Page:Harvard Law Review Volume 9.djvu/279

251 THE RULE AGAINST PERPETUITIES. 251 the general intent, and another part which could not be made to square with the Rule, and which they called the particular intent, and they sacrificed the latter to the former, and said they were car- rying out the general intent, when in truth both general and par- ticular intent alike were defeated by the Rule. The consequence was an unspeakable quagmire, of which no one can have a notion who has not ventured into it, and out of which escape was finally had only by the total repudiation of the theory of general and par- ticular intent, and by a firm grasp on the principle that the object of the Rule is to defeat intention. The Rule against Perpetuities is, in like manner, a positive rule intended to defeat intention. To quote from the case of Dungan- non V. Smith ^ : ''The existence of the Rule as to Perpetuities is certainly no reason for altering the construction of the bequest. '* Per Maule, J. "Our first duty is to construe the will; and this we must do, exactly in the same way as if the Rule against Perpe- tuities had never been established, or were repealed when thewil was made; not varying the construction in order to avoid the effect of that rule, but interpreting the words of the testator wholly with- out reference to it. " Per Parke, B. That is not what the Supreme Court of New Hampshire has done in Edgerly v. Barker; instead of saying the testator meant a gift to those persons who were his grandchildren and their issue, when the youngest living grandchild reached forty, and then applying the rule, finding the gift was beyond the limits and cut- ting it off, the Court has striven to divide the testator's inten- tion into two parts, part which is consistent with the Rule, and which they call the general intent, and part which will not square with the Rule, and which they call the particular intent, and then has proceeded to sacrifice the latter to the former, when in truth it has been substituting a new intent, and giving the property to a set of persons different from those to whom the testator gave it. ^ 1 12 C1.& F. 546. . ' The argument upon which the learned counsel for the trustees chiefly relied was that the English Commissioners on the Law of Real Property, in their Third Report, had recommended the passage of a statute which should provide, among other matters, as follows : — " 19. Where a future estate or interest shall be limited to vest on the event of a person, not born nor en ventre sa mere at the creation of such future estate or inteiest, attaining or not attaining an age greater than twenty-one, the settlor or testator shall be deemed to intend the age of twenty-one. " 20. Where an estate or interest shall be made determinable either by the original