these attendant modernizing exceptions, as above pointed out.
After mature deliberation, I have come to the conclusion that such common law, so far as it permits accumulations of the character in this suit, is obsolete and repugnant to our conditions and therefore not applicable to the District of Columbia. As a matter of fact, it was considered obsolete and not suited to conditions in England in 1799 because it was repudiated the following year by statute. The utmost boundaries permitting restraints are expressed in the rule against remote vesting and the statute against restraints on alienation which do not apply expressly to accumulations, as above pointed out. It would be clearly contrary to the trend of the law and a step backward to include accumulations of the character involved herein to be within the permissive rules above referred to simply because of the discredited and vehemently criticized
decision in the Thellusson case, supra, which for the reasons above stated is neither binding on the courts of the District of Columbia, nor expressive of the common law in force therein. Public interest and welfare forbid that a dead hand from the past should shape and control the present except so far as permitted by law. Permitting unreasonable restraints on alienation are inconsistent with the principles of democracy. They are the concomitants of an aristocracy. Such restraints are relics of a feudal society, are obsolete and are repugnant to our institutions and conditions.
It is therefore my conclusion that under the particular circumstances of this case the provision in respect of accumulations contained in Paragraph I of Article Fifth, involving as it does the inalienable accumulation of a huge sum of money, probably $10,000,000 for a period probably in excess of sixty years, is invalid and cannot be sustained.
In reaching this conclusion I am not unmindful of the admonition of the Supreme Court contained in Shelton v. King, 229 U.S. 90, 33 S. Ct. 686, 690, 57 L. Ed. 1086, that: "There is no higher duty which rests upon a court than to carry out the intentions of a testator when the provision is not repugnant to settled principles of public policy and is otherwise valid."
But in the still later case of Funk v. United States, 290 U.S. 371, 54 S. Ct. 212, 216, 78 L. Ed. 369, holding that the wife of defendant in a criminal case was a competent witness in his behalf, the Supreme Court, while stating that the Federal Courts do not have power to amend or repeal any rule or principle of the common law, nevertheless in the complete absence of specific Congressional legislation on the subject, these courts do have the power "* * * to declare and effectuate, upon commonlaw principles, what is the present rule upon a given subject in the light of fundamentally altered conditions, without regard to what has previously been declared and practiced. It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions."
The remaining questions raised by the complaint are disposed of as follows:
The trustees should exercise their sound discretion in holding and disposing of securities received by them as a result of reorganization proceedings of corporations in which the testator held securities although such reorganization securities do not qualify as legal investments for the trustees under Paragraph 2 of Article Seventh.
The question of the amount of the bond has been determined.
The other questions should not be answered at this time under the authority of May v. May, 167 U.S. 310, 17 S. Ct. 824, 42 L. Ed. 179.