Cases where the limitations did not violate the rule.. $351 Preliminary Discussion 325. The power to create future estates has already been noticed. The estates or interests, legal and equitable, in realty and personalty, which may be created under that power have been discussed and classified.2 At the risk of some repetition, it may be observed at this point that this power was originally conceived of as a power to divide the absolute ownership, and at that time the notion of a future interest had not been introduced into the law. The fundamental conception has changed. The obstacles to the division of the fee or absolute ownership, which obstacles were probably more metaphysical than feudal, have practically disappeared, and in modern times the power to create future estates is easily conceived of. The principle of public policy which demands the restraint on this power expresses itself in the rule against perpetuities—perhaps more accurately designated as the rule forbidding the creation of a perpetuity. It is to this part of the subject that our attention will now be directed. The law relating to the rule against perpetuities in Pennsylvania is, with very few exceptions, plain and well settled. The student will have no difficulty in mastering this part of the subject aside from that arising from the subtlety of the subject itself, and the practitioner can advise his clients with a confidence which is in refreshing contrast to the doubts he feels when advising them on the law treated in many other parts of this book." Historical Evolution of the Rule 8 326. The rule against perpetuities first took its shape in the discussion of cases arising on executory devises of chattels real, and was first suggested at bar in 1616. 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 1664.1 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." 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. 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. 6 *Gray, Rule Perp., 2 ed. (1906), §§171 175. 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 1 329. 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). 9 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. The law punishes an entry made after eleven o'clock. It is, however, a statement only of the practical result of the law to 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." 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 |