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." 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 use in practice, and, furthermore, fails to distinguish between the rule forbidding restraints on alienation and the rule against perpetuities. See $338, post, discussing this distinction. 5 See Gray, Rule Perp., 2 ed. (1906), $141e. Gray, Rule Perp., 1 ed., (1886), §141. Meaning of Remote 331. Mr. Gray appears to use the word remote in two senses: first, as meaning the period beyond that prescribed by the rule; second, as describing an interest which violates the rule. The word is used in this book as meaning the period beyond that prescribed by the rule. Discussion as to the Object of the Rule 332. There has been some discussion as to the real object of the rule against perpetuities. Mr. Gray takes the ground that the rule is not aimed at the suspension or restraint of alienation, assigning as a reason that a future interest which is destroyed by the rule is not saved by the fact that it is alienable. He further concludes that because such alienable interests are subject to the rule, it must follow that the rule is not aimed at alienability; that to suppose that the rule is aimed at the restraint of alienation, is to introduce the idea that the rule has something to do with provisions restraining the alienation of present interests, which idea is erroneous, and confuses the rule with the rule forbidding restraints on alienation. Mr. Jabez Fox, in an article in the Harvard Law Review,10 criticises this view. He quotes from a number of opinions delivered from 1618 to 1853,1 and takes the ground that it was clearly the idea of the judges that the rule was aimed at preventing inalienability. It is believed that both authors are correct. correct. The judges thought that the rule was aimed at preventing the inalienability of the present estate upon which the future interests were limited, and Mr. Gray contends that this notion introduces the idea that the rule has to do with express restraints on the alienation of present interests. 7 Thus, where he says that the interest is bad because too remote; Gray, Rule Perp., 2 ed. (1906), §249d. 8 Thus, where he says a limitation after an estate tail can never be too remote, although it may take effect at a period beyond that prescribed by the rule; Gray, Rule Perp., 2 ed. (1906), §443. Rule Perp., 2 ed. (1906), Chap. 7, §§268-278d, Mr. Gray says, there seems to be no reason for the extension of the rule to such interests, because it would always be perfectly competent for the owner of the particular estate to unite with the owner of the future interest in a conveyance of the fee. He admits that the rule applies to such cases. As to the law with respect to the application of the rule to such interests, see §378, post. 10 The Criticism of Cases, 6 Harv. Law Rev. 195 (1892). 1 See §330, n. 4, ante. The notion does not logically introduce this idea. Such a conclusion has, however, frequently been drawn, and has been caused largely, it is believed, by the vague idea which has been entertained as to the meaning of the word perpetuity.2 Many jurisdictions in this country appear to have adopted the view that the rule is aimed at the suspension of alienation, and it has been suggested that this is the better view. The two views are, however, reconcilable, as suggested in the next section. It is probably the law in Pennsylvania that the rule is aimed at the destruction of future interests and has nothing to do with restraints on alienation although the Supreme Court have taken no definite position on either side of the question. The True Object of the Rule Suggested 333. The rule has nothing to do with the alienability or inalienability of the particular future interest which it destroys. If that interest may vest at a period beyond the rule, it is void and nothing can save it. The rule, therefore, is directly aimed at compelling such a limitation of future interests that they will vest within a certain time. As when an interest is remote, it cannot take effect, and there is a reversion or resulting trust of the fee after the termination of the last valid interest, the rule, by fixing an early period at which estates must vest, promotes the return to the former condition in which the fee existed as a whole, in the absolute and untrammeled ownership of a single individual. In that sense, therefore, the rule has the effect, if not the ulterior object, of making the property more alienable. The rule promotes alienability by destroying future interests. Alienability is its object, the destruction of future interests is the means of attaining that object. There is no danger to the community in permitting anyone to acquire an interest at a remote period in future, or in permitting a present estate to be destroyed or taken away at a remote period in the future. Public policy is against the tying up of property, and uses the rule against perpetuities as a knife to cut out the limitations, which 2 See $330, ante. on meaning of perpetuity. 3 See Review of 2 ed., of Gray, Rule Perp., in 19 Harv. Law Rev., at 635 (1906). 5 See 4, L. R. A. N. S. 140; 11, L. R. A., 85. See §14, ante, for discussion of this point. 5 See §§11-14, ante. if they were allowed to take effect, would produce the consequences which are to be avoided." Contingencies Analyzed 334. The contingencies upon which future interests may be limited to take effect are impossible of enumeration. They may, however, be divided into two classes: (1) the happening of an event, (2) the ascertainment of a person. The chief difficulty is as to the second case, the usual instance of which is that of a limitation to a class. These limitations are discussed more at length in a separate chapter.' We will first observe that the contingency must happen within the period, and that the chief controversy is over the case of death without issue. These points will be discussed in the order named. The Contingency Must Happen Within the Period 335. If it is possible for the contingency to happen at a remote period, the interest limited thereon is destroyed, or, as is commonly said, the application of the rule is tested by possible and not by actual events, and the fact that the contingency actually did happen in time will not save the interest. In like manner, if there is any possibility that the person who is to take may not be ascertained until after the expiration of the period, the limitation to him No reason for this has been given in the books. A reason is void. See §15, ante. 7 See Chap. 18, post. 8 Thus, to A. in fee, and if B. returns from Rome, to C. and his heirs. The limitation to C. is void, because although B. may return from Rome in the lifetime of A., yet he may not return until more than 21 years after A.'s death. The law does not wait until A.'s death, and then, if B. has returned from Rome, give the estate to C., and, if he has not declare it void. See remarks of Strong, J., in Smith v. Townsend, 32 Pa. 434 (1859); Williams, J., in Donohue v. McNichol, 61 Pa. 73 at 78 (1869); Paxson, J., in Smith's Appeal, 88 Pa. 492 at 495 (1879), which case is open to criticism on this point; see $395, post; Coggins' App. 124 Pa. 10 (1889); the class did actually close in time, but it might not be closed until too remote a period. Lewis, Perp., (1843), pp. 170, 171, 478 and 481. Gray, Rule Perp., 2 ed. (1906), $214. For the purpose of determining questions of remoteness, men and women are deemed capable of having issue as long as they live; Gray, Rule Perp., 2 ed. (1906) §215; Coggins' App.,124 Pa. 10 at 21 (1889). Thus, a limitation over on the probate of a will is void as the will may be probated at a remote period; see 10 L. R. A. N. S. 564. A contingency which may happen at a remote period may be controlled by the circumstance that the limitation in question, if it ever takes effect at all upon the contingencies specified, must take effect within the period prescribed. |