Page:Harvard Law Review Volume 9.djvu/277

THE RULE AGAINST PERPETUITIES. 249 James ^ : *'The doctrine has gone, at least, far enough. " So the Court of Exchequer in Monypenny v. Bering ^ : "Without meaning to say that the doctrine [of cypres^ is satisfactory to our minds, it is sufficient for us to say that those authorities are not precisely in point, and we do not feel inclined to carry the doctrine on which they rest one step further. " And, finally, in Brudenell v. Elwes, ^ Lord Eldon, C. : "Those cases have at least gone, as Lord Kenyon observes, to the utmost verge of the law ; and I shall find it very difficult to alter an opinion I have taken up, that it is not proper to go one step farther ; for in those cases, in order to serve the gen- eral intent and the particular intent ^ they destroy both. " But the indispensable condition for the application of the doc- trine of cypres is that the persons who take under it shall be 7to others^ no more and no fewer, than those to whom the testator in- tended to give the estate. If the estate tail is suffered to con- tinue undocked, then exactly the same persons will take under the doctrine of cypres that the testator intended to take, and it is this equivalence which satisfied the formalism of Lord Kenyon, while later judges of more enlarged mind have recognized that the power of docking the entail really changes the persons who can take, and this has made them regret the decision. The doctrine of cyp7'es, circumscribed as it has been, is in truth a strong argument against a change by the authority of the court from one set of persons to another set of persons. D. It is strange that Chief Justice Doe has not brought for- ward a class of cases which furnish in truth a more plausible support to his views than any which he has given. If a testator devises his estate to his grandchildren in equal shares, and then directs that of the share of each granddaughter the income shall be paid to her for life and the principal conveyed to her children in fee, the gift to the children being bad for remoteness, the mod- ification of the devise is rejected, and each granddaughter takes a fee. In such a case it may be said that there is a general intent and a particular intent, and that the latter is sacrificed to the former ; but there is no change of devisees ; to certain persons fees simple are given, and then those are cut down to life estates for a purpose ; the purpose failing, the cut down is rejected by the court, and the fees simple revive, but to the same persons. Again, the tes- tator has himself distinguished and separated the general intent from 1 I CoU. 26, 44. "^ (>yi. day^ . %, 434. ^ 7 Ves. Jr., 382, 390. 33