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an act void with only a bare quorum present, but only with a full bench. Nor unless a case arises which cannot be disposed of without considering the constitutional question ; ? nor because the act is unjust or oppressive; : nor except where the act is void beyond reasonable doubt, and then only when the opposition between the constitution and the law is such that the judge feels a clear and strong conviction of their incompatibility. 4 The courts have always refused to inquire into the policy of laws or the motives of the legislature even where fraud and corruption were alleged.5

It is noteworthy that nearly a century after the Supreme Court first exercised its power of expounding the constitution that this question, long since regarded as settled, should again be revived. The structure of this government, the genius of our institutions, the utterances of the men who most actively engaged in drafting the constitution, and the words of the constitution itself all proclaim that the court in declaring unconstitutional acts of Congress is acting within its powers. And it is well that this sacred trust has been placed in the judiciary; for if we cannot put our faith in the judges to whom shall we turn? “ If the constitution ever perishes it will be when the judiciary shall have become feeble and inert, and either unwilling or unable to perform the solemn obligations imposed on it by the original structure of the government.


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I Cooley

Constitutional Limitations, 163; Pollock v. Trust Co., 158 U, S. 606.

2 Ibid.

8 « With the policy of legislation of this class this court has nothing to do. That is for the legislative branch of the government.” Harlan, J., dissenting in Pollock v. Trust Co. See also cases cited, supra.

4 Fletcher v. Peck, per Marshall, C. J., 6 Cranch, 87.

5 Ex parte McArdle, 7 Wall. 506, 514; Doyle v. Insurance Company, 94 U. S. Rep. 535: “ We are not at liberty to inquire into the motives of the legislature. We can only examine its power under the constitution." Chase, C. J., in Ex parte McArdle, supra.

6 Story Exposition of the Constitution, 185.


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In the well-known case of the Proprietors of the Church in Brattle Square v. Grant, Judge Bigelow says, that in the case of the grant of a fee on condition, the right existing in the grantor is “ a vested right, which, by its very nature, is reserved to him, as a present existing interest;” and that this right to enter in the event of a breach of the condition, " as it does not arise and take effect upon a future uncertain or remote contingency, is not liable to the objection of violating the rule against perpetuities, in the same degree with other conditional and contingent interests in real estate of an executory character;” and that “the possibility of reverter, being a vested interest,” “is capable at all times of being released to the person holding the estate on condition, or his grantee.” But, adds the judge: “ It is otherwise with gifts or grants of estates in fee, with limitations over upon a condition or event of an uncertain or indeterminate nature. The limitation over being executory, and depending on a condition, or an event which may never happen, passes no vested interest or estate. It is impossible to ascertain in whom the ultimate right to the estate may vest, or whether it will ever vest at all, and therefore no conveyance or mode of alienation can pass an absolute title, because it is wholly uncertain in whom the estate will vest on the happening of the event or breach of the condition upon which the ulterior gift is to take effect."' 2

In the above case there was a devise to the deacons of the church and their successors upon this express condition and limitation that the minister shall constantly reside in the house devised; and upon failure to comply therewith, the devise was declared to be void, and the property was given over to “ John Hancock, Esquire, and to his heirs forever."

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1 3 Gray, 142.

Pp. 148, 149. See also pp. 160 and 161 of this case.

It is to be observed that while in one place Judge Bigelow speaks of the devise over, as being “ to the heirs of John Hancock,” in three other places, he speaks of the devise over as being “ to John Hancock and his heirs.”

Now, there is a manifest difference between a devise to the heirs of a person, and a devise to a person and his heirs. In the former case, as we shall presently see, the heirs are not necessarily ascertainable at the death of the ancestor; but the gift is to them as purchasers; whereas, in the latter case, the gift is not to the heirs at all; but it is to the ancestor himself; and the heirs take not as purchasers, because the gift is not to them; but they take by descent under their ancestor, the purchaser.

Passing by cases of such descriptions, as when in a gift to heirs, the word “heirs” is construed to refer to persons now ascertainable, the ancestor now living, and as when the word " heirs” is construed to mean children, and like descriptions of cases, we will refer to the case of Sears y. Russell. In that case there was an executory devise to the heirs of the testator; and it was held that they were to be ascertained when the contingent event should occur, if ever.

In Putnam v. Story, there was a limitation to the heirs of a person who was living at the testator's decease; and it was held that an heir apparent could make a valid alienation which, of course, would be subject to the contingency of his surviving his ancestor. But under the strict rule of " nemo est haeres viventis,no one can be ascertained as an heir, at least until the death of the ancestor; and it was said in effect, in that case, that no one but an heir apparent could make a valid, though of course contingent, alienation.

But how is it in an executory devise to A and his heirs: thus,-to John Hancock and his heirs -- after the decease of the ancestor? Can or cannot the heirs make a valid, though contingent, alienation of the executory devise?

In Winsor v. Mills, it is said by Judge Knowlton, commenting upon another statement contained in Brattle Square Church

18 Gray, 86.

2 132 Mass. 205.

3 157 Mass. 365.

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v. Grant, that in that case, the executory devisee or his heirs could have released ; and this is the question we wish here to consider and more broadly, namely, whether, but for the invalidity of the executory devise on the ground of its remoteness, the heirs of John Hancock for the time being, could not have passed the entire interest under the executory devise, not merely by a release, but by devise, or by a conveyance to a stranger?

This is an important question; because it involves the power over the alienation of an executory limitation in fee, after the death of the ancestor to whom it is limited in fee,- in a case which is free from the imperfection of remoteness.

We must, then, take up the subject of the descent of a future interest, together with that of the power of the heir for the time being, to alienate that interest.

And here it may be well to mention that at law, without the aid of statute, an executory devise, though limited to A and his heirs, can not be assigned; but that in equity, it is assignable by A himself,-- and likewise it is, even at law, devisable by him.? But even at law, such an executory devise can be released by A.3 “Modern statutes have very generally made legal executory interests alienable as well as releasable." 4

Under the old law, a vested remainder limited to B and his heirs, descended to the person who should prove to be the heir of B when the particular estate came to an end. The same it was, in the case of the descent of a reversion, which is also a vested interest. It descended to the person who should prove to be the heir of the first reversioner when the particular estate came to an end.5

In the case of executory interests, as contingent remainders and executory devises, the rule of descent was, that the person

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1 See also Gray on Perp., Sec. 305, 218; Gray on Perp., Sec. 268; Jarman Cl. 2,

on Wills (6th ed., by Bigelow), *49. ? 2 Washburn on Real Property,

82 Washburn on Real Property, *367, *368, *341, *357; Roe, d. Perry 368, 357 ; Gray on Perp., Sec. 268. 7. Jones, 1 K. Black, 30; Jones v. * Gray on Perp., Sec. 268. Perry, 3 T. R. 88, 94; 1 Fearne on 5 Watkins on Descents, *41, *42, Contgt. Remainders, 548, N. (f.); Wat *24, *25, *120, *121, *28, *29. kins on Conveyancing (8th; ed.), 217,

entitled was he who should prove to be the heir of him to whom the interest was limited in fee, whenever the contingency should happen. Thus, in the case of vested interests, the ascertainment of the heir would be expressed to be as of the expiration of the particular estate; in the other case, it would be expressed to be, as of the happening of the contingency.

Moreover, in either case, whether contingent or vested, it might happen, - that before the interest became capable of immediate enjoyment in possession, the persons who successively could predicate of themselves heirship of the first purchaser or first reversioner, as the case may be, would not necessarily be the heirs of their predecessors in the line of heirship.?

An illustration of the mode of descent of an executory devise to A and his heirs is well illustrated by the case of Goodright V. Searle.3 The devise was to the testator's son G and his heirs, but if he should die under twenty-one years of age, leaving no issue, then over to the testator's mother, P, in fee. The executory devisee, P, died after the testator, G surviving; and he was the heir of P. Thereafter G died under age and without leaving issue. It was held that the executory devise did not merge in the fee of G, and that the executory devise did not pass to the heir of G, who was not the heir of P, but that it took effect in the person who was the heir of P when the contingency happened, which was at the death of G under


and without issue.

Among other cases involving the principle of the executory devise passing to the heir as of the time of the happening of the contingency, there is the case of Barnitz's Lessee v. Casey, by Judge Story.

Mr. Fearne, commenting on the above case of Goodright v. Searle, says that the principle that the interest vests in the person who is heir upon the occurrence of the contingent event, is really the same principle as that which applies to the descent of a vested interest; for that in each case, the heir is ascertained


1 Watkins Descents, *122; Tudor's Lead. Cas. R. P. (3d ed.), 731.

2 Watkins on Descents, *120, *121. 3 2 Wils. 29.

47 Cranch, 456; 2 Shars. & Budd's Am. Lead. Cas. R. P. 521, 522.

5 Fearne on Contgt. Remainders, 561, 562.

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