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28 Temp. L.Q. 321 (1954-1955)
The Pennsylvania Wait-and-See Perpetuity Doctrine - New Kernels from Old Nutshells

handle is hein.journals/temple28 and id is 331 raw text is: TEMPLE LAW QUARTERLY VOL. 28 NO. 3 WINTER 1955 THE PENNSYLVANIA WAIT-AND-SEE PERPETUITY DOCTRINE-NEW KERNELS FROM OLD NUTSHELLS DONALD S. COHAN Even when laws have been written down, they ought not always to remain unaltered. Aristotle The Rule against Perpetuities has been the subject of much recent comment and criticism.' In Pennsylvania the dissatisfaction culmi- nated in a provision of the Estates Act of 1947 2 which changed the basic mechanism of the common law Rule against Perpetuities.' The statute converted the possibilities test into an actualities test. This actualities test has been called the wait-and-see rule. The purpose of this article is to explore the mechanical innova- tions, practical ramifications, and to make a present evaluation of the wait-and-see rule, as embodied in the Pennsylvania statutory change. A.B., 1951, Amherst College; LL.B., 1954, Harvard University; Member, Phila- delphia Bar; Associated with the firm of William W. Cohan. 1. Leach, Perpetuities Legislation, Massachusetts Style, 67 HARV. L. REv. 1349 (1954) ; AMERICAN BAR ASSOCIATION, Proceedings of the Section of Real Property, Probate and Trust Law (1953) ; Simes, Is the Rule Against Perpetuities Doomed?, 52 MICH. L. REv. 179 (1953) ; Newhall, Doctrine of the Second Look, 92 TRUSTS AND ESTATES 13 (1953) ; Panel Discussion, Looker, Leach, Simes & Newhall, Reform of the Rule Against Perpetuities, 92 TRUSTS AND ESTATES 768 (1953) ; Leach, Per- petuities in Perspective: Ending the Rule's Reign of Terror, 65 HARV. L. REv. 721 (1952) ; 6 AMERICAN LAW OF PROPERTY 40, 99-106 (1952) ; Brhgy, A Defense of Pensylvania's Statute on Perpetuities, 23 TEMP. L.Q. 313 (1950); Phipps, The Pennsylvania Experiment in Perpetuitics, 23 TEMP. L.Q. 20 (1949); Quarles, The Cy Pres Doctrine: Its Application to Cases Involving the Rule Against Perpetuities and Trusts for Accumulations, 21 N.Y.U.L.Q. REv. 384 (1946) ; Leach, The Rule Against Perpetuities and Gifts to Classes, 51 HARV. L. REV. 1329 (1938) ; Leach, Perpetuities in a Nutshell, 51 HARV. L. REv. 638 (1938) ; Notes, 26 Temp. L.Q. 148 (1952) ; 97 U. or PA. L. REv. 263 (1948) ; 23 N.Y.U.L.Q. REV. 511 (1948) 60 HARV. L. REV. 1174 (1947). 2. Act of April 24, 1947, PA. STAT. ANN., tit. 20, § 301.4 (Purdon 1950). 3. New York abolished the Rule against Perpetuities, setting up its own measur- ing mechanism, requiring that interests must vest and the trust must terminate within two lives in being at the creation of the estate. NEW YORK REAL PROPERTY LAW, LAWS 1909, c. 52; McKINNEY'S CONSOL. LAWS OF NEW YORK, bk. 49; NEW YORK PERSONAL PROPERTY LAW, LAWS 1909, c. 45; McKINNEY'S CONSOL. LAWS OF NEW YORK, bk. 40. See 6 AMERICAN LAW OF REAL PROPERTY 170 et seq. (1952). For a discussion of other legislative changes, see 6 AMERICAN LAW OF PROPERTY 40 (1952).

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