Page:Harvard Law Review Volume 9.djvu/275

247 THE RULE AGAINST PERPETUITIES. 247 those of his grandchildren who reached forty ; the Court gives the property to those of the grandchildren who reach twenty-one. There may be six grandchildren who reach twenty one, and only one who reaches forty. Here shares are given to five persons whom the testator never meant to have it. There may be some answer to this, but it is a real and a very serious objection, and deserves an answer, and it gets none from the New Hampshire Court. The case is dealt with throughout as if the only question were whether the same persons should get the property at forty or at twenty-one. As remarked above, the circumstances which tended to show an intention to make this gift vested probably ob- scured the fact from the Court that it was taking property devised to one set of people and giving it to another. HI. Let us look now at the cases which seemed to the New Hamp- shire Court to furnish a treatment of legal situations analogous to that which it adopted in Edgerly v. Barker. A. Under a power to lease for twenty-one years, a lease for forty years is good in equity for twenty-one years. This is true.^ It is allowing a present vested interest to continue as long as a power permits. It has no similarity with changing the condition precedent on which a future interest is to vest so as to give it to those persons who happen to answer to a particular description at one time, instead of giving it to those persons who answer to it at another time. We have here in fact an instance of that confusion of ideas which has been such 3. fans malonim in questions of remoteness. The Rule against Perpetuities is aimed against remote future con- tingent interests, and has nothing to do directly with the continu- ance of present interests. The failure to keep this clearly in view has led, and always will lead, to error. B. " Under a statute restricting to a term not exceeding twenty- one years, the time for which a tenant for life can be empowered to lease, a testamentary gift to a tenant for life of a power to lease for sixty-three years is not void. If he makes a lease for more than twenty-one years it is void for the excess, and no more. Nelson, C. J., and Bronson and Cowen, JJ., in Root v. Stuyvesant, 18 Wend. 257, 273, 275, 277, 290, 291, 302, 306, 307, 313." Then ' Campbel) v. Leach, Amb. 740, 745.