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- - would be without a voice in the distribution of the world's assets,
Thus we have two concepts of freedom clashing Frith each other,
On the one hand we have the doctrine that the individual should be
free to di~lwse of his property in the manner he sees fit. On the other • •
we have the notion that each generation should be free to control ,
the wealth of its own age unhindered by the dictates of the past. As
long as eve think of these two great principles of human freedom in
the abstract we are likely to drink of each of them as absolutes, As
soon as we put than into concrete form we see them clashing Frith
each other and we realise that they. like most 'principles of human
conduct. are necessarily -relative. The Rule Against Perpetuities. is
a device invented by Anglo-American lawyer to regulate this inevi-
table dash. The rule reprrsenu a compromise between a wholesome
respect for the dead and the freedom of the present to work out its own
destiny. Its purpose is to define the boundaries of that compromise.
The question to be determined is, how long shall property interests
be permitted to remain co»tingcntl Stated in more sociologipl fermi
the question might be. to what extent should the dead be permitted
to overrule the will of the livingl
The Rule Against Perpetuities answer this question by saying
that the period of this contingency cannot be longer than lives in being
and ts.enty-one yean..As expressed in John Chipman Gray's great
classic on the subject, it is a rule in law that "no interest is good un-
less it must vest, i[ at all, not lacer' than twrntyone years after sumo
life in being at the creation of the. interest."+ The rule is simple in
statement but extremely treacherous in its application. It is my beliet
that its treachery arises out of the failure of lawyers to admit iu
simplicity. The rule will be mastered when lawyers recognize it as a
rule of drafting. and when they become willing to measure every lirai-
ration that they create, whether by deed or by will, by the express -
words that the rule declares. The skill of the property lawyer should
be• demonstrated at the drafting table rather than in the courtroom.
Let's face it: When we bring an instrument that we have dratted into
court we are in effect saying. "Judge, I failed to render my client rise _
services for which he paid roe; I wonder if you would help me finish
the job." Stated in that form, your difficulty may sound embarnssina;
stated in any other form it is probably unrealistic.
An analysis of the rule's requirements might well begin by em-
phasizing that it is a rule placing a restriction upon the duration of
contingencies surrounding property interests. There is no restriction
upon the duration of the interesu themselves. The words of the rule
I - are that "no interest is good unless it must vest, if at all;' within the
period of the cult. When -John Smith devises Blackacre to his wile,
Susan, for life with remainder to his son, Edward, a future interest
has been created. However, that future interest is a vested remainder
~ in Edward; consequently, the rule has no application. if John devises
~ Blackacre to his wife, Susan, for lire ~s+ith remainder to such of John's
~ lineal descendants as shall be living at Susan's death,. a contingent .
~ interest bas been created. This interest might ne~-er vest. It is possible
that no lineal descendant of John will survive Susan. It is clear, how-
ever, at the time of the creation of the estate that i[ it es•er pests it
mill vrst at Susan's drath; therefore, the rule has not been transgressed.
c
John may just as easily provide by his will. that his property shall be
held in trust, with income distributed equally among his children
until the death of the last surviving child. He may further hrovide that
upon the death of that last surviving child the trust shall continue for
- an additional twenty-one year:, with income distributed equally
among his grandchildren, and that upon the expiration o[ the twenty-
one-year period the corpus shall be distributed .per stirpes among
John i then living lineal descendants. The gift is good. John's dsil-
dren will necessarily be in being at his death, and all interests will
be vested within twenty-one ~-ears alter the death of the last surviving
child."
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