the rule against perpetuities. The common statement is that a vested interest is not subject to the rule.' The exact point involved is this: an interest which may vest at a remote. period is, if it is otherwise lawful, prevented by the rule from ever taking effect. The statement, therefore, that an interest is or may become vested necessarily involves the idea that it has or will escape the operation of the rule. It may perhaps put the matter more clearly to say that a vested interest does not lie in the path along which the rule against perpetuities exercises its destroying effect. Reversions 361. A reversion is not subject to the rule against perpetuities. Mr. Gray says that it is because a reversion is vested. While this is perhaps a sufficient reason, there is another principle involved. If the ulterior interest limited is remote, it cannot take effect, and is as if it had been omitted from the deed. The gift stands as if the limitations had stopped with the preceding particular estate, in which latter case there would, at common law, be an undisposed of residue which would remain in the grantor and his heirs as a reversion. The existence of the reversion in this case is, therefore, the inevitable consequence of the application of the rule to the void ulterior limitation. If the property did not revert to the grantor, to whom would it go: to a stranger or to the state? No other disposition is possible. Where there is an express reversion the case is the same. The direction in the deed is coextensive with the disposition by law. Vested Remainders 362. A vested remainder is not subject to the rule against 1 A vested interest, whether legal or equitable, in realty or personalty, is not subject to the rule against perpetuities: Gray, Rule Perp., 2 ed. (1906), §205; Clark, J., in Lawrence's Est., 136 Pa. 354 at 363 (1890); Rhodes' Est., 147 Pa. 227 (1892). It has been pointed out, see §§3841 ante, that the notion of vesting has come down from the doctrine of the early common law governing remainders in land, and the distinction between a vest- The non-application of the rule to the reversion is a direct corollary of the principle disposing of the property embraced in a void ulterior limitation, as to which see Chap. 19 post. perpetuities. Vested remainders were allowed at common law several centuries before the rule against perpetuities was evolved. Historically, therefore, the rule cannot apply and no one has ever suggested any reason why the rule should be extended to cover a vested remainder. A vested remainder is a quasi future interest; in so far, however, as the vesting in interest is concerned, it is a present interest, and that is a sufficient reason why the rule should not apply. If the suggestion made is sound, that the rule against perpetuities was originally evolved to limit the gap in the seisin or possession made possible by the validity of the limitations under the statute of uses, there is another reason why the rule does not apply to vested remainders. Whatever the reason may be, the law is plain. Mr. Gray mentions the case of a remainder to a class as an exception to this application of the rule against perpetuities. He is forced into this position by his acceptance of the theory that a remainder to a class is a vested remainder. The objections to this theory have been pointed out," and the position taken that a remainder to a class is really a remainder to each particular member of the class, and is either vested or contingent, under the same principles which apply to remainders to an individual. It is, therefore, not an exception to the application of the rule against perpetuities.1 9 Vested Remainder Subject to a a Term of Years 10 363. There can be no remainder after a term of years. When the term and the fee are granted together, the gift is construed as a grant of the reversion subject to the term.2 The limitations of the fee are, therefore, to be considered, so far as the application of the rule against perpetuities is concerned, as if the term did not exist. The fact that the possession of the vested remainder is postponed to a period beyond that prescribed by the rule, by the presence of the term, is 5 Gray, Rule Perp., 2 ed. (1906), §§205, 205a, 283. See Kales, 20 Harv. Law Rev. (1907), p. 192, et seq. 6 Vested remainders go back as far as the thirteenth century. The rule against perpetuities dates only from the seventeenth century. See §326, ante. 7 See §41, ante. See §364, n. 8, post. Rule Perp., 2 ed. (1906), §205a. 10 See 8867-71, ante. 2 1 For a discussion of the application of the rule to gifts to a class, see $445, post. See $45, ante. It is, of course, possible for the gift to be so worded that the ultimate limitation of the fee is contingent upon the termination of the estate for years, and must, therefore, take effect, if it takes effect at all, as an executory devise. 3 immaterial. This principle was overlooked in the case of Morris v. Fisher. In that case there was a devise to A. for life, and after her death to B. for ninety-nine years, if he should so long live, and after his death, then to the issue of his body during the remainder of the term, and after the expiration of the term, or if B. should die without leaving issue, then to W. and the heirs male of his body. A. died, B. entered into possession, and his issue succeeded him. The term of ninety-nine years expired, and the heir male of W. brought ejectment. Judgment against him in the court below was reversed on appeal by agreement of counsel. Sulzberger, J., delivered the opinion of the Common Pleas, and the grounds of his decision are difficult to understand. The exact point involved was this: the tenant in tail claimed possession, the term having ended. It was objected that he could not recover because his remainder was remote. To this it was replied that the remainder was not remote because there was a direct limitation of the estate tail subject to the term. The counsel for the defendant rejoined that the gift was not really an immediate gift subject to the term; that although it had this appearance, owing to what he termed a trick of the conveyancer, it was really a gift to the heir male ascertained at the expiration of the term of ninety-nine years. This raised a question of construction to which no attention was paid by the learned judge, who apparently admitted that, according to the common law, there was an immediate gift of the fee tail subject to the term, and then undertook to demonstrate that the law of Pennsylvania was different. In doing this his attention was diverted by the attempted estate tail of the term. This point did not figure in the case, as the term had expired, and the only question was whether the heir male of W. could recover on his title as tenant in tail. The decision is totally opposed to the common law and to reason, and, as has been aptly observed, the reversal by agreement of counsel indicates that the counsel for the defendant had little hopes of holding his judgment. No other case on the point has been found. 5 3 §343, ante. A term of years of extravagant length, while an undesirable state of affairs, does not, it is believed, call for the application of the rule against perpetuities. The existence of the term, if it is anything, is a restraint on the free use and disposition of the fee. 48 D. R. 161 (1899). 5 See further as to this, §87, n. 4, ante. General Discussion as to the Application of the Rule Against Perpetuities to Contingent Legal Remainders 364. There has been much difference of opinion as whether the rule against perpetuities applies to contingent legal remainders in real estate. The difference of opinion which exists may be summed up as follows: it is contended, on the one hand, that the rule does not apply to contingent remainders, because (1) contingent remainders were allowed as early as 1430, nearly 300 years before the rule against perpetuities originated, and therefore, historically, it cannot apply; (2) there is no occasion to extend the rule to contingent remainders in modern times, because such remainders are destructible, and (3) because there is a rule of the common law that you cannot have a possibility upon a possibility, which rule governs the limitation of contingent remainders.R On the other hand, it is contended that although the rule does not apply historically, it should be extended in modern times to cover contingent remainders, (1) because they have ceased to be destructible; (2) because there is no rule of the common law that you cannot have a possibility upon a possibility; (3) that, as there is no other rule to govern remote contingent remainders, the rule against perpetuities should be extended to cover the case; that, even if there is a rule that you cannot have a possibility upon a possibility, it is undesirable that such a rule should be adopted in a 'See Gray, Rule Perp., 2 ed. (1906), §§284-298. 8 There was possibly another reason why the rule did not apply to contingent remainders, which was noticed by Sir Edward Sugden when delivering an opinion as Lord Chancellor of Ireland, in the case of Cole v. Sewell, 4 Dr. & W. 1. (See Gray, Rule Perp., 2 ed. (1906), §287, n. 1, where a portion of the opinion is given; and also Williams, Real Property, 6 Amer. ed. (1886), p. 274, n.; Challis, Real Prop., 2 ed. (1892), pp. 93, 184.) The Lord Chancellor said: "In the latter case the event may or may not happen before or at the instant the preceding estate is determined, and the limitation will fail or not, according to that event. It may thus be prevented from taking effect, but it can never lead to remoteness. That objection, therefore, cannot be sustained against the validity of a contingent remainder." It is submitted that the Lord Chancellor had in mind here the point that a perpetuity consisted in the gap between the termination of the preceding estate and the beginning of the executory devise or conditional limitation. If this is so, and that is what the rule against perpetuities was originally aimed to limit, then there was no reason at the time the rule was evolved for its application to contingent remainders. If this reason has any weight it explains why the rule does not apply to vested remainders, because in that case there is no gap in the seisin; see §362, ante. jurisdiction not bound by any precedent, as limitations may be valid under that rule which would be invalid under the rule against perpetuities, and therefore, its adoption would produce a lack of uniformity in the law. Mr. Gray takes the latter view, and comes to the conclusion that the rule against perpetuities does apply to contingent legal remainders. The Law in Pennsylvania as to the Application of the Rule to Contingent Legal Remainders 365. The question does not seem to have been passed on in Pennsylvania and is open on the authorities.10 Now, at common law it was said that the rule did not apply to contingent legal remainders because that remainder could never take effect after the expiration of the preceding particular estate, that is, the contingent remainder was destroyed by the natural expiration of the preceding estate before the happening of the event upon which the remainder was limited to take effect. If, therefore, as seems to be the case, a contingent remainder is destructible in Pennsylvania in exactly the same way as it was at common law in this particular, and the destructibility in this particular at common law was the reason why the rule did not apply, there seems to be much force in the position that the rule does not apply in Pennsylvania. No trace has been found in the Pennsylvania cases of any application of the rule that you cannot have a possi 9 Gray, Rule Perp., 2 ed. (1906), §§123134, 287-298. Mr. Challis, Real Prop., 2 ed. (1892), pp. 183, 184, 185, says that the rule does not apply to legal contingent remainders, because they were allowed before the rule against perpetuities was evolved, and he further says, at p. 185, that any objection to the validity of a contingent remainder on the ground of the rule against perpetuities, is not so much an objection against the time of vesting as an objection against the duration of the preceding estate. Mr. Kales, 20 Harv. Law Rev., 199-200, (1907), takes exception to Mr. Gray's position that the rule does apply to contingent legal remainders, because he (Gray) is not consistent in that he does not ap ply the rule to a vested remainder subject to be divested, that is, a vested remainder subject to a condition precedent to its coming into possession. The objection to the view Mr. Kales takes of this kind of vested remainder has already been noticed; see §63, n. 2, ante; and also $46, ante. If this objection is sound, there is no inconsistency in Mr. Gray's position. 10 Nothing has been found in Pennsylvania on the point except a dictum of Penrose, J., in the court below in Coggins' App., 124 Pa. 10 at 19, (1899), as follows: "A legal remainder in lands, whether vested or contingent, is not affected by the doctrine of perpetuities." 1 See $62, ante. |