Apparently so:
well, in light of that…did harold russell, who sold his, violated the rule or did the academy cut him some slack? i remember some brouhaha about it, but i don’t remember just what.
I will agree with you that it “has not been true for some time” that the Rule Against Perpetuities did not apply to personalty in any jurisdiction anywhere. But it is true, as I said, that “the original rule was concerned with land,” and it is not true, as you said, that “[t]he historical rule applied to any transfer of property, real or otherwise.”
The Restatement of Property recounts the Rule’s history and shows that “the original rule was concerned with land”:
4 Restatement of Property, div. IV, pt. I, introductory note at 2126-30 (1944) (emphasis added). The Restatement, which deals with all kinds of property, real and personal, defines an “estate” as an “interest in land.” 1 id. § 9 (emphasis added).
The legal encyclopedia Corpus Juris Secundum offers a similar history:
70 C.J.S. Perpetuities § 14 at 314-15 (1987) (emphasis added, footnotes omitted). Likewise another legal encyclopedia: the Rule was “founded in real property context.” 61 Am. Jur. 2d Perpetuities § 49 (2002) (personal property).
Thus the Rule Against Perpetuities was framed only with respect to interests in land, and then only as to “long-lasting present interests”: it was not extended to future interests, to which the Rule in its modern formulation primarily applies, until the Duke of Norfolk’s Case (1685). 4 Restatement at 2128.
I haven’t found the earliest case that applies the Rule to property other than realty. The Restatement says only that “the next three centuries [after Manning’s Case (1609) and Pells v. Brown (1620)] witnessed a great transformation in the inclusiveness of the term ‘perpetuity.’” 4 Restatement at 2128. I am guessing that the Rule was applied first to trusts holding realty, then extended to other (personal) property held by trusts, then to personalty held by natural persons. Thus the Rule was probably extended to personalty in some jurisdiction somewhere by the 19th century, perhaps even earlier. But that extension had not occurred by 1620, or even by 1685; and most American jurisdictions that have “received” the English common law did so as that law stood in 1603, when James I ascended the throne, and thus would not have incorporated the Rule as applied to personalty into their common law. For example, in my last post, I cited two cases from the Supreme Court of Colorado, which explicitly apply the Rule only to land–because Colorado received “[t]he common law of England so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First [1607].” Colo. Rev. Stat. § 2-4-211 (common law of England).
New York enacted a statute as early as 1830 that applied the Rule to personalty, but that statute “contained a separate formulation of the rule against perpetuities” than the Rule as applied to realty. 4 Restatement, app. ¶ 8 at 2641-42 (language of real and personal property statutes).
As to whether “[t]he historical rule applied to any transfer of property, real or otherwise,” there is still some property even today to which the Rule never applies:
4 Restatement, app. ¶ 13 at 2649. That statement evidently confirms lucwarm’s analysis.
I’m not disagreeing with you all that much. I agree (and noted) that interests in land were the driving force behind the rule, and that the Rule’s early application would be in large part limited to land. All I’m saying is that this isn’t because of a distinction within the Rule itself – it’s because prior to the 1800s, interests in land were the really the only thing of durable value, the only thing likely to still have worth beyond the perpetuities period (the only exception I can think is a great work of art). Granny’s tea set might be nice, but no one’s going to go to the expense and bother of litigating over it. Granny’s country estate, on the other hand…
The rise of the corporation changes all that. Now there is a durable non-realty asset that can retain or increase its value over a very long – potentially infinite – period of time.
It would be interesting to know the first instance of a court holding the Rule applicable to personalty. I would actually be surprised to find one prior to the rise of the corporate form. Why? Because of the rationale grantors typically have for trying to exert dead-hand control. For estates in land, it’s a sense of preserving the ancestral home, keeping it in the family. For stock ownership, it’s usually a similar sense of preserving the family business – I’d bet most perpetuities issues with stock arise with company founders passing on their interests, rather than with subsequent investors in the enterprise. I doubt those kinds of motivations exist with most other types of personalty.
At any rate, as I said, this is the mother of all nitpicks. Here’s an interesting thought, though: the Rule was initially applied in cases involving land, but no case explicitly said the Rule didn’t apply to personalty – that is, no cases involving personalty were brought before the courts. When, hundreds of years later, a court applies the rule to a case involving personalty, is that a change in the Rule, or merely an application of the Rule as it existed? To-may-to, To-mah-to, I suppose.