DOCSLIB.ORG

Judicial Overkill in Applying the Rule in Shelley's Case William A

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Judicial Overkill in Applying the Rule in Shelley's Case William A Notre Dame Law Review Volume 73 | Issue 1 Article 11 6-1-1999 Judicial Overkill in Applying the Rule in Shelley's Case William A. Reppy Jr. Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation William A. Reppy Jr., Judicial Overkill in Applying the Rule in Shelley's Case, 73 Notre Dame L. Rev. 83 (1997). Available at: http://scholarship.law.nd.edu/ndlr/vol73/iss1/11 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. JUDICIAL OVERKILL IN APPLYING THE RULE IN SHELLEY'S CASE William A. Reppy, Jr.* I. INTRODUCTION The Rule in Shelley's Case holds that when 0 conveys "to A for life then to A's heirs," A gets a fee simple absolute and his would-be heirs not even a future interest. O's intent that A get only a life estate is frustrated. The respected Simes and Smith treatise states that courts sometimes look for "a pretext to cut down the scope of the Rule in Shelley's Case."' The thesis of this Article is that-far more fre- quently-just the opposite is occurring. Perhaps to make a display of their willingness to carry out the judicial duty of enforcing a much- maligned and intent-defeating rule, courts are erroneously holding Shelley's Rule applicable to limitations in remainder that, upon cor- rect analysis, are outside the Rule's scope. II. THE RuLE IN SHELLEY's CASE: ITS HISTORY, ITS NOW-IRRELEVANT PoLicY BASES, AND ITS PRAGcAL APPLICATION A. The Rule Dates from the 14th Century and Probably Was Rooted in . JudicialRespect for the Incidents of Feudal Tenures The Rule in Shelley's Case refers, linguistically, to the 1581 deci- sion in Wolfe v. Shelley,2 but the concept that what looks like a remain- * Charles L.B. Lowndes Professor of Law, Duke University. A.B., J.D., Stanford University. For their useful comments on a draft of this Article, the author thanks John V. Orth, William Rand KenanJr. Professor of Law, University of North Carolina, and Robert R. Wright I, Donoghey Distinguished Professor of Law, University of Arkansas at Little Rock. Chief student research assistant for this Article was Anthony Prisco. Research assistance was also provided by Nelson Reid, Aaron Rugh, and Ward Connolly. 1 LEwis M. SMsEs & ALLAN F. SMITH, THE LAW OF FuTuR- ITEREsrs § 1549, at 453 (2d ed. 1956). For such a case, see Jones v. Stone, 279 S.E.2d 13 (N.C. Ct. App. 1981), described in infra text accompanying note 205. 2 76 Eng. Rep. 206 (K.B. 1581). The facts of the case are also described in vari- ous other sources. See, e.g., Benton v. Baucom, 135 S.E. 629, 631 (N.C. 1926); Norman Block, The Rule in Shelley's Case in North Carolina, 20 N.C. L. REv. 49, 50-51 (1941); NOTRE DAME LAW REVIEW [VOL. 73:1 der conveyed to the life tenant's heirs as purchasers3 is actually language of limitation creating a fee in the apparent life tenant has 4 been traced to an English decision, Abel's Case, decided in 1324. Under feudal concepts of this time, if overlord 0 had enfeoffed un- derlord A "and his heirs" in a livery of seisin ceremony so that A ac- quired an estate in tenure, holding of 0, the "and his heirs"5 signified that 0 also consented to have A's heir, upon A's death, succeed as underlord, holding under 0 (or O's heir if 0 had died) in a position of fealty. One of the most costly6 incidents of feudal tenure that an underlord owed his immediate overlord was the relief, payable at the former's death, as the cost of the overlord's acceptance of the un- derlord's heir as the decedent's successor in the tenurial chain. For some reason, the old courts were unwilling to expand the law to make Annotation, Note on the Rule in Shelley's Case, 29 L.R.A. (N.S.) 963, 968-69 (1911) [hereinafter Note]. For an interesting peek at the historical, political, social, and religious underpin- nings of the case see A.W. BRIAN SIMPSON, LEADING CASES IN THE COMMON LAW 13-44 (1995). 3 "Purchasers" means persons who take an estate other than by intestate succes- sion; the concept does not involve payment of money or other consideration. See 1 HERBERT THORNDIKE TnFANY, THE LAW OF REAL PROPERTY § 24 (BasilJones ed., 3d ed. 1939). Donees and devisees are purchasers; they take "by purchase," and the lan- guage of an instrument describing them constitutes "words of purchase." Heirs tak- ing by intestate succession are not purchasers. See id. § 28. 4 Y.B. 18 Edw. 11 577 (1324), cited and discussed in RESTATEMENT OF PROPERTY § 312 cmt. a (1940); see also Note, supra note 2, at 977 (discussing Abel's Case but dating it as 1325). SIMEs & SMITH, supra note 1, § 1542, trace the Rule back to 1366 and state that it "probably" had earlier roots. 5 Under the principle of primogeniture, it was expected that A's heir would be his eldest surviving son. Hence the "s" in "heirs" indicated that the overlord was ac- cepting not only A's heir, A, Jr., to assume a position of fealty under him, but also A III, as heir of A, Jr., A JV-for an unlimited number of future successions. See SImEs & SMITH, supra note 1, § 1543. 6 See Society Nat'l Bank v.Jacobson, 560 N.E.2d 217, 221 (Ohio 1990); SIMES & SMITH, supranote 1, § 1543 (describing relief as well as some other feudal incidents); John V. Orth, Requiem for the Rule in Shelley's Case, 67 N.C. L. REv. 681, 682 (1989); James A. Webster, Jr., A Relic North Carolina Can Do Without-The Rule in Shelley's Case, 45 N.C. L. REV. 3, 18 (1966); Note, supra note 2, at 980. There were incidents of feudal tenure in addition to the relief that was imposed on underlords who took by intestate succession, and some authorities state that the reason for Shelley's Rule was to eliminate a device to avoid, not the relief in particu- lar, but all such incidents. See Wool v. Fleetwood, 48 S.E. 785, 789 (N.C. 1904); King v. Beck, 15 Ohio 559, 563 (1846); RESTATEMENT OF PROPERTY § 312 cmt. a (1940); 1 AMEmCAN LAW OF PROPERTY § 4.40, at 478-79 (A. James Casner ed., 1952) [hereinaf- ter AMERICAN LAW] (mentioning the incidents of wardship, marriage, and primer sei- sin, which did not attach when underlord took by purchase); Addison M. Dowling, Rationale of the Rule in Shelley's Case in Indiana, 13 IND. LJ. 466, 470-71 (1938). 1997] RULE IN SHELLEY'S CASE the relief payable when A, Jr. took his father's place in the tenurial change by grant, either directly to him by name or as the heir in an apparent limitation in remainder to the heirs of A. Instead the grant to A, Jr. by name was held a fraud on the overlord,7 forcing A, Jr. to take by succession; and what is now called Shelley's Rule treated "and his heirs" as language of limitation, giving A a fee and also forcing A, Jr. to take by succession and to pay a relief. The relief was abolished in 1660,8 but Shelley's Rule remained part of the common law in Eng- land until 1925. 9 Another theory states that old English courts developed Shelley's Rule out of fairness to creditors of the life tenant.10 The notion is that if Lord A enfeoffed a straw person who in turn promptly enfeoffed A for life, remainder to A's heirs, nothing really happened if this were given literal effect except to limit A's creditors to the seizing of an estate measured by his life. This was so because (1) A could not devise the land (until the Statute of Wills was enacted in 1540), and (2) as a practical matter, A was not going to convey the land outside the fam- ily. Absent an attempt by A to convey intervivos the estate to A, Jr.or to A, Jr.for life with remainder to his heirs, A was going to let it pass by succession to A, Jr.his eldest son." 7 See RESrATEMENT OF PROPERTY § 314 cmt. j. (1940) (explaining that a devise to named person who turned out to be heir of conveyor was ineffective as a device to avoid feudal incidents); see also George B. Young, The Rule in Shelley's Case in Illinois:A New Analysis and Suggestionsfor Repea 45 Ii.L. L. REv. (NoRaTwEmRN) 173 (1950). 8 See Orth, supranote 6, at 683. 9 Law of Property Act, 1925, 15 Geo. 5, ch. 20, § 131, at 661 (Eng.). 10 Doyle v. Andis, 102 N.W. 177 (Iowa 1905); Benton v. Baucom, 135 S.E. 629, 630 (N.C. 1926); Williams v. Houston, 57 N.C. (4Jones Eq.) 268, 270 (1858) (finding that the Rule's purpose was to prevent "manifest fraud of the rights of third persons"); see also Myers v. Myers, 190 N.W. 491, 492 (Neb. 1922) (stating that the purpose was to avoid restraint on alienation placed on a person who was effectively sole owner). Abel's Case of 1324, said by the RESrATEMENT OF PROPERTY § 312 cmt.
Load more

Recommended publications
  • Rule Against Perpetuities
    Sec. 2 ESTATES IN LAND AND FUTURE INTERESTS S229 3. The court mentions three possible constructions that could be placed on the “deed.” Under which one, if any, could Clarissa B. collect? Can you think of any other plausible constructions? Review the Note on the Words of Conveyance, supra, p. S167. 4. Once the court had decided that instrument was a deed and not a will, there are a number of possible constructions that could be placed on the interest which was given Clarissa B. The court distinguishes this conveyance from one granting a contingent remainder to Clarissa B., reserving a life estate in her husband. (Do you see how?) Yet ample authority exists for the proposition that an otherwise valid deed, stating that it is not to be effective until the death of the grantor, will be upheld, as reserving a life estate in the grantor and conveying a remainder in the grantee. 3 A.L.P. §§ 12.65, 12.95 n. 5. What interest does the court decide that Clarissa B. had? What are the possibilities? 4. The Rule Against Perpetuities At about the same time as the courts were reviving the doctrine of destructibility of contingent remainders, they also began to announce another doctrine which came to be known as the Rule Against Perpetuities. The first case in which the Rule was announced is generally thought to be the Duke of Norfolk’s Case, 3 Ch. Cas. 1, 22 Eng. Rep. 931 (1682). The reason for the origin of the Rule probably lies in the courts’ concern with the free alienability of land.
    [Show full text]
  • Estates Tail in Missouri
    University of Missouri Bulletin Law Series Volume 1 November 1913 Article 3 1913 Estates Tail in Missouri Manley O. Hudson Follow this and additional works at: https://scholarship.law.missouri.edu/ls Part of the Property Law and Real Estate Commons Recommended Citation Manley O. Hudson, Estates Tail in Missouri, 1 Bulletin Law Series. (1913) Available at: https://scholarship.law.missouri.edu/ls/vol1/iss1/3 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in University of Missouri Bulletin Law Series by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. ESTATES TAIL IN MISSOURI 1 The recent case of Gray v. Ward' calls attention to the prob- lems which arise in the application of the Missouri statute8 abolishing estates tail as created by the statute De Donis Con- ditionalibus' It is believed that all of these problems have not been solved in the decisions of the Missouri Court and this study is undertaken to determine what principles have been adopted, and what further principles should control the Court in the application of this statute of entails. I. HISTORY OF ESTATES TAIL IN MISSOURI. At the beginning of the last century, estates tail were common in the United States, and common recoveries were not unknown as means of docking the entail.' But the feudal atmosphere enveloping them does not harmonize with modern notions of lard ownership,' and by statute in most of the United Stated they have been much modified.
    [Show full text]
  • The Common Law: an Account of Its Reception in the United States
    Vanderbilt Law Review Volume 4 Issue 4 Issue 4 - June 1951 Article 3 6-1951 The Common Law: An Account of its Reception in the United States Ford W. Hall Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Common Law Commons, and the Courts Commons Recommended Citation Ford W. Hall, The Common Law: An Account of its Reception in the United States, 4 Vanderbilt Law Review 791 (1951) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol4/iss4/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. THE COMMON LAW: AN ACCOUNT OF ITS RECEPTION IN THE UNITED STATES FORD W. HALL* "The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth- right; but they brought with them and adopted only that portion which was applicable to their situation." Story, J., in Van Ness v. Pacard, 2 Pet. 137, 144, 7 L. Ed. 374 (1829). The story of the extent to which the common law of England has been received and applied in the United States, is one of the most interesting and important chapters in American legal history. However, many courts and writers have shown a tendency simply to say that our colonial forefathers brought the common law of England with them, and there has often been little or no inclination to look further into the question.
    [Show full text]
  • Stare Decisis and Demonstrably Erroneous Precedents
    +(,121/,1( Citation: 87 Va. L. Rev. 1 2001 Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Oct 27 14:26:04 2010 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0042-6601 VIRGINIA LAW REVIEW VOLUME 87 MARCH 2001 NUMBER 1 ARTICLE STARE DECISIS AND DEMONSTRABLY ERRONEOUS PRECEDENTS Caleb Nelson* A MERICAN courts of last resort recognize a rebuttable pre- sumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current mem- bers, was demonstrably erroneous.' But when the Supreme Court * Associate Professor, University of Virginia School of Law. For helpful comments at various stages of this project, I thank Lillian R. BeVier, Vincent Blasi, Curtis Brad- ley, Barry Cushman, John C. Harrison, John C. Jeffries, Jr., Michael J. Klarman, Daryl Levinson, George A. Rutherglen, James Ryan, John Setear, Kate Stith, William J. Stuntz, G. Edward White, participants in a conference on comparative constitu- tional law organized by A.E. Dick Howard, and participants in a Legal Studies Workshop at the University of Virginia. I remain solely responsible for all errors (demonstrable or otherwise). The views expressed in this Article are mine alone and should not be attributed to any of my employers, past or present.
    [Show full text]
  • Tort Immunity for Arkansas Cities and Towns, Their Officials and Employees
    Tort Immunity for Arkansas Cities and Towns, Their Officials and Employees Revised June 2017 MUNICIP S AL A L S E N A A G K U R E A « « G E R T E A A T T S C T IT A IE E S GR MAKE A TABLE OF CONTENTS Purpose ........................................................ 4 History and Overview ............................................. 4 Arkansas Code Annotated 21-9-301. Tort Liability – Immunity Declared.................4 Arkansas Code Annotated 21-9-302. Tort Liability – Settlement of Claims ...............5 Arkansas Code Annotated 21-9-303. Motor Vehicle Liability Insurance Requirement .......5 Arkansas Code Annotated 21-9-304. State Indemnification; Certain Actions .............5 Constitutionality ................................................. 6 Application of Immunity to Negligence v. Intentional Torts................ 7 Qualified Immunity under the Arkansas Civil Rights Act.................. 8 Individual Capacity .........................................................8 Official Capacity ..........................................................10 Pleading and Proof of Immunity .................................... 10 Repeated Negligence ............................................ 11 Insurance ...................................................... 11 Motor Vehicles.................................................. 12 What is a Motor Vehicle? ...................................................12 How Much Insurance is Needed?.............................................13 Emergency Vehicles .......................................................15
    [Show full text]
  • Illinois Tort Law: a Rich History of Cooperation and Respect Between the Courts and the Legislature Victor E
    Loyola University Chicago Law Journal Volume 28 Issue 4 Summer 1997 Judicial Conference Symposium Article 6 Anniversary Issue 1997 Illinois Tort Law: A Rich History of Cooperation and Respect between the Courts and the Legislature Victor E. Schwartz Senior Partner, Crowell, Moring LLP, Washington, DC. Mark A. Behrens Senior Assoc., Crowell, & Moring LLP, Washington, DC Mark D. Taylor Senior Assoc., Crowell, & Moring LLP, Washington, DC Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Torts Commons Recommended Citation Victor E. Schwartz, , Mark A. Behrens, & Mark D. Taylor, Illinois Tort Law: A Rich History of Cooperation and Respect between the Courts and the Legislature, 28 Loy. U. Chi. L. J. 745 (2014). Available at: http://lawecommons.luc.edu/luclj/vol28/iss4/6 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Illinois Tort Law: A Rich History of Cooperation and Respect Between the Courts and the Legislature Victor E. Schwartz, Mark A. Behrens" &Mark D. Taylor** I. INTRODUCTION Litigation addressing the constitutionality of the Illinois Civil Justice Reform Amendments of 1995 ("Civil Justice Reform Act")' raises a fundamental question that has been largely overlooked in the broader public dialogue about tort, or liability, reform2 : Should tort law be decided by courts or legislatures? The question about who should "make" the law is not academic; tort law affects people's lives, every day. Tort law can discourage conduct such as medical malpractice and help remove truly defective products * Senior Partner, Crowell & Moring LLP, Washington, D.C.; B.A., 1962, Boston University; J.D., 1965, Columbia University.
    [Show full text]
  • Fee Tail in Ohio
    THE FEE TAIL IN OHIO English Background In 13th Century England, a conveyance to "B and the heirs of his body" created what was known as a conditional fee or fee simple condi- tional.' Landed Englishmen used the words "heirs of the body" in an attempt to keep their land passing in the family from generation to gen- eration.2 This attempt was singularly unsuccessful, for the English courts were quick to read into the conveyance a way in which the condi- tional fee could become a fee simple absolute. The courts, probably be- cause of their interest in the free alienability of land,3 construed the con- veyance to create an estate in fee simple in the donee, subject to the condition that a child be born to the donee.4 After the child was born, the donee could convey a fee simple absolute free from the restriction "to the heirs of his body." If the donee did not convey the land and the child died before the donee, the land reverted to the donor on the donee's death.' If no child were born to the donee, the condition was not met, and the land reverted to the donor on the death of the donee.6 This unsatisfactory interpretation by the courts resulted in the statute de Donis Conditionalbus,7 now commonly known as the statute de Donis, in which Parliament proclaimed that a conveyance to "B and the heirs of his body" was to be construed as the donor intended. The statute abolished the courts' construction of the conditional fee by giving the heir of the donee a right to recover property alienated by his ancestor." After the statute de Donis, a deed to "B and the heirs of his body" became known as a "fee tail," from the French fee tailla, i.
    [Show full text]
  • Rights of Englishmen Since 1776: Some Anglo-American Notes" (1976)
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1976 Rights of Englishmen Since 1776: Some Anglo- American Notes William F. Swindler William & Mary Law School Repository Citation Swindler, William F., "Rights of Englishmen Since 1776: Some Anglo-American Notes" (1976). Faculty Publications. 1596. https://scholarship.law.wm.edu/facpubs/1596 Copyright c 1976 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOLUME 124 MAY 1976 NUMBER 5 "RIGHTS OF ENGLISHMEN" SINCE 1776: SOME ANGLO-AMERICAN NOTES* WILLIAM F. SWINDLERt In commemorating the two hundred years since English colonists in the New World concluded that they could secure their "rights as Englishmen" only by breaking free from England itself, the most meaningful perspective will derive from an ap- praisal of both English and American constitutional evolution since then. For central to the crisis of 1774-1783 was the fact that the colonies and the mother country proceeded from fundamen- tally, irreconcilably opposed understandings of the British con- stitution itself. The American Revolution effected fundamental changes in England and in America, launching both nations upon new courses on which they have continued to the present. It should follow, therefore, that the most practical evaluation of the one course will depend upon a comparable evaluation of the other. I. THE CONSTITUTIONAL IMPASSE OF 1776 A. The Sea Change of Viewpoints For most of the 170 years from the drafting of the first charter of the Virginia Company of London in 1606 to the third * This Article is in part based on a lecture given at Lincoln's Inn, London, January 8, 1975.
    [Show full text]
  • Rosenberry V. Hillebrenner
    NOTICE FILED This Order was filed under 2021 IL App (4th) 200551-U July 15, 2021 Carla Bender Supreme Court Rule 23 and is th not precedent except in the NO. 4-20-0551 4 District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT STACY ROSEBERRY, WILLIAM B. ) Appeal from the HILLEBRENNER, and LEECIA HILLEBRENNER, ) Circuit Court of Plaintiffs-Appellees, ) Pike County v. ) No. 18L13 FEROL D. HILLEBRENNER, Individually and as ) Executor of the Estate of Thomas E. Hillebrenner, ) Honorable Deceased, ) Timothy J. Wessel, Defendant-Appellant. ) Judge Presiding. JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice DeArmond concurred in the judgment. ORDER ¶ 1 Held: The appellate court affirmed the trial court’s entry of summary judgment in favor of plaintiffs because (1) the devise in decedent’s will contained words of purchase and not words of limitation and (2) assuming the Rule in Shelley’s Case would otherwise apply, Illinois statutory law prevents its application in this case. ¶ 2 In the legal profession, few things strike fear in the hearts of attorneys like arcane principles of property law. The rule against perpetuities, for example, is something every lawyer is taught, but precious few ever learn. And even those who do wouldn’t be able to define it if a guest asked them to at a dinner party. But even more nerve-racking is future interests and anything entitled “the Rule in ____’s Case.” ¶ 3 English common law applicable to transfers of property contains all of the things the modern legal system abhors: magic words, hypertechnical interpretation, and inflexible rules.
    [Show full text]
  • The Rise of Modern American Contract Law
    The Rise of Modern American Contract Law <http://www.orsinger.com/PDFFiles/the-Rise-of-American-Contract-Law.pdf> Richard R. Orsinger [email protected] http://www.orsinger.com Orsinger, Nelson, Downing & Anderson, L.L.P. San Antonio Office: 1717 Tower Life Building San Antonio, Texas 78205 (210) 225-5567 http://www.orsinger.com and Dallas Office: 5950 Sherry Lane, Suite 800 Dallas, Texas 75225 (214) 273-2400 http://www.ondafamilylaw.com Texas Supreme Court Historical Society and State Bar of Texas History of Texas Supreme Court Jurisprudence 2015 Austin, May 7, 2015 Chapter 2 © 2015 Richard R. Orsinger All Rights Reserved Table of Contents I. INTRODUCTION... - 1 - II. STAGES OF CONTRACT LAW... - 3 - A. TWO MODES OF THINKING.. - 3 - B. PRE-MODERN CONTRACT LAW.. - 3 - C. MODERN CONTRACT LAW... - 4 - III. ADOPTING THE COMMON LAW IN TEXAS... - 5 - IV. LEARNED TREATISES ON EUROPEAN, ENGLISH AND AMERICAN CONTRACT LAW... - 7 - A. TREATISES ON CONTINENTAL LAW.. - 7 - 1. Pothier.. - 7 - 2. Savigny.. - 9 - B. TREATISES ON ENGLISH LAW... - 9 - 1. Blackstone... - 9 - a. Definitions and Categories of Contract... - 10 - b. What Constitutes an Agreement?.. - 10 - c. Consideration.. - 10 - d. The Subject Matter of the Contract... - 10 - e. Remedies For Breach of Contract.. - 11 - 2. Powell.. - 11 - 3. Chitty... - 12 - a. Structure of the Treatise.. - 12 - b. Definition and Categories of Contracts... - 12 - c. Formation of Contract; Offer-and-Acceptance; Mutuality of Obligation... - 13 - d. Analysis of Promises... - 13 - e. Consideration.. - 13 - g. Remedies for Breach of Contract.. - 14 - 4. Addison.. - 14 - 5. Benjamin.. - 15 - 6. Leake.. - 15 - a. Structure of the Treatise.
    [Show full text]
  • Escaping the Malthusian Trap: Dynasty Trusts for Serious Dynasts John V
    University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2013 Escaping the Malthusian Trap: Dynasty Trusts for Serious Dynasts John V. Orth University of North Carolina School of Law, [email protected] Follow this and additional works at: http://scholarship.law.unc.edu/faculty_publications Part of the Law Commons Publication: Green Bag 2d This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. ESCAPING THE MALTHUSIAN TRAP DYNASTY TRUSTS FOR SERIOUS DYNASTS John V. Orth† HE CENTURIES-LONG HISTORY of Anglo-American proper- ty law can be told as a struggle between the dynastic im- pulse that seeks to tie up a family’s property forever and the public policy of providing an opportunity for the tal- Tented and ambitious to acquire property (and eventually found their own dynasties). From the beginning, an estate in fee simple was in- heritable – as indicated by the formula “to A and his heirs” – but when it also became alienable, the risk emerged that one unwise descendant could bring the dynasty to an abrupt end.1 The effort to limit descent to the “heirs of the body” seemed to offer a solution, turning the fee simple into a series of life estates in successive de- scendants. But English judges defeated this attempt by construing † John Orth is the William Rand Kenan, Jr.
    [Show full text]
  • Banks and the Reception of the Common Law in the U.S
    TOO BIG TO FAIL: BANKS AND THE RECEPTION OF THE COMMON LAW IN THE U.S. VIRGIN ISLANDS Joseph T. Gasper II* The story of the extent to which the common law of England has been received and applied in the United States, is one of the most interesting and important chapters in American legal history. However, many courts and writers have shown a tendency simply to say that our colonial forefathers brought the common law of England with them, and there has often been little or no inclination to look further into the question.1 I. INTRODUCTION The one-hundredth anniversary of Transfer Day—the name by which the 31st of March is known in the U.S. Virgin Islands and also a legal holiday in the Territory2—will occur in 2017. The * © 2017, Joseph T. Gasper II. All rights reserved. Appellate and Complex Litigation Law Clerk/Law Librarian, Superior Court of the Virgin Islands, District of St. Croix. I am indebted to the Virgin Islands for the knowledge, insights, and training gained over the past six years clerking initially for the Honorable Darryl Dean Donohue, Sr. (retired), former Presiding Judge of the Superior Court of the Virgin Islands; then the Honorable Maria M. Cabret, Associate Justice of the Supreme Court of the Virgin Islands; and presently for the Honorable Harold W.L. Willocks, Administrative Judge of the Superior Court of the Virgin Islands, as well as the Honorable Douglas A. Brady, the Honorable Denise Hinds Roach, and the Honorable Robert A. Molloy, Judges of the Superior Court of the Virgin Islands.
    [Show full text]