Perpetuities Law in Action

Perpetuities Law in Action: Kentucky Case Law and the 1960 Reform Act

Jesse Dukeminier
Copyright Date: 1962
Pages: 180
https://www.jstor.org/stable/j.ctt130jf0v
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  • Book Info
    Perpetuities Law in Action
    Book Description:

    Few rules of law can so quickly strike terror into the hearts of lawyers as the Rule against Perpetuities. This rule, two centuries in development, is designed to prevent tying up property for too long a time. It can be stated in one sentence, but the great nineteenth-century master of the Rule, John Chipman Gray, required more than 400 scrupulously detailed pages to explain it. For deceptive subtleties and unexpected traps it has no equal.

    This book views the Rule in the microcosm of Kentucky cases. It shows that perpetuities law in action differs from perpetuities law in the books. It is more chaotic than any writer has ever suggested. While the words of doctrine remain the same, the meaning shifts from case to case. Seemingly the law is working slowly and tortuously to a new and sounder policy base. The book also is designed to provide the practicing lawyer with a simplified statement of the Rule and comprehensive analysis of Kentucky cases.

    Lastly, the book deals with an analysis of reform, particularly the 1960 Kentucky legislature reform act, based upon a draft by the author.

    eISBN: 978-0-8131-6267-6
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. FOREWORD
    (pp. v-viii)
    W. Barton Leach

    THIS BOOKis a rare jewel of scholarship with nationwide practical importance to lawyers, professors, and legislators faced with problems in the Rule against Perpetuities.

    Professor Dukeminier has analyzed in detail every perpetuities case in Kentucky, including excursions into unpublished court papers, both as an exposition of the law of one representative jurisdiction and as a brief for the legislature in support of the bill which became law as the 1960 Perpetuities Act. Some seventy-seven cases, comprising practically complete coverage of perpetuities doctrine, are analyzed with reference to (a) conformity to standard applications of the Rule and (b) effect of...

  3. Table of Contents
    (pp. ix-xii)
  4. INTRODUCTION
    (pp. 1-5)

    ANYONEwho has tried to explain the Rule against Perpetuities to laymen finds it very like trying to picture Marianne Moore’s imaginary garden with real toads in it. Full of illusion and deception, it is the abode of such fantastical characters as the fertile octogenarian, the unborn widow, the precocious toddler, the slothful executor—all imaginary beings with power to bring the Rule down hard on the head of any trespasser. This extraordinary power in imaginary hands is the result of one of the most arbitrary rules known to the common law: the rule that any possibility, however preposterous, that...

  5. 1 WHAT THE RULE AGAINST PERPETUITIES IS IN KENTUCKY
    (pp. 6-30)

    The classic statement of the Rule against Perpetuities, formulated by John Chipman Gray, reads:

    No interest in real or personal property is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.¹

    Although Gray put the Rule in this one sentence, he required more than four hundred scrupulously detailed pages to explain what it meant. His exegesis, of almost Byzantine complexity, was so impressive, his mastery of ancient cases so apparently complete, that the Rule has sometimes been treated as if it were laid down at...

  6. 2 APPLICATION OF THE RULE AGAINST PERPETUITIES TO VARIOUS INTERESTS
    (pp. 31-51)

    Under the Rule against Perpetuities a class gift cannot be partly valid and partly void. It must be valid for all members of the class, or it is valid for none. If the interest of any member can possibly vest too remotely, the entire class gift is bad. This means that (a) every member of the class must be ascertained (the class must close), (b) the precise share of each member must be determined, and (c) if vesting in possession is required, each member’s interest must vest in possession and enjoyment within the period.Case1 illustrates a common class...

  7. 3 THE TROUBLES CAUSED BY THE STATUTE PROHIBITING SUSPENSION OF THE POWER OF ALIENATION
    (pp. 52-65)

    In the Senate debate on the 1960 Perpetuities Act the distinguished chairman of the Judiciary Committee, Senator George Overbey, characterized Kentucky perpetuities law as “disorganized confusion.” Tautological though it may be, a more telling description would be hard to come by. There are not just the usual knots and nonsense of perpetuities law found everywhere. In addition, Kentucky has—or, more accurately, before 1960 had—a statute which prevented the law from being put into any particular set of verbal containers, and kept there. This was the 1852 act commonly referred to as Kentucky’s perpetuities statute. With the reviser’s headnote,...

  8. 4 REFORMS OF THE 1960 PERPETUITIES ACT
    (pp. 66-95)

    There is widespread agreement today that some reform of the Rule against Perpetuities is necessary. This current wave of dissatisfaction originated in many sources, but the main force was Professor Barton Leach’s hard-hitting attack on the Rule published in 1952.¹ Professor Leach, indicting the Rule as “a technicality-ridden legal nightmare,” set forth a detailed bill of particulars. His criticisms centered on the requirement of absolute certainty that the interest will vest in due time; on the harsh consequences of violating the Rule; on the subjection of commercial options to the Rule; and on the exemption of possibilities of reverter and...

  9. 5 ABOLITION OF POSSIBILITIES OF REVERTER AND TERMINATION OF RIGHTS OF ENTRY
    (pp. 96-113)

    Possibilities of reverter and rights of entry limited on a fee historically have been exempt from the Rule against Perpetuities.¹ These interests are just as objectionable as interests within the Rule, in that they tie up property for long periods of time, potentially forever. With passage of time and change of conditions they leave the owner of the fee in a straitjacket.

    The need for legislation to terminate these forfeiture interests has been extensively discussed elsewhere² and need not be repeated here. Everyone agrees that these interests should be extinguished at some point in time, but not everyone is in...

  10. 6 THE RULE AGAINST DIRECT RESTRAINTS ON ALIENATION
    (pp. 114-146)

    The rule against restraints on alienation is an entirely different rule from the Rule against Perpetuities.¹ Nor is it to be confused with the rule prohibiting suspension of the power of alienation, which was the rule set forth in KRS 381.220 (now repealed). The rule against restraints is a rule againstdirectrestraints on alienation, whereas these other two rules are against restraining the power of alienationindirectlyby creating non vested interests (the Rule against Perpetuities) or by creating interests in persons not in being or not ascertained (the rule against suspension of the power of alienation). Direct restraints...

  11. APPENDIX 1 KENTUCKY PERPETUITIES ACT OF 1960
    (pp. 147-149)
  12. APPENDIX 2 ANALYSIS OF KENTUCKY PERPETUITIES CASES
    (pp. 150-162)
  13. TABLE OF CASES
    (pp. 163-166)
  14. INDEX
    (pp. 167-168)