Page:Harvard Law Review Volume 9.djvu/280

252 252 HARVARD LAW REVIEW. Legal history, like other history, repeats itself ; here is the Supreme Court of New Hampshire taking the first step in that chase after the will o' the wisp of general and particular intent which the Court of King's Bench began more than a hundred years ago, and which, after long wanderings and stumblings and groanings of spirit, it has now finally abandoned. limitation thereof, or by virtue of any proviso, condition, or agreement upon the event of a person, not born nor en ventre sa mere at the creation of such future estate or in- terest, attaining or not attaining an age greater than twenty-one, the settlor or testator shall be deemed to intend the age of twenty-one. '* But upon this argument it is to be remarked : — 1. That this statute was not recommended by the Commissioners as declaratory of the common law, but as an innovation. 2. That while so many of the recommendations of the Commissioners were adopted by Parliament, this never has been. 3. That other changes in the common law recommended by the Commissioners, and at least as beneficial, have never been adopted in New Hampshire. For instance, the rule in question is mercy and wisdom combined compared with the rule which requires a freehold to support a contingent remainder, and yet this last has been upheld in New Hampshire with uncalled for severity. 4. That the Commissioners, feeling the great danger of tampering with the content of the doctrine of remoteness, or of attempting to distinguish between primary and secondary intent, made an arbitrary rule that when a testator says 21 -- x years, he shall be conclusively presumed to mean twenty-one years, and that this is a pretty strong thing even for a statute. 5. That the case of a contingent gift to a shifting class, such as arose under the Barker will, was not within the purview of the contemplated provisions. These pro- visions were intended to deal with individuals, not with changing classes; the estate dealt with is one limited to vest, not on a class ^ but on 2l person reaching or not reaching a certain age. The cases in the minds of the Commissioners were of a nature like this : '*To A. for life, remainder to his eldest son in fee, but if he should die before he reaches twenty-five without leaving issue living at his death, to A.'s second son in fee, but if such second son should die before he reaches twenty-fivewithout,&c., then to A/s third son, " &c. The Commissioners intended to provide that if a gift to A. was fol- lowed, on a contingency which might not occur until 21 -f- a: years, by a gift to B., 21 should be substituted for 21 -f- ^, but they did not intend that C. should be substituted for B., which is precisely what the New Hampshire Court has done. It is very noticeable that in their report the Commissioners say : " Sometimes a limitation is made to depend on the event of unborn persons attaining or not attaining some age greater than twenty-one" ; but when they come to sum up their conclusions in the exact language of a proposed statute, seeing perhaps a possible danger of mis- construction, they change the plural into the singular, showing that they mean to deal with an individual and not with a changing class. In other words, the Commissioners obviously had in mind the advancing of the time for a legacy to A. so as to enable A. to take; but there is no evidence, either in the Report or in the Propositions, that they ever contemplated applying the method so as to take property given to one set of lega- tees and transfer it to another. To do that has been reserved to the Supreme Court of New Hampshire.