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bility upon a possibility." The Supreme Court is, therefore, free from any necessity upon precedent of applying this rule." The question whether the rule against perpetuities applies to contingent legal remainders in Pennsylvania is one of practical expediency rather than of principle or reason. There is no controlling reason why the rule should not apply. There are strong practical reasons why it should apply, and while, therefore, in this condition of the authorities, no statement can be ventured as to the law, it at least may be said that the Supreme Court would not go far astray if they should decide that the rule against perpetuities applies to contingent legal remainders in real estate.

Easements

366. Easements and rights over the lands of another are present interests and not subject to the rule. The right in the dominant tenant to enter on the servient tenement in pursuance of the easement, does not call for the application of the rule against perpetuities. A grant of an easement, however, can be made to begin in futuro and such a grant seems to be subject to the rule.

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Rights of Entry for Condition Broken

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367. A right of entry for condition broken is apparently subject to the rule in England, although there has been some difference of opinion on the point. Mr. Gray says that such rights are clearly within the rule, and that there is nothing in the history of the rule to exempt them from its application, but that the general law in the United States is that they

2 See $66, ante.

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The rule is mentioned by the late Mr. Mitchell in his learned work on Real Estate & Conveyancing in Penna. at p. 236 (1890), apparently relying on the authority of Mr. Williams as a modern substitute for the old rule that you cannot have a possibility upon a possibility. The learned author appears to confuse this rule with the rule against perpetuities.

Gray, Rule Perp., 2 ed. (1906), §279. Profits a prendre are practically unknown in Pennsylvania. In so far as the servient tenement is concerned, they are restraints on the enjoyment of property.

5 Gray, Rule Perp., 2 ed. (1906), $281. 6 Gray, Rule Perp., 2 ed. (1906), §316. No case in Pennsylvania has been found as to this point.

7 As to the nature of such a right, see $76, ante. No case of a condition attached to a conveyance of personal property has been found in Pennsylvania. The discussion, therefore, is confined entirely to gifts of real property.

8 Gray, Rule Perp., 2 ed. (1906), §299311a, where this subject is discussed. Lewis, Perp., pp. 618, 619 (1843).

Rule Perp., 2 ed. (1906), §§304, 310.

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are exempt from the operation of the rule.10 The question has not been authoritatively decided in Pennsylvania, and it is not perfectly clear just what the law is. In a number of cases the condition did not violate the rule.1 In other cases the condition did violate the rule in fact, and it was held that it could be taken advantage of without the circumstance that it did violate the rule being considered by the court.2 In a number of other cases, commonly cited as authorities on the subject, the court held that the grantor, for one reason or another, apart from the rule, could not take advantage of the condition. There is, as Mr. Gray observes, a practical inconvenience in permitting the validity of such conditions. The difficulty thereby occasioned in clearing up the title to property is frequently very great. The common opinion, however, seems to be that the rule does not apply to such conditions, and as the Supreme Court has expressly sustained the right to recover in two cases where the condition violated the rule, and no one has thought it necessary to raise the point in a case where the court could not evade the question,5 there seems to be good reason to say that it is a rule of property in Pennsylvania that the rule against perpetuities does not apply to conditions of re-entry. At least until the Supreme Court has passed upon the question it will be dangerous to pass a title containing such a condition that has not been released. The non-application of the rule to the clause of re-entry commonly inserted in ground rent deeds seems to have been so universally assumed in Pennsylvania, that any decision to the contrary would probably be most alarming and unsettle a great many titles. And it is not likely

10 See further 1 Am. Law Rev. 265 (1867); 17 Law Quar. Rev. 32 (1901).

1 Hamilton v. Elliott, 5 S. & R. 375 (1819); Bear v. Whistler, 7 Watts, 144 (1838); Westenberger v. Reist, 13 Pa. 594 (1850).

2 Pickle v. McKissick, 21 Pa. 232 (1853); Courtney v. Keller, 4 Penny. 38 (1884).

3 M'Williams v. Nisly, 2 S. & R. 507 (1816); McCormick v. Connell, 6 S. & R. 151 (1820); Kenege v. Elliot, 9 Watts, 258 (1840); Sharon Iron Co. v. City of Erie, 41 Pa. 341 (1861).

4 Rule Perp., 2 ed. (1906), $304.

5 The question was argued in Sharon Iron Co. v. City of Erie, 41 Pa. 341 at 347 (1861), but case went off on another point.

No practical inconvenience has been felt on this point because the right to reenter is reserved to the grantor, his heirs and assigns, and as his assigns have the right to release the clause and extinguish the rent, the difficulty mentioned by Mr. Gray, Rule Perp., 2 ed. (1906), §304, of hunting up the scattered heirs, does not exist in Pennsylvania.

that the Supreme Court will ever apply the rule to such a clause. Even if a clause in a ground rent deed be admittedly valid on the ground of common error, there is room to distinguish between a clause of re-entry to enforce the payment of a particular sum of money, which is the case of a ground rent deed, and a clause of re-entry for other purposes."

Possibilities of Reverter

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368. The rule against perpetuities probably does not apply to possibilities of reverter in Pennsylvania, although the point has never been actually decided by the Supreme Court." If determinable fees are valid in Pennsylvania, and it seems that they are,10 the validity of a possibility of reverter inevitably follows because if there is no such possibility there can be no determinable fee. The error, as Mr. Gray points out,1 was in allowing the determinable fee in the first place. It is often an extremely difficult question of construction to determine whether in a given case there is a condition or a determinable fee.2

Future Legal Interests in Personal Property

369. Mr. Gray says that the question whether the rule applies to future legal interests in personal property depends on the nature of such a future interest. A future interest in a chattel real created by will is an executory bequest in Pennsylvania, to which, therefore, the rule applies, although no decision to this effect has been discovered." The nature

7 See article by Mr. Arthur Mackey in 17 Law Quar. Rev. 32 (1901).

8 There is some difference of opinion as to whether it applies in England. Mr. Lewis, Perp., p. 621 (1843), thinks that the rule does not apply.

In Slegel v. Lauer, 148 Pa. 236 (1892), the court permitted the plaintiff to enforce a possibility of reverter which violated the rule against perpetuities, although no objection on that ground was called to the attention of the court. 19 See §27, ante.

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Gray, Rule Perp., 2 ed. (1906), §312. A possibility of reverter after a conditional fee cannot exist in Pennsylvania, as con

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of a future legal interest in a chattel personal created by will is uncertain, and it is doubtful whether a future interest can be created in either case by deed inter vivos. As no case on the point has been found, no statement can be ventured as to the application of the rule.

Executory Devises and Bequests

370. Executory devises and bequests are undoubtedly subject to the rule against perpetuities."

Shifting and Springing Uses

373. Shifting and springing uses are subject to the rule;8 so also are contingent uses. If the statute of uses executes the contingent use, it becomes at once on theory a legal contingent remainder, and the application of the rule against perpetuities is doubtful.10 If the statute does not execute the use the rule against perpetuities clearly applies. This distinction does not appear to be taken in the books.

Application of the Rule to the Interest of the Cestui Que Trust

374. All future equitable interests arising out of an express trust are subject to the rule against perpetuities if so limited that according to the rules of the common law the interests may vest beyond the period prescribed by the rule,' and it makes no difference what theory may be adopted as to the nature of the interest of the cestui que trust. If the cestui que trust has an estate in the trust property, the rule prevents the vesting of that estate at a at a remote period. If the cestui que trust has merely a right to compel the trustee to perform the duty designated by the trust with respect to the

trust res, the rule prevents period, a vested right to duty. A limitation may be not be remote at law. Thus,

him from acquiring, at a remote require the performance of the remote in equity which would suppose the case of a devise to

6 For a discussion of this point, see §§91-97, ante.

7 Gray, Rule Perp., 2 ed. (1906), §317. 8 Gray, Rule Perp., 2 ed. (1906), §317.

As to this, see $127, ante. 10 See $364, 365, ante.

1 See Gray, Rule Perp., 2 ed. (1906), $$322, 323, 324; Hillyard v. Miller, 10 Pa. 326 (1849); Lewis, Perp., p. 622 et seq., (1843).

2 For a discussion of this point, see S$147, 148, 149, ante.

A. for life, and at his death to such of his children as reach twenty-five, and the case of a devise to trustees in trust to pay the rents to A. for life, and at his death, to convey to such of A.'s children as reach twenty-five. The limitation at law is not remote, as the remainder must become vested, if at all, at A.'s death, in such of his children as are then twenty-five. The limitation in trust is remote, as, there being no necessity for the equitable limitation to take effect as at law immediately on A.'s death, the vesting may be postponed until after A.'s death, and will consequently be remote, as all of A.'s children may not reach twenty-five within twenty-one years after his death.

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Fallacy That the Rule Applies to the Trust

375. A trust is a relation. The rule against perpetuities does not affect the trust or apply to it in any way. The interest of each particular cestui que trust is considered by itself and stands or falls on its own merits. An interest invalid under the rule does not carry down with it the interest of any other cestui que trust unless the two are inseparable. The rule operates like a surgeon's knife,-it cuts out the offending limitations, nothing less and nothing more. This principle has been overlooked by the Supreme Court of Pennsylvania, and in this respect the rule has been applied with uncalled-for severity. The fallacy that the rule applies to the trust and not to the particular equitable limitations has frequently appeared, as has

3 Gray, Rule Perp., 2 ed. (1906), §325. 4 For a discussion of this point see §463, post. There is a distinction between the operation of the rule and the application of the statute against accumulations. The statute saves that part of the direction to accumulate which is valid, and invalidates the remainder. See $643, post.

5 Gray, Rule Perp., 2 ed. (1906), §§232,

412.

6 See §476, ante. This chapter should be read in connection with Chap. 19, discussing the cases where the future interests are invalid under the rule.

'E. g., per curiam opinion Goehring's App., 81 Pa. 283 (1875); Ashman, J., in Lakey's Est., 30 Pa. C. C. 287 at 288

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(1904), where he said: "Although this trust manifestly violated the rule against perpetuities, it could be upheld as to the parties who were within the limits permitted by the rule." Potter, J., in the opening sentences of his opinion in Kountz's Est., No. 1, 213 Pa. 390 at 391 (1906), where he said: "The question in this case is whether the trust created by the will of the testatrix violates the rule against perpetuities." Mestrezat, J., in Stephens v. Dayton, 220 Pa. 522 (1908), at 526, where the learned judge said: "This trust, therefore, does not offend against the rule against perpetuities," the reason assigned being that it would terminate at the expiration of a life in being at the decease of the tes

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