remainders the "lives in being" all take life estates in the land, and have a substantial interest in it: there is some reasonable connexion between the duration of their lives and the postponement of free alienation. But in Executory Devises, the lives in being may have no interest at all in the land; in the great case of Cadell v. Palmer, out of the 28 lives in being, 21 had no interest in the land at all, and it would be quite within the letter of the law to insert as the lives in being, all the boys at Eton on the testator's death, or all the members of the House of Lords at the same date.

II. While a settlement by remainders in tail depending on particular life estates can only last for 21 years after lives in being and may cease to restrain alienation at the death of the last tenant for life, according to the age of the particular tenant-in-tail, an executory devise, being founded on a term in gross, independent of the circumstances of any particular person, can always be contrived so as to restrict alienation for the full term of 21 years after lives in being; while these lives in being may, by arbitrary selection, be prolonged with all but certainty beyond the average duration of human life.

In the case of Executory Devises the rule against perpetuitics is therefore much less strict and effective than is the corresponding rule with regard to remainders. This was recognized by the Real Property Commissioners, who recommended: (1) that lives in being by which to postpone the period of free alienation should not be arbitrarily taken, and that all lives should be deemed to be arbitrarily taken unless in the instrument creating the limitations each life appeared to be actually interested in the land. (2) That a contingent remainder or other future estate or interest which, if limited to take effect out of an estate in fee, would be void under the rule against perpetuities, should also be void if limited to take effect out of any estate less than fee simple; a suggestion designed to defeat the ingenious machinery in Cadell v. Palmer by which void limitations were rendered valid by the protection of a term of years.

An additional restriction was imposed on the power of a man to fetter his successors in dealing with the land, in conse

EXECUTORY DEVISES.

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quence of the celebrated will of Mr Thellusson', who directed the income of his property to be accumulated during the lives of all his descendants living at his death, and on the death of the last of them to be divided amongst the heirs male of his three sons. It was calculated that this will might cause income to be accumulated for a hundred years, in which case the sum to be ultimately divided would be at least thirty millions. An Act was therefore passed in 1800', which provided that trusts for accumulation of income of land should only be valid during the life of the settlor, or for 21 years after his death, or during the minority of any person living or en ventre sa mère at the time of his death. This however does not affect dispositions of the land itself, which are still governed by the Rule against Perpetuities, but prevents testators from imposing still tighter fetters on the use of the land, by even restraining the expenditure of the income derived from it.

1 Thellusson v. Woodford, 11 Ves. 112. Fearne, C. R. p. 538 note. Will.

R. P. 14th ed. p. 334.

2 39 and 40 Geo. III. c. 98.

CHAPTER X.

LORD CAIRNS' ACT.

SUCH therefore being the restrictions which judicial legislation has imposed on the power of settling land so that it shall not be alienable, we are now in a position to appreciate the mixture of law and custom by which even this rule was evaded, and land was, until the passing of Lord Cairns' Act, practically fettered to a family in perpetuity.

In the early part of this century an ordinary settlement of land, to take a very simple instance, was of this nature. On the marriage of A., land was settled on him for life, with a remainder in tail to his eldest son B. then unborn, and successive remainders in tail to his other sons in order of seniority, remainder to the heirs of A. in fee. B.'s contingent remainder was protected by the device of trustees to protect contingent remainders'. Unless A. had no sons at all, in which case he had an estate in fee, A. had only a life interest in the land. But if sons were born to him no alienation that he by himself could make would defeat their interests, for he could only deal with his own life estate in the land. B. also, unless he could persuade his father to join with him in barring the entail, could until he succeeded to the estate on his father's death, only alienate his own interest in the land, that is an estate in the land, so long as B.'s heirs survived, which was known as a base fee; he could not affect A.'s life interest in the land nor bar the estates tail in remainder of his younger brothers. Consequently

1 This is a simpler form than exists in practice.

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the land was safe from complete alienation by the tenant-intail alone, until he was in possession, and had attained the age of 21 but as soon as B., the tenant-in-tail in remainder, attained his majority, he was in a position to join with the tenant for life, A., in aliening or resettling the estate. On the coming of age of the eldest son therefore, and very frequently on the occasion of his marriage, a proposal was usually made to him that in return for a fixed annual allowance from his father he should join in a resettlement of the land, which would convert his estate tail into an estate for life, giving his eldest son unborn an estate tail in remainder, with successive estates tail to his other sons. This proposal, if assented to and carried into effect, had the result of postponing the time when the estate could be fully alienated for another generation, or from the time when B. the eldest son should come into possession of the land to the time when his eldest son should succeed. It was urged on the eldest son, a young man and necessarily inexperienced, by the prospect of an immediate and considerable increase in his income, which usually rendered his marriage possible, and by the strong traditions of the class to which he belonged, backed by the advice of his relatives and legal advisers. The disadvantages of his position have been summed up by Mr Cliffe Leslie in a passage that has become almost classical1.

"It is commonly supposed that the son acts with his eyes open and with a special eye to the contingencies of the future and of family life. But what are the real facts of the case? Before the future owner of the land has come into possession, before he has any experience of his property, or of what is best to be done, or what he can do with regard to it, before the exigencies of the future or his own real position are known to him, before the character, number and wants of his children are learned, or the claims of parental affection and duty can make themselves felt, while still very much at the mercy of a predecessor desirous of posthumous greatness and power, he enters into an irrevocable disposition by which he parts

1 Fraser's Mag. Feb. 1867. Cited Cobden Club Essays, p. 114.

with the rights of a proprietor over his future property for ever, and settles its devolution, burdened with charges, upon an unborn heir." Its advocates have represented it as "a solemn appeal from one generation to the next;" which is open to the answer that at least "the common interests of the nation should be represented in the more than diplomatic privacy of this negotiation between father and son. On closer examination this supposed solemn appeal to each generation dwindles to a hasty compact, dictated by somewhat sordid considerations of a momentary interest, to which the law lends the sanction of irrevocability."

Under this system the great estates of England became held by a series of life tenants each of whom had signalized his arrival at legal years of discretion by depriving himself of the power to deal freely with the land which must be his in the future, and by fixing the person to whom the land should devolve on his death before he had any knowledge of that person's character circumstances or ability, and indeed before he was even born.

The acts of the Reformed Parliament dispensed with the necessity of "trustees to bar contingent remainders", and established a personage known as the "protector to the settlement," usually the tenant for life in possession, whose consent by deed is now the only formality necessary to enable the tenant-in-tail in expectancy to bar the entail, not only against his heirs, but also against remaindermen and reversioners. But these changes had only the effect of simplifying the machinery of family settlements, and slightly cheapening their cost: they in no way interfered with the restrictions on alienation management and succession which family settlements imposed on the land. Indeed the opinion of the Real Property Commissioners, as expressed in their first Report, was that no changes were necessary in the system of family settlements'.

"The owner of the land is, we think, vested with exactly the dominion and power of disposition over it required for the public good, and landed property in England is admirably made to answer all the purposes to which it is applicable. Settle

1 1st Report, pp. 6, 7.