Page:Harvard Law Review Volume 10.djvu/472

446 44^ HARVARD LAW REVIEW. statute the executors took as tenants in common {In re Kimberly's Estate^ 44 N. E. Rep. 945), the knowledge and act of one could not bind the others. Rowbotham v. Dun?iett, 8 Ch. D. 430. Two then were held to take beneficially. The manner in which the court dealt with the case of Parsons is subject for wonderment. They were able to find an agreement between him and Miss Edson, that he should take the bequest subject to a legal obligation. This agreement they implied merely from the fact that Parsons knew the contents of the will. Solely because the executor was aware that Miss Edson wished to establish certain express trusts if possible, the court said he was as legally bound by the terms of the absolute bequest as by the declared trusts. They laid stress on his acquiescence ; what he acquiesced in they seem not to have con- sidered. He agreed, it is true, to what the testatrix wished. But is it not clear that she declared her wiUingness to rely on the honor of her executors in the event of failure of the express trusts? Was it not a moral obligation, merely, that she intended to impose? Why was the absolute bequest added if the testatrix expected it to have the same effect as the bequests on trust ? In the light of a common sense reading of the will, it is difficult to understand how the court reached their conclusion, and the lamentable result of their reasoning makes its fallacy more apparent. Mr. Justice Ingraham, who dissented on the ground that the secret trust should bind all the executor?, seems to be not without a sense of humor. He says, " It is a canon of construction universally applied, that the sole object of a court is to ascertain and enforce the intention of the testator." The Rule against Perpetuities. — The head-note to Pulitzer v. Livingston, to be reported in the 89th of Maine, ends with the words, ^^ Slade V. Fatten, 68 Maine, 380, overruled." It is a satisfaction to find a court willing to come out squarely against its foitner erroneous decision, instead of being content to distinguish it on a narrow ground, really un- satisfactory in point of principle. As has been remarked, however, " The history of the Rule of Perpetuities is full of slips by eminent judges, often acknowledged by themselves." The Supreme Judicial Court of Maine does well at the first opportunity to clear away the confusion which the writer who criticised Sladev. Patten, in 14 Am. Law Rev. 237, feared that the case would produce in the law of Maine. Slade V. Patten was a case of a devise of land in trust for the testator's daughter and her heirs. This was held too remote, because, there being no provision for the termination of the trust, it might continue beyond the period allowed by the rule. In Pulitzer v. Liviyigston the owners of undivided interests in large tracts of land in this country conveyed to trustees, to hold in trust for the grantors, with full powers of sale and disposal, unlimited in point of time but with power to revoke reserved by each grantor as to his interest. It was held that the power of sale was not void for remoteness, the test being that the owners of the equi- table estate had absolute power over the property. But the existence of the express power of revocation, *' a most important difference " between the case before the court and Slade v. Patteti^ and sufficient for a distinc- tion, did not deter them from showing most emphatically that neither the actual decision nor the equaljy objectionable dictum in that case is law in Maine. Apart from clearing up the law on the validity of vested equitable estates