Should the Rule Against Perpetuities Discard Its Vest?

From what has preceded it is apparent that none of those who would reform the rule against perpetuities, excepting Professor Simes, has suggested that the rule’s application to remoteness of vesting alone requires investigation. Yet there is little doubt that this aspect of the rule has caused as much if not more litigation than those which have been so harshly condemned. Proof of this assertion will not be undertaken, for every property lawyer knows how frequently courts are called upon to determine whether for purposes of the rule an interest is “vested” or “contingent.” Professor Simes put it well when he said, “I doubt whether any other question in the law of estates has caused so much litigation as the question of the vested or contingent character of the interest. If all the decisions on the matter were laid end to end, I know not how many times around the globe they would extend.” One may justifiably doubt the propriety of testing the very validity of future interests in terms of a conceptual distinction the tenuousness of which is attested by the countless decisions involving it. What is more important, if one concludes that the validation of vested interests and the invalidation of contingent interests do not serve the modern objectives of the rule-furtherance of the fluidity of property, freeing property for risk capital purposes and the restriction of dead-hand control of the living-then validity under the rule ought not to depend upon whether an interest is vested or contingent. This portion of this article will constitute an attempt to demonstrate why the rule’s concern with the concept of vesting has caused so much litigation and to analyze the concept in terms of its relationship to present-day purposes served by the rule.