248 HARVARD LAW REVIEW. follow two long extracts from Nelson, C. J., and Cowen, J. Would one suppose from this that Nelson, C. J., and Bronson and Cowen, JJ., were the dissenters from the judgment of the Court of Errors affirming the decision of the Chancellor ? Yet such is the fact. The will in Root v. Stuyvesant was made before the statute, and at a time when terms for sixty-three years were good, (though brought within the purview of the statute by a subsequent repub- lication,) and the Chancellor and the majority of the Court of Errors thought that the statutory inhibition of these terms so altered the scheme of the will as to avoid it altogether. The particular proposition for which the opinions of the dissent- ing judges in Root v. Stuyvesant are cited, that an appointment under a power is not rendered bad by the fact that a bad appoint- ment could be made under the power, is good law enough. Indeed, it is hard to imagine a power under which a bad appointment might not be made, e. g. a power to appoint to issue. What the opinions of the dissenting judges are cited for is not entirely clear. If it is that the court can mould invalid provisions so as to make them good, it is enough to say that the opinion of the Chancellor and the majority of the Court of Errors is directly opposed to such a view. C. The doctrine of cypres forms a recognized exception to the rule that construction is not affected by questions of remoteness. That doctrine is this. When land is devised to an unborn person for life, remainder to his children in tail, the unborn person takes an estate tail ; so also when there is a series of successive life estates. This doctrine was originally confined to executory trusts, where, of course, it was all well enough, but it has been extended to legal estates. Now it should be observed that this doctrine has always been regarded with suspicion and disapproval by the ablest judges. Lord Kenyon was the first, in i786,to extend it beyond the case of executory trusts, yet he himself, in Brudenell v. Elwes,^ said :
- The doctrine of cypirs goes to the utmost verge of the law. . . .
We must take care that it does not run wild. ... I know that great judges entertained considerable scruples at the time concern- ing that decision. It went indeed to the outside of the I'ules of construction^ So Sir J. L. Knight Bruce, V. C, in Boughton v. ^ I East, 442, 451 (1801).
