Page:Harvard Law Review Volume 9.djvu/282

254 254 HARVARD LAW REVIEW, it cannot be under the latter? Why not allow it if the parsonage is given up within twenty-one years after the testator's death ? Or within twenty-one years after the death of all the present members of the First Regiment of New Hampshire Militia ? F. To the person who shall be Chief Justice of New Hampshire fifty years from to-day. Is Chief Justice Doe entitled to that gift ? Is the Chief Justice who shall be in office twenty-one years from now entitled ? Or shall the Chief Justice who attends the funeral of the last member of the New Hampshire bar now living take it ? Here are cases, not recondite cases, but such as occuj to one ciirrcnte calamo. They could be multiplied indefinitely. Outside of New Hampshire not merely would these cases present no difficulty to the courts, but any decently instructed lawyer could answer any of them promptly and with certainty. In New Hampshire, the more learned and acute the lawyer, the greater the perplexity in which such cases would plunge him. In fact, this novel doctrine substitutes for the set of devisees named by the testator another set selected out of an infinite number by the arbitrium of the Court. John Chipman Gray, Note. — I had the honor of being consulted by the learned counsel for the testator's son on the question whether the gift to the grandchildren under Mr. Barker's will was vested or contin- gent, and I came to the conclusion that it was contingent, and so advised. I assumed that the question of remoteness would be de- cided as it had been everywhere else, and that therefore the only real point in issue was the vesting or contingency of the gift. I fully recognize the value of the traditional practice, that counsel should take their licking quietly, and not let their dissat- isfaction go beyond oral grumbling; but on the point upon which I advised, the Court was with me, and on the matter here dis- cussed, the view adopted by the Court was one which had never seemed possible to me, and to which I had not given any con- sideration. Besides, in any new edition of my book on the Rule against Perpetuities, I must deal with the subject, and therefore it seems better to speak of it while it is fresh.