. Civ. § 951. 8 Duranton, Domat, p. 2, 1. 5, t. 8, § 3819. 3 Cours de Dr. Fr. § 487. 29 450 TILE EULE AGAINST PERPETUITIES. § 764. A usufract eomes to an end with the death of the usu- fructuary ; ^ but a usufruct may be granted to two or more persons in succession.^ A usufruct cannot be given or bequeathed to unborn heirs ; ^ but it may be acquired for value {etabli a titre onereux) for unborn heirs. It seems, however, that it must expire with the immediate heirs, and not pass to their heirs.^ § 765.. The only way in, which, in France, propertj' can be given to an unborn person is the following substitution, which is the sole substitution allowed by the French law : By gift inter vivos or by wiH a donor or testator may give propertj' to his child, or if he has no child, to his brother or sister, with a provision that, on the death of the donee or legatee, the property shall go absolutely and without condition to the children of such donee or legatee.* If a gift is made with an illegal substitution, not only the substitution but the original gift is invalid. ° IV. Law of LomsiANA. § 766. To take by gift or legacy, the donee or legatee must be begotten at the time of the gift or of the testator's death.' Prop- erty may be conveyed inter vivos or by will on condition precedent, and so may a usufruct." And the right to a legacy on condition 1 Cod. Civ. § 617. So with usus with the Code Civil, § 896, property and habitatio. Cod. Civ. § 625. might be entailed with an heredi- 2 4 Duranton, § 491. Lebon ». tary title, were abolished by the law P^navaire, 12 Dalloz, Jur. de Koy- of May 12, 1835. aume, 190, n. 1. « Cod. Civ. § 896. 5 Toullier, 8 Cod. Civ. §906. See § 763, anfe. Droit Civ. Fr. §§ 12-14. The * See § 761, ante; 3 Toullier, Courts wiU try to construe a gift Droit Civ. Fr. § 447; 4 Duranton, to one person with a g^t over to § 491. Duranton, loc cit., says that another as a gift of the usufruct and by express stipulation a usufruct a gift of the naked property, which may be acquired a titre onereux for is allowed. Cod. Civ. § 899, and the heir's heir, sed qumre. not a gift with a substitution, 5 5 Cod. Civ. §§ 896, 897, 1048, Toullier, §§ 43-50; but where the etseq. The law of May 17, 1826, gift over is to an unborn person this extending the right of substitution cannot be done, § 763, ante. to the second degree was repealed ' La. Rev. Code (1870), art. by the law of May 7, 1849; and 1482. majorats, by which, in acoordance ^ La. Rev. Code, art. 542. APPENDIX. 451 may, when the condition is certain to be fulfilled, pass to the heir of the legatee, but not when the fulfilment of the condition is un- certain.^ The right of return of gifts upon the death of the donee, or of the donee and his descendants, is valid in favor of the donor alone.^ § 767. " The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but cannot reserve it for himself." ^ If the usufruct is reserved to the donor, the whole donation is null.* " The right of the usufruct expires at the death of the usufructuary." ^ Succes- sive usufructs may be given to living persons. ° § 768. " Substitutions and Jidei commissa are and remain pro- hibited. Ever}' disposition by which the donee, the heir, or legatee is charged to preserve for or to return a thing to a third person is null, even with regard to the donee, the instituted heir or the lega- tee." ' " The disposition, by which a third person is called to take the gift, the inheritance or the legacy, in case the donee, the heir or the legatee does not take it, shall not be considered a substitu- tion and shall be valid.^ The same shall be observed as to the disposition inter vivos or mortis causa, by which the usufruct is given to one, and the naked ownership to g.nother."' § 769. In many cases dispositions have been declared null as being gifts with substitutions-,*" 1 La. Rev. Code. art. 1698, 1699. ' La. Kev. Code, art. 1520. 2 La. Rev. Code, art. 1534. See See Beaulieu v. Temoir, 5'La. An. Duplessis V. Kennedy, 6 La. 231. 476. These provisiotis are identical with * See Cochrane's Succession, 29 those of the French Code Civil. La. An. 232. See § 763, ante. ' La. Rev. Code, arts. 1521, 8 La. Rev. Code, art. 1533. The 1522., prohibition of the reservation of a " Cloutier v. Leeomte, 3 Mart, usufruct to the donor is not in the 481, 485. Farrar v. M'Cutcheon, 4 French law. See Code Civil, § 949. Mart. n. s, 45. Arnaud v. Tarbe, * Martin v. Martin, 15 La. An. 4 La. 502. Raohal v. Raehal, 1 585. Rob. 115. Harper ». Stanbrongh, 6 La. Rev. Code, art. 606. See 2 La. An. .377. Colvin v. Nelson, § 764, ante. 4 La. An. 544. Roy v. Latiolas, ^ McCalop V. Stewart, 11 La. 5 La. An. 'i52. Wailes v. Daniell, An. 106. 14 La. An. 578. Hoggatt v. Gibbs, 452 THE KULE AGAINST PEEPETtJITIES. § 770. But the Louisiana courts declared that where a dona- tion could be construed as the gift of a usufruct and of the naked property instead of as a case of substitution, it should be done, in order to carry out the donor's or testator's wishes ; as, for in- stance, when there was a gift to A. for life, and on his death an absolute gift to persons who were in esse at the time of the gift.' The distinction between this class of cases and those cited in the preceding section will be found best stated in Bachal v. Rachal? § 771. The case of Provost v. Provost^ seems to involve a departure from the doctrine above stated ; * and in Marshall v. Pearce^ the Supreme Court (Bermudez, C. J., dissenting totis viri- bus) reversed the previous policy of the Court, and held that a gift of property to A. to have and to hold during her life, and after her death to B., was void as a substitution. The decision is based on the distinction alleged to exist under the definitions of the Louisi- ana Code between imperfect ownership for life and usufruct.^ § 772. It is perhaps hardly becoming in a common lawyer to express an opinion upon such a question, but it certainly seems undesirable to have the sustaining of a will depend upon whether the testator has created a usufruct or an imperfect ownership for life. The Court admit that there is no such distinction in the French Code Civil ; nor, they might have added, in the Roman law. It is difficult to believe that the lawj-ers who framed the Louisiana 15La. An. 700. Marshall u. Pearce, An. 28. McCalop u. Stewart, H 34 La. An. ■'557. See Ducloslange La. An. 106. Hasley v. Hasley, V. Eoss, 3 La. An. 432; Murphy 25La. An. 602. Law's Succession, u. Cook, 10 La. An. 572; Whitehead 31 La. An. 456. V. Watson, 19 La. An. 68; Steven's ^ 1 Rob. Ill, 118. See also Succession, 36 La. An. 754. Cf. Cole v. Cole, 7 Mart. n. s. 414; Franklin's Succession, 7 La. An. Nimmo v. Bonney, 4 Rob. 176; 395; Groves v. Nutt, 13 La. An. Michel ». Beale, 10 La. An. 352. 117, 122, 123; Perin v. McMicken, » 13 La. An. 574. 15 La. An. 154; Michon's Sucoes- * In Anderson v. Pike, 29 La. sion, 30 La. An. 213. An. 120,. the gift after the life iu- 1 Ducloslange's Succession, 4 terest was not absolute. Rob. 409. Fisk v. Fisk, 3 La. An. « 34 La. An. 557. 494. Roy ». Latiolas, 5 La. An. ' See La. Rev. Code, arts. 490, 5.52. Cecils v. Lacoste, 8 La. An. 533. 142. Baker's Succession, 10 La. APPENDIX. 453 Code had any actual intention of introducing so bewildering a subtlety.' V. Law of Texas. § 773. By the Spanish Law of 1821, which was in force in the Republic of Texas, substitutions b}' way of fidei commissa were abolished ; ^ but by an Act of Texas in 1840 * the Spanish law was abolished and the common law introduced,^ and therefore it is to be presumed that the common law as to remoteness of limita- tions prevails in Texas, except so far as modified by the provision of the Constitution of 1876,^ that " perpetuities and monopoUes are contrary to the genius of a free government, and shall never be allowed." » 1 " They [the Louisiana Codes] ' Gortario v. Cantu, 7 Tex. 35. were written by lawyers, who mixed * Pasch. Dig. art. 978. with the positive legislation, which ^ See Bufford v. HoUimau, 10 they contained, definitions seldom Tex. 560, 571. accurate, and points of doctrine ' Art. 1, § 26. always unnecessary." Ellis v. Pre- ° See Gortario v. Cantu, 7 Tex. vest, 13 La. 230, 236. 35, 46, 47; § 730, ante. INDEX. INDEX. The Eefeeences ake to the Sections. ACCUMULATION. Chap. XX. Section trust for, in connection with estates tail . . 462-468, 471 gift of income accumulated beyond limits of Eule against Perpetuities, void 671 direction to accumulate to remote period, void or de- structible 671 but, if destructible, not too remote 672 nor within TheUusson Act 692 may be stopped at once by one having vested indefeasible interest 671, 672, 692 direction to accumulate not readily regarded as condition precedent to gift 673 but if it is condition precedent, gift is bad alto- gether 674, 677 too remote, though accumulation can be stopped, if those entitled to stop have not vested interests . 675 to pay debts and legacies to living persons, not too remote 676 charity to which remote accumulation is condition prece- dent is void 677 otherwise when charity is unconditional . . . 678 direction to accumulate income of, if too remote, in- come goes at once in charity 678 whether valid 679 under Pennsylvania Statutes 715, 724 direction to accumulate void for remoteness, not rendered good pro tanto hy TheUusson Act 688 458 INDEX. ACCUMULATION — cow^wMe^. Section statute as to, in England, Thellusson Act . . . 686-714 Pennsjivania 715-725 Alabama 726 Indiana 727 New York 747-750 Michigan, Wisconsin, and Minnesota 751 CaUfornia 752 in Scotland 759, 760 under deed executed before Thellusson Act . . . 760 See Conflict of Laws ; Spendthrift Trust ; Thellusson Act. ADVOWSON, held in trust to appoint clergy of particular opinions, whether charitable or inalienable 627 ALABAMA, estates tail in 19, n. Statute Quia JSmptores in 25 statute allowing leaseholds for twenty years only . 210, 742 as to accumulation 726 changing Eule against Perpetuities 742 See Charity ; Ct Pkes. ALIENATION, alienable interests may be too remote. Chap. VII. 300, 312, 315 restraints on, Rule against Perpetuities not aimed directly at 2, 268-277, 436, 591 rules against, confounded with Eule against Perpe- tuities 3, 187, 236, 589-591, 600 statutes based on such confusion 3, 278, 736, 737, 743, 744, 747-752 not allowed, at law or in equity, except in separate estate of married women 119 allowed in Pennsylvania and Massachusetts . . 119, n. and by statute in some other States . ., . 119, n. not allowed in equitable fees 236 disregarded if they produce remoteness 239, n., 239 a, 432-439 but, with separable shares, may be preserved on those where they do not produce remoteness . . 390, 441 INDEX. 459 ALIENATION — continued. Section restraints on, of pews 305 (6) powers of trustee to sell operate as 489 laid on one having vested indefeasible estate can be disregarded^ and are therefore not tdo remote 120, 121, 442, 638, 640, 671, 672, 692 correction in author's tl-eatise on 720, n. See Advowson ; Charity ; DiscBExiONAKr Power ; Post- ponement OF Enjotment; Spendthrift Trust. ALLODIAL, meaning of 23, n. AMERICA, Rule against Perpetuities has always prevailed in . . . 200 estates tail in 19, n. creation of , by cy ^j-es in 661-670 whether tenure in 22, 23 Statute Quia Emptores in 24-2S of Uses in 67 of Enrolment in 67, n. statutes allowing freeholds infuturo in 67 on accumulation 715-727 changing Rule against Perpetuities .... 728-752 based on wrong theory of the Rule 3, 278, 736, 737, 743, 744, 747-752 possibilities of reverter in 38-42 future limitations of chattels in 88-97 gross term of twenty-one years allowed in . 186, 223, 224 conditions in real estate never held remote in . . 304-311 in personal estate, queer e 321 Resulting trusts whether ever remote in 327 custorn Cannot create profit a prendre in 584 as to easement, quoere 585, 586 See Chajritt ; Ct Pres. ANNUITIES, in Scotch law 755 Roman law 761 ANTICIPATION, RESTRAINT ON. See Alienation. ARKANSAS, constitutional provision on perpetuities 730 460 INDEX. ATTORNEY GENERAL, Section necessary party to a suit to carry out a charity . . 685, n. though there are definite trustees id. or definite cestuis que trust id. not in sixteenth century id. nor before Commissioners id. nor between trustees for a charity and a stranger . id. has control of information to administer charity ... id. suits to administer charities in which he has not been joined id. BARGAIN AND SALE, can raise freehold infuturo 66 not in Massachusetts 57 to a person not in esse 61-65 See Statute or Uses. BASE FEE, how it arises 35, n. not affected by Statute Quia Emptores 35, n. See Possibility or Eeverter. CALIFORNIA, no tenure in 23 constitutional provision against perpetuities 752 except charities 752 statutes as to remoteness and accumulation 752 CHARITY. Chap. XVIIL customary rights supported as 583 generally no definite cestui que trust . . . 590, 603, 680 but there may be 603, 680-685 as the ministers of a church 681 a schoolmaster 681 a lodge of freemasons 681 inhabitants 682 school for whole neighborhood 682 poor relations 683 founder's kin, perhaps 684, 684, n. none, if property alienable by present beneficiaries . 680, n> property of, necessarily inalienable 590 INDEX. 461 CHAEITY — continued. Section investment may be changed by legislature or chan- cery 590, n. whether subject to Rule against Perpetuities . . 589-602 not necessarilj' exempt from Rule 591, 599-602 when propertj' is given from a charitj^ to an individual, or vice versa, the Rule applies . . . 592-594 though no change of trustee . . . , . 595, 596 to another charity, the Rule held not to apply 597, 598 correctness of this questionable . . . 599-602 on remote condition, void 605, 606 gift to non-existing corporation carried out cy pres and not remote 607 otherwise, cy pres being repudiated, in New York . 609 Michigan 610 Minnesota 610 Maryland . ., 611 Alabama, sernble 612 Tennessee 613 Indiana, semble 614 but allowed, though cy pres repudiated, in Virginia ■616-618 West Virginia, semble 619 North Carolina, semble 620 Connecticut 621-624 Iowa 625 in Pennsylvania 626 not aifected bj- constitutional provisions as to perpetui- ties - 731, 752 See Accumulation ; Advowson ; Attornet General ; Conflict op Laws ; Cy Pres ; Pew ; Tomb. CHATTEL PERSONAL, conveyance of, infuturo by parol as gift held void . 77, 96 qucere, when there is delivery to one for a pres- ent life interest 96 b\' deed or for value, good 77 may be bailed for years 78 can be granted on condition 78 no real remainder in 90, n., 321 gift of, after prior interest, inter vivos, void in England 78 good in America 91-97 462 INDEX. CHATTEL FEB-SOliiAL — continued. Section not (except as to slaves) in North Carolina 92-94 as to reversionary interest 97 bj' executory bequest, whether good in England 80-86 good in America 88-90 future equitable interest in 87 whether one holding for life must give security . . 90, n. See Peesonai Peopertt. CHATTEL REAL. See Personal Property ; Years, Es- tate FOR. CHILD-BEARING, women never deemed past child-bearing on question of remoteness 215, 215 a, 376 otherwise on question of custody of property . 215 a, n. qucere, on question of sale and purchase . . 215 a, n. See Gestation. CHILDREN, limitations to, not vesting at twenty-one, bad in marriage settlements 371, 374 See Class ; Grandchildren. CIVIL LAW. See France ; Louisiana ; Roman Law ; Scot- land ; Texas. CLASS, limitations to Chap. X. remainder to, when vested 110 after life in being is good 377 gift to, for life, all must be born within required limits 232, n. may be remote, though whole class can pass the in- terest 26S, 276, 277 on remote contingency bad, although some members in esse 373, 375, 375 a good, if one member has reached required age at tes- tator's death 379, 381, n. and individual, like gift to a class 380 composed of children reaching twenty-one, and the children reaching twenty-one of children dj'ing under twenty-one, bad 381^385,387 remote substitutionary, maj- leave original gift good 386, 388 IKDBX. 463 CLASS — continued. Section if gifts are separable the^' are dealt with separately 355, 389 and if shares determined within reqiiired limits, gift over of the shares of those members in esse are good 389-395 so restraints on alienation of the shares of those members 390, 441 of suffering grandchildren, bad 396 of issue or descendants 397,398 power to appoint to 611-513 appointment to, under power 537-540 good, if class closed at donee's death .... 523 a determined when one member reaches required age . . 379 time of determining, sometimes wrongly thought affected by Rule against Perpetuities 637-641 See Convenience ; Geandchildken ; Series. COMMON-LAW INTERESTS, wrong notion that they are not within Rule against Per- petuities . 200 a, 296-298, 300, 312, 315, 318, n., 319, 323 CONDITION, RIGHT TO ENTER FOR BREACH OF, what it is 12 not affected by Statute Quia Emptores 30 in copyholds 70 on assignment or underlease of term 72 on conveyance of chattels personal 78 on grant to borough in fiivor of certain inhabitants . . 583 not to dock entail 140 not vested tiU breach 114 none in equitj'^ 327 attached to fee, practically obsolete in England 282, n., 299 condition now construed as creating a trust . . 282, n. condition for non-payment of rent giving right to hold only until paid, not remote 303 gives in equity only right to hold till paid . . 303 condition attached to lease, entry not necessary . . 12, n. is never remote 303 held strictly . • • , 309, n. within Rule against Perpetuities 299-303 held otherwise in America 304-311 464 INDEX. CONDITION — continued. Section attached to personal property is within Eule .... 321 qucere, in America 321 in mortgage, how far subject to the Eule. See Mort- gage, Chap. XVI. creating equitable easement, not within Rule 282, 305 (8), 308, n. condition may be good as subsequent, though not as pre- cedent ; but not so generally 250 See Pew ; Tomb. CONDITIONAL FEE. See Fee Simple Conditionai.. CONDITIONAL LIMITATION, common term for shifting use and executory devise . 32, 54 incorporeal hereditament transferable infutwo by . 17, n. in copyholds 70 not a vested interest 114 when introduced 135-139 no question as to remoteness of, in freeholds till 1664 . 139 not at first distinguished from contingent remainder . 141-147 at first held destructible 142-147 afterwards decided to be indestructible 159 importance of this decision 159 it is disliked by the judges 159, n. first distinct expression that it must take effect not later than a lifetime 165 releasable 268 often made alienable 268 within Rule against Perpetuities 317 although alienable 268 if too remote, cannot determine prior fee ; may, but gen- erally does not, determine prior lesser estate .... 250 in one alternative, and contingent remainder in the other, separable 338-340 a taking effect during estate tail good 449 but bad, if it may take effect after estate tail . . . 450 after estate tail, not partly good, partly bad 453 See ExECUTOET Devise ; Shifting Use. CONFLICT OF LAWS, on rules against remoteness and accumulation . . . 259-267 under Pennsj'lvania statute against accumulation . . . 725 See Heritable Bonds. INDEX. 465, CONNECTICUT, Section no estate tail in 19, n. no tenure in 23 statute changing Eule against Perpetuities, decisions under 739 See Charity ; Ct Pres. CONSENT, clause requiring, though causing remoteness, cannot be disregarded 440 of cestui que trust having fee, when necessary for exer- cise of power, power not too remote ...... 492 general power to appoint with, subject to Kule against Perpetuities 477 judged as to remoteness from time of creation . . 527 CONSEQUENCE, of limitation being too remote on prior interests . . 247-250 on subsequent interests 251-257 of power being too remote 258, 535 of appointment being too remote 531-540 See Accumulation ; Class ; Executoey Trust ; Modi- fying Clause ; Mortgage ; Separable Limita- tions ; Series ; Thellusson Act. consideeation, recital pf, conclusive to support deed 65 See Covenant. CONSTITUTION, provision of, as to perpetuities in Arkansas 730 North Carolina , 730, 731 Tennessee 730 Texas 730, 773 Florida , 732 Vermont 733 Pennsj'lvania 733 California 752 CONSTRUCTION. Chap. XIX. Rule against PeTpetuities does not affect 629-631 influences judges unconscious!}' 632 aids in determining ambiguous expressions . . , . 633 cases of, supposed to be affected by rule 634-641 See Cy Pees. 30 466 IKBEX. CONTINGENT EEMAINDEE. See Eemaindek. Section CONTRACT, rent-charge really a 273 a, 316 not within Rule against Perpetuities 273 a, 329 otherwise, if speciflcallj' enforceable .... 275, 330 transfers of, are -within Rule . - » 329, n. See Covenant. CONVENIENCE, rule of, determining time of distribution among class, does not tend to conflict with Rule against Perpetuities . . 639 CONVERSION, of realtj^ effect of, where different rules as to remoteness prevail 264-266 income of converted land^ to whom it goes under Thel- lusson Act 702, n. CONVEYANCE, operates according to intent of parties 65 COPYHOLD, future interests in 70 subject to Rule against Perpetuities 318 CORPORATION, on dissolution of, land does not revert to the grantor, but escheats 44-51 See Charity ; Cy Pees. CORPOREAL HEREDITAMENT. See Hekeditaments. COVENANT, for renewal, whether it makes lease void for remote- ness 230, 330, n. imposing present restriction not within Rule against Perpetuities 280 for quiet enjoyment, whether limitation on breach of, is within Rule 417 ,to stand seised, in Massachusetts can be raised by pecu- niary consideration 57 powers to lease in . 64 See Contract ; Equitable Easement. CROSS-REMAINDER, not within Rule against Perpetuities 207 INDEX. 467 CUSTOM, Section distinguished' from prescription 573, 574 can give rise to easement in England .... 575-578, 580 whether in America 585, 586 mot to- profit a prendre 579,580,584 rights by, not always confined to inhabitants .... 677 not within Rule against Perpetuities in England 572-583 supported as a charitj' 583, 682, 685 easement attached to land by, within Rule 588 whether profit a prendre in inhabitants can arise from grant by the crown 581-583 See Fishers. CY PEES, in charities, doctrine of, not to be confoimded with pre- rogative power 608, n. gifts to non-existing corporations carried out by .607 not recognized in New York 609 Michigan 610 Minnesota 610 Maryland 607, n., 611 Alabama 612 Tennessee 613 Indiana 614 Virginia 616 West Virginia 619 North Carolina 620 Connecticut 621-624 Iowa 625 giving estate tail to unborn life tenant bj', when the Ufe estate is followed by remainders to issue in tail, or successive life estates to issue . . 643-669 so on appointment to object of power, with remainder to issue who are not objects . . 644 applies to legal devises 645, 652 thougb issue take in different order 649 not applied in deeds , . 646 nor so as to include persons not devisees 647, 662, 663, 665-669 nor to fees simple or personal property 647, 661, 663, 665-669 468 INDEX. CT TliES — continued. Section nor, probably, so as to exclude devisees . . . 648 nor when succession of life estates is not per- petual 653 nor when there are successive leaseholds deter- minable by death 654 how applied when some only of the life tenants are born 650 to successive life estates 652-660 not to be extended 651 inapplicable where estates tail abolished 663, 665, 668, 669 might have been employed in Tregonwell v. Sj'denham 421 American cases 661-670 term used loosely 660, 670 See Chaeitt. DEBTS, PAYMENT OF, trustees for, whether they take fee or chattel . . . 415, n. gifts for, whether too remote 415-417 power to sell for, not too remote 486 direction to accumulate for, not too remote 676 See Thellusson Act. DE BONIS, STATUTE OF. See Tail, Estate in. DEED. See Conveyance. DEFAULT OF ISSUE. See Isstrs. DEFERRED ENJOYMENT. See Postponement of En- joyment. DESTRUCTIBLE INTEREST, if it can be destroj'ed at pleasure of one having present vested interest, not within Rule against Perpetui- ties . . . 203, 313, 443-472, 486-509, 526 5, 568, n. otherwise, if onerous condition attached . . . 568, n. direction to accumulate if destructible, not too remote . 672 nor within Thellusson Act 692 DETERMINABLE FEE. See Base Fee; Fee Simple Conditional ; Possibility of Revertek. DEVISE. See Executory Devise ; Residuary Devise. DISCRETIONARY POWER, in trustees, effect on remoteness 122, 246, 439 See Spendthrift Trust. INDEX. 469 DISTRESS, Section right of, semble not within Rule against Perpetuities . 273 a, 303, 316, 329 DISTRIBUTION. See Class. DOMICIL. See Conflict of Laws ; Heritable Bond. DYING WITHOUT ISSUE. See Issue. EASEMENT. See Custom ; Equitable Easement ; Entry ; Fishers ; Profit a Prendre ; Rights in Land op Others. ELECTION, doctrine of 541 applies to powers 541 declared not to apply when there is appointment and invalid modification 542-553 this exception not sustainable on principle 554, 555 declared not to apply when appointment is re- mote . . • 556-558 this also questionable 559-561 ENROLMENT, STATUTE OF. See Statute of Enrol- ment. ENTRY, right to enter and abate obstruction to easement, not within Rule against Perpetuities . 281 See Condition, Right to enter for Breach of. EQUITABLE EASEMENT, not within Rule against Perpetuities . . 280-282, 305 (8), 308, n. See Covenant. EQUITABLE INTEREST, may be created iw/M^Mro, either freehold 69 or leasehold 75 when vested ... 116 in fee cannot be made inalienable 236 when future, subject to Rule against Perpetuities' . 202, 322 323-328, 411 not if vested 205,322 present, in fee, wrongly held to violate Rule . . . 235-237 a 470 INDEX. EQUITABLE INTEREST — contintiecl. Section equitable riglit, if enforceable specifically on contingency, within Rule 275, 330 See Alienation ; Charity ; Debts, Payment of ; Dis- cretionary Power ; Equitable Easement ; Exeou- TORT Trust ; Power ; Resulting Trust ; Sfendthrlft Trust ; Tail, Estate in ; Trustee. ESCHEAT, right of 15 bow affected by Statute Quia Emptores .... 44 in land of dissolved corporation 44-51 vested 115 not within Rule against Perpetuities . . . 204, 205, n. in income released by Thellusson Act . . . 701, 704 ESTATE FOR LIFE. See Life, Estate for. ESTATE FOR YEARS. See Years, Estate for. ESTATE IN FUTURO. See Freehold in Futuko. ESTATE TAIL. See Tail, Estate in. EXCHANGE, obsolete before Rule against Perpetuities established . 301 , n. See Power. EXECUTORY DEVISE, defined, not divided into shifting and springing ... 54 after fee-simple conditional 14, n. whether too Bemote 455 contingent, after term for years, good 58-60 in copyholds 70 of term, good 74 of chattel personal, whether good in England . . . 80-86 good in America 88-90 not a vested interest 114 when turned into vested remainder 114, n. of freehold under custom 124 when introduced 138 of terms, introduced 148-152 after life interest . 148, 150-152, 154, 157, n., 162-164, 166, 168 after failure of issue . . .149,153-158,161,168,169 disliked by judges 152, 157, n,, 163 SNDEX. 471 •EXECUTORY B'EVISF. — continued. Sedtiati Rule against Peitpetuities first mtroduOfed in connec- tion with . . . 148, 152-158, 160-164, 166-170, 173 See Conditional Limitation. EXECUTORY TRUST, to be executed so as not to be too remote 418 if it can, in fact, be executed so as not to be too remote, it is good 421, 422 if main object too remote, probably wliolly fails . . . 418 trust to settle personalty like realty formerl3' thought ex- ecutory 364 not so now, but change regretted 365 what will make executory, and when such, how exe- cuted ..." 365, n. FAILURE OF ISSUE. See Issue. FEE SIMPLE CONDITIONAL, what it is 14 is estate with special limitation, iio't on condition 14, n. no remainder after '14 not devisable 14, n. does not merge in possibility of reverter 14, n. executory devise after 14, n. whether too remote 455 in copyholds 70 See Possibility op Reverter. FIDEI COMMISSA, in Roman law 762 in German law 762, n. prohibited in Louisiana 768 formerly in Texas 773 See Sdbstitdtion. FISHERS, rights to dry nets on shore, good by 'custom 577 not at common law 577, n. FLORIDA, constitutional provision on PerpetuitieB 732 FOREIGN LAW, pi?oviSions as to remoteness in ■. 753-773 See Conflict or Laws. 472 INDEX. FRANCE, Section provisions as to remoteness in law of 763-765 FRANKALMOIGN, lands in, held only of donor 20, 47, 48 FREEHOLDS IN FUTURO, not allowed at common law 6 raised by Statute of Uses 52 supposed exceptions 55-65 legislation in America concerning 67 whether they can be created in Ohio 68 See Conditional Limitation ; ExECUTOEr Devise ; Shifting Use ; Springing Use. FREEMASONS, gift to trustees for lodge of, may be charitable .... 681 FUTURE INTERESTS, what are allowed. See Table of Contents, Chap. II. subject to Rule against Perpetuities. See Table of Contents, Chap. VIII. See Rule against Perpetuities. GEORGIA, estates tail in 19, n. tenure iu 23 Statute Quia Emptores in 25 statute as to remoteness 735 GESTATION, extension of Rule against Perpetuities to cover 171, 173, 174, 220-222 periods allowed 220 often two 221 sometimes three 222 See Child-bearing ; Posthumous Child. GIFT. See Chattel Personal. GRANDCHILDREN, of living persons, devise to, as class, is bad . . . 370, 374 if confined to those living at testator's death it is good 378 so if at testator's death one has reached the required age 379 INDEX. 473 GRANDCHILDREN — continued. Section limitation to, in marriage settlement, is bad 371 so appointment to unborn, under marriage settlement, is bad 520 of testator, or of deceased person, devise to, good, if not postponed bej-ond their majority 370 if thej- survive both parents, bad 370, n. trust for suffering, bad 396 See Class ; Children. HARGRAVE, his argument in the Thellusson Case 190, n. HEIRLOOMS, to be settled with land " as far as law and equity will permit" 363-367 HEREDITAMENTS , corporeal and incorporeal 16, n. HERITABLE BONDS, Scotch, governed by law of domicil .... 259, n., 264, n. See Conflict or Laws. HIGHWAY, when disused, reverter of fee 42 public rights in, not subject to Rule against Perpetuities . 587 ILLINOIS, whether tenure in 23 Statute Quia Emptores in 25 when street disused, fee reverts in 42 IMPLICATION, estate bj', probably not raised, if too remote .... 633 See Thellusson Act. INCORPOREAL HEREDITAMENT. See Easement; Hereditaments ; Profit a Prendre ; Remainder ; Rent ; Reversion ; Rights in Land of Others. INDIANA, whether tenure in 23 Statute Quia Emptores in 25 statute as to accumulations in 727, 745 changing Rule against Perpetuities 743-745 See Charity ; Cy Pbes. 474 INDEX. INFANCY, Section extension of Bnile against Perpetuities to cover, . . 171-175 not to toe justified on principle 18&-188 actual, not taken into account in judging questions of remoteness 188, 444, 502, 691 accumulation during, in connection with estates taU 463-468, ^ 471 power to sell during 495-497,501,502,505 analog}- of, applied wrongly to accumulation by implica- tion under Thellusson Act 691 accumulation during, under Thellusson Act . . . 698, 699 under Pennsylvania statute 715, 717 INHABITANTS. See Custom. INSURANCE, policies of life, application of Thellusson Act to . . . 693 INTERPRETATION. See Construction. IOWA, no estate tail in 19, n. statute as to remoteness 736 See Charity; Cy Pkes. IRELAND, Thellusson Act does not extend to . . > 714 See Conflict op Lavts. ISSUE, failure of, executory devise of term after 149, 153-158, 161, 168, 169 gifts over on 211-213 of personal property, when separable . 356-362 constructions influenced, though unconfessedly, by Rule against Perpetuities 632, n. See Separable Limitations. JOINT TENANTS, persons cannot be, if some have vested, some contingent, interests 380, n. JURA IN ALIENO SOLO. See Eights in Land of Others. KENTUCKY, whether tenure in 23 INDEX. 475 KENTUCKY — continued. Section provisions for emancipation in, held -withiu Rule against Perpetuities 228, n. statute as to remoteness , . . 737 LEASEHOLD. See Yeaes, Estate foe. LEGACY, power to sell to pay, not too remote 486 direction to accumulate to pay, not too remote .... 676 on condition in Roman law 762, n. in French law 763 in Louisiana 766 See ExBOtTTORY Detise ; Residuary Detise. LEGISLATIVE CHANGES. See Appendix, B and C. LIFE, ESTATE FOR, in terms 71, 74-76 executory devise after. . 74, 148, 150-152, 154, 157, n., 162-164, 166, 168 in chattels personal in England . .' 77-87 in America 88-97 present, no limitation of too remote 225-230 equitable, maj^ be made inalienable in Pennsj'lvania and Massachusetts 119 to unborn persons successively in remainder . . 191-199 n. good, if vesting within required limits .... 206 when construed to give estate tail. See Ct Pees. good, if begiuniug within required limits . . 232,421 though followed by remote estates 232 wrong decisions 238-246 power to trustees, subsisting during, bad .... 500 to life tenant too remote 477 unless it be general power to appoint by deed 477 to class, all must be born within required limits . . 232, n. whether covenants for renewal of, cause remoteness . . 230 at discretion of trustees, how dealt with as to remote- ness 122, 246, 439 generally not determined by remote conditional limitation 250 but sometimes otherwise 250 to living persons, held bad after remote limitations, but, semble, wrongly 252-257 476 INDEX. LIFE, ESTATE FOU — continued. Se««on powers in connection with settled 490, 499, 500 direction that tenant in fee shall hold only for life, void . 656 in Scotland 755-758 in Louisiana 770-772 See Chattel Peesonai ; Pennsylvania ; Pdk autek Vie, Estate ; Series ; Spendthrift Trust ; Thel- LussoN Act ; Usufruct ; Years, Estate for. LIMITATION. See Class ; Conditional Limitation ; Ex- ecutory Devise ; Remainder ; Sep arable Limita- tions ; Series ; Shifting Use ; Springing Use. LIVES, in being, after which gift over is good, not limited in number . . . 163, 166-168, 170, 189, 190, 216-219 limited by statute in Alabama 742 Mississippi ., 746 New York 747, 749 Michigan, Wisconsin, and Minnesota .... 751 LOUISIANA, provisions as to remoteness in law of 766-772 MAINE, freeholds in future in 68 MARRIAGE SETTLEMENT, limitations in, when too remote 371, 374 appointment under power in, when too remote . . 520, 522 on trusts of, really absolute appointment and settle- ment 528-530 MARRIED WOMAN, restraint on anticipation by, disregarded when it produces remoteness 432-437 MARYLAND, no tenure in 23 idle statute as to perpetuities 734 See Charity ; Cy Pres. MASSACHUSETTS, Statute Quia Emptores in 25 erroneous notion in, that bargain and sale cannot raise freehold infuturo 57 INDBX. 477 MASSACHUSETTS — continued. Section covenant to stand seised cannot be supported by pecuniary consideration 57 of diflference in vesting of realty and personaltj'', exploded 117, n. whether executory bequest of chattel personal, gives legal interest in 89 restraint on alienation of equitable life interest allowed in 1 1 9, n. effect of this on provisions postponing enjoj^ment 120, n. of equitable fee, not allowed in 236, n. MICHIGAN, whether tenure in 23 Statute Quia Emptores in 25 statutes as to remoteness and accumulation 751 See Charity ; Cy Pkes. MINISTER, of church, gift to, may be charitable 681 MINNESOTA, no tenure in 23 statutes as to remoteness and accumulation in . . . . 751 See Charity ; Cy Pkes. MINORITY. See Infancy. MISSISSIPPI, ' estate tail in 19, n. now prohibited by statute 746 Statute Quia Emptores in 25 statute changing Rule against Perpetuities 746 MODIFYING CLAUSE, disregarded, when it would cause remoteness in a will, Chap. XIII 233 whether in a deed 423 but there must be an absolute gift 431 if attached to separable gifts, may be good in some, though disregarded in others 441 if outside of power 423, n. invalid, whether it raises an election 541-555 how discretionary power in trustees should be dealt with 122, 246, 439 clause requiring consent cannot be disregarded .... 440 See Alienation. 478 INDEX. MORTGAGE, Section Rule against Perpetuities,, how far it applies to rights at law under 562, 563 in equity under 564-570 to rent to arise on foreclosure of 271-273 a consequences of holding right under, too remote . . . 671 NAME AND ARMS CLAUSE, when attached to estate tail, good 449 to fee simple, bad 449, n., 450 NEW HAMPSHIRE, easement can b& created by custom in 585, 586 NEW JERSEY, tenure in 23 Statute Quia Mm/ptores in 25 rights cannot be created by custom in 585, 586 NEW YORK, no tenure in 23 Statute Quia Emptores in 24, n. statutor}' definition of vested and contingent remainders in 107, 108, n. statutes as to remoteness and accumulation .... 747—750 based on erroneous theory 3, 748 arbitrary in character 749 have caused enormous litigation 750 See Charity ; Conflict of Laws ; Ct Pees. NORTH CAROLINA, estates tail in 19, n. Statute Quia Emptores in 25 future limitations of chattels inter vivos, not good in, except of slaves 92-94 constitutional provision on perpetuities .... 730, 731 said to refer to estates tail 731 not to charities 731 See Charity; Cy Pees. NORTHWEST TERRITORY, whether tenure in 23 OHIO, whether tenure in 23 INDEX. 479 OHIO — continued. Section , Statute of Uses not in force in ^ 68 whether freeholds wi y^M/MTO can be created bj' deed in . 68 statute changing Rule against Perpetuities, decisions uijder 740 PENNSYLYANIA,. whether tenure in 23, 26 Statute Qma JSmptores not in force in 26 possibilities of reverter in 38 thought assignable 13, n. restraints on alienation of equitable life interests allowed in 119, n. effect of this on provisions: postponing enjoj'- njent 120, n. of equitable fees not allowed in 236, n. charitable gifts to^ corporations not in esse 626 statutes as to accumulation lib-lib during life estates 717,719-7225 how thej' affect spendthrift trusts 720-722 b former constitutional provision as to perpetuities . . . 733 PERPETUITY, original meaning was " an indestructible interest " 140, 141, 152, 156-159, 236, 590 secondary meaning, as used in "Rule against Perpetui- ties" is " a remote interest" . . 140, 141, 157, 236, 691 cpnflision of the. meanings . . 2,3,236,269,589-591,600 statutes based, on this confusion 3, 278, 736, 737, 743, 744, 747-752 See 4.LIE1TATI0N ; Rule against PekpStuities. PERSONAL PROPERTY. - Statute of Uses does not applj- to 79 no true remainder of 90, n., 321 interest in, when vestedi 117 Rule against Perpetuities applies to interests in . . . 202 if not vested 319,320 otherwise, if vested 205 to conditions attached to interests in 321 quwre, iti. America 321 to equitable interfists in 326 480 INDEX. PERSONAL FUOTERTY — cvntinued. Section gifts of, on failure of issue, when separable .... 356-362 settled like realty, " as far as law and equity will per- mit" 363-367 cy pres not applicable to 647 absolute interest in, when given by words giving estate tail in lealty 647, n. gifts of, how far affected by rule in Shelley's Case . . 647, n. See Chattel Personal ; Years, Estate for. PEW, conveyance of, whether within Rule against Perpetui- ties 305 (6) POOR RELATIONS, gift to, if continuing, charitable 683 not confined to next of kin 683, n. those taking must be poor 683, n. attorney-general must be party to suit . . 685, n. if not continuing, not a charity 683, n. confined to next of kin 683, n. they must be poor, semble 683, n. POSSIBILITY OF REVERTER, what it is 13 not alienable, but releasable 14 thought assignable in Pennsylvania 13, n. fee simple conditional does not merge in 14, n. done away with by Statute Quia Emptores .... 31-4.2 not in Pennsylvania 38 nor South Carolina 38 in America 38-42 in disused highway 42 not a vested right 114 none in equity 327 Rule against Perpetuities applies to 312 except after fee simple conditional .... 313, 455 See Fee Simple Conditional. POSSIBILITY ON POSSIBILITY, invalidity of gift on, conceit of Popham, C. J 125 without support in authority 126-132, 191 Lord Coke admits unsound 133 mentioned 154, 155, 162 INBEX. 481 POSSIBILITY ON FO&SIBILITY — continued. Section -o . . . 271-273 a, 314-316 to rights of pre-emption 274, n. to pews 305 (6) 490 INDEX. EULE AGAINST FERPWimTIES — continued. Se''"™ to charities 589-603 as affecting separable interests Chap. IX. limitations to classes Chap. X. to series Chap. XI. trusts Chap. XII. modifying clauses Chap. XIII. limitations after estates tail Chap. XIV. powers Chap. XV. mortgages Chap. XVI. customary rights Chap. XVII. charitable trusts Chap. XVIII. construction Chap. XIX. accumulation Chap. XX. origin and history of. Chap. V. See Table of Contents. requires that condition precedent must happen within prescribed limits 214 allows any number of lives 216-219 periods of gestation 220-222 gross period of twenty-one years 223, 224 runs from testator's death, not date of will 231 avoids restraints on alienation which would cause remote- ness 239, n., 239 a, 432-439 effect when restraint is discretionarj^ . . 122, 246, 439 does not affect termination of estates . . 232-246, 279, 595 nor construction 629-642 exception, cy pres doctrine 643-670 not affected bj' infancy 444 trusts should be executed so as not to violate .... 418 real exceptions from the rule, condition attached to real estate in America . 304-311 not in England 299-303 to personal estate, in America, quaere . . . 321 possibility of reverter in America, 5'MOBre .... 312 resulting trust in America, qucere 327 easement by custom in England 572-583 in America, quaere 584-586 power of sale under mortgage, quaere . . . 565-570 charitj' after a charity 597, 598 indefensible on principle 599-602 INDEX. 491 RULE AGAINST FERPBTUITIES — continued. Section power of trustees to sell and lease at one time supposed an exception 487-489 true view concerning 490-499 effect of limitation violating, on prior interests . . 247-250 on subsequent interests 251-258 conflict of laws concerning 259-267 effect of power or appointment violating .... 531-540 not changed by statute making future estates alienable 268 in America, has always prevailed 200 changed by legislation. See Appendix C. constitutional provisions 730-733 by statute in Marjdand 734 Georgia 735 Iowa 736 Kentucky 737 Connecticut 739 Ohio 740 Alabama 742 Indiana 743, 744 New York 747-750 Michigan, Wisconsin, and Minnesota . . 751 California 752 as affecting accumulations limited by statute. See Ap- pendix B. by the Thellusson Act 686-714 in Pennsylvania 715-725 Alabama 726 Indiana 727 New York 747 Michigan, Wisconsin, and Minnesota. . . . 751 California 752 See Peepetuitt. SCHOOL, open to all the neighborhood, gift to, may be a charity . 682 SCHOOLMASTER, gift to, may be a charity 681 SCOTLAND, law as to remoteness in, of interests in land . . 758-756 492 INDEX. SCOTLAND— continued. S«<^'><'° in movables 757, 758 as to accumulation 759, 760 entails in 753, 754, 756 Thellusson Act extends to movables in 714 now, though not formerly, to heritable property . . 714 See Conflict of Laws ; Heritable Bonds. SEPARABLE LIMITATIONS. Chap. IX. limitation expressed as single cannot be separated 331-337 exception when contingent remainder in one alter- native, and conditional limitation in another 338-340 a when separated by testator or settlor, treated as sep- arable 341-354 to a class, when separable 355, 389-395 of personal property on failure of issue when sepa- rable 356-362 same rules as in direct limitations applied to powers 479, 480 to appointments 537-540 See Class ; Series. SERIES, limitation to, the first member of, may take, though the rest cannot. Chap. XI. , SHELLEY'S CASE, RULE IN, how far it affects gifts of personal property .... 647, n. SHIFTING USE, defined 54 not vested interest , 114 first introduced 137 See CoNBiTiONAL Limitation. SLAVE, present gift of, whether too remote 228 provisions for emancipation of, held never too remote in Virginia 228, n. otherwise in Kentucky 228, n. SOUTH CAROLINA, fee simple conditional in 14, n., 38 possibility of reverter after 14, n., 38 executory devise, cutting short, whether good 14, n., 455 no estates tail in 19, n. INDEX. 493 SOUTH CAROLINA— continued. Section tenure in 23 Statute Quia Mnptores not in force in 27 SPENDTHRIFT TRUST, whether accumulation under, violates Pennsylvania stat- ute 720-722 5 See Accumulation ; Alienation ; Disceetionakt Power ; Postponement op Enjoyment. SPRESTGING USE, ' defined 54 not vested interest 114 first introduced ' 136 after term for years, not to be construed bad contingent remainder 58-60 See Conditional Liihtation. STATUTES, as to accumulation, in England, Thellusson Act . 686-714 in America 715-727 as to remoteness in America. Appendix C. STATUTE DE DONIS. See Tail, Estate in. STATUTE OF ENROLMENTS, whether in force in America 67, n. STATUTE OF QUIA EMPTORES 20-51 inapplicable where no tenure 24 tin tenure abolished in force in New York . . . . 24, n. in Virginia 24, n. where tenure, in force in America 25, 28 except Pennsylvania 26 and South CaroUna ; . . 27 no effect on remainders and reversions 29 except that when remainder in fee is granted, all remainders are held of chief lord ... 29 nor on rights of entry for breach of conditions . 30, 31 nor on base fees 35, n. did away with possibilities of reverter 31-41 effect on escheat 44 after dissolution of corporation 44-5 1 erroneous opinion on 44-51 since, no contingent termination of fee, except condition' and conditional limitation 250 494 INDEX. Section STATUTE OF USES 52-66 freeholds in future raised by 52 supposed exceptions 55-65 not in force in Ohio 68 nor in some others of the United States .... 67 does not apply to copyholds 70 nor to chattels real 73 but terms may be raised out of a freehold by the statute 73, n. nor to chattels personal 79 contingent remainders limited by 54 held destructible 141 See Bargain and Sale ; Conditional Limitation ; Cotb- NANT ; Shifting Use ; Springing Use. STATUTE OF WILLS 53 See Contsitionax Limitation ; Executokt Devise. SUBSEQUENT INTEEEST, effect on, of remote limitations 251-258 SUBSTITUTION, in Scotland 757, 758 in Roman Law . . 762 in France 765 prohibited in Louisiana . 768-772 in Texas 773 SUBSTITUTIONARY GIFT, failing as remote, may leave original gift good . . 386, 388 SUSPENSION OF ALIENATION. See Alienation. TAIL, ESTATE IN, created by Statute De Donis 18 became destructible 19 introduced into America, but generally done away with 19, n. constitutional provisions as to 731, 733 in some copyholds 70 remainder after, vested Ill condition not to dock, void 140 quasi^ in estate 'pur auter vie, whether tenant can bar re- mainders 227, n. INDEX. 495 TAIL, ESTATE m — continued. Section personal property given bj- words appropriate to settle- ment of land in tail 356-362 given like realty- settled in tail, what interest is taken 363-367 wlien absolute interest given in, by words whicb would give estate tail in realty 647, n. limitations after, when remote. Chap. XIV. which must vest, if at aU, not later than end of estate tail, good 443 though tenant in tail a minor 444 unless estate tail itself too remote 445 which may vest after end of estate tail, too remote 446, 450-463 remainder after, good 447 (so called) after equitable, may be too remote . . 451 term for years after, good 448 conditional limitation cutting short, good 449 unless it maj- take effect after end of estate tail 450, 453 not partly good and partly bad 453 grant of reversion after, may be too remote 462 trust terms preceding, remoteness of, questionable doc- trine in England 466-472, 505 powers in connection with 487-509 created cy^»"es. See Cr Pres 643-670 where abolished, doctrine of cy pres inapplicable 663, 665, 668, 669 direction that successive tenants in tail shall hold only for life, void 656 entails in Scotland 763, 754, 756 "TENEMENT," often extended to incorporeal hereditaments .... 43, n. TENNESSEE, estates tail in 19, n. Statute Quia Emptores in 25 constitutional provision as to perpetuities 730 does not refer to charities 731 See Charity ; Cy Pees. TENURE, how far it exists in the United States 22, 23 none, of rights in land of others 43 496 INDEX. Se(ition TEEM FOE TWENTY-ONE YEAES. See Statxtte of Quia Emptoees ; Twentt-one Yeaes. TEEM FOE YEAES. See Years, Estate fob. TEXAS, constitutional provision as to remoteness .... 730, 773 provisions of law as to remoteness in 773 THELLUSSON ACT 686-714 given at lengtli ^^^ avoids accumulations in excess of the Act only .... 687 applies to accumulation by implication 689-691 accumulation which can be stopped at pleasure not within 692 application of, to policies of life insurance 693 not a rule of construction 694 does not accelerate enjoyment 694, 700 periods for accumulation allowed T3y 695-699 income released by, where it goes 700-708 as between life tenant and remainder-man . . 707, 708 cases exempt from 709-712 costs under '^^ extends to Scotland, as to movable property . . 714, 760 and now, though not formerly, as to heritable property 714, 760 except as to deeds befoi-e its extension . . 714 and accumulati(Jiis before its exten- sion 760 to Victoria 714 not to Ireland 714 conflict of laws as to 714, n. act similar to, in Pennsylvania 715-725 TIME, from which Eule against Perpetuity runs is testator's death, not date of will 231 See PovTER ; Eeasonable Time. TOMB, condition to keep in repair, whether remote 311 bequest to keep in repair, whether a charity 311 TEUST. See Chaeitt ; Debts, Payment op ; Equitable In- terest ; Executory Trust ; Power; Eesulting Teust ; Spendthrift Trust ; Tail, Estate in ; Trustee. INDEX. 497 TRUSTEE, Section discretionary power of, effect on remoteness . . 122, 246, 439 takes onl}' estate necessarj"^ for valid trust 422 a power to appoint new, not too remote 509 See Chakity ; Debts, Payment of ; Equitable Inter- est ; Power ; Spendthrift Trust ; Tail, Estate in. TWENTY-ONE YEARS, extension of Rule against Perpetuities to cover, history of 176-185 not defensible on principle 186-188 by lay lords oven-uling the judges . . . . 178, 186, 187 may be taken as term in gross 223 UNITED STATES. See America. USE. See Conditional Limitation ; Shifting Use ; Spring- ing Use ; Statute of Uses. USUFRUCT, in Roman law 761 in France 763, 764, 765, n. in Louisiana 766-768, 770-772 VERMONT, freehold infuturo in 68 constitutional provision as to entails 733 VESTED INTERESTS, in real estate, remainders " 100-112 reversions 113, 113 a other future interests 114 rights hy escheat .... ... . . 115 equitable interests .. .116 in personal property 117 secondary meaning of " transmissible interests " . . . 118 of " inviolable interests " 118, n. not within Rule against Perpetuities 205-210, 283, 320, 322 though preceded by remote limitations 251 that gift is residuary, reason for holding it vested . . . 641 See Remainder. VICTORIA, Thellusson Act in force in 714 32 498 INDEX. VIEGINIA, ^''=""" no tenure in statute Quia Umptores original^ in force in. . . . 24, n. provisions for emancipation in, held not witliin Rule against Perpetuities 228, n. easement cannot be created by custom in . . . 585, 586 See CHAFaTT ; Cy Pkes. ' WARRANTY, See Quiet Enjotmeht. WEST VIRGINIA, no tenure in 23 See Chabitt; Cy pees. WISCONSIN, no tenure in 23 conflict between laws in, as to remoteness of limitations of realty and personalty 265, n. statutes on remoteness and accumulation in 751 YEARS, ESTATE FOR, can begin in futuro 71 underlease or assignment of, may begin TO /wiMro. . . 71 condition attached to 72 equitable interest in, may begin iw/irfwro 75 contingent use after, is good springing use and not bad remainder 58-60 Statute of Uses does not apply to 73 but maj' raise term out of freehold 73, n. gift of, for life and then over, inter vivos, not good in England 71, 76 otherwise in America 76 executory devise of See ExEcrrronr Devise. contingent remainder not destroj^ed b}- granting 141, n., 146 remainder after, vested and not within Rule against Per- petuities 209, 210 though term may have contingent termination 209, 210 not exceeding twentj'-one years, no limitation of, too remote 225-230 whether rendered void for remoteness bj' covenant for ■ renewal 230 governed by lex rei sitae 259 INDEX. 499 YEARS, ESTATE FOR— continued. Section held otherwise in New York ....... 259, n. to trustees for paj'ment of debts 415 on expiration of estate tail, good 448 to trustees preceding estate tail, remoteness of, question- able doctrine in England 466-472, 505 successive terms, determinable by death, do not give estate tail by cy pres 654 in Alabama, allowed for twenty years only . . . 210, 742 chattels personal may be bailed for years 78 See Condition, Right to Enter fob Bkeach op. University Press : John Wilson & Son, Cambridge. i