Page:Harvard Law Review Volume 9.djvu/273

THE RULE AGAINST PERPETUITIES. 245 will not substitute a gift to such of the grandchildren as reach twenty-one or some less age. It would be pedantic to multiply authorities for this statement. Half a dozen from England, the United States, Canada, and Australia will suffice.^ Indeed, the Supreme Court of New Hampshire does not suggest that there has ever been a decision or a judicial dictum of any kind denying or questioning the proposition above stated. The Chief Justice's line of reasoning, as I understand it, is this : — (i) It is conceded that there must be some restraint on the creation of future interests. (2) There is no statute in New Hampshire on the subject. (3) There is no decision of the New Hampshire Court on the subject. (4) The Court therefore must adopt or make a rule. (5) The Rule against Perpetuities as administered in England is later than the settlement of New Hampshire, and therefore the decisions of the English courts are not binding precedents in that State. All these propositions are unquestionably correct. The Court then goes on to lay down this rule. When there is a primary intention to make a gift to a class, and a secondary inten- tion that the gift shall take effect at a period which may be too remote, the Court will give effect to the primary intention by sub- stituting a gift to the class to take effect at a period which is within the limits. The Court then refers to certain cases which, although not pre- cisely in point, it deems to be analogous and to furnish a support to its conclusion. Any comments on this novel doctrine of the New Hampshire Court fall naturally under four heads : — I. The departure of the Court from the law held in other States. II. The fallacy contained in the new doctrine. III. An examination of the cases supposed to be analogous. IV. The applications of the doctrine. 1 Leake v. Robinson, 2 Mer. 363; Sears v. Putnam, 102 Mass. 5 ; Cog^ins's Appeal, 124 Pa. 10; Albert v. Albert, 68 Md. 352; Meyers v. Hamilton Co., 19 Ont. 358; Ker V. Hamilton, 6 Vict. L. R. Eq. 172.