a previous estate in the land by its own weakness, it would be treated as a remainder, and subject to the strict rules of the common law. Like contingent remainders also, executory interests could not be conveyed by deed, though they might be released and were devisable. The Act to amend the Law of Real Property allowed their alienation by deed, provided that no estate tail was thereby defeated. The device of contingent remainders, protected by trustees created for that purpose, and the more flexible system of executory interests under the Statute of Uses and by will, placed considerable powers of disposition in the hands of an owner of land. On this power the Courts in their desire to "avoid perpetuities," imposed very definite limits. Their policy is summarized by Blackstone in these words: "Courts of justice will not indulge even wills so as to create a perpetuity, which the law abhors, because by perpetuities, or the settlement of an interest which shall go in the succession prescribed without any power of alienation, estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life for which property was first established"." 1 Bl. II. 174. CHAPTER IX. THE RULE AGAINST PERPETUITIES1. UNDER the statute De Donis, there was, as we have seen, apparently no limit to the power of a landowner to fetter the alicnation of his land, until judicial action allowed the tenantin-tail to defeat the entail by suffering a recovery. And when this restriction had been imposed it was maintained by the judges against all attempts to create estates tail to which common recoveries should be inapplicable. The great dislike of the common law to "perpetuities" or to those settlements of land which attempt to restrain in perpetuity its alienation, has led to the establishment on grounds of public policy of clear rules, limiting and restricting the extent to which dispositions of land by a settlor or testator are good and binding. At first vague definitions and denunciations of a monster "horrendum informe ingens," called a Perpetuity, are plentiful, but there is little more. A perpetuity is "an estate inalienable though all mankind join in the conveyance"." It is where "if all that have interest join yet they cannot bar or pass the estate." But as to the limits or nature of a perpetuity, the common law judges are silent and content themselves with vaguely denouncing it, as "a thing odious in law, and destructive to the commonwealth, 1 For authorities, see Hargreaves' Argument in Thellusson Case, 4 Ves. 217; 2 Jurid. Arg. pp. 1-182. Sir E. Sugden's argument in Cadell v. Palmer, 1 Cl. and Fin. 372, 384. 3rd Report Real Property Commissioners, pp. 27-44. Williams, R. P., 15th ed. PP. 323, 324, 368-374. Pollock, Land Laws, pp. 210-215. Lewis On 2 Scattergood v. Edge, (1697) 1 Salk. 229. 3 Washburne v. Downes, (1672) 1 Ch. Ca. 213. which would stop the commerce and prevent the circulation of the property of the kingdom"." Mr Sanders clearly defines a perpetuity in these words: “a perpetuity is 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 is arrived when such future estate is to arise. If that event or period be within the bounds prescribed by law, it is not a perpetuity"." It is now firmly established that no limitation by way of executory interest or devise which will take effect after the expiration of 21 years from the death of any person living at the creation of the limitation is valid3. It is also laid down with regard to contingent remainders that no life estate can be given to any unborn person, followed by any estate to the child of such unborn person'. It has been argued that this is merely a tentative form of the Rule against Perpetuities in Executory Interests, but the better opinion appears to be that the two rules are distinct and separate". During the 16th and the beginning of the 17th centuries there are on the one hand a series of vague denunciations of Perpetuities from the bench, without any clear distinction as to what restraints on alienation were allowable and what void; on the other several cases of some obscurity by which executory devises, contrary to the common law were yet recognized'. The first case of any importance however is that of Pells v. Brown (1621), which Lord Kenyon described as "the foundation and as it were the Magna Charta of our Law," on this subject, but which Mr Hargreaves, though he admits "the almost unreachable subtlity of the reasoning," "does not feel to have furnished much of the code of executory devise." In that case, land was devised to A. in fee, and if he died without issue, 1 Vernon, 164 (1683). Sanders, Uses and Trusts, 5th ed. p. 204. 3 Cadell v. Palmer (1833), 1 Cl. and Fin. 372. 4 Williams, R. P. p. 323. 5 Lewis On Perpetuities, pp. 408, et seq. Pollock, p. 213. Per Joshua Williams. 7 Hargreaves, pp. 30-32. Especially Matthew Manning's Case, 8 Co. Rep. 94 b. 8 Cro. Jac. 590. 9 pp. 33--35. leaving B. surviving, then to B. in fee. A. suffered a common recovery, and then devised the land to C., and died without issue, leaving B. surviving. B. claimed against C., and it was held (1), that the executory limitation to B. was good; (2), (Doddridge, J. dissentiente) that it could not be barred by a common recovery in the part of A. The case therefore, though it supports the power and efficacy of executory devises, does not impose or define any limits to that power, and in it the contingency did not exceed one life in being. In Snow v. Cutler (1660—1670)1, there was a devise to the heirs of the body of the testator's wife if they should attain the age of fourteen, (a devise which if valid, might have extended to a life in being, and fourteen years after). The devise was objected to as being to a person unborn, and also on Lord Coke's metaphysical doctrine of a double possibility, the birth of a child and that child's living to be fourteen years old. All the judges, following Pell v. Brown, agreed that an executory devise to take effect within the compass of a life was good, "but not after a death without issue, for that would make a perpetuity," and that an executory devise could not be barred by a common recovery, but on the question whether the particular devise, notwithstanding the double contingency was good, the court were equally divided, and, as Levinz says, "I suppose the parties afterwards agreed, for I heard nothing of it after." Some years previously in Goring v. Bickerstaff2 (1664), it had been decided in the case of a chattel, that "the limitation of a term to several persons in remainder one after another, if they be all in being and alive together is good, and doth in no sort tend to the perpetuity of a chattel"; for the lives are all wearing out together, "all the candles are lighted at once' and the limitations really amount to the life of a person in being with an added machinery to secure a long life. 8 " In Taylor v. Biddall', (1672), there was a devise to A. until 11 Lev. 135. T. Raym. 162. 1 Keb. 752, 800. 2 Keb. 11, 145, 296. 1 Sid. 153. "Pollexfen, 31. Lewis, Perp. pp. 8 This phrase is attributed by Lord Bridgman to Lord Hale. Hargreaves, 46. 4 2 Mod. 289. her son B. was 21, and then to B. in fee, but if B. should not live to be 21, then to the heirs of the body of C. in fee. B. died under 21, while C. was still alive; but it was held that the devise was good: this certainly appears to allow a devise to lives in being and 21 years afterwards, yet it hardly seems at first to have been treated as an authority for that proposition. For in Lloyd v. Carew (1697)' there was a devise to the heirs of the body of husband and wife, but if they died without such heirs, then, if the wife's heir should within a year of the death of the survivor of them pay to the husband's heir £4000, the land was to go to the wife's heir in fee. This was in effect a settlement on two lives in being, and a year beyond; yet it was held void in the Common Pleas, apparently because the contingency was too remote, though the decree was reversed in the Lords. And in Luddington v. Kime' (1696), while Powell, J. would allow a posthumous son to take, "as happening so short a time after the death of a life in being," Treby, C. J. “doubted much of that and was of opinion that the time allowed for executory devises to take effect, ought not to be longer than the life of one person then in esse," and he cited Snow v. Cutler. As the Court held that this particular devise was a contingent remainder, no decision on the other point was necessary; but clearly Taylor v. Biddall was not considered in either of these cases as justifying a rule of lives in being and 21 years after. The reason may be that though the form of devise "to A. for life until B. reaches 21" might where B. was then unborn reach the limit, yet when B. was born and A. was alive at his majority, the devise would be within a life in being, i.e. A.'s, and so the possible extension would not be suggested. And certainly Lord North, who presided in Taylor v. Biddall, took an entirely different view in the case of the Duke of Norfolk, which we have for the moment passed over. The Duke of Norfolk's case as the first reasoned discussion of the rule is sometimes called The Case of Perpetuities. The deed in question was rather complicated, its object being to 1 Showers, Parl. Cases, 137. Hargreaves, 36. 21 Ld. Raym. 203. 32 Chan. Rep. 119. Pollexfen, 223. Lewis, Perp. 144. Hargreaves, 46. |