the particular intent. When he has not done this, and the only gift is to granddaughters for life with remainders in fee, a granddaughter will only take a life estate; in order for a granddaughter to take the fee, there must be a distinct gift to her of the fee, and afterwards a separate modification. 1

E. The history of the doctrine of general and particular intent in the law is well known. It was first introduced in Robinson v. Robinson, 2 in the attempt to explain the Rule in Shelley's Case as a rule of construction; it produced the hopeless tangle of decisions of which Lord Eldon has said, "The mind is overpowered by their multitude, and the subtlety of the distinctions between them" and it was only when the doctrine of general and particular intent was repudiated, and it became firmly settled that the Rule in Shelley's Case was not a rule of construction, not a rule, however artificial, to discover intention, but a rule the object of which was to defeat intention, that any order was introduced into that chaos. Thus Lord Redesdale, in Jesson v. Wright: "To say that the general intent shall overrule the particular is not the most accurate expression of the principle of decision, but the rule is that technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise. So Lord Denman, in Doe v. Gallini: "The doctrine that the general intent must overrule the particular intent has been much and, we conceive, justly objected to of late, as being, as a general proposition, incorrect and vague, and likely to lead in its application to erroneous results. " 5 The doctrine "is now exploded." In the fourth edition of Jarman on Wills is an elaborate discussion, proving the futility of the doctrine; but in the fifth edition 8 the doctrine is dealt with as now obsolete, and only a short note inserted.

This piece of legal history is full of instruction. The Rule in Shelley's Case is not a rule for interpretation, it is a rule the object of which is to defeat intention. Courts struggled to deal with it as a rule of construction, and instead of saying that the testator meant so and so, but the Rule forbade this intention being carried out, they strove to divide the testator's intention into two parts, one part which agreed with the Rule, and which they called

1 Whitehead v. Rennett, 22 L. J. Ch. 1020. 5 See Hayes's Principles, pp. 44, 110. 2 Burr. 38.

6 Tud. L. C. on R. P. (3d ed.) 618.

7 Vol. ii. p. 484.

8 Vol. ii. p. 1312, n.

the general intent, and another part which could not be made to square with the Rule, and which they called the particular intent, and they sacrificed the latter to the former, and said they were carrying out the general intent, when in truth both general and particular intent alike were defeated by the Rule. The consequence was an unspeakable quagmire, of which no one can have a notion who has not ventured into it, and out of which escape was finally had only by the total repudiation of the theory of general and particular intent, and by a firm grasp on the principle that the object of the Rule is to defeat intention.

The Rule against Perpetuities is, in like manner, a positive rule intended to defeat intention. To quote from the case of Dungannon v. Smith: "The existence of the Rule as to Perpetuities is certainly no reason for altering the construction of the bequest. Per Maule, J. "Our first duty is to construe the will; and this we must do, exactly in the same way as if the Rule against Perpetuities had never been established, or were repealed when the will was made; not varying the construction in order to avoid the effect of that rule, but interpreting the words of the testator wholly without reference to it." Per Parke, B.

That is not what the Supreme Court of New Hampshire has done in Edgerly v. Barker; instead of saying the testator meant a gift to those persons who were his grandchildren and their issue, when the youngest living grandchild reached forty, and then applying the rule, finding the gift was beyond the limits and cutting it off, the Court has striven to divide the testator's intention into two parts, part which is consistent with the Rule, and which they call the general intent, and part which will not square with the Rule, and which they call the particular intent, and then has proceeded to sacrifice the latter to the former, when in truth it has been substituting a new intent, and giving the property to a set of persons different from those to whom the testator gave it. 2

1 12 Cl. & F. 546.

The argument upon which the learned counsel for the trustees chiefly relied was that the English Commissioners on the Law of Real Property, in their Third Report, had recommended the passage of a statute which should provide, among other matters, as follows:

"19. Where a future estate or interest shall be limited to vest on the event of a person, not born nor en ventre sa mère at the creation of such future estate or interest, attaining or not attaining an age greater than twenty-one, the settlor or testator shall be deemed to intend the age of twenty-one.

66

20. Where an estate or interest shall be made determinable either by the original

Legal history, like other history, repeats itself; here is the Supreme Court of New Hampshire taking the first step in that chase after the will o' the wisp of general and particular intent which the Court of King's Bench began more than a hundred years ago, and which, after long wanderings and stumblings and groanings of spirit, it has now finally abandoned.

limitation thereof, or by virtue of any proviso, condition, or agreement upon the event of a person, not born nor en ventre sa mère at the creation of such future estate or in terest, attaining or not attaining an age greater than twenty-one, the settlor or testator shall be deemed to intend the age of twenty-one.

But upon this argument it is to be remarked: -

I. That this statute was not recommended by the Commissioners as declaratory of the common law, but as an innovation.

2. That while so many of the recommendations of the Commissioners were adopted by Parliament, this never has been.

3. That other changes in the common law recommended by the Commissioners, and at least as beneficial, have never been adopted in New Hampshire. For instance, the rule in question is mercy and wisdom combined compared with the rule which requires a freehold to support a contingent remainder, and yet this last has been upheld in New Hampshire with uncalled for severity.

4. That the Commissioners, feeling the great danger of tampering with the content of the doctrine of remoteness, or of attempting to distinguish between primary and secondary intent, made an arbitrary rule that when a testator says 21+ years, he shall be conclusively presumed to mean twenty-one years, and that this is a pretty strong thing even for a statute.

5. That the case of a contingent gift to a shifting class, such as arose under the Barker will, was not within the purview of the contemplated provisions. These provisions were intended to deal with individuals, not with changing classes; the estate dealt with is one limited to vest, not on a class, but on a person reaching or not reaching a certain age. The cases in the minds of the Commissioners were of a nature like this: "To A. for life, remainder to his eldest son in fee, but if he should die before i e reaches twenty-five without leaving issue living at his death, to A.'s second son in fee, but if such second son should die before he reaches twenty-five without, &c., then to A.'s third son," &c. The Commissioners intended to provide that if a gift to A. was followed, on a contingency which might not occur until 21 + x years, by a gift to B., 21 should be substituted for 21 + x, but they did not intend that C. should be substituted for B., which is precisely what the New Hampshire Court has done.

It is very noticeable that in their report the Commissioners say: "Sometimes a limitation is made to depend on the event of unborn persons attaining or not attaining some age greater than twenty-one"; but when they come to sum up their conclusions in the exact language of a proposed statute, seeing perhaps a possible danger of misconstruction, they change the plural into the singular, showing that they mean to deal with an individual and not with a changing class. In other words, the Commissioners obviously had in mind the advancing of the time for a legacy to A. so as to enable A. to take; but there is no evidence, either in the Report or in the Propositions, that they ever contemplated applying the method so as to take property given to one set of legatees and transfer it to another. To do that has been reserved to the Supreme Court of New Hampshire

IV.

Applications of the New Hampshire Doctrine.

A. Take first the present case. Here was a gift to grandchildren when they reached forty, the Court cut it down to grandchildren when they reached twenty-one, but why take that date? Why not give it to the grandchildren at once, without waiting till they reach twenty-one? The only answer would seem to be, "Although we cannot put off the period of distribution as late as the testator wished, we will put it off as long as we can." But that the court has not done. Why not order the fund to be distributed among those grandchildren who are living at the end of twenty-one years from the death of both children? Or, better still, why not make the time of selection to be twenty-one years after the death of both the testator's children and of all his grandchildren living at his death? Or, again, why not make it twentyone years after the death of all the students now at Dartmouth College? What can be said of the time selected by the Court, more than for any or all these?

B. Or if there be special circumstances in this case pointing to twenty-one, how about a case where there are no such special circumstances?

C. Again, (what the devise might easily have been in this case,) to such of the testator's grandchildren when the youngest reaches forty as are then of temperate habits. Would a gift to such of the grandchildren as were not drunkards at twenty-one satisfy the general intent of the testator?

D. A gift to A., a young infant, for life, after his death to any widow he may leave for life, and on the death of such widow to such of his children as are then living. Is this time to be cut down, and if so, to what period must survivorship be referred ? The death of the husband? Twenty-one years after the death of the husband? The death of any wife born in the testator's lifetime? Twenty-one years after the death of any wife born in the testator's lifetime?

E. To a church for a parsonage, but, whenever it is no longer used as a parsonage, then to A. and his heirs. Here is a general intent to have the property go over ; under certain circumstances this can be done, under other circumstances it cannot; why not carry out that general intent under the former circumstances, it

it cannot be under the latter? Why not allow it if the parsonage is given up within twenty-one years after the testator's death? Or within twenty-one years after the death of all the present members of the First Regiment of New Hampshire Militia ?

F. To the person who shall be Chief Justice of New Hampshire fifty years from to-day. Is Chief Justice Doe entitled to that gift? Is the Chief Justice who shall be in office twenty-one years from now entitled? Or shall the Chief Justice who attends the funeral of the last member of the New Hampshire bar now living take it?

Here are cases, not recondite cases, but such as occur to one currente calamo. They could be multiplied indefinitely. Outside of New Hampshire not merely would these cases present no difficulty to the courts, but any decently instructed lawyer could answer any of them promptly and with certainty. In New Hampshire, the more learned and acute the lawyer, the greater the perplexity in which such cases would plunge him.

In fact, this novel doctrine substitutes for the set of devisees named by the testator another set selected out of an infinite number by the arbitrium of the Court.

John Chipman Gray.

NOTE. I had the honor of being consulted by the learned counsel for the testator's son on the question whether the gift to the grandchildren under Mr. Barker's will was vested or contingent, and I came to the conclusion that it was contingent, and so advised. I assumed that the question of remoteness would be decided as it had been everywhere else, and that therefore the only real point in issue was the vesting or contingency of the gift.

I fully recognize the value of the traditional practice, that counsel should take their licking quietly, and not let their dissatisfaction go beyond oral grumbling; but on the point upon which I advised, the Court was with me, and on the matter here discussed, the view adopted by the Court was one which had never seemed possible to me, and to which I had not given any consideration. Besides, in any new edition of my book on the Rule against Perpetuities, I must deal with the subject, and therefore it seems better to speak of it while it is fresh.