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Ulterior Limitations and the Rule Against Perpetuities
Published online by Cambridge University Press: 16 January 2009
Extract
The purpose of this article is to consider whether, and if so to what extent, a limitation following one which is void for remoteness is itself void. The subject is one of the most obscure in the rule against perpetuities, and it has always seemed to me that the well-known monographs are at their least satisfactory on this topic-Although I have no desire to revive old controversies, it will not be possible to avoid occasional references to such controversial matters as the rule in Whitby v. Mitchell, the application of the modern rule against perpetuities to legal contingent remainders, and the scope of the cy-près doctrine.
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- Copyright © Cambridge Law Journal and Contributors 1950
References
1 (1890) 44 Ch.D. 85.
2 Bailey on Wills, p. 157; Challis on Real Property, p. 192; Cheshire, Modern Law of Real Property, p. 486; Farwell on Powers, p. 341; Godefroi on Trusts, p. 651; Goodeve and Potter on Real Property, p. 377; Gray on Perpetuities, s. 251; Halsbury's Laws of England, vol. 25, p. 147; Leach, 51 Harv.L.Rev. 657; Marsden on Perpetuities, pp. 288–94; Radeliffe, Real Property Law, p. 123; and Rivington, Law of Property in Land, pp. 170–1, treat the ulterior limitation as void. Some of these authors wrote before 1936 when the rule (if it exists) was much modified: see post, p. 406. Keeton on Trusts, p. 112, and Theobald on Wills, pp. 416–7, hedge. Jarman on Wills, pp. 324–9, especially p. 327 note (e); Lewis on Perpetuities, pp. 660–2; Megarry, Manual of Real Property Law, p. 152 (cf. 60 L.Q.R. 297–8) and Potter, 53 L.Q.B. 13, concede that in certain circumstances the ulterior limitation may be valid. But Jarman does not cite Re Backhouse [1921] 2 Ch. 51 on this point (see post, p. 406); Lewis cites Beard V. Westcott (1813) 5 Taunt. 393 in the Common Pleas, but unaccountably fails to cite the contrary decisions in the same case in the King's Bench and in Chancery (see post, pp. 399–400).
3 Perpetuities, ss. 251, 257.
4 ‘The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent’ (Contingent Remainders, p. 216).
5 Section 101.
6 R. E. Megarry in 60 L.Q.R. 298 (1944).
7 Re Backhouse [1921] 2 Ch. 51; discussed, post, p. 406; not cited as an authority for this proposition in Jarman on Wills.
8 Re Abbott [1893] Ch. 54, 57; cited, post, pp. 395–396.
9 Monypenny v. Dering (1852) 2 D.M. & G. 145, 182; cited, post. 402.
10 Beard v. Westcott (1822) 5 B. & Ald. 801, 810; cited, post, p. 399.
11 (1794) 2 H.Bl. 358. Illustrations of the application of this principle are very numerous. The latest is Re Hooper [1948] 2 All E.E. 261; not reported on this point in [1948] Ch. 586.
12 Beard v. Westcott (1822) 5 B. & Ald. 801; T. & R. 25; Re Thatcher's Trusts (1858) 26 Beav. 365; Re Hewett's Settlement [1915] 1 Ch. 810; Re Ramadge's Settlement [1919] 1 Ir.R. 205.
13 [1915] 1 Ch. 810.
14 Perpetuities, s. 252.
15 Jarman on Wills, p. 356; cf. Re Norton [1911] 2 Ch. 27, 37–8.
16 Longhead v. Phelps (1770) 2 W.B1. 704; Miles v. Harford (1879) 12 Ch.D. 691, 702; Re Curryer [1938] Ch. 952. To the rule that if the testator has not split the gift over, the court will not split it for him, there was before 1926 an exception if the gift over might take effect as a legal contingent remainder: Evers v. Challis (1859) 7 H. L. C. 531.
17 [1893] 1 Ch. 54, 57. The authorities cited by the learned judge are a dictum of Buller J. in Robinson v. Hardcastle (1788) 2 T.R. 241, 251 (cited post, p. 397); Routledge v. Dorril (1794) 2 Ves. 357 (discussed post, p. 397); Beard v. Westcott (1822) 5 B. & Ald. 801; (1822) T. & E. 25 (discussed post, pp. 398–840); and the comments of Lord St. Leonards on Beard v. Westcott in Monypenny v. Dering (1852) 2 D.M. & G. 145, 181, 182 (cited and discussed post, p. 402).
18 In Re Coleman [1936] Ch. 528, 532, it was suggested by counsel that the learned judge must have meant ‘and’.
19 See post, p. 406.
20 Perpetuities, s. 254.
21 Theobald on Wills, 564–5; Jarman on Wills, 700–10; and cases there cited. The rule can be traced back to Y.B. 9 Henry VI, fo. 24 b. See also Rolle's Abridgement, tit. Remainder, C.4.5; Plowden 414; Perkins, s. 567; Sheppard Touchstone 435, 451; Strange 318; 1 Salk. 229.
22 (1813) 5 Taunt. 393; (1822) 5 B. & Ald. 801; (1822) T. & R. 25.
23 Perpetuities, s. 257.
24 (1788) 2 T.R. 241, 380, 781; 2 Bro.C.C. 22, 344.
25 2 T.R. 251.
26 (1794) 2 Ves. 357.
27 (1801) 1 East 442.
28 Crozier v. Crozier (1843) 3 Dr. & War. 373; Re Shekleton's Trusts [1945] Ir.R. 115; see a note in 10 Conveyancer (N.S.) 61 (1945). In Brudenell v. Elwes the limitation to the testatrix unborn grandsons in tail was void under the old rule against perpetuities, not the modern rule.
29 (1813) 5 Taunt. 393; (1822) 5 B. & Ald. 801; (1822) T. & R. 25.
30 (1833) 1 Cl. & F. 372.
31 (1797) 4 Ves. 227, 337.
32 (1813) 5 Taunt. 393.
33 (1822) 5 B. & Ald. 801.
34 See, however, the remarks of Bayley J. (who had signed the certificate in Beard v. Westcott) in Cadell v. Palmer (1833) 1 Cl. & F. 372, 420, where he treats Beard v. Westcott as having proceeded upon the second ground. On the other hand, Sugden argued that it had proceeded on the first ground: 1 Cl. & F. 394–5, 408–9. He seems to have changed his mind in Monypenny v. Dering (1852) 2 D.M. & G. 145, 182: see post, p. 402.
35 (1833) 1 Cl. & F. 372.
36 T. & R. 26.
37 5 B. & Ald. 810
38 (1847) 16 M. & W. 418; (1850) 7 Ha. 568; (1852) 2 De G.M. & G. 145.
39 The facts stated above omit the complications caused by certain shifting clauses, which do not affect the question of remoteness; and the limitations have been numbered for convenience.
40 7 Ha. 575; 2 De G.M. & G. 169.
41 16 M. & W. 426–7; 7 Ha. 582.
42 This argument was not pressed in, the Court of Exchequer, though the point is mentioned in the judgment: 7 Ha. 577, 584, 598; 16 M. & W. 436–7.
43 7 Ha. 585–6.
44 Three times before Wigram V.-C, once before the Court of Exchequer, once before the Court of Common Pleas and once before the Lord Chancellor (St. Leonards). Even so the final decree was pronounced less than ten years after the institution of the suit: quick work in those days.
45 2 De G.M. & G. 145.
46 7 Ha. 568.
47 The certificate of the Court of Exchequer only differed from that of the Court of Common Pleas on the effect of the alternative expression in the gift over, a point that had not been fully argued before the former court.
48 16 M. & W. 436; 7 Ha. 588–95; 2 D.M. & G. 176.
49 2 D.M. & G. 170; cf. 7 Ha. 595–6, where a different reason was given.
50 This is the only point at which there was any substantial difference between the certificate of the Court of Exchequer on tho one hand and the certificate of the Court of Common Pleas and the decrees in equity on the other. See above, notes 42 and 47.
51 2 D.M. & G. 180.
52 (1822) 5 B. & Ald. 801; discussed ante, p. 399.
53 2 D.M. & G. 182. This passage undoubtedly inspired the dicta of Stirling J. in Re Abbott [1893] 1 Ch. 54, 57, quoted ante, pp. 395–396.
54 In his argument in Cadell v. Palmer (1833) 1 Cl. & F. 372, 394–5, 408–9, he said that Beard v. Westcott proceeded upon the other ground: see ante, p. 399, n. 34.
55 Ante, p. 396.
56 2 D.M. & G. 170: ‘The rule of law forbids the raising of successive estates by purchase to unborn children, that is, to an unborn child of an unborn child. With this rule I have never meant to interfere, for it is too well settled to be broken in upon’. I admit that there are other passages in the judgment which are ambiguous from this point of view; but the truth is that ‘Lord St. Leonards never really grasped the distinction between perpetuity and remoteness’: Jarman on Wills, p. 328 n. (m).
57 Jarman on Wills, p. 257; Theobald on Wills, p. 407. Even Gray, the implacable critic of the old rule against perpetuities, has to admit that in Monypenny v. Dering Lord St. Leonards fostered the notion that the old rule had an independent existence: s. 287.
58 [1910] 1 Ch. 1.
39 Contra, Gray on Perpetuities, ss. 643–70; Megarry, 55 L.Q.R. 422 (1939), but in each case for special reasons. Gray refused to admit that the old rule against perpetuities had an independent existence, notwithstanding the decisions of the Court of Appeal in Whitby v. Mitchell (1890) 44 Ch.D. 85, and Re Nash [1910] 1 Ch. 1, and was thus forced to regard the cy-près doctrine as an exception to the modern rule. Megarry thinks that the doctrine may still exist as a mitigation of the modem rule against perpetuities, notwithstanding ss. 130 (1) and 161 (1) of the Law of Property Act, 1925, and notwithstanding the repeated statements by judges before 1926 that the cy-près doctrine was an anomaly not to be extended. This is not the place to answer Mr. Megarry's argument in detail; but to my mind it has to overcome too many hurdles to be convincing.
60 [1905] 2 Ch. 502.
61 [1905] 2 Ch. 502. The headnote is inaccurate. The case was strongly criticised by Gray in 23 L.Q.R. 127 (1907); but the criticism is now withdrawn: Perpetuities, s. 251, n. 2. The case is now the principal authority cited by Gray for the proposition that ulterior vested limitations following limitations void for remoteness are void.
62 27 L.Q.R, 112 (1911).
63 See ante, p. 404, n. 59.
64 Re Frost (1889) 43 Ch.D. 246; Re Ashjorth [1905] 1 Ch. 535.
65 See e.g., Vaizey, 6 L.Q.R. 410 (1890); Firth, 14 L.Q.R. 133 (1898); Cvprian Williams, 14 L.Q.R. 234 (1898); Sweet, 15 L.Q.R. 71 (1899).
66 [1910] 1 Ch. 1.
67 (1869) L.R. 8 Eq. 165.
68 [1905] 1 Ch. 191.
69 By s. 161 of the L. P. A., 1925.
70 [1921] 2 Ch. 51.
71 Cf. Bailey on Wills, p. 157.
72 [1893] 1 Ch. 54. Followed in Re Hay [1932] N.I. 215.
73 [1893] 1 Ch. 54, 57, 58.
74 [1936] Ch. 309.
75 [1936] Ch. 309, 314.
76 [1936] Ch. 528; discussed in 53 L.Q.R. 13. It was conceded that Re Benyon-Winsor (1917) 143 L.T.J. 178, a decision of Eve J., which seems contrary, was too imperfectly reported to be relied upon. That case may be ‘paired’ with Willson v. Cobley [1870] W.N. 46, where on different facts a vested ulterior limitation was held valid: but the case is so shortly reported that it is barely intelligible.
77 The case was decided after the son's death and it should be noted that the effect of the decision was not to accelerate the gift to his children. There would have been an intestacy during the life of the widow had there not been an absolute gift to the son in the first instance which was later cut down. Under the rule in Lassence v. Tierney (1849) 1 Mac. & G. 551, the income went to the son's estate until his widow's death. His children made DO argument that they were entitled immediately.
78 Gray, s. 251, n. 2.
79 (1937) 58 Com.L.R. 341.
80 The learned judges cite the English cases from Re Abbott onwards, and find obvious difficulty in formulating the distinction between them.
81 [1921] 2 Ch. 51; ante, p. 406.
82 [1893] 1 Ch. 54, 57.
83 [1921] 2 Ch. 51.
84 (1788) 2 T.R. 241; 380; 781; 2 Bro.C.C. 22, 344.
85 (1794) 2 Ves. 357.
86 (1801) 1 East 442.
87 See ante, p. 398.
88 (1813) 5 Taunt. 393; (1822) 5 B. & Ald. 801; (1822) T. & B. 25; ante, pp. 398–400.
89 (1833) 1 Cl. & F. 372.
90 (1847) 16 M. & W. 418; (1850) 7 Ha. 568; (1852) 2 De G.M. & G. 145: ante, pp. 403–404.
91 [1905] 2 Ch. 502.