244
THE GREEN BAG
The question arises from an interpretation of all limitations of estates where the first taker " dies without issue " whereby it was held that this meant a failure of issue at any indefinite time in the future and not at the time of the death of the first taker. The author says, " the bare statement of what the question was shows that it ought never to have been entertained." The simple meaning of the clause referred to the author believes refers to the time of the death of the first taker," and yet the courts took the matter seriously and by imputing a strained and un natural meaning tp the words used, converted the simple language of every day life into a cemetery for the interment of testamentary intentions." This arose from the application of the rule against perpetuities to limitations so interpreted. Many states have adopted statutes enforcing the simpler interpretation, but not all. The author believes that the time is not far distant " when all this learning about definite and indefinite failure of issue will be considered as much of a curiosity," to many minds as much of a puzzle, as the now exploded rule in Shelley's case.
"The law is a great and noble profession; but one danger both to the Bar and the Bench is a tendency to too much refinement, too much of what is called technicality. Tech nical reasoning is nearly always intensely logi cal, if the premises be accepted as sound; but the difficulty is, that the premises are often based upon fossilized rules that have ceased to have the breath of life in them, because the reason of the rules has .ceased to exist. In forensic reasoning and in judicial decisions it is often well to examine the ancient founda tions of the law. But it is also indispensable that the latest growths, the latest fruits, the latest flowers that promise fruit, should be examined carefully. It is always wholesome that the judicial pruning-hook should be applied, not only to the dead limbs of the law, but also to cutting asunder the old, diseased or fossilized roots that no longer furnish any nutriment to modern legal reasoning." WILLS. " On Restricting Wills," by Geo. Martin Rae, Canadian Law Times, (V. xxvi, p. 81). WILLS (See Property Equitable Conver sion).
