Duke of Norfolk's Case (1682) 3 Ch Cas 1; 22 ER 931 is an important

legal Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

judgment Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to decision-making, make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct u ...

of the

House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...

that established the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

rule against perpetuities The rule against perpetuities is a legal rule in the American common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of peo ...

. The case related to establishing inheritance for

grandchildren Family (from la, familia) is a group of people related either by consanguinity (by recognized birth) or affinity (by marriage or other relationship). The purpose of the family is to maintain the well-being of its members and of society. Ideall ...

Henry Howard, 22nd Earl of Arundel Henry Frederick Howard, 15th Earl of Arundel PC (15 August 160817 April 1652), styled Lord Maltravers until 1640, and Baron Mowbray from 1640 until 1652, was an English nobleman, chiefly remembered for his role in the development of the rule aga ...

including grandchildren who were not yet born.

Facts of the case

In the case, the

Earl of Arundel Earl of Arundel is a title of nobility in England, and one of the oldest extant in the English peerage. It is currently held by the Duke of Norfolk, and is used (along with the Earl of Surrey) by his heir apparent as a courtesy title. The ...

tried to create a shifting executory limitation so that some of his property would pass to his eldest son,

Thomas Thomas may refer to: People * List of people with given name Thomas * Thomas (name) * Thomas (surname) * Saint Thomas (disambiguation) * Thomas Aquinas (1225–1274) Italian Dominican friar, philosopher, and Doctor of the Church * Thomas the Ap ...

(who was mentally deficient), and then to his second son, Henry. Henry would at first receive other property, but that would pass to the fourth son, Charles, if Henry succeeded to Thomas's property. The estate plan also included provisions for shifting the property many generations later if certain conditions should occur. When

Henry Henry may refer to: People *Henry (given name) * Henry (surname) * Henry Lau, Canadian singer and musician who performs under the mononym Henry Royalty * Portuguese royalty ** King-Cardinal Henry, King of Portugal ** Henry, Count of Portugal, ...

, by then the 6th

Duke of Norfolk Duke of Norfolk is a title in the peerage of England. The seat of the Duke of Norfolk is Arundel Castle in Sussex, although the title refers to the county of Norfolk. The current duke is Edward Fitzalan-Howard, 18th Duke of Norfolk. The dukes ...

, succeeded to Thomas's property, he did not want to pass the other property to Charles. Charles sued to enforce his interest, and the

held that such a shifting condition could not exist indefinitely. The judges believed that tying up property too long beyond the lives of people living at the time was wrong, although the exact period was not determined until '' Cadell v. Palmer'' (1883), 150 years later.

Rule in the case

The

is closely related to another doctrine in the common law of property, the rule against unreasonable restraints on alienation. Both stem from an underlying principle or reference in the common law disapproving of restraints on property rights. However, while a violation of the rule against perpetuities is also a violation of the rule against unreasonable restraints on alienation, the reciprocal is not true. As one has stated, "The rule against perpetuities is an ancient, but still vital, rule of property law intended to enhance marketability of property interests by limiting remoteness of vesting." The rule has been recognized in some jurisdictions in the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

in ''Wedel v. American Elec. Power Service Corp.'' In the United States, the law favors the vesting of estates as early as possible, as the provisions of the rule are predicated upon "public policy" and thus "constitute non-waivable, legal prohibitions, and in

Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

through statute.''Perpetuities and Accumulations Act 1985'' (ACT) s8(1); ''Perpetuities Act 1984'' (NSW),s8; ''Perpetuities and Accumulations Act 1968'' (Vic) s5; ''Property Law Act 1974'' (Qld) s209; ''Perpetuities and Accumulations Act 1992'' (Tas) s6(1); ''Property Law Act 1969'' (WA) s103; ''Property Law Act'' (NT).

References

{{reflist English property case law 1682 in England 1682 in law House of Lords cases