CONTROL OF PROPERTY BY THE DEAD. II.

*
PURPOSES OPPOSED TO PUBLIC POLICY.
Now, whetherthe device of a conditionor of a trustis
employed, it is clearthatone has no rightto disposeof his prop-
ertyin a mannerwhichis not merelycapricious,but whichis
also positivelydetrimental to society;whichis, in otherwords,
againstpublicpolicy. The rightof the individualto disposeof
his propertyas he likes is subordinateto the rightof the com-
munityto insistthatpropertyshall not be devotedto a purpose
inimicalto its interests, and thatproperty shall not be used indi-
rectlyas an instrument to compelor inducethe accomplishment
of such a purpose. If an attemptis made to createa trustfor
sucha purposethe trustfails. If a giftis conditioned upon the
accomplishment of such a purposeeitherthe gift fails or it is
absolute.71 Now let us considerwhat purposesare condemned
as illegal.
I. In the firstplace, a dispositionis clearlyillegal when
therebypropertyis to be used in accomplishing purposeswhich
are criminal. A bequestto trusteesforStevenson'sSuicideClub
would certainlybe illegal. So also is a bequestto trustees"to
makeseatsforpoorpeopleto begin bythehighways,"whensuch
beggingis illegal.72 So, too, a provisionis illegal if its direct
and naturaltendencyis to inducethe commissionof criminal
acts.

LAW
OF PENNSYLVANIA
* Continuedfromthe April issue,65 UNIVERSITY
REVIEW,527.
if the con-
7' In the case of a devise of land upon an illegal condition,
dition is precedent,the whole gift is void; if the conditionis subsequent,
the conditionis void and the gift is absolute; as to personaltythe courts
in Englandhave held thata conditionprecedentwhichis illegal as involving
malum,f prohibiturn is void and that the gift is absolute. Whether the
American courts will follow the English decisions and treat conditions
precedentas void or will follow the rule as to lane and treat the gift
as void, is still uncertain,althoughthe tendencyis to follow the Engfish
doctrine. See Pound, Legacies on Impossibleor Illegal ConditionsPrece-
dent,3 Ill. L. Rev. I, criticizingthe English cases.
72 Duke, Law of Charitable Uses, I33.
(632)
 CONTROL OF PROPERTY BY THE DEAD 633

"If lands be givenor grantedto a man,upon conditionthat

he shallkilla man,or uponcondition thathe shallburnhis neigh-
bor's house,or upon conditionthathe shall forswearhimself,or
upon conditionthathe shall save and keep harmlessthe grantor
whatsoever he shall do, or thatif he do not thesethings[i. e.,
thingscontrary to law] the grantshall be void, thisconditionis
void.""I
A bequestto purchasethe releaseof personscommitted to
prisonfor non-payment of finesunderthe game laws is illegal,
becauseit directlytendsto encouragea violationof thoselaws.74
The merefact,however,thata dispositionhas a slighttendency
to induce an unlawfulact will not invalidatethe disposition.
Thus if propertyis given to one for life witha remainderto
another,the latterwhile awaitingthe termination of the life
estatemightin a momentof impatiencefeeltemptednotto await
the courseof nature;but the tendency to inducehimto commit
murderis slightenoughto be disregarded.
II. A dispositionis illegal if it tends to interferewith a
functionof the state. A conditiondivestingthe interestof a
deviseeif he entersintothenaval or militaryserviceof thecoun-
tryis clearlyagainstpublicpolicy.5 In England,indeed,a con-
ditiondivestinga greatestateif thedeviseeshouldnotacquirea
peeragehas been held by the House of Lords in a famouscase
to be void as against publicpolicy.76 But it is very doubtful
whetherthiscase is rightly decided. The judges whoseopinions
were asked for by the lords were almostunanimously in favor
of the validityof the condition,feeling that the tendency to

Sheppard's Touchstone,I32. See also Co. Lit. 206a.

t4 Thrupp v. Collett,26 Beav. I25.
75Inre Beard (I9o8), i Ch. 383. In Habershonv. Vardon,4 De G. &
Sim. 467, a trustfor the politicalrestorationof the Jews to Jerusalemwas
held invalidas tendingto cause a revolutionin a friendlycountry.In Hutch
ins v. George,44 N. J. Eq. I24, a trustfor the purposeof distributing the
writingsof HenryGeorgewas held illegalbecause in "Progressand Poverty"
the writerteaches that "historically, as ethically,privatepropertyin land
is robbery." Fortunatelythe decisionwas overruledin Georgev. Braddock,
45 N. J. Eq. 757.
" Egertonv. Brownlow,4 H. L. C. i. And so trustto procurea peer-
age was held invalid. Kingston v. Pierepont,I Vern. 5. But a con-
dition divestingan estate if the devisee should succeed to a peerage is
valid. Caithnessv. Sinclair (19I2), S. C. 79.
634 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

inducethe employment of impropermeans in acquiringa title

was so slightas to be disregarded. But thelordsfearedforthe
dignityof theirorder.
III. So, too, a dispositionwill not be upheldif it tendsto
encourageimmorality.It is on this groundthat bequeststo
illegitimatechildrenconceivedafterthetestator'sdeathare held
invalid.77
IV. So, too, a dispositionmay be againstpublicpolicyon
thegroundthatit tendsto the disruption of the family. A dis-
positionis illegalif it improperlytendsto inducethe separation
or divorceof husbandand wife.78 But therathersweepingand
undiscriminating attitudeof the earlier law in attemptingto
keep the familytogetherat all hazards is becominggradually
modified. The law stillcondemnsa breachof conjugal obliga-
tions; it still condemnsan unjustifiable divorceor separation;
and a conditionattachedto a legacywhichclearlytendsto induce
a divorcewithoutpropercause,or a separationwithoutjustifica-
tion,is illegal.79 But a justifiabledivorceor separationof hus-
band and wife is not condemned. A testamentary gift to a
marriedwoman duringsuch time as her husbandshould live
apart fromher is not invalid,when at the timeof the making
of the will the legatee had alreadybeen desertedby her hus-
band,and the purposeof the provisionwas to providefor her
untilhe should come back to her.80 It has been held recently
that a conditionattachedto a legacy that the legacy shall be
payableupon the death of the wife of the legateeor upon his
divorceor separationfromher is not againstpublicpolicy,for
it will be presumedthatthe testatordid not mean an improper
divorceor separation.81

n Crook v. Hill, 3 Ch. D. 773; Godefroi,Trusts (4th Ed.), I9I ; Jarman,

Wills, 177I. It was formerlyheld that bequests to illegitimatechildren
conceived after the execution of the will, but before the death of the
testator,were invalid,but this is not now law. Occlestonv. Fullalove,L. R.
9 Ch. App. 147; In the Estate of Frogley,[I905], P. I37.
" In re Moore,39 Ch. D. II6; 6 Gray,Cases on Property(2d Ed.), 6-26.
' Wilkinsonv. Wilkinson,L. R. 12 Eq. 604.
'In re Charleton,55 Sol. J., 330; Dusbiber v. Melville, 178 Mich.
6oi; Paider v. Suchy,I59 N. Y. App. Div. 230.
' Daboll v. Moon, 88 Conn. 387.
 CONTROL OF PROPERTY BY THE DEAD 635

So, too, a dispositionof propertywhichtendsto inducea

parentnot to performhis dutyto his child is illegal. Thus a
provisionthatpropertygiven to a parentis to be forfeitedif
he lives withhis childrenis clearlyinvalid. In a bequestto an
adoptiveparent,a conditionthattheadoptionshouldbe setaside
is likewiseinvalid.82 But suppose that the bequest is to the
childrenthemselvesand not to the parent. In a very recent
Englishcase 83 theHigh Courtuphelda clause in a will creating
a trustfor certaininfantswhichprovidedthat no part of the
incomeof thetrustfundshouldbe paid or appliedforthebenefit
of any of theinfantbeneficiaries whilein thecustodyor control
of theirfather,or while he should have anythingto do with
theireducationor upbringing.84But in anothercase a provision
in a giftto the testator'sgrandchildren thattheyshouldforfeit
theirinterestif theyshouldlive with or be or continueunder
the guardianshipor controlof theirfatherwas held invalid.85
This seems the preferableview; for althoughthe tendencyto
cause theparentto fail to performhis dutyto the childrenmay
conceivably notbe as strongas wherethebequestis to theparent
himself,yet it certaintly is not so slightas to be disregarded;
and, indeed,the desire of the parentto advance the worldly
prospectsof his childrenhas frequently a morecompellingforce
thanhis desireto promotehis own welfare.
V. It is the policyof the stateto encouragethe establish-
ment as well as the preservationof the familyrelationship.
Hence a dispositionof property may be illegalon the groundof
its tendencyto restrainmarriage. But a dispositionthe object
of whichis to providefor a personas long as that person is
unmarriedis not illegal,althoughit may offersomethingof an
inducement to remainsingle.86A dispositionof property which

"Anonymous,8o N. Y. Misc. io.

8a Inre Borwick's Settlement,II5 L. T. R. I83.
84Compare Johnsonv. Warren, 74 Mich. 49I; White's Estate, i63 Pa.
388.
'In re Sandbrook (I912), 2 Ch. 47I. See In re Morgan,26 T. L. R.
398; Witherspoonv. Brokaw,85 Mo. App. i69.
' Jonesv. Jones,I Q. B. D. 279; Harlow v. Bailey,I89 Mass. 208.
636 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

tendsto imposeonlya reasonablerestraint is notinvalid.87Thus

a provisionthatthe estateshall be forfeitedon a secondmar-
riage,or on mnarriage undera certainreasonablylow age, or on
marriagewithoutthe consentof a particularpersonis valid.88
So also a provisiontendingto restrainmarriagewitha particular
personis not invalid. In a recentNew York case 89 it appeared
that the testatorwas determined that his daughtershould not
marrya particularman,and he providedthatshe shouldreceive
the principalof a trustfundonlywhen the man shoulddie or
when she shouldmarrysome otherman. She contendedthat
the provisionwas illegal,becauseit tendedto restrainmarriage,
and also becauseit tendedto encourageherto killtheman. But
thecourtupheldtheprovision,fortherestraint on marriagewas
reasonableand thetendencyto inducemurderwas slight.90So,
too, the courtshave upheldprovisionstendingto restrainmar-
riage with particularclasses of persons, as, for example,
papists,9'domesticservants,92 Scotchmen,93 personsotherthan
Jews94 or Protestants 95 or Quakers.96 Indeed,an Irish court97

has uphelda conditiondivestingan estateon the marriageof

the legateeto a personin a "lower social position";but it is to
be hoped that in this countrysuch a conditionwould be held
void for uncertainty.If, however,the scope of the legatee's
choiceis so limitedthatthereis virtuallya prohibition on mar-
riage,the provisionis illegal. Thus a provisionthata legatee
shouldlose herlegacyon hermarriageto any one but a Quaker

876 Gray, Cases on Property,3I n.; Jarman,Wills, (6th Ed.), 1525-

I542; Halsbury,Laws of England,Vol. 28, tit. Wills, p. s86.
88 But for obviousreasons the rule is otherwisewherethe personwould
get the propertyif the beneficiary should marrywithouthis consent. See
Bayeaux v. Bayeaux, 8 Paige (N. Y.) 333.
89Matter of Seaman, 2I8 N. Y. 77.
"Inasmuch as she engaged the man as her counsel in the case, she
certainlyshowedno sign of a desireto murderhim.
91Duggan v. Kelly, io Ir. Eq. 295.
92Jennerv. Turner, i6 Ch. D. i88.
"Perrin v. Lyon, 9 East I70.
" Hodgson v. Halford, ii Ch. D. 959.
9 In re Knox's Goods, Ir. L. R. 23 Ch. D. 542.
Haughton v. Haughton, i Moll. 6ii.
9 Greenev. Kirkwood(i895), I I. R. I30.
 CONTROL OF PROPERTY BY THE DEAD 637

was held invalidin a case in whichit appearedtherewere only

a half dozenmarriageableQuakerswithinher reach.98
VI. In Englandat one timemanydispositions were invalid
as tendingto encourage"thepropagationof a false religion."99
Althoughtherehave been numerousstatutesrelaxingthe rigor
of the law as to Roman Catholics,ProtestantDissentersand
Jews,?00 trustsfor monasticordersare still illegal in England
and in Ireland.101 There are still other remnantsof the old
law of superstitious uses. In England a bequestforthe saying
use.102 But in
of masses is still held illegal as a superstitious
Ireland103 and in this countryit is held that thereis nothing
illegal in such a bequest.104 In other respects,however,the
attitudeof the English courts toward religion has become
increasingly liberal. In i85o, a legacyto be appliedas a prize
"for the bestoriginalessay on naturaltheology,treatingit as a
science,and demonstrating the adequacyand sufficiency of nat-
ural theologywhen so treated and taughtto constitutea true,
perfectand philosophical systemof universalreligion"failedon
the groundthat it was not "consistentwith Christianity." 105
This decisionwas expresslyoverruledin a recentcase, in which
theCourtof Appealuphelda legacyto theSecularSociety,Ltd.,a
companythemainobjectof whichwas "to promotein suchways

" Maddox v. Maddox's Adm'r, ii Gratt. (Va.), 8o4. As there was

no gift over,the court held that the conditioneven if not invalid operated
onlyin terrorem.See also Story,Eq. Juris.,Sec. 287.
'Rex v. Lady Portington,I Salk. I62.
10Tudor, Charities (4th Ed.), 4-8.
Ellard v. Phelan (1914), i I. R. 76. But a trustfor the membersof
a monasticorderis valid. In re Smith (I9T4), I Ch. 937. So is a trustfor
the decorationof its church. In re Greene (I9I4), I I. R. 305.
102 West v. Shuttleworth,2 Myl. & K. 684; Tudor, Charities (4th
Ed.), 44.
1"Reichenbachv. Quin,2i L. R. I. 138; Attorney-General v. Hall (i897),
2 I. R. 426; O'Hanlon v. Logue (O906), I I. R. 247.
1'See Hoefferv. Clogan, T7I Ill. 462. On the questionwhethersuch
bequests fail,not on the groundof illegality,but for the want of a definite
beneficiary,see ante,p. 538.
10"Briggs v. Hartley,I9 L. J. (Ch.), 4I6. See also Cowan v. Milbourn,
L. R. 2 Ex. 230, where a contractto let rooms for the deliveryof lec-
tures of a similar characterwas held illegal. In Thorntonv. Howe, 31
Beav. I4, a trust for "the printing,publishingand propagationof the
sacred writingsof the late Joanna Southcote" was upheld because her
works contained"nothingwhich could shake the faith of Christians."
638 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

as may fromtime to time be determined, the principlethat

humanconductshouldbe based upon naturalknowledgeand not
upon supernatural belief,and thathumanwelfarein thisworl(d
is the properend of all thoughtand action."108 It was con-
tendedthat the purposeof the societywas the promotionof
atheismand blasphemy. As to this the Master of the Rolls
observedthat "this is one of the subjects in whichtherehave
undoubtedly been greatchangesof opinionwithinthe last hun-
dredyears,and I thinkwithinthelast half-century.It is really
a questionof publicpolicy,whichvaries fromtimeto time."
The courts generallyuphold conditionsas to the benefi-
ciary'sreligiousfaith. No distinctionis takenbetweenthe case
where the gift is conditionedupon adherenceto an old faith
upona changeof faith. The
and thecase where;it is conditioned
House of Lords has uphelda provisionthatif a deviseeshould
not be educatedin the Protestantreligionaccordingto the rites
of the Church of England the propertyshould go over to
another.107A provisiondivestingthe interestof a legatee if
she shouldbecomea nun is valid.108 The Courtof Appeals of
Marylandhas uphelda conditionthata legateeshouldwithdraw
fromthe Roman Catholicpriesthoodand frommembership in
any orderor societyconnectedwiththe Roman CatholicChurch
or refrainfrombecominga priestor formingsuch a connec-
tion.109 Anothercourthas uphelda conditionthatthe benefi-
ciary be educated in the Roman Catholicfaith.1"0In another
case it was heldthata giftmaybe conditionedupon the donee's
attendance upon"theregularmeetingsof worshipof theEmanuel
Churchnear the village of Cashton,Wisconsin,when not sick
in bed, or preventedby accidentor other unavoidableoccur-

" In re Bowman (I9I5), 2 Ch. 447. In Zeisweiss v. James,63 Pa. 465,

Sharswood,J.,expressedthe opinionthata legacyto the "InfidelSocietyin
Philadelphia . . . forthepurposeof buildinga hall forthe freediscussion
of religion,politics,etc.",was illegal.
Clavering v. Ellison, 7 H. L. C. 707.
107

1"Ex parte Dickson,i Sim. (N. S.), 37.

10"Barnumv. Mayor, etc., of Baltimore,62 Md. 275. See Kenyon v.
See, 94 N. Y. 563.
'Magee v. O'Neill, ig S. C. 170. Compare McBride's Estate, 152
Pa. I92.
 CONTROL OF PROPERTY BY THE DEAD 639

rence."111 This condition,it was held, does not violate the

constitutional provisionthat"the rightof everyman to worship
AlmightyGod accordingto the dictatesof his own conscience
shall neverbe infringed." The onlydecisionthe otherway is
to be found in a Virginia case,'12 in whichitwas held that a
conditionthata legateeshouldremaina memberof the Society
of Friends is againstpublicpolicyas puttinga premiumupon
"fraud,meannessand hypocrisy," and as tending"to corruptthe
pureprinciplesof religion." The objectionto thisview is that
it wouldraisetoo manyand too difficult questionsas to itslimits;
and it is probablywiser to hold, as the courtsgenerallyhave
held,thatsuch conditions,foolishor whimsicalas theymay be
are notbeyondthepowerof thetestatorto impose.
VII. One very definitelimit set by public policy to the
powerof the testatorto controlpropertyafterhis death is the
time limit. This policy findsit chief expressionin the rule
againstperpetuities, of whichthe classic formulation is thatof
ProfessorGray: "No interestis good unlessit mustvest,if at
all, not laterthan twenty-one years aftersome life in beingat
thecreationof theinterest." 113 This ruleis intendedto prevent
a testator from designating the persons who shall enjoy his
bountyuntothe thirdand fourthgenerationof thosewho come
afterhim. It relatesonlyto thetimeof vestingof interests and
not to the timeof theirenjoyment, nor to their duration nor to
theirassignability.It appliesto equitableestatesas well as to
legal estatesand to powersof appointment as well as to estates.
It is perhapsthe most sweepingand the mostimportant limita-
tion on the power to controlpropertyafterdeath. But it is
questionablewhetherthe periodis not too long. The factthat
any,and any numberof, livesmay be selected,makesthe possi-
bleperiodmorethana century, if thetestatoris carefulto choose
a sufficient numberof lives of sufficientlyyouthfulpersons. In
severalstates,undertheleadershipof New York,theperiodhas
by statutebeen shortenedto two lives in being at the creation

In re Paulson's WVill,
I27 Wis. 6I2.
112
Maddox v. Maddox's Adm'r, II Gratt. (Va.), 804.
'1 Gray,Rule against Perpetuities(3d Ed.), Sec. 201.
 640 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

of the estate.114 The periodwas foundin England to be too

long whenthe incomeas well as the principalis tied up; and a
shorterperiod for accumulationof incomewas thereforepro-
vided forby the ThellussonAct."5 This statutehas been par-
tiallyadoptedin one or two of our states.1,16
And yet in spiteof the rule againstperpetuities, a testator
has powerto createan interestwhichmay not comeintoposses-
sion forcenturies. There is no doubtthatunlessa statutepro-
vides otherwise, thereis no limitto the possibledurationof an
estateforyears; and inasmuchas the remainderafteran estate
foryears is a vestedinterest,the rule againstperpetuities does
not applyto it.1"7 But undoubtedly long leases are a real evil
In a few statestherefore statuteshave been passed limitingthe
durationof termsforyears.'.8 But in mostof the statesthere
are no such statutes. There are othersituationsto whichit is
heldthattheruleagainstperpetuities is notapplicable,butwhich,
nevertheless, fall even more clearlywithinthe evil which it is
thepurposeof thatruleto prevent. An estatein fee simplemay
be createdwitha provisionthaton the happeningof a certain
event the grantoror his heirs may put an end to the estate
granted;and the rightof entryfor breachof such a condition
is generallyheldnotto fallwithintheruleagainstperpetuities.1"9
Again, it seemsto be held in this countrythat one may create
an estatein feesimpleto continueuntilthehappening of a certain
event,and thatsuch a determinable fee is valid in spiteof the
Statute Quia Emptores,and, moreover,that the possibilityof
reverter on thetermination of suchan estatedoes not fallwithin
the rule againstperpetuities.120Thus a provisionin a deed of

See Gray,Rule against Perpetuities(3d Ed.), Secs. 747-752.

39 & 40 Geo. III, c. 98 (i8oo). This statuteforbidsaccumulations
for any longertermthan the life of the settlor,or twenty-one years from
the death of the settloror testator,or duringthe minorityof any person
who under the settlementor will would for the time being, if of full
age, be entitledto the incomedirectedto be accumulated.
1
Gray,Rule against Perpetuities(3d Ed.), Secs. 715-727.
117 Gray,Rule,against Perpetuities(3d Ed.), Sec. 972.

Gray,Rule against Perpetuities(3d Ed.), Sec. 2I0, n.

119 Gray, Rule against Perpetuities (3d Ed.), Secs. 304-3Iia. The rule
is otherwisein England. Op. cit., Secs. 299-303.
120Gray,Rule against Perpetuities(3d Ed.), Secs. 38-4ia, 3I2,
 CONTROL OF PROPERTY BY THE DEAD 641

land to a railroadcompanythatwhenthe companyshouldcease

to use theland fora station,theland shouldrevertto thedonor
or his heirs,has beenupheld.'2' But whyshouldthegrantoror
testatorbe allowedthusto createan interest whichmayterminate
at a veryremoteperiod,and thusto give his (in this country)
perhapsinnumerable heirs122 at some far distantdate a right
to sharehis property? Surelysucha resultis opposedto sound
publicpolicy.
There is anothersituationin whichthe testatoris able to
affectthe dispositionof property long afterhe is dead. In the
case of In re Tyler,123a testatorbequeathedproperty to trustees
fora charityand providedthatif thetrusteesshouldat any time
neglectto keep in repairthe testator'sfamilyvault, the fund
bequeathedshould pass to the trusteesof a different charity.
This provisionwas held to be valid. Of course,no trustwas
imposedor intendedto be imposedon the fundbequeathedor
on any otherproperty, but since the fundgave the trusteesof
the firstcharityan incomemuch greaterthan the expenseof
keepingup the vault,thosetrusteeswould surelysee to it that,
somehowor other,moneywould be raised to keep the vault in
repairand thusenablethecharityto retainthe fundbequeathed.
Now therecould be no seriousobjectionto this if the condition
were limitedin its operationto the period of the rule against
perpetuities;but therewas no such limitation. The difficulty
is in the holdingthatthe rule againstperpetuities has no appli-
cationto a giftover fromone charityto another.124 Now there
seems to be no good reason why the rule against perpetuities
shouldnot applyto a giftover fromone charityto another.125
There is the most evidentobjectionto allowinga gift over in
such a case as this,wherethe testatorattemptsto use the fear

"""Carr v. Geor;giaR. R., 74 Ga. 73. So also where the gift is to a

charitablecorporation. First UniversalistSocietyv. Boland, I55 Mass. I7I;
Pond v. Douglass, io6 Me. 85.
" Neither the right of entryfor breach of condition
nor the possi-
bilityof reverteris assignable. See Pond v. Douglass, Io6 Me. 85.
12 (891), 3 Ch. 252.
24 Christ'sHospital v. Grainger,
I Mac. & G. 460.
"' Gray,Rule against Perpetuities(3d Ed.), c. i8, especiallySecs. 6o3f-
603h.
642 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

of losingtheproperty as a clubperpetuallyimpending to compel

theperpetualaccomplishment of a non-charitablepurpose.126
VIII. There is anotherveryimportant class of dispositions
of propertywhichare contraryto publicpolicy,on the ground
that they take or tend to take propertyout of commerce.
Whiletheownerof property mayalienateit or notas he sees fit,
thereis a policywhichlimitshis powerto transfertheproperty
to anotherand restrainthat other fromalienatingit.127 The
law, therefore,invalidatesa provisionmade by a testatoror
donor in giving to anotherland in fee simpleor an absolute
interestin personalty,that if the devisee or legatee or donee
shouldattemptto transferhis interest, his interestshall termi-
nate.128 The practicaleffectof suchprovisionsas theseif upheld
wouldbe to taketheproperty outof commerce;forno one would
attemptto alienateif thepenaltywereloss of theproperty.So,
too, the law invalidatesa provisionthat a fee simple or an
absolute interestshall terminateif the devisee or legatee or
doneeshouldbecomebankruptor if his creditorsshouldattempt

"A giftfor a non-charitable purposewhereno beneficiary is designated,

if allowed at all, is invalid if it may continuefor a longer period than
lives in being and twenty-one years. A directionfor the sayingof masses
duringa period greaterthan that allowed by the rule against perpetuities
is, therefore, held invalid. Dillon v. Reilly,I. R. Io Eq. 152; Re Zeagman,
37 Ont. L. Rep. 536. The resultis different wherea bequest for masses is
held to be a charitablebequest. A directionfor the perpetualrepair of a
tombor vault is likewiseheld invalid. Mussettv. Bingle (i876), W. N. I70;
Toole v. Hamilton(I9OI), I I. R. 383; In re Gay's Estate,I28 Cal. 552; Mason
v. BloomingtonLibraryAssn.,237 Ill. 442; MorristownTrust Co. v. Mayor,
82 N. J. Eq. 521; Godefroi,Trusts (4th Ed.), 203; Ames,Cases on Trusts (2d
Ed.), 2oi, n. i. CompareThomsonv. Shakespeare,I DeG. F. & J. 399. The
resultis different whereby statutesuch bequestsare consideredas made for
a charitablepurpose So, too, a directionthata band shouldbe maintainedto
play dirgesand otherappropriatemusicon the grave of the testatoron each
recurringanniversaryof his death,as well as on holidaysand otherproper
occasions,has been held to be invalid because not limitedin its operation
to the period allowed by the rule against perpetuities.Detwillerv. Hart-
man, 37 N. J. Eq. 347. Compare Palethorp'sEstate, 24 Pa. D. R. 2I5, in
whicha testatorbequeathed$I50,000 on trustto applythe incometo the care
of his familyburial lot and for the employment of a properpersonto show
peoplethe lot, was held invalidas to the latterprovision.
12T The law seems to uphold a provision for the forfeiture even of
an estate in fee simple or an absolute intereston alienation to certain
specifiedpersons (Gray, Restraintson Alienation [2d Ed.], Secs. 3I-44)
but the wisdomof upholdingsuch provisionsis doubtful.
" The rule is the same althoughthe restraintis for a limitedtime.
It re Rosher,26 Ch. D. 8oi.
 CONTROL OF PROPERTY BY THE DEAD 643

to attach or levy upon his interest. There is a clear policy

againstputtingtheproperty beyondthereachof creditors. But
if the interestgivenis onlya life estateor an estate for years,
a provisionforfeiting it on alienation,voluntaryor involuntary,
is upheld. The difference betweensuchprovisionsas to the fee
simpleor absoluteinterestand thoseas to life estatesor estates
for years is a difference onlyof degree,but it is perhapssuffi-
cient to justifythe difference in the law,'129for such limited
interestsare not, like absolute interests,usual subjects of
commerce.
But, althougha testatormay thuslawfullyprovidethaton
the alienation,voluntaryor involuntary, of an interestfor life
or years,the interestshall be forfeited, yet he cannotactually
preventthe alienationof a legal interest,whetherabsolute130
or for life or years.13 In the case of an equitableinterest,
whetherabsoluteor forlife or foryears,theEnglishview is the
same.132 But in this countrythereis a growingtendencyto
allow restraintson alienationof an equitablelife interest.'33
But should not equityrefuseto allow restraintson the aliena-
tionof equitableinterests whichas to legal interestare forbidden
bythelaw? Shouldnotequityfollowthelaw? Surelyit should,
if thepolicywhichforbidsrestraints on alienationof legal inter-
ests is applicableto equitableinterests.Now obviouslyto make
the propertyitselfinalienablewould take the propertyout of
commerce. If an equitableinterestin property is made inalien-
able, the physicalpropertyitselfis not necessarilytakenout of
commerce. The trusteewho holdsthe legal titleto theproperty

1 Gray, Restraintson Alienation (2d Ed.), Secs. I3-30, 78-90; Kales,

Future Interestsin Illinois, Secs. 28I-285. It has been held that a pro-
vision for forfeitureon alienationof a life anpuityis valid. In re Demp-
ster (19I5), I Ch. 795.
"@?Jonesv. Port Huron Engine Co., I7I Ill. 502; Clark v. Clark,gg Md.
356; Lathropv. Merrill,207 Mass. 6; Loosing v. Loosing,85 Neb. 66.
13iHendersonv. Harness,I76 Ill. 302; Wool v. Fleetwood,I36 N. C. 46o.
Brandon v. Robinson,i8 Ves. 429.
133 See Ames, Cases on Trusts (2d Ed.), 397-400; Gray, Restraints on
Alienation (2d Ed.), Secs. 134-277a. In some jurisdictionsthe creditors
of the beneficiary are excluded by statute from reachingthe whole or a
part of his interest. Ames, Cases on Trusts (2d Ed.), 40in; Clark, Spend-
thriftTrusts in New York, g Bench & Bar, 6, 59, io6; Perry,Trusts (6th
Ed.), 386, 8i5a.
644 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

mayor maynot be givena rightto sell it and to purchaseother

property. If he is not given that right,the propertyitselfis
takenout of commercefor all practicalpurposes,even though,
exceptas far as recordingacts prevent,he may have the actual
power,by a breachof trust,to transferthe propertyfreeand
clearof thetrust. If, on theotherhand,thetrusteehas a right
to sell it, the propertyitselfis not takenout of commerce;but
the beneficialinterestin the propertyis takenout of commerce.
This is notas clearlyagainstpublicpolicyas takingtheproperty
itselfout of commerce. But it seemsthat it does nevertheless
clearlyviolate a broaderpolicywhich forbidsall restraintson
alienation. To givethe"enjoyment of wealthwithoutitsrespon-
sibilities," meansto keep wealthin the hands of
134 by artificial

the dishonestor the incompetent, would seem opposed to the

principlesof the soundeconomistand thewise sociologist. The
doctrineis a paternalistic doctrine,as ProfessorGray says, but
it does notseemto be, as he suggests,a doctrinewhich,withits
tendencyto perpetuation of privateproperty
of the institution
and of a separateplutocratic class,would commenditselfto the
socialist. But the doctrinewhichallows theseso-called"spend-
thrifttrusts" is apparentlya growing doctrine. Professo,r
Gray'spowerfulattackuponthemhas not beenso muchresisted
as ignored.'35
It seemsthatin Massachusettsa testatormayputan equita-
ble interestbeyondthe reach of attachingcreditorsand yet at
the same timeallow the beneficiary to alienateit.138 It may be
suggestedthatto allow a voluntaryalienationof an interestin
property and at thesametimeto preventcreditorsfromreaching
thatinterestis more clearlyagainstpublicpolicythan to allow
a restrainton all alienation,bothvoluntaryor involuntary.At
any rate, even if the testatormay exclude attachingcreditors
and yetmayprovidethatthebeneficiary mayalienatehis interest,
the questionarises whether he can prevent the trusteein bank-
ruptcyof thebeneficiary fromreachingthe beneficiary's interest

'a Gray,Restraintson Alienation(2d Ed.), Sec. i68.

exceptionis Hutchinsonv. Maxwell, IOO Va. I69.
35 One important
" Ames v. Clarke, Io6 Mass. 573, semble; Huntressv. Allen, 195 Mass.
226, semble.
 CONTROL OF PROPERTY BY THE DEAD 645

whereit is alienable. A negativeanswerto thatquestionseems

easy. The Bankruptcy Act 1&7 expresslyvestsin the trusteeall
"propertywhichpriorto the filingof the petitionhe could by
any meanshave transferred."That wouldseemexactlyto cover
thecase. But the SupremeJudicialCourtof Massachusettshas
recentlyheld that the trusteein bankruptcy cannot reach the
beneficialinteresteven though the beneficiarymight have
assignedit,'88and the SupremeCourtof the United States has
affirmed thisdecision.189
The Supreme Judicial Court of Massachusettsand the
SupremeCourtof Illinoishave recently gone so faras to uphold
restraintsupon the alienationof an equitable interestin fee
simple or an absolute equitableinterest.140 These cases are
opposed to the great weightof authorityeven in jurisdictions
whichallow restraints uponequitablelife estates. They seemto
be an unfortunate extensionof thedoctrineof spendthrift trusts,
thoughone withwhichthe Massachusettsand the Illinoiscourts
have forsometimebeenflirting.14'
At any rate,if restraintson thealienationof equitableinter-
ests are to be allowed,a timelimitmustbe put upon thepower
of the testatorto imposesuch restraints.The rule againstper-
petuitiesgovernsonlythe timeof vestingof estatesand there-
foredoes not apply. But, by analogyto thatrule,the testator
can be preventedfromrestraining alienationbeyondthe period
allowedbythatruleforthevestingof estates.142

37 Sec. 7oa (5).

3
Boston Safe Deposit & Trust Co. v. Luke, 220 Mass. 484.
139 Eaton v. Boston Trust Co., 240 U. S. 427.
40Boston Safe Deposit & Trust Co. v. Collier,222 Mass. 390; Wallace
v. Foxwell, 250 Ill. 6i6.
14 Chiefly because of a failureto distinguishthe doctrineof restraints
upon alienationas applied in BroadwayNational Bank v. Adams, I33 Mass.
170, with the doctrineof postponement of enjoymentas applied in Claflin
v. Claflin,149 Mass. I9, which is consideredhereafter. See Wagner v.
Wagner, 244 Ill. IOI; Lathrop v. Merrill,207 Mass. 6.
142 In the case of restraintson the alienationof a futureestate there
is a difference of opinionas to the time when the period should begin to
run. ProfessorGray urges that it should begin to run on the commence-
ment of the estate. See Gray, Rule against Perpetuities(3d Ed.), Sec.
I21 ii. Professor Kales urges that the period should begin to run on
the deathof the testator. 2o Harv. L. Rev. 202.
646 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

IX. Now as it is againstpublicpolicyto preventthe owner

of propertyfromalienatingit, so also it is againstpublicpolicy
to preventthe ownerof propertyfromenjoyingit. Thus it is
said that "it seems if one granthis land to J. S. on condition
thathe, beinga husbandman, shall not sow his arable land, this
conditionis void," because it is "against the publicgood"; 143
and again that"if a feoffment be made of land in fee on condi-
tion that the feoffee shall not enjoy the land or shall not take
theprofits of theland . . theconditionis void as repugnant
.

to the estate."1'44 In a well-known case 145 a learnedjudge thus

clearlystatesthepolicyhereinvolved:
"The ownerof an estatemayhimselfdo manythingswhich
he couldnot (by a condition)compelhis successorto do. One
exampleis sufficient.He may leave his land uncultivated, but
he cannotby a condition compelhis successorto do so. The law
does not interferewiththe ownerand compelhim to cultivate
his land (thoughit be for the publicgood that land shouldbe
cultivated),so far the law respectsownership;but when,by a
condition,he attemptsto compelhis successorto do what is
againstthepublicgood,thelaw stepsin, and pronounces the con-
ditionvoid,and allows the deviseeto enjoythe estatefreefrom
thecondition."
A similarpolicyis applicablewhen a testatordirectsthat
his propertyshall be destroyedordevotedto a purposewhichis
purelycapriciousand by whichno one is to benefit.In a Scotch
case.,M'Caig v. University of Glasgow,'46the courtheld invalid
a trust for the purpose of erectingand maintainingforever
artistictowersand monuments and statuesof the testatorand
the variousmembersof his familyon land devisedby the tes-
tator. In thecourseof his opinion,Lord Kyllachysaid: 147
"I considerthatif it is not unlawful,it oughtto be unlaw-
ful,to dedicateby testamentary forall time,or fora
disposition,
lengthof time,the wholeincomeof a largeestate-real and per-
sonal-to objectsof no utility,privateor public,objects which

" Sheppard,Touchstone,132.
1 Sheppard,Touchstone,131.
'" Egertonv. Earl Brownlow, 4 H. L. C. I, 144, per Pollock,C. B.
'
( p907) S. C. 23I.
147 Ibid., 242.
 CONTROL OF PROPERTY BY THE DEAD 647

benefitnobody,and whichhave no otherpurposeor use thanthat

of perpetuating at greatcost,and in an absurdmanner,the idio-
syncrasiesof an eccentrictestator.I doubtmuchwhethera be-
questof thatcharacter is a lawfulexerciseof thetestamentifactio.
Indeed,I supposeit would be hardlycontendedto be so if the
purposes,say of the trusthere,were to be slightlyvaried,and
the trusteeswere,forinstance,directedto lay thetruster'sestate
waste,and to keepit so; or to turnthe incomeof the estateinto
money,and throwthe moneyyearlyinto the sea; or to expend
the incomein annualor monthly funeralservicesin the testator's
memory;or to expendit in discharging fromprominent points
upontheestate,salvoesof artillery uponthebirthdays of thetes-
tator,and his brothers and sisters. Such purposeswouldhardly,
I think,he allegedto be consistent withpublicpolicy;and I ain
by no meanssatisfied thatthepurposeswhichwe haveherebefore
us are in a betterposition."
So wherea testatordeviseda houseto trusteesand.directed
thatthewindowsand doorsshouldbe keptbrickedup fortwenty
vears,it was heldthatthenextof kinof thetestatorcould insist
on takingand enjoyingthe house duringthe twentyyears.148
So, too, in a case in whichthe testatorbequeatheda favorite
clockto trusteeswithdirectionsthatit shouldbe keptin repair
"so long as theymightthinkit properand practicable,"but not
forthebenefit of any one,thedirectionwas heldinvalid.149 But
the law has been liberal to testatorsin the matterof funeral
expenses;and a directionthat$40,000 shouldbe spentto erect
a monument to thetestator'smemoryhas beenupheld.150
X. We have seen that a testatoror grantorof property
cannotpreventthe devisee,legateeor granteefromalienatingit,
or fromenjoyingit. May he validlypostponethe enjoyment
of it? May he, in bequeathingtheentirebeneficial interestto a
personwho is underno disability, validlyprovidethatthe prin-
cipal or eventheincomeshouldnot be paid to thelegateeuntila
certaindate, or untilthe legatee reachesa certainage? Cer-
tainlythe testatorcannotaccomplishsuch a resultif he gives
the legateethe legal titleto the property,for the legateecould
use it at once and no one could interposean objection. And if

"'4Brown v. Burdett,21 Ch. D. 667 (1882), W. N. 134.

Kelly v. Nichols,17 R. I. 306.
"' Detwillerv. Hartman,37 N. J. Eq. 347.
648 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

he createsa trustwithsuch a provision,but the trusteeignores

the provisionand hands over the propertyto the beneficiary
beforethe arrival of the time designated,no one can object.
But may the beneficiary compelthe trusteeto hand over the
propertybeforethe arrival of the time designated?I" The
Englishview is thathe cannot.152 The reasonsometimesgiven
is that the restrictionis repugnantto the gift. If that means
thatthedispositionis self-contradictory or meaningless, it is not
true;thetestator'smeaningis perfectly clear,and perfectly con-
sistent. But does it mean thatthe dispositionis againstpublic
policy? The purposeof a spendthrift trustis the coddlingof a
person as against himselfand as against thirdpersons. The
purposeof thepostponement of enjoyment is simplythecoddling
of a person againsthimself. Should his benefactor be allowed
so to coddle him? AMr.Gray feltstronglythathe shouldnot,
thatto allow such a thingis to take a paternalistic attitudeno
less obnoxiousthanthatwhichupholdsspendthrift trusts. The
oppositeview,however,as embodiedin theleadingcase of Claflin
has metwithsomejudicial favor. It has beensaid
v. Claflin,'53
that the worstthat can be said of a dispositionof this sort is
thatit is harmlessor unwise;that"thetestator'sharmlesswhim
oughtto be allowedto prevailin the interestof supporting his
expressedintention";and that the fact that it may sometimes
be an unwiseprovisionis too triviala groundto defeatthetesta-
tor's intention.'54The argumentagainstthis is thatthereis a
policyagainstupholdinga restriction on the enjoymentof prop-
ertyby one who alone has a interestof any sortin the
beneficial

151 If there are other persons who have vested or contingent interests
in the trustpropertya beneficiary cannotput an end to the trustby calling
for a conveyanceof the legal title. Andersonv. Williams,262 Ill. 308; I
Cornell Law Quarterly 209.
152 Saunders v. Vautier,4 Beav. II5.
153 I49 Mass. I9. See for example the recentcases of Sheltonv. King,
229 U. S. go; Estate of Yates, 170 Cal. 254. Even in jurisdictionswhere
Claflinv. Claflinis law, if circumstances have occurredwhichthe testator
presumablydid not contemplate,and which make a terminationof the
trust expedient,the court may order such termination.Sears v. Choate,
i46 Mass. 395; Bennettv. NashvilleTrust Co., 127 Tenn. 126; 46 L. R. A.
(N. S.), 43.
154 Kales, Future Interestsin Illinois, Sec. :294.
 CONTROL OF PROPERTY BY THE DEAD 649

property,when neitherthe testatornor his heirs nor any one

otherthan the beneficialowner of the propertycan be in any
way benefited by upholdingthe restriction.'55If suchpostpone-
mentof enjoymentis permitted, the durationof the postpone-
mentmustbe limitedin time. The rule againstperpetuities has
no applicationto thissituation,forthereis no questionof vest-
ing of a futureestate; but by analogyto that rule,enjoyment
shouldnotbe allowedto be postponedbeyondlives in beingand
twenty-one years.'56
The doctrineof Claflinv. Claflinruns counterto another
class of cases. It is held thatthereis a policywhichinvalidates
an attempton the part of a testatorto determinethe formin
whichtheproperty shallbe enjoyedby a legateeor deviseewho
is giventhe entirebeneficial interestin the propertyand who is
underno disability. Where,forinstance,a testatordirectsthat
land shall be sold and theproceedspaid to a certainperson,that
person,if underno disability, mayelectto taketheland itself.'57
This doctrinehas been appliedeven in Massachusetts, the home
of the doctrineof Claftinv. Claflin,and has been appliedeven
in a case wherea testatorhas directedthata certainsum should
be investedin an annuity,wherethequestionof the formof the
property is substantiallya questionof thetimeof enjoyment.158
The Massachusetts courtattempts to distinguish Claflinv. Claftin
on thegroundthatthebeneficiary forwhomthe annuitywas to
be boughtwas to receivethebenefit of thewholefund. But that
was the situationalso in Claflinv. Claflin. The courtsays that
sincethe annuitantmightimmediately sell his annuity,the pur-
chase would be a nugatoryact. But in Claftinv. Clafin there
was no attemptto restrainalienation,and in moststatessuch a
restrainton an absoluteinterestwould be invalidanyway,and
thereforethe beneficiary mighthave sold his interestand thus
1.6The incidentalbenefitto the trustee from the continuationof the
trust is, of course, immaterial. He is not a beneficiary.Similarly an
agent has no rightto insist on the continuanceof the agency in order to
enable him to earn commissions.
"Kales, Future Interests in Illinois, Sec. 293.
157Ames, Cases on Trusts (2d Ed.), 459, n.
5"Parker v. Cobe, 208 Mass. 260. See also Matter of Cole, 174 N. Y.
App. Div. 534.
650 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

renderednugatorythe provisionsfor postponement of enjoy-

ment. Why shouldthe intention of thetestatorbe disregarded?
It is because an absolutegift has been made and neitherthe
testatornor any thirdpersonhas any interestin theproperty,159
becauseno one has any standingto insiston the carryingout of
the wishesof the testator;becauseit is againstpublicpolicyto
allow limitationson the controlof propertyby one who alone
has any interestof any sort, vested or contingent,in that
property.
XI. Again, the testatoris not allowed unrestricted power
to controlthemachinery of a trustwhich he has created. Prima
facie,whateverhe authorizesthetrusteesto do, theyare justified
in doing,and whateverhe directsthemto do, theyare bound
are under no disabilityand
to do, unless all the beneficiaries
excusethemfromso doing. But thisis notalwaystrue. A court
of equitymay sometimesauthorizethe trusteesto departfrom
thetestator'sinstructions.The trustis createdforthebeneficia-
ries,and it is theirinterestswhichshouldbe considered. Thus
wherethe testatorhas directedthatthe trustpropertyshall be
retainedin a particularform,thecourtmayauthorizea sale and
reinvestment.160 A somewhatsimilarquestionis presented when
a testatornamesas trusteea personwho is not fitto serve. Of
course,if thepersonnamedas trusteesubsequently becomesunfit
to serve,thecourtmay removehim. It is clearlyproperalso to
refuseto allow himto act, or to removehim,if he was unfitat
the timeof his designationby the testator,but the testatorwas
notaware of his unfitness.In suchcases as thesesuchactionis
in accordancewithwhat would probablyhave been the wish of
the testator. But the courtshave gone further. They have
sometimesrefusedto allow a trusteeto act, althoughtheground
was knownto thetestator,who designated
of his disqualification

1"9If thereis a contingentgift over of the annuity,the annuitantcan-

not insist on takingthe purchaseprice of the annuityor any part of it.
In re Dempster(I9I5), i Ch. 795.
1I"Curtiss v. Brown, 29 Ill. 201; Gavin v. Curtin,171 Ill. 640. For
interestdid not demand
cases in whichthe court felt that the beneficiary's
a departurefromthe wishesof the testator,see Johnsv. Johns,172 Ill. 472;
Johnsonv. Buck,220 Ill. 226.
 CONTROL OF PROPERTY BY THE DEAD 651

him in spiteof that fact. Thus wherethe trusteewas directed

to pay to the beneficiarythe incomeof the trustfundand any
partof theprincipalwhichin thetrustee'sjudgmentthe benefi-
ciarymightrequirefor his support,and the trusteewas given
the beneficialinterestin all thatmightremainon the death of
the beneficiary,it was held that in spiteof the testator'swish,
of interestand dutyof the trusteewas such thathe
the conflict
shouldnotbe allowedto act.161
Sometimesa testatorleaves his propertyto his executors
or trusteesand directsthata certainpersonshall be employed
by themas attorney or manageror in someothercapacityin the
administration of the estate. Frequentlyhe uses words which
can be construed,and whichthe courtsare veryready to con-
strue,as precatoryand not mandatory, as intendedto expressa
wish, but not to impose a legal obligation. In such cases, of
course,the personso designatedcannotcompelthe executorsor
trusteesto employhim.162 In othercases, althoughthe testator
showsa clearintentto imposeon his executorsor trusteesa legal
obligation,yetthe extentof the dutiesand of the rightto com-
pensationare so indefinite that the intendedobligationis void
foruncertainty, and so cannotbe enforced. But thetestatormay
clearlyshowan intentto imposea legal obligationand theduties
and compensation may be definitelystated,or may be of such a
characterthattheycan be made definiteby resortto customary
usage. Has thedesignatedpersona rightto compelthetrusteeto
theexercise
employhim? Is it wise to allow a testatorto restrict
of discretionbyhis executorsor trusteesin theadministration of
theestate? It is submitted thatto enforcesucha provisionwould
be againstpublicpolicy. The testatorshouldnotbe allowedthus
to fetterthe executorsor trusteesin theiradministration of the
estateand thusto clog the machinery, althoughhe himselfhas
set it in motion. Surelya provisionthatthe persondesignated

1"1Matter of Townsend,73 N. Y. Misc. 48I. CompareIn re Norris,27

Ch. D. 333.
12 Shaw v. Lawless, 5 Cl. & F. 129 (agent to collect rents); Finden v.
Stephens,2 Phil. 142 (managerof estate); Jewellv. Barnes' Adm'r,IIO Ky.
329 (business employee); In re Thistlethwaite,I04 N. Y. Supp. 264 (at-
torney).
 652 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

shouldbe employed,even thoughhe prove dishonestor incom-

petent,is againstpublicpolicy. And thesamepolicy,thoughnot
so clearly,of course,wouldseemto forbidtakingaway fromthe
executorsor trusteesthe powerof exercisingtheirown discre-
tionin determining whomtheyshouldemploy.'63
XII. Finally,it is held to be contraryto publicpolicyto
allow the ownerof propertyto createestatesin thatproperty
of a kindunknownto thelaw; he cannot,for instance,createa
legal or equitableestatein the granteeor deviseeand his heirs
ex partematerna. He cannotexemptan estate,eitherlegal or
equitable,fromcertainincidentswhichare attachedby law to
theestate;he cannot,forinstance,excludetheclaimof thewife
of the granteeto dower.164 The one great exceptionto the
general rule is that which allows the creationof a married
woman'sseparateequitableestate;but even in the case of such
a separateestatethe betterview is thatthe creatorof the estate
cannotexclude the husband'sclaim to curtesy.'65 He cannot
imposeon his property new kindsof easementsor otherburdens
unknownto thelaw.166 Courtsof equitybyupholdingrestrictive
covenantshave gone further thanthe courtsof law in allowing
the impositionof burdenson property.'67There are limits,
however,even in equity; for equity,in enforcingrestrictive
covenants,followsthe analogyof the legal doctrinesas to ease-
ments.'68A covenantto do an affirmative act uponland will not
13 Foster v. Elsley, i9 Ch. D. 5I8 (solicitor); In re Ogier, ioi Cal. 38I
(attorney); Matter of Caldwell, i88 N. Y. I I5, I20 (attorney); In re
Wallach, I64 N. Y. App. Div. 6oo (attorney); In re Pickett's Will, 49
Ore. I27 (attorney); Young v. Alexander,84 Tenn. io8 (attorney). But see
contra,Williams v. Corbet,8 Sim. 349 (auditor of accounts); Hibbert v.
Hibbert,3 Meriv. 68i (receiver of property); Consettv. Bell, i Y. & C.
Ch. 569 (receiverof property). The testatormight,however,give a desig-
nated person an equitableinterestin or charge on the fund for a certain
amount,and providethat that sum should be paid whethercertainservices
are performedor not, unless the trusteesshould request the performance
of the services,and the designatedperson refuseto perform.
'This, however,has been changedby statutein England. Dower Act
(I883).
165Ames, Cases on Trusts (2d Ed.), 383, n. 3.
" Ackroydv. Smith,io C. B. I64 (rightof way for purposesnot con-
nectedwithany dominantestate) ; Hill v. Tupper,2 H. & C. 121 (exclusive
rightto use and let boats on a canal).
'7 Tulk v. Moxhay,2 Phil. 774.
168 See the elaboratediscussionin Keppell v. Bailey, 2 Myl. & K. 517.
 CONTROL OF PROPERTY BY THE DEAD 653

bind the land in equity,'69nor will a covenantwhichis not for

the benefitof other land.170 Moreover, certain restrictions,
althoughtheymaybe beneficial to someone,are contrary to pub-
lic policy,as whentheytendto producea monopolyor undulyto
restraintrade.'71 Indeed in one case 172 the broadrulewas laid
down that"a restriction on the use of real estate,whenit does
not appear that eithersome individualor the publicwould be
benefited by it,wouldbe contrary to publicpolicyand void."''73

CHARITIES.

To one who is ambitiousof exercisingby meansof a dispo-

sitionof his propertythe greatestand most enduringinfluence
on human affairs,charitiesofferthe widest opportunity.By
meansof a charitabletrusta testatorcan create"an inalienable
indestructible 174 There is no beneficiary
interest." to enforce
thetrustexceptin rarecases,n75 nor to consentto its destruction
or to the alienationof the trustproperty.The heirsor nextof
kin of the testatorhave no standingto enforcethe trustnor to
consentto its destruction or to the alienationQf the trustprop-
erty.176The attorney-general may enforcethe trust,but he
cannotdestroyit nor authorizethe alienationof the trustprop-
" Haywood v. Brunswick,etc., Society,8 Q. B. D. 403; I Ames, Cases
on Equity Jurisdiction,I76.
London CountyCouncilv. Allen (1914), 3 K. B. 642.
"' ChippewaLumberCo. v. Tremper,75 Mich. 36; Brewer v. Marshall,
I9 N. J. Eq. 537; Tardy v. Creasy,8i Va. 553. Compare,WVhealkateMining
Co. v. Mulari, I 52 Mich. 607. But see, Hodge v. Sloan, I07 N. Y. 244;
I Ames, Cases on Equity Jurisdiction, I84. In the case of Norcross v.
James,I40 Mass. i88, a grantorconveyeda piece of land on whichtherewas
a quarry,and whichwas boundedby anotherpiece of land belongingto the
grantor; and the grantorcovenantedfor himselfand his heirs and as-
signs that he would not open or work or allow any person to open or
work any quarry on this other land. A subsequentgranteeof the quarry
broughta bill in equity to restraina grantee of the other land from
quarryingstone on that land. The court dismissedthe bill.
30 Conn.587.
v. Leavitt,
172 Mitchell

178 See also Barriev. Smith,47 Mich.130. It is for a similarreason

that a court of equity refuses to enforce restrictivecovenantswhen the
characterof the propertyhas so changed that there would be no sub-
stantialbenefitto any one in enforcingthem.
17 Gray, Rule against Perpetuities (3d Ed.), Sec. 590.
17 Gray,Rule against Perpetuities(3d Ed.), App. A.

Sandersonv. White, i8 Pick. (Mass.), 328; MacKenzie v. Trustees,

67 N. J. Eq. 652, 677; Petitionof Burnham,74 N. H. 492.
654 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

erty. A courtof equitymay,it is true,allow a changein the

formof trustpropertyby orderinga sale or re-investment,177
or, on the partialfailureof the purposeof thetrust,may apply
thedoctrineof cy pres,or, on itstotalfailure,imposea resulting
trustin favorof theheirsor nextof kinof thetestator."78But
in this country,becauseof the constitutional prohibitionof the
impairment of the obligationof contracts,neitherthe courtnor
thelegislature has anypowerto putan endto thetrustif it is once
legallycreatedand is possibleof accomplishment.179 The prac-
tical effect,
therefore, of a giftor deviseor bequestfor a char-
itablepurposeis to make the beneficialinterestinalienableand
to takeit out of commerce.Hundredsof yearsafterthecreator
of a charitabletrusthas ceased fromhis labors,his worksmay
followhim. Undoubtedlythereis a possibilityof grave abuse
in thusallowingthe establishment of perpetualcharitablefoun-
dations.180Undoubtedlythe courtshave sometimesnot made
sufficientallowance for theirgrowthand development.They
have been at timestoo proneto make nice inquiriesas to the
preciseexpressionof the thoughtand wish of the testatorand
treatedthat as the sole test of what should be done with his
property, long afterhis death; insteadof treatingthe thought
and wish of the testatoras a startingpointand consideringthe
naturaldevelopmentof his charitablepurpose in the light of
changedand changingconditions.If a purposeis fitto be classed
it surely
as a charitablepurpose,if it is fitto endureindefinitely,
must be capable of growthand adaptationto new circum-
stances. But whilewe inclineto be rigidon the judicial aspects
of charities,we are lax on the administrative side. In England
the charitycommissioners are chargedwiththe oversightof the

17 Stanleyv. Colt,5 Wall. (U. S.) iI9; Old South Societyv. Crocker,iig
Mass. I, 26; 2 Perry,Trusts (6th Ed.), Sec. 737. CompareFemale Orphan
Asylumv. Y. M. C. A.j II9 La. 278. In Englanda sale or exchangeof prop-
ertymay be made with the consentof the charitycommissioners.Lewin,
Trusts (I2th Ed.), 634.
378 Gray, Rule against Perpetuities(3d Ed.), Sec. 6o3i.
179 Gray, Rule against Perpetuities(3d Ed.), Sec. 590, n. See Craw-
ford v. Nies, 220 Mass. 6i, 224 Mass. 474.
"Congress for this reason refusedto allow the creationof a Federal
corporationto administerMr. Rockefeller'smillions.
 CONTROL OF PROPERTY BY THE DEAD 655

administration of charitablefoundations. Parliamenthas been

watchfulto prevent fraudulentimpositionon persons char-
itablyinclined.18' In the United States there is generallyno
supervision at all. The attorney-generaldoes not act untilsome
one happensto set him in motion. A vast amountof wealthis
now administered in a haphazardway by charitablecorporations
or trusteeswho are not responsibleto any one.
practically
Testators sometimesexhibitcaprice and sometimeseven
spite in the creationof charitablefoundations. The generous
Girard in foundinghis college providedthat no "ecclesiastic,
missionaryor ministerof any sectwhatsoever"shouldeverhold
or exerciseany stationor duty in the college,or be admitted
even as a visitorwithinthe premises;and this provisionwas
upheld.'82 But thereare limitsto the effectthat will be given
to thecapriceof the founder. In a bequestfortheestablishment
of a publicschoola testatordirectedthatfora termof one hun-
dredyearsthe descendantsof ninedesignatedpersonsshouldbe
excludedfromtheschool. This directionwas heldinvalidas op-
posed to publicpolicy,thoughtheotherprovisionas to theestab-
lishmentof the schoolwere upheld.'83 It is peculiarlyessential
in the case of charitabletrusts,whichmay endureforever,that
the founder'scapriceshouldnotbe giventoo freea rein. Dispo-
sitions,thoughforeducationalor religiousor publicpurposes,or
for the reliefof the poor, which are altogetherwhimsicalor
capricious,should not be regardedas charitabledispositions.
And if the generalpurposeof the testatoris suchas to be called
charitable,yetcapriciousor whimsicalprovisionsas to thecarry-
ing out of the charitablepurpose should not be allowed to
stand. The courtsmaydo muchto curbthetestator'swhimsin
thecase of charitabletrustswhichtheycannotdo in the case of
strictlyprivatetrusts.
Testatorsperhapsof small means but charitablyinclined
whoare anxiousto maketheirproperty go a longway sometimes
providethatthe sum bequeathedby themshall be investedand

8. See War CharitiesAct (i9i6), 6 & 7 Geo. V, c. 43.

8'Vidal v. Girard'sExecutors,2 How. (U. S.), I27, I97.
18
Nourse v. Merriam,8 Cush. (Mass.) ii.
656 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

thatthe incomeshall accumulatefor a certaintime or untilit

reachesa certainsum,and thattheoriginalfundand theaccumu-
lationsshall thenbe used for a designatedcharitablepurpose.
The House of Lords has heldthatsucha directionforaccumula-
tion is invalidand thatthe incomeis immediately available for
the purposesof the charity.'84The reason for its invalidityis
the same as thatwhichforbidspostponement of enjoymentin
thecase of a trustforan individual. In jurisdictions wherethe
doctrineof Claflinv. Clafin is recognized,such a directionis
held to be not necessarilyinvalid,even thoughthe accumulation
is to last longerthantheperiodof the rule againstperpetuities.
And yet even in these jurisdictionsthe evil of postponingthe
enjoymentof propertyfortoo long a timeis recognized,and it
is heldthatin eachparticularcase it mustbe determined whether,
under all the circumstances, the provisionfor accumulationis
so unwiseas to be opposedto publicpolicy.'85
In speakingof bequestsforcharitablepurposes,Lord Camp-
bellonceutttered thesewordsof warning:
"A man has a naturalrightto enjoyhis property duringhis
life,and to leave it to his childrenat his death,but the libertyto
determine howproperty shallbe enjoyedin saeculasaeculorum when
he,whowas oncetheownerof it,is in hisgrave,and to destineit in
perpetuity to anypurposeshoweverfantastical, useless,or ludicrous,
so thattheycannotbe said to be directly contraryto religionand
morality, is a rightand libertywhich,I think, cannotbe claimedby
anynaturalor Divinelaw,and whichI think,oughtbyhumanlaw
to be strictlywatchedand regulated.'
186

SUMMARY.

In no branchof our law has its individualistic character

been more strikingly exhibitedthan in that relatingto testa-
mentarydisposition. The rightof the owner of propertyto
disposeof it as he chooseshas long been stronglyemphasized.

184Wharton v. Masterinan(1895), A. C. i86.

185Brighamv. Peter Bent BrighamHospital, I34 Fed. 513; GirardTrust
Co. v. Russell, I79 Fed. 446; Woodruffv. Marsh, 63 Conn. 125; St. Paul's
Church v. Attorney-General, I64 Mass. i88; Ripley v. Brown, 218 Mass.
33; Collectorof Taxes v. Oldfield,219 Mass. 374; Oldfieldv. Attorney-
General,2I9 Mass. 378; Gray,Rule against Perpetuities(3d Ed.), Sec. 679a.
v. Alexander,8 H. L. C. $94,648.
1 Jeffries
 CONTROL OF PROPERTY BY THE DEAD 657

Cujus est dare, ejus est disponere,is a maximwhichhas often

fallenfromthe lips of the judges. The possessionand control
of property givesa man a mightyinstrument for influencingfor
good or ill theworldabouthim. A man shouldneverbe allowed
to wield that instrument withoutcontrol. But if in an uncon-
trolled right of private ownershipthere lurk many dangers
threatening the welfareof society,muchmore do such dangers
lurkin an uncontrolled powerof testamentary disposition. It is
bad enoughwhenthepowerconferred bythepossessionof prop-
ertyis exercisedby a livingman who is wickedor foolish;it is
worseif it is exercisedby thewickedor foolishdead; theliving
are at least open to the influenceof the worldabout them;the
dead are beyondour reach. Greatas has been the freedomof
testamentary dispositionallowed by our law, publicpolicyhas
always set limitsto it; to set such limitsis not opposedto the
spiritof our law. Public policymay be an unrulyhorse,'87but
it is one the judges have to ride. The factthatit is difficultto
draw the line betweendispositionswhichare merelyunwiseand
thosewhichare opposedto publicpolicydoesnotexcusethecourts
fromattempting to draw theline. We have seen thata disposi-
tionis opposedto publicpolicyand therefore illegalwhenit tends
to cause the commissionof crimes;when it tendsto interfere
withthefunctions of thestate;whenit tendsto promoteimmor-
ality; when it tends to cause the disruptionof familiesor to
preventthe establishment of the familyrelationship;when it
attemptsto tie up property fortoo longa time;whenit attempts
to renderpropertyinalienable;when it attemptsto separate
fromthe absoluteownershipof propertythe rightto enjoy it,
and to enjoy it at once; when it attemptstoo minutelyand
unwiselyto regulatethe detailsof themanagement of property;
and when it attemptsto attach to propertynew and strange
incidents. In these various cases the attempteddispositionis
againstpublicpolicyeither,first,becausethe property is used as
an instrument to compelor inducethe doing of acts whichare
in themselves againstpublicpolicy,or, second,becauseposterity
is deprivedof the benefitof the property.It is clearlyagainst
187 Richardsonv. Mellish,2 Bing. 229, 252.
658 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

publicpolicyto allow property to be used as a clubto compelor

inducethe doing of acts whichare againstpublicpolicy. It is
also clearlyagainstpublicpolicyto allow the ownerof property
at themomentthathe looseshis hold uponit to makeprovisions
whichwill deprivethe world of the benefitof that property;
whilehe stillowns theproperty he may use it as foolishlyas he
likes,providedhe does not interferewith the rightsof other
persons;he mayif he choosessow his landwithsalt; it is thought
curbto restrainan owner
willact as a sufficient
thatself-interest
fromdoing such things;but thereis no such curbwhenhe dis-
poses of his property;and herethelaw muststepin and prevent
himfromdeprivingothersof thebenefits of ownership.
(Concluded.)
AustinWakemanScott.
HarvardLaw School.