O\u27Brien, J.

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Perpetuities in Wisconsin: Will the rule be construed merely as one against suspension of alienation or likewise against remoteness of vesting?

Marquette University Law School

Marquette Law ReviewVolume 10Issue 4 June 1926 Article 9Perpetuities in Wisconsin: Will the rule beconstrued merely as one against suspension ofalienation or likewise against remoteness of vesting?J. O'BrienFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationJ. O'Brien, Perpetuities in Wisconsin: Will the rule be construed merely as one against suspension of alienation or likewise against remoteness ofvesting?, 10 Marq. L. Rev. 241 (1926).Available at: http://scholarship.law.marquette.edu/mulr/vol10/iss4/9NOTES AND COMMENTPerpetuities in Wisconsin: Will the rule be construed merely asone against suspension of alienation or likewise against remotenessof vesting?-The task of speculating whether or not the SupremeCourt of Wisconsin will be governed at all by the New York case ofMatter of Wilcox' is no easy one. Perhaps no other realm of Wis-consin law is in a more chaotic condition at the present time than thatrelating to the rule against perpetuities,-especially insofar as personalproperty is concerned and in view of the recent amendment to theWisconsin statutes.2Originally, section 230.14, Wisconsin statutes 1925,3 provided in effectthat any future estate that shall suspend the absolute power of alien-ation beyond the statutory period4 shall be void; and that such power ofalienation was suspended when there were no persons in being by whoman absolute fee in possession could be conveyed. As amended in 1925,the added provision declares that limitations of future or contingentinterests in personal property are subject to the rules prescribed inrelation to future estates in real property.Concisely, the query is whether or not this statute together withsection 230.155 repeals the entire common law rule or whether the courtcan go further and declare that the statutes being in derogation of thecommon law, and the rule against perpetuities not being in terms or bynecessary implication repealed, the common law rule against perpetuitiesis still in force in Wisconsin.Harking back to the origination of Wisconsin law, we find that sec-tions 230.14 and 230.156 were enacted in x849. Resorting to the com-mon law, the celebrated Duke of Norfolk's case7 (1682) stands out asthe first case where the rule against perpetuities was applied; there itwas decided (though mere dictum) that a contingent future limitationwhich must necessarily vest within a period of lives in being was good.But throughout the common law and up until 1882, remoteness of vest-ing was confused with questions of alienability. However, Thellussonv. Woodford,' decided in i8o5, appeared to cling to the suspension ofalienation rule insofar as the court held that no matter how many liveswere involved, so long as they were in being and capable of being ascer-1 94 N. Y. 288, 87 N. E. 497.'Sec. 230. x4, Wis. Stats.Formerly sec. 2038.' Two lives in being at the creation of the estate and twenty-one years there-after (sec. 230.15) subject to the exception of charitable devises and the exceptionmentioned in sec. 23o.16.Formerly sec. 2039.'Then Ch. 56, secs. 14 and 15 and slightly modified since, but not in a manner toaffect the discussion here.73 Ch. Gas. 1, 22 Eng. Reprint 931.aii Ves. II2, 8 Rev. Rep. 104, 32 Eng. Reprint I030.MARQUETTE LAW REVIEWtained, the vesting, of a conditional limitation might be postponed untilthe termination of the life of the longest liver. The natural conclusionwould therefore be that the legislators enacted sections 230.14 and230.15 with a view to the common law and as that was rather unsettled,and though they themselves might have been more or less confused, theysettled any dispute and clearly intended that the law applicable in Wis-consin should be against suspension of alienation only.London & South Western Ry. Co. v. Gomm,9 decided in 1882, was thefirst case in which this question was really specifically involved. There,the English court declared without reservation that the rule againstperpetuities was one of remoteness of vesting and not of suspension ofalienation. In the meantime, however, both Wisconsin and New Yorkhad enacted statutes governing the situation as to real property and asinterpreted by their respective courts, the rule was firmly establishedthat the rule of perpetuities was against suspension of alienation only.'0But the paradox was then created by the New York court in Matterof Wilcox, supra, decided in 1909. There, the New York court com-pletely reversed its stand and declared that regardless of prior authori-ties to the contrary, a limitation which created a remote future interestby way of a conditional limitation, which interest, however, did notrender the property subject thereto inalienable, was void for remoteness.Now then, the Wisconsin statutes, with one real exception\"l are inalmost perfect accord with those of New York and the question arisesas to the effect this New York decision will have on- the Supreme Courtof Wisconsin. Before this New York case was decided, there was noquestion but that the law in Wisconsin was against the suspension ofalienation." This is true even though the rule was established throughwhat is known as more or less dictum. 13 In all of the Wisconsin de-cisions, it might be argued that the decision of this specific point was notessential to the dispositions of the respective cases. Nevertheless, it isfirm proof of the stand adopted by the Supreme Court of Wisconsin,02o Chant. Div. 562, 51 L. J. Ch. 30, 30 Wkly. Rep. 620."Becker v. Chester, 115 Wis. 90, gi N. W. 87; Robert v. Corning, 89 N. Y.225; being the leading cases in the respective jurisdictions." Sec. 24 of the New York statutes, corresponding to sec. 230.23 of the Wiscon-sin statutes, coincides insofar as the Wisconsin statute goes but has certain addedprovisions not found in Wisconsin.2 Becker v. Chester, supra. The rule was followed in In re Will of Kopmeier,H3 Wis. 233, 89 N. W. 134, Danforth v. Oshkosh, I19 Wis. 262, 97 N. W. 258,Williams v. Oconomowoc, 167 Wis. 281, 166 N. W. 322; then Becker v. Chesterwas preceded, to the same effect, by Dodge v. Williams, 46 Wis. 70, 1 N. W. 92,De Wolf v. Lawson, 61 Wis. 499, 21 N.W. 615, and Harrington v. Pier, 1O5 Wis.495, 82 N. W. 345." In Becker v. Chester, the dictum that the common law rule against perpetu-ities was not in force in Wisconsin, was dissented from by Chief Justice Cassodayinsofar as the inclusion of personal property was concerned. However, the Justiceappeared to realize that the remedy rested solely with the legislature when he said," . . . . in the hope that the legislature may do something to relieve the stateof Wisconsin from being the only state in the Union where personal property maybe given in trust for a private purpose and rendered inalienable for all time."NOTES AND COMMENTnot 'only during one instant personnel but throughout the history oflaw in Wisconsin.The'rule providing for the inclusion of personal property can in nowise affect the situation, except possibly to urge the imperativeness ofa change to the rule against remoteness of vesting. Now, the rulemust either be against suspension of alienation as to both real and per-sonal property, or against remoteness of vesting as to both. Both areincluded in the same section of the statutes and logic alone suffices toestablish this conclusion.Will of Smith, ' 4 decided in 1922, would seem to dispel any thoughtof Wisconsin being influenced, at least immediately, by Matter of Wil-co.r. Here the court, again inferentially, declared that the policy of thestate was against suspension of alienation only and supported itself bythe decisions noted previously.However, even supreme courts are not endowed with the aura of in-fallibility. The New York court reversed itself (but as to real andpersonal property alike) and as the better reasoning seems to lie withJustice Cassoday's dissent in Becker v. Chester, supra, it would not besurprising to see the Supreme Court of Wisconsin reverse its standwhen the proper case is presented. The amendment to section 230.14which included personal property in the "perpetuity" statute shouldact more or less as a wedge in presenting the opposite view for thecourt's perusal. However, in the absence of additional legislation, itseems that whatever stand is taken, the rule will have to be appliedboth to real and to personal property alike.J. O'B.Criminal Law: Remarks of District Attorney in final plea as preju-dicial error.-In the instant case1 the defendant, a barber in the cityof Superior, was indicted for taking indecent liberties with little girlslured into his shop by promises of candy and small amounts of money.The district attorney in final argument to the jury made two statementswhich are the basis for this appeal to the Supreme Court: "The de-fendant is sending little girls down the primrose path to hell, oustideof the indecent liberties involved in this case"; and "Defendant's counselhas said that there was another way of handling this case, and I say theonly other way was to kill him."The Supreme Court in its review of the case speaks of the generalrule as follows:Considerable latitude must be permitted in oral argument, and much is left tothe discretion of the trial judge to determine whether an improper statement wasmade under such circumstances that it might be excused, mitigated, or even jus-tified.However in this case, the remarks as quoted were held to be preju-dicial error, notwithstanding the fact that the trial judge directed thejury to disregard them. In Justice Stevens' opinion we find:The district attorney represents the commonwealth, a commonwealth whichseeks justice only. It is as much the duty of the district attorney to see that no" 76 Wis. 494, 186 N. W. 18o.'O'Neil v. State, 207 N. W. (Wis.) 280.

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Perpetuities in Wisconsin: Will the rule be construed merely as one against suspension of alienation or likewise against remoteness of vesting?

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