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as two had attained twenty-one there was a question whether the contingent interests of the infants would be saved by the statute. He did not decide this point because the Land Transfer Act, 1897, vested the real estate of the testator in his personal representatives as trustees for the persons beneficially entitled to it, and so he held that the interests of the children were equitable ones, to which the rule of the common law did not apply. 44

Another evil attending contingent remainders was the rule, established in England in Whitby v. Mitchell,45 that a contingent remainder could not be limited to the issue of an unborn person after a limitation to that person for his life, even though it was so limited that it must vest, if at all, within the period allowed by the rule against perpetuities. The rule was in that case laid down only as regards legal estates, but it was afterwards extended to similar equitable estates by In re Nash.46 It was sometimes said to have originated in a rule against a possibility upon a possibility, but in the decision of the latter case the use of this phrase was disapproved. It is often spoken of as a rule against limiting land to unborn generations in succession. It was said to have become a fixed rule regarding legal estates in land, before the creation of executory interests showed the need for the rule against perpetuities to keep them within proper limits. But there was no useful purpose in having such a rule after the rule against perpetuities relating to the same matter had become established as to other interests. There is no case in this country, so far as the present writer knows, in which the existence of such a rule has been considered or mentioned in any judicial decision, but it has been discussed by Mr. Gray in his book on Perpetuities.47 The rule however did not extend to executory limitations, as is shown by the decision of the House of Lords in Cadell v. Palmer, 48 where a series of executory devises of a long term of years to several successive generations of unborn persons was held to be

44 This construction of the provisions of the Land Transfer Act, 1897, is criticised in a note in 32 L. QUART. REV. 3, which appears by the appended initials to have been written by Mr. Charles Sweet, and in an article on Assent by Executors in 60 Sol. J. 426.

Ch. D. 494 (1889); 44 Ch. D. 85 (1890). 46 (1910) 1 Ch. 1; (1909) 2 Ch. 450. 47 GRAY, PERPETUITIES, 3 ed., 88 298 a, 931.

48 1 Cl. & Fin. 372 (1833). The rule laid down in that case prevails in Massachusetts. Brattle Square Church Case, 3 Gray 142, 152 (1855); Odell v. Odell, 10 Allen 1, 5 (1865).

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valid, as the vesting was confined to lives in being at the death of the testator and twenty-one years after. Accordingly, if the provision in the act of 1844 by which contingent remainders were turned into executory limitations 49 had not been so hastily repealed in the following year, there would not have been any such case as Whitby v. Mitchell or In re Nash, or any of the cases dependent on them. The limitations in question in those cases would have been converted into executory limitations, and their validity as regards remoteness would have been determined by the rule against perpetuities, by which other executory limitations are governed. There would have been no question of any other rule affecting their validity on the ground that they involved double possibilities or conferred interests on successive unborn generations.

In Massachusetts a case of Simonds v. Simonds was decided in 1908, which involved the question whether a limitation to a class of persons after an estate for life could vest in any members of the class who were not ascertained when the particular estate determined. There was a conveyance by deed to Charles Simonds and his heirs and assigns to the use of himself during his life and after his death to the use of such of his children as should attain the age of twentyone years, as tenants in common, and their heirs and assigns.51 He had five children, two of whom attained twenty-one in his lifetime, and one of the others attained that age after his death and two were

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7 & 8 VICT. C. 76, § 8, supra, p. 227. See 61 L. T. 335.

199 Mass. 552, 85 N. E. 860 (1908). This case is criticised in GRAY, PERPETUITIES, 3 ed., 927.

51 A grant to A. in fee simple to the use of himself for life has the same effect as a grant to another in fee simple to the use of A. for life, although in the former case A. is in for life by the common law, and in the latter case by the statute. In each case subsequent uses for other persons are executed by the statute. Bacon says: “if I give land to I. S. and his heirs, to the use of himself for life, or for years, and then to the use of I. D. or his heirs, I. S. is in of an estate for life, or for years, by way of abridgment of estate, in course of possession, and I. D. in of the fee-simple by the statute.” 7 Bacon's Wks. (Spedding's ed.), Uses, 440. See, to the same effect, 1 PRESTON, ESTATES, 176; GILBERT, USES (Sugden's ed.), 152; BURTON, COMPENDIUM, 7 ed., 47. The limitation to Charles Simonds in fee simple to the use of himself for life, vested in him the legal estate in fee simple at common law, but, as the use was confined to his life, the legal estate stayed in him only during that period. The subsequent use vested in his children as they attained 21 successively, until the class was closed, and the statute transferred the legal estate to them according to their respective estates in the use. His estate and that of his children were thus precisely the same as if the conveyance had been made to a third person and his heirs to the same uses. See also Doe o. Passingham, 6 B. & C. 305 (1827); 2 Dav., Conv., 3 ed., 176–77.

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still minors at the time of the proceedings. The question was whether these three children were excluded from any interest because they had not attained twenty-one at the death of the tenant for life. It was held that the meaning was that, after the death of the tenant for life, the land should go to all his children who should reach the age of twenty-one years, regardless of the time when any of them might attain that age, and as only two of those who might ultimately attain twenty-one were then certain, effect might be given to the intention by way of a shifting use in favor of those who finally answered the description.52 The correctness of the interpretation given to the deed is beyond question and it cannot be doubted that the intention was carried out by the decision, but whether it could be so carried out consistently with the rule of law is a different matter. It is plain that the limitation to all the children who should attain twenty-one, whenever they might attain that age, was one that might have taken effect as a contingent remainder. It is also plain that there was not an alternative or separable limitation to those who should attain twenty-one after the death of the tenant for life, which could not have taken effect as a contingent remainder, or otherwise than as a springing or shifting use. The judgment disclaimed any intention of deciding anything at variance with what it described as the well-settled rule that a limitation, if it could so operate, was to be construed as a remainder, even if the rule applied with equal force to springing and shifting uses. The decision is put wholly upon the intention that the land should go to all the children who should ultimately attain twenty-one, and it certainly gave effect to that intention. The rule that was invoked to defeat the intention has now been done away with by the statute mentioned at the commencement of this article and there can be no question how any similar limitation in the future would be dealt with, although the case might be one in which resort could not be had to the Statute of Uses.

J. L. Thorndike. Boston, Mass.

62 The case of White v. Summers, (1908) 2 Ch. 256 (supra, p. 236), in which the same questions were considered by Parker, J., six months previously, seems not to have been brought to the attention of the court.

TORT AND ABSOLUTE LIABILITY — SUGGESTED

CHANGES IN CLASSIFICATION

IT is proposed to suggest some changes in the prevailing classifi

cation and nomenclature of the outlines of substantive law upon the general subjects, (1) of so-called torts, and (2) of cases of “absolute” liability where there is neither contract nor fault. And the attempt will be made to do this uninfluenced by two causes: one, the phraseology and doctrine of the old law of procedure, especially the old law as to forms of action;' the other, legal fictions and fiction phrases.

We are not now attempting to suggest the alteration of the substantive law, but rather the alteration of the mode of stating and classifying legal doctrines relating to certain topics. It will not be here contended that the actual results (the final decisions) which are now usually reached by courts upon these topics are often incorrect. But it will be contended that, although these results are generally correct, yet the prevailing classification and nomenclature are antiquated and misleading, and that a restatement will promote ease and clearness of apprehension. It may be said that the arrangement of topics, the division of the law into various subjects, "constitutes no part of the law itself” (“does not affect the

, law itself”), and that hence questions of arrangement or classification are “not of prime importance.”? But it is certain that a good

2 a arrangement of topics will make the law more easily comprehended by students and less likely to be misunderstood or misapplied by lawyers and judges.

We cherish no illusions as to the speedy adoption of any suggested changes in classification. Even if the best members of the profession are convinced of the correctness of a proposed new system, yet an immediate change from a former system is not likely. The

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1 In a later part of this article, we quote the emphatic assertions of Maitland and Salmond to the effect that the old forms of action still influence modern statements of the existing substantive law.

? See BISHOP, CONTRACTS, 2 ed., $ 183, note 1; BISHOP, NON-CONTRACT Law, $ 1. And compare 2 AUSTIN, JURISPRUDENCE, 3 ed., 685.

"dislocation of established associations," the confusion incident to a transition period, the practical inconvenience of adopting a new arrangement of topics differing from that found in the leading textbooks, are all considerations calculated to retard, if not entirely prevent, a change. Some of the ablest and most original legal authors of the present day have, in effect, said that the object to be aimed at in legal classification is practical convenience, not logical or scientific order, and that changes from the existing arrangement or nomenclature should be made only for very weighty reasons. But a grouping or arrangement of topics which is preferable from the point of view of “the index-maker or the practitioner” may not always be preferable "from the point of view of the jurist” who desires to go down to foundations. What may be called a juristic classification, based upon existing decisions may tend to remove difficulties and inconsistencies inherent in the hitherto established methods of arrangement. If so, it should at least be conspicuously mentioned in the textbooks as an alternative classification, and attention should be called to its advantages.

As to the views about to be set forth, no claim of originality is made. The suggested changes are based upon distinctions already recognized in some legal treatises. Our inquiry is, whether these distinctions should not be allowed more effect than has hitherto generally been the case, in the consideration of questions relating to legal nomenclature and classification.

The term "causes of personal action” is a very broad one, embracing a good deal of matter that cannot be classed under tort. How has the law classified or divided causes of personal action (other than suits to obtain possession of specific articles of property), and what names have usually been given to the separate classes?

In recent times it has been commonly assumed that there are only two great divisions of causes of personal action, contract and tort, and that there can be no cause of personal action unless it can be classed under one of these two heads. “No intermediate

3 See post, quotations from Pollock and Salmond.

• While legislatures, or courts, may undertake to abolish forms of action, yet they cannot abolish distinctions between causes of action. In the nature of things such distinctions must continue to exist. See 2 ODGERS, Common LAW OF ENGLAND, 1245.

6 See Lord Chancellor Haldane, in Sinclair o. Brougham, (1914) A. C. 398, 415.

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