The Duke of Norfolk’s Case established the common law Rule Against Perpetuities:
“No interest in land 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.”
The Duke of Norfolk’s Case involved the Earl of Arundel, who was the owner of vast landholdings, which he sought to preserve within his family after his death. The preservation of the estate was complicated by the fact that his eldest son and successor, Thomas, was insane and not expected to produce any heirs. Relying on the services of Orlando Bridgeman, a brilliant lawyer, the Earl had created a complicated trust indenture that left some of the property to Thomas but stipulated that the property would pass to his second son, Henry, if Thomas died without producing an heir. [1] Other property initially left to Henry would then pass to the third son, Charles, if Henry inherited Thomas’s property. The will also included provisions that would shift ownership of the estate many generations into the future upon the occurrence of certain conditions.
The will was challenged for creating a perpetuity–a type of indestructible property interest that indefinitely ties the hands of future owners. Perpetuities had already been outlawed by the time the Duke of Norfolk’s Case was decided. The issue was whether the interest created by the Earl of Arundel’s will constituted one. The court ruled that Charles’s future interest in the estate was allowable because the conditions that were required for the interest to vest must necessarily occur within Charles’s lifetime. In so ruling, the court outlined the elements of the rule that future property interests that vest long after the lives of people living at the time of the creation of the interest are void.
Authorities Cited:
Pells v. Brown (1620)
Citation(s): 79 English Reports 504; Croke's Reports 590
William Brown, Sr., left his farm to his second son, Thomas, on the condition that if Thomas died without leaving a male heir during the lifetime of his older brother, William Jr., the farm would go to William Jr. Thomas believed that this conveyance amounted to an entailment, and he accordingly used a common recovery to break the entail and devise that the farm go to the Pells family upon his death. The court ruled that Thomas’s interest was not an entailment but rather a fee simple subject to William Jr.’s executory interest. Importantly, unlike entailments, which were declared destructible by the common recovery in Taltarum’s Case, executory interests were deemed indestructible.
William Jr.’s executory interest was held not to be a perpetuity because it did not tie up the estate perpetually; rather, the interest had to come into being within his lifetime because he needed to outlive his brother Thomas in order to take possession. Therefore, only Thomas could transfer the estate that had been encumbered, not those of future generations. The indestructibility of executory interests as laid out in Pells v. Brown provided conveyancers of land greater flexibility to control future ownership.
Child v. Baylie (1618)
Citation(s): 79 English Reports 393; Croke's Reports 459
This case was the current authority at the time that the Duke of Norfolk’s Case was decided. William Heath bequeathed his estate for a term of years to his older son, subject to the condition that if the son died without producing an heir, the term would go to Heath’s younger son. The court ruled that this conveyance was no different from an entailment of the estate, and therefore the younger son’s interest was void. The court held that such a provision was “not allowable in law, for the mischief which otherwise would ensue, if there should be such a perpetuity of a term.”
Child v. Baylie represents the high point of judicial hostility to the idea of perpetuities. Even though the younger son’s interest could only take effect within the lifetime of the older son, the court considered this to be an unacceptable restraint on the alienation of the land by the older son. The interests created in Child v. Baylie are very similar to those created in the Duke of Norfolk’s Case, and the latter case’s three dissenting judges cited Child v. Baylie to argue that any such interests were void.
More Resources:
Taltarum's Case (1472)
Citation(s): Year Books 12 Edward IV. 19-21
This case allowed the holder of an entailed estate to break the entailment through the use of a legal fiction known as a common recovery. The common recovery, in fact a collusive recovery, allowed the landholder to convert the estate to an estate in fee simple by means of a legal fiction. This broke the entail and allowed the estate to be freely sold or transferred without it automatically passing to the heirs of the landholder. Due to the common recovery established by Taltarum’s Case, perpetuities could no longer effectively prevent the sale or transfer of land by future generations of inheritors. Additional statutes passed during the reigns of King Henry VII and King Henry VIII further prohibited the creation of perpetuities. At the time the Duke of Norfolk’s Case was decided, landed families sought to protect their estates using complex arrangements of trusts and shifting executory interests that had the same practical effect of perpetuities, tying up the use of land for centuries into the future.
De Donis Conditionalibus (1285)
Citation(s): English statute De Donis Conditionalibus (13 Edward 1, ch. 1)
Perpetuities originated in a thirteenth-century act of Parliament known as De Donis Conditionalibus. This statute allowed for the creation of a form of entail by which an estate could be conveyed such that the landholder was forbidden from selling the land to anyone but his heirs. This type of conveyance was known as a perpetuity because it created perpetual, unbreakable rights to an estate for its successive owners. Perpetuities were used by noble landed families to ensure that their estates could not be sold or reduced by future inheritors. The use of perpetuities flourished in England for 200 years until the statute was overturned 200 years later in Taltarum’s Case, which made them an illegal form of conveyance.
Photos [Duke of Norfolk’s Case]
1) Black’s Law Dictionary defines a trust indenture as a document containing the terms and conditions governing a trustee's conduct and the trust beneficiaries' rights. Return to text