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Spendthrift trusts which shield assets from creditors have been an ongoing problem for the law since their advent in the nineteenth century. Other, very recent, forms of trust are an even bigger problem: they take the notion of asset protection much farther, allowing settlors to protect not only the beneficiary’s assets, but their own, from creditors; these are called “self-settled asset protection trusts. Moreover, more and more states allow so-called “dynasty trusts” which allow settlors and beneficiaries to maintain assets in trust tax free for generations, overturning long-settled principles of the common law such as the Rule Against Perpetuities. All of these trusts represent bad public policy: they disrupt contracts by allowing debtors to avoid their debts, they disrupt the tort system by denying victims compensation and removing deterrents to high risk behavior, and they withhold vast tax revenues from the public fisc. Most efforts to reform trust law to alleviate the problems of these trusts have been statutory - and unsuccessful, for reasons I explain below. No one has looked to principles in the law itself for a brake on their proliferation. This is a serious oversight because property law itself does offer a solution in the obsure but important doctrine of numerus clausus. Students in common law juridictions do not study this doctrine, and few academics pay attention to it, but it is nonetheless a foundational principle of the law and one which unequivocally bars the types of trusts discussed above.

The common law rule against perpetuities maintained alienation of property by voiding interests in property that did not vest within a life in being at the creation of the interest plus twenty-one years. The rule was applied strictly, often producing harsh results. The courts used a what-might-happen test to strike down nonvested interests that might not have vested in a timely manner. During the last half-century, many legislatures have softened the application of the rule against perpetuities by enacting wait-and-see provisions, which require courts to decide cases based on the facts as they actually developed, and reformation, which allowed some nonvested interests to be reformed to save them from invalidity. This paper describes the common law rule. Then it traces the modern developments, including promulgation of the widely adopted Uniform Statutory Rule Against Perpetuities, which includes an alternate 90 year fixed wait-and-see period to be applied in place of the common law's lives in being plus twenty-one years. The paper continues by exploring the policies which underlie the rule against perpetuities. Then, after finding that there is no significant movement to repeal the rule except for trusts, it is established that proposals for that federal law, including federal transfer taxes, cannot and should not be used to implement the policies served by the rule itself. There is a continuing need for state rules against perpetuities. The paper proposes that the rule be modified to make it more understandable and easier to apply. The proposed rule would replace lives in being plus twenty-one years with a fixed term of years. This would eliminate most of the difficulties encountered in application of the rule. Wait-and-see and reformation are part of the proposed rule. The proposed rule provides for determination of valid interests at the end of the fixed term of year Rule and contains a definition of "vested" to enable judges and attorneys to apply the rule in cases which will arise many years in the future.

Since the patience of the reader and the space in this issue of the Law Review are nearing their limits, I wish to publish only two points in response to what Professor Dukeminier has written.. These points further support my position that Dukeminier's proposed statute would lead almost anyone to conclude that A, not X, is the causal relationship measuring life in Example I of my article.' By implication, these points, along with the others made in my article, corroborate my overall thesis: Professor Dukeminier's proposed one-sentence statute2 cannot be counted a responsible way of identifying the measuring lives for waitand-see, if indeed measuring lives are to be used at all;3 the exact meaning of persons "who can affect the vesting of the interest" is disputable and the various subsidiary rules Dukeminier announces need rethinking, clarifying, and codifying. First. The first point relates to my conclusion that the natural meaning of the proposed statutory language-persons "who can affect the vesting of the interest"-is that it refers to persons who can produce a change in some aspect of the vesting of the interest that was not already settled at the date of the gift.4 This interpretation, which I now believe Professor Dukeminier agrees would exclude X as a causally-related measuring life,5 is not only a defensible interpretation of the language of the proposed statute.6 It is consistent with the purported linkage (attributed to the formula by Dukeminier) to the search for a validating life at common law. Since the common law Rule Against Perpetuities is not concerned about aspects of vesting that are satisfied at the date of the gift, a common law validating life must always have a causal relationship to some aspect of the vesting of the interest that was unsatisfied at the date of the gift.7

The so-called rule against perpetuities had its origin in a decision by Lord Chancellor Nottingham in i68i,l and while originally judge-made law, is now universally recognized as part of the common law. Closely related to this rule, but purely statutory, are trusts for accumulation, the duration of which under some statutes is limited to a shorter period than that prescribed by the rule against perpetuities. The so-called "spendthrift trust" is an American exotic with only a century of growth behind it. As the original forms of all of these have been modified in many states by recent legislation, the purpose of this article is to briefly summarize these statutory changes down to date, subject to the limitations of the average indices to the Pamphlet Laws issued since the latest editions of compiled or annotated statutes in the various states, and then to surmise the underlying causes that led to their enactment.

Many words have been written about the "wait-and-see" statutes which, where enacted, alter the common-law Rule Against Perpetuities. Too many, says Professor Leach, who thinks there should be more such laws and no more articles.' If his suggestion is to be heeded, it may be hoped that other legislatures tackling the problem anew will come up with acts of more clarity and less doubtful validity than section 4 of the Pennsylvania Estates Act of 1947.2 This Comment will not prolong the debate concerning the desirability of wait-and-see legislation. As a matter of policy, wait-and-see may be wise or unwise. But regardless of one's views on the policy question, it is not the policy itself but rather the specific embodiment of it in section 4 of the Estates Act with which Pennsylvania lawyers and courts have to contend. Consideration of the Pennsylvania legislation suggests that it may not withstand an attack challenging it as unconstitutionally vague. The act's potentially fatal flaw concerns the measuring life problem. That there will be difficulty in determining which lives are measuring lives is not a novel suggestion -3 even Professor Leach impliedly concedes that there is less than desirable clarity.4 He avoids a square