Duke of Norfolk's Case
Duke of Norfolk's Case (1682)3 Ch. Cas. 1, 22 Eng. Rep. 931 is an important legal judgment of the House of Lords that established the common law Rule against perpetuities. The matter related to establishing inheritance for grandchildren of Henry Howard, 22nd Earl of Arundel including grandchildren who were not yet born.
| 22nd The Earl of Arundel | |
|---|---|
 | |
| Spouse(s) | Lady Elizabeth Stuart |
|
Issue
Thomas Howard, 5th Duke of Norfolk Henry Howard, 6th Duke of Norfolk Lord Philip Howard Lord Charles Howard Lord Bernard Howard | |
| Born | 15 August 1608 |
| Died | 17 April 1652 |
Facts of the Case
In this case Henry, 22nd Earl of Arundel, who was at the time Duke of Norfolk tried to create a shifting executory limitation so that one of his titles would pass to his eldest son (who was mentally deficient) and then to his second son, and another title would pass to his second son, but then to his fourth son. The estate plan also included provisions for shifting the titles many generations later if certain conditions should occur.
When his second son, Henry, succeeded to one title, he did not want to pass the other to his younger brother, Charles. Charles sued to enforce his interest, and the court (in this instance, the House of Lords) held that such a shifting condition could not exist indefinitely. The judges believed that tying up property too long beyond the lives of people living at the time was wrong, although the exact period was not determined for another 150 years. [1]
Rule in the Case
The rule against perpetuities is closely related to another doctrine in the common law of property, the rule against unreasonable restraints on alienation. Both stem from an underlying principle or reference in the common law disapproving of restraints on property rights.[2] However, while a violation of the rule against perpetuities is also a violation of the rule against unreasonable restraints on alienation, the reciprocal is not true.[3] As one has stated, "The rule against perpetuities is an ancient, but still vital, rule of property law intended to enhance marketability of property interests by limiting remoteness of vesting."
The rule has been recognized in some jurisdictions in the United States in Wedel v. American Elec. Power Service Corp.[4] [5] Here the law favors the vesting of estates as early as possibility as the provisions of the rule are predicated upon "public policy" and thus "constitute non-waivable, legal prohibitions,[6] and in Australia in through statute.[7]
References
- ↑ Cadell v. Palmer 1 Cl. & Fin. 372, 6 Eng. Rep. 936 (H.L. 1832, 1833)
- ↑ Cole v. Peters, 3 S.W.3d 846 (Mo. Ct. App. W.D. 1999).
- ↑ Cole v Peters, 3 S.W.3d 846.
- ↑ Wedel v. American Elec. Power Service Corp., 681 N.E.2d 1122 (Ind.App. 1997).
- ↑ See also Matter of Estate of Kreuzer, 243 A.D.2d 207, 674 N.Y.S.2d 505 (N.Y.A.D. 3d Dept. 1998)
- ↑ Symphony Space, Inc. v. Pergola Properties, Inc., 88 N.Y.2d 466, 669 N.E.2d 799 (N.Y. 1996).
- ↑ Perpetuities and Accumulations Act 1985 (ACT) s8(1); Perpetuities Act 1984 (NSW),s8; Perpetuities and Accumulations Act 1968 (Vic) s5; Property Law Act 1974 (Qld) s209; Perpetuities and Accumulations Act 1992 (Tas) s6(1); Property Law Act 1969 (WA) s103; Property Law Act (NT)