71

TWO

PERPETUITIES.

WO recent articles in this REVIEW, one by Mr. Firth, the other by Mr. T. Cyprian Williams1, have revived a question which was the subject of a protracted controversy fifty years ago. Mr. Lewis and Mr. Jarman 3 maintained that contingent remainders are subject to the modern Rule against Perpetuities, while Lord St. Leonards and Mr. George Sweet took the opposite view. Mr. Joshua Williams appears at first to have had some doubt on the point, but he finally arrived at the same conclusion as Lord St. Leonards, namely, that contingent remainders are governed, not by the modern Rule against Perpetuities, but by an independent rule of obscure origin. The decisions in Whitby v. Mitchell and Re Frost have brought to light a divergence of opinion among living writers which is quite as remarkable as that which existed fifty years ago. I venture to think that this divergence of opinion is due to the fact that there are really two Rules against Perpetuities, which are quite independent of one another. In endeavouring to prove my theory I shall have to explore anew some well-worn paths, and I must ask the reader to have patience until the end of the journey.

Long before the modern Rule against Perpetuities took definite shape, there existed a principle of the common law which prohibited dispositions tending to restrain the alienation of land beyond certain limits. In the early stages of our law, when dealings with land were comparatively simple, the principle in question was necessarily vague, but it can be traced from very early periods?, for it was this principle, I submit, which induced the judges to construe a gift to a man and the heirs of his body as giving him that amphibious kind of estate known as a fee simple conditional at the common law 10, and thus led to the passing of the statute

1 L. Q. R. xiv. 133, 234.

2 Treatise on Perpetuities (1843): 'Can Remainders be too Remote?' (1843); Supplement to Treatise on Perpetuities (1849).

Jarman on Wills, 1843-4.

58 Jurist 22, 283.

7

42 Ch. D. 494; 44 Ch. D. 85.

8

Cole v. Sewell, 4 Dr. & War. 1.

Real Prop. (third ed.), 227, 406. 43 Ch. D. 246.

• See Pollock and Maitland, Hist. Eng. Law, i. 325; second ed., p. 344. 10 This explanation seems to me more probable than the one ordinarily accepted (as to which see Pollock and Maitland, ii. 18), more especially as a gift to a man and his heirs, if he shall have heirs of his body,' appears to have given the donee a fee simple upon condition, and not a conditional fee (Challis, R. P. 240).

De Donis, and the introduction of unbarrable entails. However this may be, it is clear that unbarrable entails were contrary to the principles of the common law, which favoured the free alienation of property, and many attempts were made to get rid of them, with the result which is familiar to every student. After the decision in Taltarum's case, landowners who wished to make their land inalienable tried to prevent the barring of entails by annexing conditions of forfeiture, limitations over and other provisions; but all these devices were held void because they were inconsistent with the liberty of alienation which the practice of barring entails had re-introduced. It is in connexion with these devices that the term 'perpetuity' first occurs. Thus in Corbet's case (1600), where a proviso (or 'clause of perpetuity') restraining a tenant in tail from attempting to bar the entail was held void, Glanville J. referred to the cases of two judges (Richill and Thirning 3) in the reigns of Richard II and Henry IV, 'who intended to have made perpetuities, and upon forfeiture of the estate-tail of one of their sons, to have given the remainder and entry to another, but such remainders were utterly void and against the law.' And in Sir Anthony Mildmay's case, which was similar, the judges resolved 'that all these perpetuities were against the reason and policy of the common law; for at common law all inheritances were feesimple. . . . But the true policy and rule of the common law in this point was in effect overthrown by the statute De Donis Conditionalibus, made anno 13 Ed. I, which established a general perpetuity by Act of Parliament.'

...

Lord Bacon's description of a perpetuity is as follows: There is start up a device called perpetuity, which is an entail with an addition of a proviso conditional, tied to his estate, not to put away the land from his next heir; and if he do, to forfeit his own estate. Which perpetuities, if they should stand, would bring in all the former inconveniencies subject to entails that were cut off by the former mentioned statutes, and far greater 5.'

A later example of the use of the word 'perpetuity' as denoting an unbarrable entail is afforded by Grig v. Hopkins (1661). In that case a man possessed of a term of 2,000 years devised the land to R for ninety years if he should so long live, with remainder to the heirs male of his body, with remainder to T, his brother, for ninety years, with remainder to the heirs male of his body. It was argued that the remainders were void, because 'si tiels limita

1 Littleton (who died in 1481) does not use the term, but it occurs in Chudleigh's case (1589) in such a way as to show that it was then well established as a term of law.

2

1 Rep. 83 b.

See Litt. § 720.

Use of the Law (Law Tracts, 145).

46 Rep. 40 a. Sid. 37.

tions de rem ouster del terme serra adjudge bone ceo introduč perpetuities (que le Ley abhor) intant que ne poit estre barr per ascun meanes per common recovery ne poit estre suffer de ceo.'

The reason why all these authorities lay stress on a perpetuity being in the nature of an unbarrable entail is that in early times an entail was practically the only way in which land was settled1. The history of the methods used to settle land during the fifteenth and sixteenth centuries is somewhat obscure, but I think there is no doubt that before the passing of the Statute of Uses, attempts were made to evade the strictness of the common law with regard to perpetuities by conveying land to feoffees, either to the use of a person and the heirs of his body 2, or to the use of his unborn issue for successive estates for life 3. What the effect of such settlements was is not clear, but they seem to have been valid and enforcible in equity, although they were defeasible in certain cases by feoffments made to persons taking without notice of the uses, or possibly by feoffments made under the stat. 1 Rich. III. The Statute of Uses, however, effectually put an end to these equitable perpetuities. One of the objects of the statute was 'utterly to extirpate and extinguish' contingent uses of this kind, being uses invented and limited in a new manner, not agreeable to the ancient common laws of the land. Consequently after the passing of the Statute of Uses, if a feoffment was made to the use of A for life, and then to the use of every person who should be his heir, one after another, for the term of the life of every such heir, these uses were not executed by the statute; 'this limitation is merely void, for the limitation of an use to have a perpetual freehold is not agreeable with the rule of law in estates in possession "."

This expression 'perpetual freehold,' meaning a succession of estates for life limited to the issue of a given person, seems to have

1 Joshua Williams, Jurid. Soc. Papers, i. 46.

2 See the cases cited on the effect of the stat. 1 Rich. III in Reeves's Hist. Eng. Law, iv. 344; Gilbert on Uses, 30.

3 Manning v. Andrewes (1575); 1 Leon. 256; Chudleigh's case (1595), 1 Rep. 120 a. Observe the hypothetical case put by Popham C.J. in his report of Chudleigh's case (Poph. at p. 78.

I suggest (with some diffidence) that this may be the explanation of the curious case of Manning v. Andrewes (supra) on which Mr. Gray much relies in support of his contention that there was no Rule against Perpetuities in the sixteenth century. The settlement in Manning v. Andrewes was made before the Statute of Uses-in fact the statute was not passed until after the death of the first tenant for life-and the judges' minds were much exercised as to the effect of the statute on the estate of the feoffees; this is the point on which the case is generally cited. The question of perpetuity was not discussed. May it not have been that the limitations were assumed to be valid, because the uses would have been good in equity if the statute had not been passed, and the rule that such uses were not executed by the statute (being contrary to the principles of the common law with regard to perpetuities) had not then been settled by the courts?

Chudleigh's case, 1 Rep. 138 a.

Ibid., 1. c.

been commonly used in the sixteenth century, and even later, to denote a perpetuity. Thus in Perrot's case1 (1594) land was settled to the use of a man's sons and other relations, and their male issue successively for life. The pleadings raised the question, 'si touts les estates ppetualmt limit en franktenemt pur vie al touts les fits soit bone ou void,' and it was argued 'que les ppetual franktenements sont mischievous en le comonwealth.' The decision went off on a question of pleading.

In Sheppard's Touchstone (1600-20) the law is stated in the same way as in Chudleigh's case: 'Uses that are against the rules of the common law shall not be executed by this statute; and therefore if a feoffment be made to the use of A for life, and after to the use of every person that shall be his heir one after another for term of his life. . . these uses shall not be executed, because these limitations are wholly void 2.'

Chief Baron Gilbert (1734) states the law in the same way: 'It is against the rules of the common law that a perpetual freehold for life only should descend, because it creates a perpetuity 3.' Again, after premising that 'all limitations that perpetuate, or tend to perpetuity, are in themselves void and repugnant to the policy of the law,' the Chief Baron defines a perpetuity thus: 'A perpetuity is the settlement of an interest descendable from heir to heir, so that it shall not be in the power of him in whom it is vested to dispose of it, or turn it out of the channel *.'

The reason why the common law would not allow land to be limited to the unborn issue of a person for successive life estates is almost too obvious to require statement: a succession of such life estates, if lawful, would be equivalent to an unbarrable estate tail, and therefore contrary to that rule of the common law which forbids limitations restraining the alienation of land indefinitely, or beyond certain limits.

The rule forbidding such limitations I propose to refer to as the original Rule against Perpetuities, to distinguish it from the modern Rule, which, as Mr. Gray has pointed out, ought properly to be called the Rule against Remoteness 5.

It is now possible to define with some exactness the limits which the common law imposed on the creation of contingent remainders. Before the end of the sixteenth century it is clear that the law allowed land to be limited to 4 for life, with remainder to his

1 Moore, 368.

Shepp. Touch. 506. Mr. Preston adds: being a perpetuity.' This addition seems to me very significant, as showing the sense in which Mr. Preston, in 1820, used the word 'perpetuity.' It is clear that he did not mean that such uses were void under the modern Rule against Perpetuities. 5 Gray, Perp. § 2.

3 Gilbert on Uses, 77.

* Ibid., 118.

eldest unborn son for life or in tail; such a contingent remainder was of course subject to the rule requiring it to be supported by a particular estate of freehold, but it was not obnoxious to the original Rule against Perpetuities; it did not tend to a perpetuity, because the longest period during which the land could remain inalienable was A's life and the life or minority (as the case might be) of his eldest son. But if land were limited to A for life, with remainder to his eldest son for life, with remainder to the eldest son of such eldest son for his life or any other estate, this would have the same effect as if an estate tail had been given to A, with a proviso restraining him and his heir in tail from barring it. Such a proviso, being a 'clause of perpetuity,' was clearly bad at common law, and any limitation to the same purport was, and is, void under the original Rule, as tending to a perpetuity.

The original Rule against Perpetuities was a common law rule, and applied only to freehold estates. But in the seventeenth century attempts were made to create entails by devising long terms of years to persons and their descendants for successive life estates, or by vesting land in trustees upon trust for persons and their descendants for successive life estates. At first the courts decided these cases by analogy to the original Rule, for we constantly find references to perpetuities' and ' entails' of terms of years, and to 'perpetuities' by way of executory trust. Subsequently, however, the question whether executory devises of terms were valid was much discussed in connexion with limitations of a different character. The result was the establishment of the modern Rule against Perpetuities, and its application to all future interests in property except those which fall within the original Rule.

I do not propose to trace the development of the modern Rule against Perpetuities; that has been done with great learning and clearness by Mr. Gray. But this is a convenient place to state the differences between the two rules.

The original Rule has these characteristics :

1. It only applies to such freehold interests in land as could be created at common law.

2. It only applies to successive limitations to the unborn issue of a given person, as purchasers.

3. It has reference to the power of alienation, not to remoteness of vesting.

1 Chudleigh's case, 1 Rep. 126 b.

2 See Grig v. Hopkins, cited ante, p. 72. Apprice v. Flower (Pollex. 27) and Pearse v. Reeve (Pollex. 29) were decided on the same principle. As to executory trusts tending to a perpetuity, see Humberston v. Humberston, and other cases cited post, pp. 78 seq.