Historical Evolution of the Rule 326. The rule against perpetuities first took its shape in the discussion of cases arising on executory devises of chattels real,R and was first suggested at bar in 1616.9 It seems that the validity of contingent interests depended at first on the nature of the contingency upon which they were limited to take effect,10 and that no question of remoteness of a limitation of a freehold estate arose until 1664.' Lord Nottingham, in the Duke of Norfolk's case, in 1681,2 established the points (1) that the validity (invalidity) of the future interest depended on its remoteness, and not on the nature of the contingency, (2) that the contingency must occur within a life or lives in being.3 The limits within which the contingency must occur were subsequently extended (1) to cover the time necessary for the birth of a posthumous child; (2) twenty-one years were then added to provide for the minority of the children in esse at the expiration of the life estate; (3) the consideration of minority was lost sight of, and the period of twenty-one years was allowed in gross without reference to an existing minority." The Rule Against Perpetuities is a Common Law Rule 327. The rule against perpetuities, therefore, has been developed entirely at common law, and is not the result of nor has it been affected by any statute except with respect to directions to accumulate income. The rule was brought significant. Had the Supreme Court adhered to the common law with the same firmness with regard to the rule forbidding restraints on alienation as they have with respect to the rule against perpetuities, they would have relieved themselves of much extra labor, and have saved the people of the commonwealth from a heavy toll in litigation. 8 Gray, Rule Perp., 2 ed. (1906), §§148-160. Gray, Rule Perp., 2 ed. (1906), §154. 10 Gray, Rule Perp., 2 ed. (1906), §168. 1 Gray, Rule Perp., 2 ed. (1906), §139. See §§158-168, ante. 23 Chanc. Cases, 1; Gray, Rule Perp., 2 ed. (1906), §169. 3 Gray, Rule Perp., 2 ed. (1906), §170. 7 6 Gray, Rule Perp., 2 ed. (1906), §§171175. 5 Gray, Rule Perp., 2 ed. (1906), §§176185, §§186-188, §§223-224. Lewis, Perp., (1843) p. 168. For a good short statement of the history of the rule, see Gray, ubi supra, §§296-298. It was erroneously referred to, however, as the statute against perpetuities by the reporter in Weinbrenner's Est., 173 Pa. 440 at 441, (1896) and in a per curiam opinion in Smith's Est., 181 Pa. 109 at 117 (1897). 7 See Chap. 25 on Accumulations and remarks of Clark, J., in Lawrence's Est., 136 Pa. 354 at 363 (1890). The Act of 1855 referred to by the learned judge does not touch the rule against perpetuities. to America as part of the common law then in force and is imbedded in the common law of Pennsylvania. 8 Mr. Gray's Statement of the Rule Against Perpetuities 328. The rule against perpetuities, as finally defined by Mr. Gray, is as follows: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." It is submitted, with diffidence, however, that this is not the rule against perpetuities at all. The rule destroys interests limited upon contingencies which may occur after a certain period. The interests which the rule does not destroy are the interests which, so far as the rule is concerned, are good. Mr. Gray's statement simply describes the class of future interests to which the rule does not apply. It is, therefore, respectfully submitted that it is not a statement of the rule itself.10 The Author's Statement of the Rule Against Perpetuities 329. The following statement of the rule is suggested: all future interests which are limited to an unascertained person, or to take effect upon a contingency other than the regular termination of the preceding particular estate, are void whenever such person may possibly not be ascertained before, or the contingency may happen after, (1) the expiration of a life or lives in being at the creation of the interest and twenty 8 Gray, Rule Perp., 2 ed. (1906), §§200, 200a. The earliest reference to the rule which has been found in a Pennsylvania case is by McKean, C. J., in Ruston v. Ruston, 2 Dall. 243 at 244 (1796). 'Gray, Rule Perp. 2 ed. (1906) §201. 10 The relation which Mr. Gray's statement bears to the rule may be illustrated as follows: suppose an act were passed, making it unlawful to enter a dwellinghouse after eleven o'clock at night without the consent of the owner. If there were no further law on the subject, an entry in the daytime without the consent of the owner would be lawful. law punishes an entry made after eleven o'clock. It is, however, a statement only of the practical result of the law to The say, that no entry in a dwelling-house, without the consent of the owner, is lawful unless made before eleven o'clock at night. Furthermore, Mr. Gray's statement is ambiguous in so far as the term of twenty-one years is concerned, as it does not seem to provide for the case where the term is allowed without being preceded by a life in being, as to which see $340, post. See criticism of Mr. Gray's statement by Mr. Kales, 20 Harv. Law Rev., 198 (1907). 1 And an estate in fee simple absolute never determines, and a determinable fee may be said to terminate in a regular manner. See §27, ante, as to determinable fee. one years and possibly nine months thereafter, or (2) the expiration of twenty-one years after the creation of the interest.2 The learned reader may choose which statement of the rule he will bear in mind. It is immaterial, in so far as the practical operation of the rule is concerned, which one is selected. It is believed, however, that the form suggested is clearer and more easily understood. Meaning of Perpetuity 3 330. Mr. Lewis points out that while legal lexicography supplies few words less susceptible of full and adequate definition, few have been the subject of more frequent and varied attempts at description. The term was ambiguous while the rule was developing, and it was not until recent times that anything like an accurate definition became possible. A number of definitions by eminent judges and text writers have been collected in the note in chronological order. It will appear 2 This is very much the language in which Mr. Gray referred to the rule, Gray, Restraints on Alien., 2 ed., (1895), §272, where he said "The rule against perpetuities declares that every estate or interest which requires the happening of a contingency or the arrival of a time certain as a condition precedent, is bad unless the contingency must happen or the time must arrive within a life or lives in being and twenty-one years." 3 Lewis, Perp. (1843), Chap. 12, p. 163. Mr. Challis, Real Prop., 2 ed. (1892), p. 168, says that it is unnecessary to expend any labor in an attempt to define a perpetuity that the rule is easily intelligible without any such definition. This is perhaps true, but unless the word perpetuity is accurately defined, it is difficult to distinguish this rule from the rule forbidding restraints on alienation. Mr. Challis's attention does not seem to have been directed to this point. * Lord Chancellor Nottingham, in 1681: "A perpetuity is the settlement of an estate or an interest in tail with such remainders expectant upon it as are in no sort in the power of the tenant in tail in possession, to dock by any recovery or assignment. But such remainders must continue as perpetual clogs upon the estate." Norfolk's case, 3 Ch. Cas. 1, 31. Lord Keeper Guildford, in 1683: "If in equity you should come nearer to a perpetuity than the rules of common law would admit, all men, being desirous to continue their estates in their families, would settle their estates by way of trust, which might indeed make well for the jurisdiction of the court, but would be destructive to the commonwealth"; Norfolk v. Howard, 1 Ver. 163. Powell, J., in 1698: "But they were not for going one step further because these limitations make estates unalienable, every executory devise being a perpetuity so far as it goes; that is to say, an estate unalienable though all mankind join in the conveyance"; Scatterwood v. Edge, 1 Salkeld, 292. Lord Talbot, in 1736: "However unwilling we may be to extend executory devises beyond the rules generally laid down by our predecessors, yet **** considering that the power of alienation will not be restrained longer than the law would restrain it (viz. during infancy of the first taker), which cannot reasonably be said to extend to a perpetuity", etc., Stephens v. Stephens, Temp. Talb. 228, 232. Lord Eldon, in 1805: "The question always is whether there is a rule of law fixing the period during which propperty may be unalienable"; Thellusson v. Woodford, 11 Ves. 146. Lord Chancellor Cottenham, in 1849: "These rules are to prevent, in the cases to which they apply, property from being inalienable beyond certain periods"; Christ's Hospital v. Grainger, 1 McN. & G. 460. Kay, J., in 1889: "The truth is that under the old feudal law existing in England which is only being broken down slowly by legislation and decisions of the court, and which still exists to a very great extent, there has been a constant attempt on the part of owners of land to limit it in the most elaborate fashion, in order to tie it up as long as possible, and that constant attempt has been constantly defeated both by legislation and the decisions of the courts of law"; Whitby v. Mitchell, L. R. 42 Ch. D. 494, 500 (1889). Shaw, C. J., in 1853: "A man cannot, under this general jus disponendi, thus tie up property in perpetuity and make it inalienable in his own posterity-it is a legal impossibility"; Blake v. Dexter, 12 Cush. 559, 570. Gray, J., in 1865: "The reason of the rule is, that to allow a contingent estate to vest at a more remote period would tend to create a perpetuity by making the estate inalienable"; Odell v. Odell, 10 Allen. 1, 5. The foregoing definitions are given as collected in an article by Mr. Fox, 6 Harv. Law Rev., 195 (1892). The following definitions are added: "A perpetuity may * * be defined to be a future limitation, restraining the owner of the estate from aliening the fee simple of the property discharged of such future use or estate before the event is determined or the period arrived when such future use or estate is to arise. If that event or period be within the bounds prescribed by law, it is not a perpetuity"; Saun * ders, Uses, Vol. 1, p. 196 (1823); quoted by Lowrie, J., in Phila. v. Girard, 45 Pa. 9, at 26, (1863). "A perpetuity is a future limitation, whether executory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of or will not necessarily vest within the period fixed and prescribed by law for the creation of future estates and interests, and which is not destructible by the persons for the time being entitled to the property subject to the future limitation, except with the concurrence of the individual interested under that limitation"; Lewis, Perp., Chap. 12, 163 (1843); quoted with approval by Gibson, C. J., in Hillyard v. Miller, 10 Pa. 326 at 333 (1849). Mr. Justice Sharswood in Yard's App., 64 Pa. 95 at 98 (1870), said that nothing was denounced by the law as a perpetuity unless it restrained the vesting of the estate beyond the period of a life or lives in being, etc., and further, that a vested interest was not a perpetuity. The learned judge uses the word in two senses: (1) as meaning something which restrains; in this he confused the perpetuity with the rule against perpetuities; (2) as meaning that the future interest itself is a perpetuity. Hare, P. J., in the court below, in Mifflin's, App. 121 Pa. 205 at 213 (1888): "Agreeably to the view taken by Mr. Gray, a perpetuity is an estate or interest which from its indestructibility and incapacity for alienation, if the law tolerated it, might be transmitted indefinitely, under the authority conferred by the original donor, without power on the part of the holders to treat absolutely as their own, or blend it with the mass of property which each successive owner may dispose of as he thinks proper." "With us in Pennsylvania, the word 'perpetuities' is used in its largest sense, including as well the interests or estates that are inalienable or indestructible, as those which are bad for remoteness"; Sulzberger, J., in Morris v. Fisher, 8 D. R. 161 at 163 (1899), see this case criticised, §363, post; from an examination of these definitions, that the meaning of the term has changed. It appears to have meant (1) the estate on which the future interest is limited; (2) the limitation of the future interest; (3) the (3) the future interest which is remote. The judges perhaps had the idea that when the power of dominion was exercised to cut the fee into estates, the whole fee became inalienable, and the rule, by compelling these interests to vest within a certain time, hastened the restoration of the fee to its former condition of alienability. Perhaps by alienability they meant marketability. Mr. Gray defines a perpetuity as follows: "There were two kinds of perpetuities: (1) an estate tail with a condition or clause of cesser intended to prevent alienation; (2) a future contingent interest limited by way of use."5 Mr. Gray, however, has not reduced this definition to its lowest terms, and it is open to the objection that it ignores executory devises and future equitable limitations, both of which are unquestionably subject to the rule, and embraces some future interests which take effect in time and cannot, in any sense of the word, be said to be perpetuities. In the first edition of his book Mr. Gray defines a perpetuity in the modern sense, as meaning a remote interest. He apparently abandoned this idea in the second edition, and offers no substitute other than that quoted above. To speak accurately, a perpetuity is something which lasts forever. A future interest, therefore, obviously cannot be a perpetuity, nor can the limitation of that interest be a perpetuity nor the estate on which the future interest is limited. Mr. Gray seems to have been the first writer to clearly point out that the subject of the discussion is the future interest which is destroyed by the rule. We may, perhaps, venture the statement that a perpetuity is a future interest which is destroyed by the rule. Although this definition is not in accordance with the natural sense of the word, it is at least intelligible and easy of application. it is submitted, however, that this definition is entirely too broad and is not sustained by even the dictum of any other Pennsylvania judge. A term which has so extended a meaning as that given by the learned judge, is utterly out of place in any scientific conception of the law, is a dangerous two-edged sword to 6 |