Is the Rule Against Perpetuities Doomed?
Few rules of the common law have shown such amazing vitality as the rule against perpetuities. Emerging in the Duke of Norfolk’s Case in 1682, as a rule to restrict unbarrable entails in land, it is now applied, not only to interests in land, legal and equitable, but also to personal estate, tangible and intangible, including beneficial interests in trusts. It is regarded as a part of the common law of nearly every English speaking country, except a few of the United States where statutory substitutes have been provided. Since 1930, statutory substitutes have been abolished and there has been a return to the common law rule by legislative enactment in six states.
In spite of this pronounced legislative trend, it is possible to detect the stirrings of a counter current. The rule has recently been personified as “an elderly female clothed in the dress of a bygone period who obtrudes her personality into current affairs with bursts of indecorous energy,” and who “must learn to sit by the fire and confine her activity to a few words of wise advice from time to time.” Moreover, since the decision in the case of Brown v. Independent Baptist Church of Woburn, in 1950, the distinction between executory devises and possibilities of reverter would seem to have become so completely obliterated in Massachusetts as to permit the exact equivalent of a legal executory interest to be created in any living person who might be selected, without being subjected to the restrictive operation of the rule against perpetuities.