when a subsequent section provides that the act is to con. tinue in force, so long as a state of peace shall subsist, it cannot be construed to be directly repugnant and opposed to the twenty-fourth section, but it is to be understood as referring to such provisions of the act only as would in their nature depend upon a state of peace."1

A decision was therefore rendered in favor of the right claimed by the American citizen.

Upon full consideration of the matter, it would be reasonable to conclude, were it not for the incident in regard to the question of expulsion, that the assertion in the Spanish decree, that the war terminated all treaties and conventions previously existing between the two countries, was inadvertent. But, however this may be, Spain did not in the end maintain that position. Frankly recognizing, to the fullest extent, her obligations under the convention of 1834, she paid in December, 1899, not only the interest for that year, but also the interest for 1898, and, in so doing, said: "In thus paying the two annuities, which on account of the late war had been suspended, the punctiliousness with which the Government of His Catholic Majesty attends to its international obligations will be clearly shown." By this act, and the explanation with which it was accompanied, both the debt and the convention were acknowledged to continue in full force, and an important precedent was established.

J. B. MOORE.

1 Russell & Mylne, 663.

THE NEW YORK REVISED STATUTES AND THE RULE AGAINST PERPETUITIES.

THE

HE Revised Statutes of 1830 are an impressive illustration of the futility of trying to make the law definite and certain by codification. It is not probable that any men better fitted for the task could be secured than the able and distinguished lawyers who were the authors of this revision, or that codification could ever be accomplished in this country under more favorable conditions. The aim of the revisers, so far as the law of real property is concerned, as stated in their report to the Legislature, was "to render the system simple, uniform and intelligible, which in its present state is various, complicated and abstruse," and they set before themselves as their ideal the French law of real estate, which, they claimed, might be "sufficiently understood by a few days of diligent study." What an extraordinary delusion it was to suppose that this ideal was attainable! What an extraordinary faith in the power of words! What an extraordinary misconception of the fundamental difficulties of the problem with which they had to deal! And what has been the result? The same which has always followed codification with its attendant inevitable struggle between the written word and the spirit of justice-that spirit which like the spirit of mercy is mighty, which is enthroned in the hearts of the judges and will always struggle to assert her benignant sway in spite of all the letters upon the statute book.

The revisers undertook to abolish the old law of uses and trusts of real property and to establish a bran-new system, simple and intelligible after a few days' study. But no sooner was the revision adopted than fierce and costly litigation arose with respect to all the provisions which were intended to effect fundamental modifications in the existing law. Instead of a few days it took nearly twenty years to determine whether or not "a trust to pay over rents," the old familiar form of trust, was authorized under 1 R. S., 728, section 55, subdivision 3, and the Court finally decided that it was-a conclusion not justified by the

words of the statute and clearly opposed to the intention of the revisers.1 After more than sixty years of conflicting opinions the Court of Appeals declared that it was still unsettled whether a trust to pay annuities came within the terms of subdivision 3 or subdivision 2 of section 55, and, in opposition to the letter of the statute, the Court decided that it came within subdivision 3.2 After nearly seventy years it was discovered and decided that, while the interest of a cestui que trust in a trust for the payment of rents is inalienable and therefore beyond the reach of creditors, except as to the surplus over and above what is required for his support, the interest of a cestui que trust in a trust of which he is himself the creator, can be reached by his creditors. 3 This decision involved, as it was pointed out in the dissenting opinion, an absolute disregard of the statute, but it was adopted because any other proposition "would seem to shock our sense of justice." For more than forty years a desperate struggle was maintained over the question whether or not charitable trusts were valid in this State," and although it is stated that the controversy was closed in 1873, a sort of desultory skirmishing continued for twenty years longer. But no sooner had the law, as it was reasonable to hope, been finally settled than the Legislature passed an act (Laws of 1893, Chap. 701), which, it has been held, has destroyed the work of these sixty years and has restored the English system of charitable uses."

The Rule against Perpetuities is another illustration showing that codification does not simplify, but complicates, and does not prevent, but promotes, litigation. It might have been supposed indeed that this rule could have been defined clearly and definitely, so as to avoid the questions which have troubled the English courts under their system of unwritten law, but the fact is that the pro

1 Leggett v. Perkins, 2 N. Y., 297, 3 Revised Statutes, 2d Ed. Revisers' Notes, p. 585.

2 Cochrane v. Schell, 140 N. Y. pp. 528–535.

3 Schenck v. Barnes, 156 N. Y. 316.

* Id., pp. 325-327.

5

Holmes v. Meade, 52 N. Y. 332; Holland v. Alcock, 108 N. Y. at p.

visions of the Revised Statutes relating to this rule have been a most fruitful source of litigation, and they are still involved in so much doubt as to embarrass the courts.

The provisions in question are found in Part II, Chapter I, Title II, Article I1 and are as follows:

"Section 14. Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this Article. Such power of alienation is suspended, when there are no persons in being, by whom an absolute fee in possession can be conveyed."

"Section 15. The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of more than two lives in being at the creation of the estate, except in the single case mentioned in the next section."

"Section 16. A contingent remainder in fee may be created on a prior remainder in fee to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age."

"Section 20. A contingent remainder shall not be created on a term of years unless the nature of the contingency on which it is limited be such that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder or upon the termination thereof."

“Section 23. All the provisions contained in this Article relative to future estates shall be construed to apply to limitations of chattels real as well as freehold estates, so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee."

"Section 24. Subject to the rules prescribed in the preceding sections of this Article, a freehold estate as well as a chattel real, may be created to commence at a future day; and a fee may be limited upon a fee upon

* *

*

II R. S. 723-725.

a contingency, which, if it should occur, must happen within the period prescribed within this Article."

"Section 25. Expectant estates are descendible, devisable and alienable in the same manner as estates in possession."1

If there were no other provisions than those contained in sections 14 and 15, it would be as plain as language could make it that the New York Rule against Perpetuities was aimed solely at preventing the suspension of the power of alienation, and that the rule is never violated when there is no suspension of such power, whatever may be the limitations of contingent future interests. Whether the converse of this is true-and it was the intention of the revisers that the rule should be deemed violated whenever there is a suspension of the power of alienation-is not so clear. Section 14 clearly provides that only future estates shall be void in case of the suspension of the power of alienation beyond the statutory period, and section 15 defines what the statutory period is, viz., two lives, except in the single case mentioned in section 16, and the case mentioned in section 16 is that of a contingent remainder. Reading these sections together it would seem that they were intended to declare simply that future estates shall be void which suspend the power of alienation for more than two lives, or, in the excepted case, more than two lives and a minority of a third life, and that the revisers did not have in mind the possible suspension of the power of alienation which may be occasioned by the creation of present trust estates under subdivision 3 of section 55. Indeed, the revisers, in their report to the Legislature, expressly stated that they had in mind only contingent future interests.2

1 There are other provisions (secs. 17, 18, 19 and 21), restricting the power of limiting life estates and remainders after them, but these do not properly belong under the Rule against Perpetuities, as they relate to vested interests which do not restrain alienation.

2" To prevent a possible difficulty in the minds of those to whom the subject is not familiar, we may also add that an estate is never inalienable unless there is a contingent remainder, and the contingency has not yet occurred. Where the remainder is vested, as where the lands are given to A for life, remainder to B (a person then in being), there is no suspension of the power of alienation, for the remainderman and the owner of the prior estate by uniting may always convey the whole estate. This is the meaning of the rule of law prohibiting perpetuities and is the effect of the definition in Section 14. 3 R. S., 2d Ed., Revisers' Notes, p. 573.