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will not substitute a gift to such of the grandchildren as reach twenty-one or some less age. It would be pedantic to multiply authorities for this statement.
Half a dozen from England, the
United States, Canada, and Australia will suffice.1
Indeed, the Supreme Court of New Hampshire does not suggest that there has ever been a decision or a judicial dictum of any kind denying or questioning the proposition above stated.
The Chief Justice's line of reasoning, as I understand it, is this :
(1) It is conceded that there must be some restraint on the creation of future interests.
(2) There is no statute in New Hampshire on the subject. (3) There is no decision of the New Hampshire Court on the subject.
(4) The Court therefore must adopt or make a rule.
(5) The Rule against Perpetuities as administered in England is later than the settlement of New Hampshire, and therefore the decisions of the English courts are not binding precedents in that State.
All these propositions are unquestionably correct.
The Court then goes on to lay down this rule. When there is a primary intention to make a gift to a class, and a secondary intention that the gift shall take effect at a period which may be too remote, the Court will give effect to the primary intention by substituting a gift to the class to take effect at a period which is within the limits.
The Court then refers to certain cases which, although not precisely in point, it deems to be analogous and to furnish a support to its conclusion.
Any comments on this novel doctrine of the New Hampshire Court fall naturally under four heads :
I. The departure of the Court from the law held in other States.
II. The fallacy contained in the new doctrine.
III. An examination of the cases supposed to be analogous. IV. The applications of the doctrine.
1 Leake v. Robinson, 2 Mer. 363; Sears v. Putnam, 102 Mass. 5; Coggins's Appeal, 124 Pa. 10; Albert v. Albert, 68 Md. 352; Meyers v. Hamilton Co., 19 Ont. 358; Ker v. Hamilton, 6 Vict. L. R. Eq. 172.
It is true that there is no precedent which the Court of New Hampshire has to regard as binding that compels it to follow the rulings elsewhere; but I submit it is a serious thing deliberately to break away from the consensus of the English speaking world on this subject. True, the matter is not one of commercial intercourse, and therefore it is not so important that the law should be uniform upon it; but persons often own land in States other than their own, and it is no slight evil that the laws governing the settlement and devolution of property should differ.
Again, I am no blind admirer of the Rule against Perpetuities, but it is a doctrine of purely judicial origin, and it has grown to fit the ordinary dealings of the community. It is, too, a well established, simple, and clear rule. There are indeed some few cases where the law is still unsettled, but they are largely on matters which will never come up in this country, such as the creation of long terms attendant upon estates tail. The process of adjudication has been a process of clearing and simplification, and the tendency of legislation, so far as it has touched the matter at all, has been to make the rule more stringent.
It is a dangerous thing to make such a radical change in a part of the law which is concatenated with almost mathematical precision. A striking instance is shown by the fate of New York. Before the year 1828, the forty or fifty volumes of the New York Reports disclose but one case involving a question of remoteness. In that year the reviewers (clever men they were, too) undertook to remodel the Rule against Perpetuities, and what a mess they made of it! At my last count 249 cases have come before the New York courts under the statute as to remoteness,- an impressive warning on the danger of meddling with the subject.
The doctrine of the New Hampshire Court in this case involves a fallacy. It speaks of a primary intent to give to persons and a secondary intent to give to them at a particular time, and it purports to preserve the primary intent while discarding the secondary intent by substituting another time. This assumes that the persons remain the same, and only the time is changed. But that is precisely what does not occur; with the time, the persons are changed. Take the present case. The testator meant to give to
those of his grandchildren who reached forty; the Court gives the property to those of the grandchildren who reach twenty-one. There may be six grandchildren who reach twenty-one, and only one who reaches forty. Here shares are given to five persons whom the testator never meant to have it. There may be some answer to this, but it is a real and a very serious objection, and deserves an answer, and it gets none from the New Hampshire Court. The case is dealt with throughout as if the only question were whether the same persons should get the property at forty or at twenty-one. As remarked above, the circumstances which tended to show an intention to make this gift vested probably obscured the fact from the Court that it was taking property devised to one set of people and giving it to another.
Let us look now at the cases which seemed to the New Hampshire Court to furnish a treatment of legal situations analogous to that which it adopted in Edgerly v. Barker.
A. Under a power to lease for twenty-one years, a lease for forty years is good in equity for twenty-one years. This is true.1 It is allowing a present vested interest to continue as long as a power permits. It has no similarity with changing the condition precedent on which a future interest is to vest so as to give it to those persons who happen to answer to a particular description at one time, instead of giving it to those persons who answer to it at another time.
We have here in fact an instance of that confusion of ideas which has been such a fons malorum in questions of remoteness. The Rule against Perpetuities is aimed against remote future contingent interests, and has nothing to do directly with the continuance of present interests. The failure to keep this clearly in view has led, and always will lead, to error.
B. Under a statute restricting to a term not exceeding twentyone years, the time for which a tenant for life can be empowered to lease, a testamentary gift to a tenant for life of a power to lease for sixty-three years is not void. If he makes a lease for more than twenty-one years it is void for the excess, and no more. Nelson, C. J., and Bronson and Cowen, JJ., in Root v. Stuyvesant, 18 Wend. 257, 273, 275, 277, 290, 291, 302, 306, 307, 313." Then
1 Campbell v. Leach, Amb. 740, 745.
follow two long extracts from Nelson, C. J., and Cowen, J. Would one suppose from this that Nelson, C. J., and Bronson and Cowen, JJ., were the dissenters from the judgment of the Court of Errors affirming the decision of the Chancellor? Yet such is the fact.
The will in Root v. Stuyvesant was made before the statute, and at a time when terms for sixty-three years were good, (though brought within the purview of the statute by a subsequent republication,) and the Chancellor and the majority of the Court of Errors thought that the statutory inhibition of these terms so altered the scheme of the will as to avoid it altogether.
The particular proposition for which the opinions of the dissenting judges in Root v. Stuyvesant are cited, that an appointment under a power is not rendered bad by the fact that a bad appointment could be made under the power, is good law enough. Indeed, it is hard to imagine a power under which a bad appointment might not be made, e. g. a power to appoint to issue.
What the opinions of the dissenting judges are cited for is not entirely clear. If it is that the court can mould invalid provisions so as to make them good, it is enough to say that the opinion of the Chancellor and the majority of the Court of Errors is directly opposed to such a view.
C. The doctrine of cypres forms a recognized exception to the rule that construction is not affected by questions of remoteness. That doctrine is this. When land is devised to an unborn person for life, remainder to his children in tail, the unborn person takes an estate tail; so also when there is a series of successive life estates.
This doctrine was originally confined to executory trusts, where, of course, it was all well enough, but it has been extended to legal
Now it should be observed that this doctrine has always been regarded with suspicion and disapproval by the ablest judges. Lord Kenyon was the first, in 1786,to extend it beyond the case of executory trusts, yet he himself, in Brudenell v. Elwes,' said: "The doctrine of cypres goes to the utmost verge of the law. . . We must take care that it does not run wild. . . . I know that great judges entertained considerable scruples at the time concerning that decision. It went indeed to the outside of the rules of construction." So Sir J. L. Knight Bruce, V. C., in Boughton v.
11 East, 442, 451 (1801).
James 1: "The doctrine has gone, at least, far enough. " So the Court of Exchequer in Monypenny v. Dering 2: "Without meaning to say that the doctrine [ of cypres ] is satisfactory to our minds, it is sufficient for us to say that those authorities are not precisely in point, and we do not feel inclined to carry the doctrine on which they rest one step further." And, finally, in Brudenell v. Elwes, 3 Lord Eldon, C.: "Those cases have at least gone, as Lord Kenyon observes, to the utmost verge of the law; and I shall find it very difficult to alter an opinion I have taken up, that it is not proper to go one step farther; for in those cases, in order to serve the general intent and the particular intent, they destroy both.
But the indispensable condition for the application of the doctrine of cypres is that the persons who take under it shall be no others, no more and no fewer, than those to whom the testator intended to give the estate. If the estate tail is suffered to continue undocked, then exactly the same persons will take under the doctrine of cypres that the testator intended to take, and it is this equivalence which satisfied the formalism of Lord Kenyon, while later judges of more enlarged mind have recognized that the power of docking the entail really changes the persons who can take, and this has made them regret the decision.
The doctrine of cypres, circumscribed as it has been, is in truth a strong argument against a change by the authority of the court. from one set of persons to another set of persons.
D. It is strange that Chief Justice Doe has not brought forward a class of cases which furnish in truth a more plausible support to his views than any which he has given. If a testator devises his estate to his grandchildren in equal shares, and then directs that of the share of each granddaughter the income shall be paid to her for life and the principal conveyed to her children in fee, the gift to the children being bad for remoteness, the modification of the devise is rejected, and each granddaughter takes a fee. In such a case it may be said that there is a general intent and a particular intent, and that the latter is sacrificed to the former; but there is no change of devisees; to certain persons fees simple are given, and then those are cut down to life estates for a purpose; the purpose failing, the cut down is rejected by the court, and the fees simple revive, but to the same persons. Again, the testator has himself distinguished and separated the general intent from 2 16 M. & W. 418, 434. 3 7 Ves. Jr., 382, 390.
1 1 Coll. 26, 44.