Reasons for the existence of the restraining rules to be discussed....... §10 cos con cos cos con cos con cos cos 82 § 3 8 4 § 5 12345 $8 8 9 1. Our common law has always given to an owner of property an extensive power of imposing his will with respect to the property, on the party to whom he transfers it-a power which is sometimes called the power of dominion. This transfer of property may take place for a valuable consideration or by way of gift. When a consideration passes, and the purchaser subjects himself to the power of dominion of the transferor, the disadvantages which he has taken upon himself are supposed to be allowed for in the purchase price, and the validity or invalidity of the restrictions which may be imposed depend on principles of law other than those which will be discussed in this book. In the case of a transfer by way of gift, there has been a conflict between the tendency, on the one hand, to maintain and extend the power of dominion of the donor over his own property, and the principle, on the other hand, of public policy, which, for various reasons, restrains the exercise of this power of dominion. It is to transfers by way of gift that our attention will be directed. Cujus Est Dare, Ejus Est Disponere 2. In the discussions in the books on this subject, reference is frequently made to the maxim that a man may do as he will with his own. Cujus est dare, ejus est disponere. The proposition has been worded in some recent Pennsylvania cases1 as follows: "A donor not under any obligation to give may give with such conditions as he pleases, subject only to the restriction that the conditions are not clearly illegal." This maxim, however, produces a confusion in thought when an attempt is made to apply it equally to both parties in the transaction. If the donor may do as he will with his own, then he may annex to the gift restrictions which will prevent the donee from doing what he will with what then becomes his own. Furthermore, the maxim is a self-evident proposition, and gives us no information on the most important question, which is this: what are the rules of law which limit the power of dominion? A man may do as he will with his own only when it is lawful, and whether it is lawful depends on whether the disposition conflicts with the rules of law which may be applicable to the transactions in question, and with the lawful restrictions imposed by the previous owner. Two Fundamental Ideas Involved 3. It is the purpose of this book to discuss the rules of law which limit the power of dominion when exercised by a donor in making a gift of property. There are two conceptions involved, the acts which the owner may do by virtue of the power of dominion, and, the rules of law which limit the exercise of the power of dominion. Thus, it is a question of legal conception whether the donor may create an executory devise; it is a question of law aside from the conception of the power of dominion, whether he may create an executory devise to begin at any time in the future. The extent of the power of dominion is determined by one group of legal rules, and the exercise of that power is restrained by another group of legal rules. 1 E. g., by Mitchell, C. J., in Holbrook's Est., 213 Pa. 93 at 94 (1905); by Elkin, J., in Spring's Est., 216 Pa. 529 at 533 (1907); see also Mitchell, C. J., in Dulles's Est., 218 Pa. 162 at 163 (1907). Analysis of the Power of Dominion 4. The phrase power of dominion is rather loosely used in the books, and seems to do service for a number of different ideas. It may mean the power to impose restrictions on the donee at the time of the transfer. The right of transfer or alienation may be distinguished as a separate conception, as may also the power to use and enjoy the property. These two are, more properly speaking, incidents of ownership, and the question as to them, for our discussion, will be this: how far may the donor, in the exercise of the power of dominion, impose restrictions on the donee in the exercise of either of these incidents? The donor, in like manner, may split the property into different estates and interests at the time of the transfer. This we may call the power to create present and future estates. The jus disponendi may therefore be exercised to create present and future estates or to impose restrictions, and these restrictions may restrain alienation or they may restrain use and enjoyment. A few words as to each of these in their order will assist in the comprehension of the subject. The Creation of Present and Future Estates 5. The donor of property may, according to the theory of our common law, divide his entire ownership into a number of different component parts or interests. The estates which he may create and the manner of creating them are specifically regulated by the law; he can only avail himself of the formulas which the law provides. Anything else will be abortive, and no small part of the attention of the courts has been taken up in the attempt to fit the gifts of donors into one or another of the formulas. The power to create estates was limited originally by the doctrines of the feudal law. The formulas thus furnished did not meet the needs of the community, and, by one process or another, the power of creating estates was enlarged until a counter-check was required to keep this newly acquired power within the bounds consistent with the public policy of the community. This counter-check is the rule against perpetuities. 2 The notion of "the simultaneous existence in different persons of separate rights of future and present enjoyment over the same subject matter, is probably peculiar to English law:" Digby, Hist. Law Real Prop., 5 ed., p. 270 (1897.) Right of Alienation 7. Alienation may be voluntary, which is by act of the owner, and may take place by transfer inter vivos, or by last will and testament, or involuntary, where the transfer takes place by an outside agency, generally by operation of law. Alienation in modern times is simple and easily understood. It is only necessary to notice, for the sake of historical completeness, that the various kinds of alienation have not always existed, and that there has been a difference between the development of alienability in the case of real property and its development in the case of personal property. Alienation is sometimes restrained by rules of law, and sometimes property is in its nature inalienable. These cases are of no importance in our discussion. We shall reach the principle, after the historical examination, that every man has a right to alienate all property which is in its nature alienable, and that all property is subject to involuntary alienation. The rule of law which forbids the donor to impose restraints restricting this right of alienation, is called the rule forbidding the creation of restraints on alienation. The development of this branch of the subject has been complicated by the circumstance that the right of alienation has not always existed. The law has had to evolve a legal conception of alienability and of the right to alienate, and the development of these two conceptions must be carefully distinguished from the right to impose restraints on alienation. There have been two processes here, (1) the development of alienability, (2) the diminution of the power to impose restraints on alienation. Power of Use and Enjoyment 8. The power of use and enjoyment is perhaps the oldest incident of ownership. The legal conception of the power of use is limited almost solely by the nature of the property. Thus, a man cannot make the same use of his horse that he can of his land. The right to use and enjoy is restrained by the same rights which exist in other property holders; thus, a man is restrained by the principles of the common law and by numerous statutes, from, for instance, keeping dangerous explosives on his land or building beyond a certain height. The fundamental principle is that every man is entitled to the use and enjoyment of all property which is his, subject to the |