Estate,1 the court has, it is submitted, overlooked the true application of the rule against perpetuities. The rule operates to destroy the intention, but is not to be applied to any greater extent than is absolutely necessary. The court should be astute to separate all limitations which can possibly be separated, and the question whether the testator deliberately intended to violate the rule can have no proper weight whatever. The court has, it is apprehended, made an unnecessarily harsh and severe application of the rule,2 and has probably been influenced by the fallacious notion that the rule against perpetuities applies to a trust, whereas it applies only to the interest of each separate cestui que trust.*

3

CHAPTER 20

PRELIMINARY DISCUSSION OF THE RULE FORBIDDING THE

IMPOSITION OF RESTRAINTS ON ENJOYMENT

The rule discussed and stated....

8485

The rule distinguished from the rule forbidding restraints on alienation.....

8486

The rule distinguished from the the rule against perpetuities.... §487
Who may invoke the application of the rule.....
Form in which the attempted restraint may appear.

$488

$489

Conditions in restraint of marriage..

$490

The Rule Forbidding the Imposition of Restraints on Enjoyment

Discussed and Stated

2

485. The fundamental principles relating to the use and enjoyment of property have already been noticed,' as has also the principle of public policy which is opposed to the creation of restraints on such use. This principle of public policy finds its expression, so far as gifts of property are concerned, in the rule of law which may be described as the rule forbidding the imposition of restraints on the enjoyment of property. Everyone who is sui juris is entitled to the unfettered control and enjoyment of all property in which he has the sole, absolute interest, subject only to the rules of law in force regulating that use. With the rules of law restricting such enjoyment, or with the stipulations which may be inserted in transfers for value having a like effect, we have no concern.*

1 See §8.

2 See §§11-14, ante; Lowrie, J., in Phila. v. Girard's Heirs, 45 Pa. 9 at 27 (1863); Ashman, J., in Cooper's Est., 9 Pa. C. C. 356 (1891).

3 The incapacity of infants, lunatics, and married women may be referred to another principle of law and has nothing to do with the subject herein discussed. See §§1, 8, ante.