Mr. Jarman came to this conclusion:

'They [contingent remainders] are, it is conceived, either subject to the old doctrine directed against remote possibilities, or the modern rule against perpetuities, unless these are identical, as may be contended with much plausibility, although it is not necessary to go to this extent in support of the denial of the exemption of remainders from all perpetuity-restraint 1.'

On the whole, it cannot be said that Mr. Jarman's conclusions are of great weight on either side of the question.

39

In 1843 Lord St. Leonards laid it down as an undisputed rule of the common law that successive life estates cannot be limited to successive unborn classes of issue'2; and again in 1852, that there cannot be a limitation to an unborn son of an unborn son 3.' In his Treatise on Powers, after stating that it is incontrovertibly settled that an unborn son may be made tenant for life, he adds: 'It is equally clear that the estate cannot be limited to the children of the unborn tenant for life as purchasers.'

Mr. Leake, after pointing out the necessity of checking the settlement of land by limiting it for successive estates for life to unborn generations, says: 'Such limitations are restricted by the positive rule of law that a remainder cannot be limited to the issue of a person unborn 5.'

Mr. Joshua Williams's statement of the rule is well known. Mr. Cyprian Williams has indeed shown that his father at first entertained some doubt on the point; but this fact, to my mind, rather adds weight to Mr. Joshua Williams's later and mature opinion.

It will be noticed that (with a possible exception in the case of Mr. Jarman) none of the judgments and opinions cited above which are subsequent to the year 1800 treat the invalidity of successive limitations for life to unborn issue as an application of the original Rule against Perpetuities. They simply lay down the rule that such limitations are contrary to law. But it is obvious that this rule is merely the original Rule stated in a different form. For if the law will not allow an entail to be made unbarrable, it will not allow successive estates for life to be limited to the unborn issue of a given person, and therefore a limitation to an unborn person for life, with remainder to his issue, is void.

I will now attempt to answer the arguments on the other side. One argument is the argument of symmetry 7. It is desirable,

1 Jarman on Wills (first ed.), ii. 729.

3 Monypenny v. Dering, 2 D. M. & G. at p. 168.

Prop. in Land (1874), 334.

2 Cole v. Sewell, 4 Dr. & War. at p. 32.

4

p. 393, third ed. (1861).

Mr. Fearne does the same in an opinion printed in his Posthumous Works (p. 215). ' Mr. Lewis's admiration of symmetry appears from the following passage in his VOL. XV.

G

we are told, that there should be one Rule against Perpetuities, applying to all future interests. This may be so, but the principle cannot be applied so as to abrogate a rule which existed at common law before the modern Rule was invented. Moreover, the principle cannot be carried out, because contingent remainders are subject to rules which do not apply to other future interests in property 1.

Another argument is that unless contingent remainders are subject to the modern Rule against Perpetuities, there is no safeguard against the limitation of a perpetual succession of contingent remainders to unborn persons. But this argument ignores the existence of the original Rule, which prohibits the limitation of successive estates for life to the issue of an unborn person as purchasers. The effect of that rule, combined with the rule as to the vesting of contingent remainders, is to place greater restrictions on the creation of contingent remainders than those imposed by the modern Rule in cases coming within its scope The kind of perpetuity which settlors have from time immemorial most desired to create is a family settlement, by which property may be limited to the issue of a given person so as to be inalienable by the owner for the time being. This kind of perpetuity is effectually prevented by the original Rule. Other kinds of settlement tending to a perpetuity are no doubt conceivable. A man might limit land to A for life with remainder to the eldest son of B for life, with remainder to the eldest grandson of C for life, with remainder to the eldest great-grandson of D for life, and so on, with an ultimate remainder to Z in fee, A, B, C, D. &c., being all strangers in blood. But even assuming that any one could be foolish enough to make such a settlement 3, it is obvious that it would come to an end in a comparatively short time; for apart from the improbability of each remainder being ready in its turn to take effect on the determination of the prior estates, A could, by the rules of the common

introductory chapter: 'On surveying the temple of English jurisprudence, we behold in it a range of columns, which, while they impart symmetry and beauty to the whole building, also afford it material support.' Who would recognize in this picture our law of real and personal property?

The difficulty of applying the modern Rule against Perpetuities to contingent remainders is well shown by the instance put by Mr. Blakesley (L. Q. R. vi. 427). The inconvenient results produced by the joint operation of the decisions in Whitby v. Mitchell and Re Frost are sufficiently obvious.

2 Williams, R. P. (third ed.), 227.

The limitations in Humberston (or Humerston) v. Humberston (ante, p. 78) were almost as ridiculous: there the testator devised property in trust for twenty or more persons bearing his name (apparently without regard to their relationship to him), so that each of these persons and their sons successively should take an estate for life, 'and if there were none of the name to be found in England, then the Trustees were to chuse out the most comely young man they could find in such a parish, and he to take on him the name of Humerston, and then the estate to be settled on him,' &c. Gilb. 128.

law, have destroyed them all by arrangement with Z. The danger of a perpetuity being created by such a settlement was, by the rules of the common law, extremely small.

But, says Mr. Lewis, even assuming that contingent remainders were not originally subject to the modern Rule against Perpetuities, when the practice of protecting contingent remainders by limiting estates to trustees grew up, the common law was bound to alter its rules and to apply the modern Rule to contingent remainders. This argument passes my comprehension. In the first place, the interposition of an estate in trustees did not make the contingent remainders indestructible at law; if the trustees' estate came to an end, accidentally or intentionally, the contingent remainders ceased to be protected. In the second place, the common law is not in the habit of altering its rules simply for the reason that courts of equity encourage their evasion.

Still more extraordinary is the argument that when contingent remainders were made indestructible by Act of Parliament, they ipso facto became subject to the modern Rule against Perpetuities The statute 8 & 9 Vict. c. 106 was passed on the recommendation of the Real Property Commissioners, but the Commissioners expressly stated that contingent remainders were not subject to the modern Rule against Perpetuities; and in advising that the destructibility of contingent remainders should be abolished, the Commissioners also recommended that in that case they should be made subject to the modern Rule against Perpetuities'. The legislature adopted the former, but not the latter recommendation. Why the courts of common law should take upon themselves to correct this blunder of the legislature it is difficult to understand.

Another argument is that the doctrine of double possibilities is absurd, and that the opinion of all writers who rely on this doctrine may be disregarded. I have no objection to this reasoning being applied to the decision in Re Frost 2. But whether there is, or ever was, or not, a rule against double possibilities or double contingencies (a point on which opinions may differ), Mr. Booth's suggestion that the original Rule is derived from it hardly requires refutation; the suggestion is historically inaccurate. The original Rule existed long before the theory of double possibilities was invented. Another argument is derived from the doctrine of cy-près. Mr. Lewis treats this argument as conclusive. He says that the doctrine of cy-près is part of the common law, and that it would not

1 Third Report, 25.

It must be remembered that Mr. Booth, in an earlier part of his opinion, put the invalidity of the devise in question on the true ground: The devise that makes such younger brother [then unborn] tenant for life, with remainder to his possible first or other sons, is a vain affectation of a perpetuity.'

have been adopted by the courts of common law unless contingent remainders were subject to the modern Rule against Perpetuities 1. I venture to say that any one who relies on this argument shows himself incapable of understanding the history of the subject. Take the very passage in the judgment of the Court of Exchequer in Monypenny v. Dering 2, on which Mr. Lewis relies :

The doctrine of cy-près, in reference to cases of perpetuity, arises where a testator gives real estate to an unborn person for life, with remainder to the first and other sons of such person in tail male, or with remainder to the first and other sons of such persons in tail general, with remainder to the daughters as tenants in common in tail, with cross remainders between them. In such a case, the course of succession designated by the testator is one allowed by law, but the direction that the first taker should take for life only, with remainder to his children as purchasers, is illegal, as tending to a perpetuity. In such cases. .. in order to prevent the testator's intention from being entirely defeated . . . such a devise has been held to give an estate in tail male or in tail, as the case may be, to the first taker.'

This statement of the rule that such a devise is illegal, as tending to a perpetuity, is in exact accordance with the rule which, as appears from Chudleigh's case and Sheppard's Touchstone 3, existed before the Statute of Uses, long before the modern Rule against Perpetuities was ever heard of. The suggestion that such a limitation would have been good before the modern Rule was invented, and that the doctrine of cy-près is derived from that Rule, is therefore inadmissible. In point of fact, the doctrine of cy-près is derived directly from the original Rule, prohibiting the limitation of successive life estates to unborn generations 4.

Mr. Gray and Mr. Vaizey deny that there is any rule of the common law forbidding the limitation of remainders for life to successive generations; Mr. Gray contends that this rule is simply an instance of the modern Rule against Perpetuities 5. But in arriving at this conclusion Mr. Gray seems to me to have overlooked the passages in Chudleigh's case and Sheppard's Touchstone", which clearly show that the rule against the limitation of successive life estates to unborn generations existed at common law before the Statute of Uses, and cannot by any stretch of the imagination be said to be derived from the modern Rule against Perpetuities.

The doctrine that contingent remainders are not subject to the modern Rule against Perpetuities is supported by the authority of

2 16 M. & W. 418.

'Perp. Supp. 140. 3 Supra, pp. 73, 74. See Humberston v. Humberston, and the other cases cited above, p. 78. Gray, Perp. 135, 206-9. See also note on p. 86. Cited above, pp. 73, 74.

the following judges and writers :-(1) Mr. Fearne; (2) Mr. Charles Butler; (3) Mr. Preston; (4) Mr. Burton; (5) The Real Property Commissioners (Lord Campbell, W. H. Tinney, Lewis Duval, John Hodgson, Samuel Duckworth, P. B. Brodie, and John Tyrrell); (6) Lord St. Leonards; (7) Mr. Joshua Williams; (8) Mr. George Sweet; (9) Mr. Leake; (10) Mr. Challis.

I submit that such a consensus of opinion is not lightly to be disregarded, and that for this reason, as well as on account of the feebleness of the arguments on which it is based, the decision in Re Frost1 does not dispose of the question. It is to be hoped that when the question comes before the Court of Appeal, they will carry out the rule laid down by them in Whitby v. Mitchell to its logical conclusion, and, by overruling Re Frost, do away with the anomalies and inconvenience which that decision has produced.