Arundel Corp. v. Marie

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In the Circu it Court for B altimore C ounty Case No. 03-C-03-011656 IN THE COURT OF APPEALS OF MARYLAND No. 1 September Term, 2004 ______________________________________ THE ARUNDEL CORPORATION v. RICHARD M. MARIE and OLIVIA GREEN, PERSONAL REPRESENTATIVES OF THE ESTATE OF CAMILLE S. MARIE, DECEASED ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: November 9, 2004 The issues before us are (1) whether a right of first refusal that is clearly void under the traditional common law rule against perpetuities is saved by virtue of the legislative modification of that r ule con tained in Marylan d Cod e, § 11-103 o f the Estates and Trus ts Article, and (2) if not, whether we should save it by modifying the traditional common law rule. The Circuit Court for Baltimore County held that the right was not saved under the statute. We agree with that conclusion and shall decline the invitation to modify the common law rule. BACKGROUND On July 28, 1960, Camille and Mary Marie conveyed a parcel of land in Baltimore County to the Arundel Corporation. The parcel conveyed was part of a larger tract owned by the Maries. In consideration of one dollar, the deed gave Arundel a right of first refusal as to the part that the Maries retained, identified by a metes and bounds description but commo nly known as 3121 O ld Court Road. Specifically, the Maries agreed that, whenever they or their heirs, ex ecutors, adm inistrators or ass igns decide d to sell that parcel, the y would offer it to Arundel, its successors and assigns, for a price of $2,250 per acre. On Nove mber 2 2, 2002 , Camil le Ma rie, havin g surviv ed his w ife, M ary, died intestate, and their children, Olivia Dulany G reen and Richard Mercer Marie, were appointed as personal representatives for the estate. On September 8, 2003, the personal representatives, seeking to sell the property free of the right of first refusal, wrote to Arundel and, advising that, in their view, the right of first refusal was void under the rule against perpetuities, requested that Arunde l disclaim its interest in the Marie property. Although there is no indicatio n in the record th at the person al representa tives were a bout to enter into an agreeme nt to sell the pro perty to anyone else, they had made clear in the First and Interim Account filed with the Orphan s C ourt for B altimore C ounty their inten t to sell it and to distribute all of the estate assets as soon as that sale was consummated. Arundel refused to disclaim its interest, averring that (1) in light of the documented decision by the person al representa tives to sell the property, the right of first refusal had vested and was therefore currently enforceable, and (2) even though the right might be void under the comm on law v ersion of th e rule again st perpetuities, th e comm on law ru le had been abrogated by § 11-103 and the vesting of the right was in conformance with the statute. Arunde l expressed its intent to exerc ise its right of firs t refusal and indicated tha t it wishe d to clos e on its in terest in th e Mar ie prop erty within fifteen days. When the personal representatives rejected Arundel s offer, Arundel filed suit in the Circuit Court for Baltimore County, seek ing specific perform ance. As n oted, the cou rt held that the right of first refusal was void under the common law rule and could not be saved under the plain language of the statute, and, on that ground, granted summary judgment for the personal representatives. Arundel appealed, and we granted certiorari on our own initiative while the case was pending in the Court of Special Appeals. Arundel concede s that the tradition al comm on law ru le against perpetuities invalidates the right of first refu sal in this case. See Ferrero Constr. v. Dennis Rourke Corp., 311 Md. -2- 560, 536 A.2d 1137 (1988). It argues, however, that (1) the right is enforceable under the wait and see prov ision of the s tatute, and (2) if it is not, we should modify the common law rule to adopt the kind of wait and see approach that would allow the right to be effective and enforceable. That app roach, Ar undel argu es, is the mod ern trend, ev idenced b y its adoption, in one form or another, by the National Conference of Commissioners on Uniform State Laws in its proposed Uniform Statutory Rule Against Perpetuities and in th e Restatement (Second) of Property: D onative Transf ers § 1.4 . See, in particular, Comment a. to that se ction. The pers onal repres entatives resp ond that the wait and see provision of § 11-103 does not a pply to the situation before us and that the statute effectively precludes us from modifying the common law rule. DISCUSSION Although building on more ancient antecedents, the rule against perpetuities developed through a series of six landmark English cases, spanning about a century-and-ahalf, beginning with Duke of Norfolk s Case, 3 Ch. Cas. 1, 22 Eng. Rep. 931 (1682) and continuing with Lloyd v. Carew, 1 Eng. Rep. 93 (H .L. 1697); Stephens v. Stephens, 26 Eng. Rep. 751 (Ch . 1736); Long v. Blackhall , 101 Eng. Rep . 875 (K.B. 1797 ); Thellusson v. Woodford, 32 Eng. Rep. 1030 (Ch. 1805); and Cadell v. Palmer, 6 Eng. Rep. 956 (H.L. 1833). See the comp rehensive d iscussion in 10 R ICHARD R. P OWELL , P OWELL ON R EAL P ROPERTY § 71.02[2] (Michael Allan Wolf ed., 2003). This Court gave explicit recognition -3- and effect to the Rule as early as 1826. See Dallam v. Dallam, 7 H. & J. 220, 236 -37 (1826), where the Court regarded the Rule as established by more than fifty adjudged cases, none of wh ich we re cited. See also Newton v. Griffith, 1 H. & G. 111 , 115-1 6 (182 7). Early statements of the Rule w ere cast in the difficult verb iage com mon in those days. In Barnum v. Barnum, 26 Md. 119, 171 (1866), for example, the Court d escribed the Rule as follows: If an estate be so limited as by possibility to extend beyond a life or liv es in bein g at th e tim e of i ts commence men t, and twentyone years and a fraction of a year (to cover the period of gestation) afterwards, during which time the property would be withdrawn from the market, or the power over the fee suspended, it is a perpetuity and void as against the policy of the law, which w ill not permit property to be inalienable for a longer period. Perhaps because th e Rule w as designe d to promote the alienability of property, courts, including this Court, occasiona lly confused o r conflated it with a companion rule, resting on the same p ublic po licy, that un reason able res traints on alienatio n are als o void. In Comm onwea lth Realty v. Bowers, 261 Md. 285, 297, 274 A.2d 353, 359 (1971), we cautioned against con fusing the tw o principles, noting that, while the rule against unreason able restraints on alienation was indeed concerned with the duration of limitations on alienation, the rule against perpetuities dealt with the time of vesting of the interest at issue. Earlier, in Fitzpatrick v. Mer.-Safe, Etc., 220 Md. 534 , 541, 155 A.2d 7 02, 705 (1959), we made clear that the Rule is not a rule that invalidates interests which last too long, but interests which vest too remotely, and, in that regard, recited a more concise version of the -4- Rule: [n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of th e interes t. (quo ting Gr ay, T HE R ULE A GAINST P ERPETUITIES, § 201 (4 th ed. 194 2)). That articulation of the Rule is the one we have since applied. See, e.g., Park Station v. Bosse, 378 Md. 122, 134-35, 835 A.2d 646, 653-54 (2003); Dorado v. Broadneck, 317 M d. 148, 152 -53, 562 A .2d 757, 75 9 (1989); Ferrero Constr. Co. v. Dennis Rourke Corp., 311 Md. 560 , 565, 536 A.2d 1 137, 1139 (198 8); Comm onwea lth Realty v. Bowers, 261 Md. 285, 296-97, 274 A .2d 353, 358-59 (1 971); Murphy v. Mer.-Safe Dep. Co., 236 Md. 282 , 287, 203 A.2d 8 89, 892 (1964). By voiding future interests that might vest too remotely, the rule against perpetuities facilitates the a liena bility o f pro perty, helps prevent uncertain title, and encourages ow ners to make effect ive use of their proper ty. Ferrero, supra, 311 M d. at 572 -73, 536 A.2d at 1143. Historically, the Rule was usually applied to grants or devises made by deed or by will. See, e.g., Perkins v. Inglehart, 183 M d. 520, 39 A .2d 672 (1 944); Bowerman v. Taylor, 126 Md. 20 3, 94 A. 65 2 (1915); Graham v. Whitridge, 99 Md. 248 , 57 A. 609 (190 4). In recent years, however, we have extended the Rule to include eq uitable rights in real property created by contract an d enforce able by specif ic performance. See Dorado, supra, 562 A.2d 757 (contract fo r sale of land ); Ferrero, supra, 536 A.2 d 1137 (rig ht of first refu sal to purchase an interest in p roperty); Bowers, supra, 274 A .2d 353 (option to purc hase lan d). In order to determine whether a conveyed interest violates the com mon la w Ru le, a court first must construe the language of the conveyance in precisely the same manner as -5- if there was no rule against perpetuities, and as if the intention expressed by the words may lawfully be carried out. Bowerman v. Taylor, 126 Md. 203, 209, 94 A. 652, 653 (1915). Then, when, apart from any consideration of the validity of this intention, we have arrived at the true construction of the deed, the rule against perpetuities, which is one of law and not of interpretation, should then be applied to the objects so ascertained. Id. The Ru le is applied to determine whether the interest could vest beyond the permissible period, based on the possibility of events, n ot actual events . In re Estate of Snyder, 195 Md. 81, 89, 72 A.2d 757, 760 (1950); Ortman v. Dugan, 130 Md. 121 , 124, 100 A. 82, 83 (1917). Due to the harsh effect of the commo n law R ule and some of the often absurd fictional possibilities that crept into its construction,1 both Parliament in England and State legislatures in the United States looked for ways of limiting e ither the Rule o r its applic ation. See Laurence M. Jon es, Reforming the Law T he Rule Against Perpetuities, 22 M D. L. R EV. 269 1 In actually determining the permissible period for vesting under the common law Rule, courts were required to consider all possibilities that existed at the beginning of the period, however remote they might be. One of those possibilities emanated from the presumption, thought dubious at the time but perhaps now less so, that men and women were cap able of co nceiving c hildren as lon g as they we re alive lon g after any reas onable medical prospect of fertility. On that presumption, the courts were required to assume that, if the measuring life was the child of someone already 90 or 100 years old when the measuring period began, that child might not yet be conceived and would therefore not be a life in being. If the measuring life was the spouse of a named person, who, as in the first example, was already 90 or 100 years old when the measuring period began, the courts had to assume that the person may yet marry someone not yet conceived when the permissible period commenced. These rather strained prospects were not just the musings of mischievous law professors intended to excite the minds of novices to the great paper chase, but actually served to invalidate otherwise valid and reasonable conveyances or devises. -6- (1962). In 1830, the New York legislature rew rote the Ru le to limit the allow able period to two lives in b eing plu s a perio d of m inority. Id. at 278 (citing New York Rev. Stats. c.1, Tit. 2 §§ 14-21, 23, 24, 36-40 and c. 4, Tit. 4). A number of other States tried that approach as well, but, when it proved troublesome, those States, including New York, either abandoned or modified it. Id. at 278. The Maryland General Assembly declined to make such a substantive revision but, over time, created a number of discrete statutory exceptions to the application of the Rule, for things such as devises o r bequests d esigned to m aintain burial lo ts (1906 Md. Law s 59), the transfer of property by will or testame nt from on e charitable corporation to another (1 908 M d. Laws 569), trusts fo r charitable purposes (1931 Md. Laws 453), an d trusts f or emp loyee ben efits (19 57 M d. Law s 633). In 1960, the G eneral As sembly passe d the statute before us in this case, to modify and clarify the Rule aga inst Perpetu ities, concernin g generally the d ispo sition of prop erty . . . passing by will or deed o f trust whe re the ultimate taker is to be d etermined upon the d eath of certain living persons. 1960 Md. Laws 44. That statute, with only stylistic changes, now exists as § 11 -103(a) of the Estates a nd Trusts A rticle and read s as follow s: In applying the rule against p erpetuities to an interest limited to take effect at or after the termination of one or more life estates in, or lives of, persons in being whe n the period of the rule commences to run, the validity of the interest shall be determined on the basis of facts existing at the termination of one or more life estates or lives. In this section an interest which must terminate not later than the death of one o r more persons is a life estate even though it may terminate at an earlier date. -7- The 1960 statute was not the independent creation of the Maryland Gener al Assem bly. When the Leg islature a cted, it had a number of models from which to choose. In 1947, Pennsylvan ia had passed a broad wait and see statute that postponed the determination of the validity of a futu re interest until the end of the period allowed by the common law Rule. 1947 Pa. Laws 100 § 4. Still in force, the Pennsylvania law provides that [u]pon the expiration of the period allowed b y the common law rule against perpetuities as measured by actual rather than possible events any interest not then vested and any interest in membe rs of a class th e mem bership of wh ich is the n subje ct to incr ease sh all be vo id. P A. S TAT. A NN. tit. 20 § 6 104. Massac husetts took a diff erent and m ore limited ap proach. U nder the M assachuse tts statute, if an interest was limited to vest at or after the end of a life estate or a life in being, one could wait until the end of that life estate or life and then lo ok to see if existing fac ts would validate or inv alidate the interest under the traditional rule against perpetuities, rather than having to g ive creden ce to all of the various possibilities that may exist at the time the interest was created.2 Although the drafters of the Massachusetts law preferred, on principle and as a 2 M ASS. G EN. L AWS A NN. ch. 184 A, § 1 ( West 1 989). See 10 R ICHARD R. P OWELL , P OWELL ON R EAL P ROPERTY § 75A.02[2][e] (Michael Allan Wolf ed., 2003). Three other states - Connecticut, Florida and Maine - also adopted language identical to the Mass achuse tts statute . Id. Massac husetts has s ince replace d its wait an d see statute with the Uniform Statutory Rule Against Perpetuities. 1989 Mass. Acts 668 (enacting M ASS. G EN. L AWS ch. 184A, §§ 1 -11). -8- matter of logic , the bro ader sc ope of the Pen nsylvania statute, they were concerned that the Pennsylvan ia statute created too much uncertainty and need for judicial constru ction. W. Barton Leach, Perpetuities Legislation , Massac husetts Style , 67 H ARV. L. R EV. 1349, 1353 (1954 ) (Profe ssor Le ach w as one o f the dra fters of the M assach usetts sta tute). Indeed, the Pennsylvan ia statute had been criticized for the difficulty it posed for ascertaining measuring lives and because it prevented early determination of an interest s validity. 10 RICHARD R. P OWELL , P OWELL ON R EAL P ROPERTY § 75A.02[1][b] nn. 17, 22-2 2.1 (Mich ael Allan W olf ed., 2003) (citing Lewis M. Simes, Is the Rule Against Perpetuities Doomed? The Wait and See Doctrine, 52 M ICH. L. R EV. 179 (1 953), P hipps, The Pen nsylvania E xperime nt in Perpetuities, 23 T EMPLE L.Q. 20, 186 (1949), and La wrenc e W. W aggon er, Perpetuity Reform, 81 M ICH. L. R EV. 1718 ( 1983) ). In order to address those concerns, the Massachusetts drafters penned a more limited statute that would require less ju dicial constructio n. W. Barton Leach, Perpetuities Legislation, Massa chusetts Style , 67 H ARV. L. R EV. 1349, 1 353 (1 954). Their wait and see approach was to apply only when an interest was set to vest upon the occurrence of one or more contingencies at or after the end of a life estate or life of a person in being, wh ich, in all cases, w as a dete rminab le even t. Id. at 1357-60. Professor Leach described the statute s application to one or more life estates in, or lives of persons in being as follows: The life estat e case is obviou s. T bequeaths a fund in trust to pay the income to A for life, and then to pay the principal on various contingencies to A s issue. The [statute] requires that the validity of the gif t to issue be determined on the basis of -9- facts existing at the end of A s life estate. But there are other cases involving postponement for lives where technically there is no life estate. For instance: Discretionary trust: A fund in trust to pay so much of the income, and in such shares, as the trustee shall determine among the children of testator during their lives, and to accumulate any balance of income, and then to distribute the principal on various contingencies. It is doubtfu l whether th e children w ould be held to hav e life estates in this situation, but they are lives of persons in being un der the [statu te]. Therefo re the validity of the gift of principal is d etermined on the bas is of facts existing at the death of T s childr en. Accumulation: A trust to accumulate income during the life of testator s widow and then p ay principal w ith accum ulations to testator s issue on various contingencies. In this case, the widow does not have a life estate in any usual sense; but she is a life of a person in being and the gifts of principal are determined on the facts existing at her death. Executory devise: T devises to A in fee, but if A shall die without leaving issue surviving him, then to other persons upon various conting encies. A does not have a life estate ; but under [the statute] the validity of the future interest is determined on the basis of facts existing at his death. Id. at 1358-59 (footnotes omitted). Thus, Massac husetts cho se to postpone determination of the validity of a future interest for a shorter period of time than the Pennsylvania statute, choosing a future po int in time that was easily ascertainable (the end of a life estate or life) and for which there was no substantial reason n ot to wait, since the inter ests at stake co uld not vest until at or after the termination of the particul ar life es tate or life in any ev ent. Id. at 1358 . There was yet a nother variant, a dopted in Verm ont, Ke ntucky, a nd Washington, -10- which combined the wait and see principle with a cy pres approach. Professor Jones described those statutes as allowing a court to reform any interest which might violate the Rule so as to approx imate, within the limits of the Rule, the inte ntion of the creator and providing that in determining whether an interest violates the Rule actual rather than possible events are consid ered. L aurenc e M. Jo nes, Reforming the Law The Rule Against Perpetuities, 22 M D. L. R EV. 269, 280 (1962). Having these various alternatives from which to choose, the Maryland General Assemb ly opted for the limited wait and see approach developed in Massachusetts. The 1960 Maryland statute was clearly patterned on, and, indeed, was identical to, the thenexisting Massachusetts version. The 1960 law was revised stylistically in 1969, as part of a general revision of the estate and trust laws recommended in the Second Report of the Governor s Commission to Review and Revise the Testamentary Law of Maryland (the Henderson Commission, as it became known, was named after its chairman, William L. Henderson, formerly the Chie f Judg e of this Court) . See S ECOND R EPORT OF THE COMMISSION TO REVIEW AND REVISE THE TESTAMENTARY LAW OF MARYLAND (Dec. 5, 1968). It was revised again in 1974 when the Estates a nd Trusts Article was enacted as part of the m ore gen eral cod e revisio n effo rt. Other States, more recently, have taken yet another approach. In 1986, the National Conference of Commissioners on Uniform State Laws published a proposed Un iform Statutory Rule A gainst Perp etuities (US RAP), u nder wh ich a future interest wo uld be valid -11- if either (1) it complies with the common law rule against perpetuities, or (2) it vests or terminates within ninety years after its creation. A lthough it ap pears that m ore than tw enty States have adopted USRAP, 3 Maryland has not done so and, indeed, in 1989 and 1990, rejected proposals by the Maryland S tate Bar Association to further dilute the existing law by making the rule against perpetuities inapplicable to interests, such as rights of first refusal, created by contract for more than nominal consideration.4 Noting that § 11-103(a) is a remedial statute, intended to ameliorate some of the absurdities implicit in the common law rule against perpetuities and to save othe rwise valid conveyances and devises, Arundel urges us to give the statute a liberal and beneficent 3 See A RIZ. R EV. S TAT. §§ 14-29 01 to 290 6; C AL. P ROB. C ODE §§ 21200-21225; C OLO . R EV. S TAT. A NN. §§ 15-11-1101 TO -1106; C ONN. G EN. S TAT. A NN. §§ 45a-49 0 to -496; D.C. C ODE A NN. §§ 19-901 to -907; F L. S TAT. A NN. § 689.225; G A. C ODE A NN. §§44-6-2 00 to -206 ; H AW. R EV. S TAT. §§ 525-1 to -6; IND. C ODE A NN. §§ 32-17-8-1 to 6; K AN. S TAT. A NN. §§ 59-34 01 to -340 8; M ASS. G EN. L AWS ch. 184A , §§ 1-11; M ICH. C OMP. L AWS A NN. §§ 554.7 1 - .78; M INN. S TAT. A NN. §§ 501A ..01 - .07; M ONT. C ODE A NN. §§ 72-2-1 001 to -10 07; N EB. R EV. S TAT. §§ 76-20 01 to -200 8; N EV. R EV. S TAT. §§ 111.10 3 - .103 9; N.M . S TAT. A NN. §§ 45-2-901 to -906; N.C. G EN. S TAT. §§ 41-15 to -22; N.D. C ENT. C ODE §§ 47-02 -27.1 to .5; O R. R EV. S TAT. §§ 105.950 to .975; S.C. C ODE A NN. §§ 27-6-1 0 to -80; T ENN. C ODE A NN. §§ 66-1-2 01 to -208 ; V A. C ODE A NN. §§ 5512.1 to .6; W. V A. C ODE §§ 36- 1A-1 to -8. 4 In 1989 and 1990, the Real Property, Planning, and Zoning Section of the Maryland State Bar Association supported bills (1989 H.B. 524 and 1990 H.B. 838) which would have made the common law rule against perpetuities inapplicable to any contract, option, or deed given for consideration other than nominal consideration that pertains to any right with respect to the use, possession, transfer, or ownership of real or personal p roperty and pr ovided fo r the termina tion of futu re interests at ce rtain specific times. T he bills d id not p ass. -12- construction. Although remedial statutes are, indeed, to be given a liberal construction, the predominant goal of the Court is to ascertain and implement the legislative intent, and the ascertainment of that intent is done, in the first instance, by considering the language used by the Legislature and giving that language a plain and common sense meaning. Baltimore County v. RTKL, 380 Md. 670 , 678, 846 A.2d 4 33, 437-38 (200 4). If there is no ambiguity in that language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends; we do not then need to resort to the various, and sometimes inconsistent, external rules of construction, for the Leg islature is presu med to have meant what it said and said what it meant. Toler v. MVA, 373 Md. 214, 220, 817 A.2d 229, 233 (2003) (quoting Witte v. Azarian, 369 Md. 518, 525, 801 A .2d 160, 165 (200 2)). See also Pelican v. Provident, 381 Md. 327 , 336, 849 A.2d 4 75, 480 (2004). When the Legis lature first enacted the statute at issue in 1960, and when it had the opportun ity to re-examine the statute in 1969, 1974, 1989, and 1990, it had a variety of options from which to choose. In 1960, 1969, and 1974, it had before it the Massachusetts, Pennsylvania, and Vermont approaches, which, as noted, were all quite different. By 1989, it had as well the USRAP and the approach offered by the Real Property, Planning, and Zoning Section of the Marylan d State Bar Association. It chose in each instance to adopt or to retain the Massachu setts approach. In doing so, it elected to modify the strict common law Rule and apply a wait and s ee rule only when the interest in question could not vest prior to the end of a life estate or a life in being. The statute could not be clearer in that regard. -13- The problem for Arundel is that the right of first refusal was not limited to vest at the end of any life estate or any life in being.5 The Maries could hav e elected to se ll the property and thus triggered the right of first refusal at any time during their lives or the life of the survivor of them. That is why it is not saved b y the statute. On the other hand, of course, it was always possible that neither the Maries nor any of their heirs alive at the time the right was conveyed would d ecide to sell the property, and th at is why the conceivable vesting is too remote and the right of first refusal is void under the common law Rule. Arundel alternatively urges that, if § 11-103(a) does not save the right of first ref usal, we should change the common law Rule by adopting the wait and see approach advocated by the Restatement of the Law (Second) of Property, Donative Transfers § 1.4, especially since so many States now follow some variation of a more extensive wait and see approach. Arundel argues that, like common law interspousal tort immunity, which the C ourt recently abrogated in Bozman v. Bozman, 376 Md. 461, 830 A.2d 450 (2003), the common law rule against perpetuities, at least when applied to commercial transactions, is impractical 5 If we were to resort to any external rule of construction, it would be the long established o ne in M aryland that it is no t to be presu med that th e Legislatu re intended to make any innovation u pon the comm on law, further than the c ase absolutely require[s] and that [t]he law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced. Hooper v. Mayor & C.C. of Balto., 12 Md. 464, 475 (1859) (quoting from D WARRIS ON S TATUTES at 695)(e mpha sis in orig inal). See also S tate v. North , 356 Md. 308, 312, 739 A.2d 33, 35 (1999). As we pointed out in North, referencing Anderso n v. State, 61 Md. App. 436, 449, 487 A.2d 294, 300 (1985), and earlier in Hardy v . State, 301 Md. 124, 131-32, 482 A.2d 474, 478 (1984), that rule of construction has a Constitutional basis in Article 5 of the Maryland Declaration of Rights. -14- and irrational that it is a vestige of the past that should be changed by the Court and not left up to the Legislature. In Felder v. Butler, 292 Md. 174, 183, 438 A.2d 494, 499 (1981), we observed that, [a]lthough empow ered to cha nge com mon law rules in light of changed conditions, the Court has always recognized that declaration of public policy is normally the function of the legislative branch of gov ernment and that [ t]he Court has therefore declined to alter a common law rule in the face of indications that to d o so wo uld be con trary to the public policy of the State, as declared by the General Assembly of Maryland. See also Harrison v. Mont. Co. Bd. of Educ., 295 M d. 442, 460 , 456 A.2d 894, 903 (1983); Halliday v. Sturm, 368 M d. 186, 2 08-09 , 792 A .2d 114 5, 1158 -59 (20 02) and cases c ited ther e. As we said in Halliday, though for a different reason, [t]hat caution is especially appropriate here. Halliday, supra,368 Md. at 209, 792 A.2d at 1159. Not only has the Legislature declined in vitations to m odify the rule as Arundel wishes, but it has affirm atively codified the comm on law R ule, subject o nly to the excep tions appro ved by it in the form of statutes. As part of the 1969 comprehensive revision of the estate and trust laws, the Legislature consolidated into what is now § 11-102 of the Estates and Trusts Article the various exception s to the Ru le that had previo usly been scattere d in oth er sectio ns. In doing so, it declared that, subject to § 4-409 of the article, dealing with legacies for charitable use, § 11-103, and the exceptions specified in § 11-102, the common law rule against perpetuities as now recognized in the State is preserved. That decision, to retain the -15- common law Rule but s tatutorily modify its application, followed the recommendation of the Governor s Commission to Rev iew and Revise the Tes tamen tary Law of M aryland. See S ECOND R EPORT O F THE G OVERNOR S C OMMISSION TO R EVIEW AND R EVISE THE T ESTAMENTARY L AW OF M ARYLAND 148-49 (Dec . 5, 1968). Whether or not that legislative statement would, in fact, preclu de us from any substantiv e modific ation of the Rule through common law development, it certainly constitutes a declaration of public policy that we are unwilling to disturb. JUDGMENT OF CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED, WITH COSTS. -16-

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