I concur with Mr. Justice Rumsey, and wish to add some considerations that have occurred to me. A review of the origin and history of the rule against perpetuities and the extent of the limitation imposed by the rule at the time of the adoption of the Revised Statutes will aid ns, I think, in ascertaining the proper construction to be given to the provision of the statute in force at the time of the death of the testator.
It seems that the rule against perpetuities grew up in England after the'Statute of Uses (27 Henry VIII, chap. 10), and the Statute of Wills (32 Henry VIII, chap. 1); and it was in the development of the rules in relation to executory devises of chattels real that the rule had its origin and took its shape. (Gray Perp. § 148.) It was settled in The Duke of Norfolk's Oase (3 Oh. Cas. 53) that a future interest in lands might be limited to commence on any contingency which must occur within lives in being. The period within which future interests must vest was subsequently extended so as to make it cover the time necessary for the birth of posthumous children, and also the minority of a person who was under age at the termination of a life in being (Gray Perp. § 171); and gradually the period of such a minority, viz., twenty-one years, was fixed as an absolute period during which an estate could be so limited, without regard to the minority of any existing individual. This question was finally put at rest in England by Thellusson v. Woodford (reported in the House of Lords in 11 Ves. 112), where the lord chancellor in his judgment says: “ The language of all the cases is, that property may be so limited as to make it unalienable during any number of lives not exceeding that to which testimony can be applied to determine when the survivor of them drops.” The true form of the rule is stated by Professor Gray as that “ No interest subject to *231a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.” (§ 201.) It was, however, always understood that a vested interest was not subject to the rule against perpetuities, for it is not subject to a condition precedent; and thus a remainder, after an estate tail, is never too remote, for there is always some one who can destroy it by barring the entail. (Id. §§ 443,441.) Property was not, therefore, inalienable, if there were in being persons by whose united action the property could be vested in one or more persons by whom an absolute title' in fee could be conveyed. In Jar-man on Wills (Vol. I [4th Am. ed.], 262) the learned author says: “ Although it is to be observed in this and all other cases, if the executory devise is subsequent to an estate tail it will he good, because the power which resides in the owner of that estate to discharge all posterior limitation, executory as well as vested, by means of an enrolled conveyance, now substituted for common recovery, takes the case out of the mischief of, and, consequently, out of the rule, against perpetuities.”
In framing the Be vised Statutes the revisers had before them this rule, and had clearly in mind its extent and limitations. In the revisers’ notes to the provisions of sections 14 and 15, hereafter referred t«, it is said: “ Notwithstanding the abolition of estates tail, our law allows certain executory dispositions of land and the profits of land, by which the former may be rendered inalienable, and the latter may be made to accumulate, for a life or lives in being and twenty-one years thereafter. This limit is derived from the English law, and was originally adopted by the English judges from analogy to settlements by entail. A settlement on a parent for life, with remainder to his eldest son in tail, and any number of remainders over for life and in tail, could be barred by the son’s suffering a recovery as soon as he came of age. Not to give a greater perpetuity to a disposition by executory devise than the possible (and from the exigencies of society, even in that country, the general) limits of an entail, the courts held that no executory devise could he good unless it must necessarily take effect within a life or lives in being, or twenty-one years thereafter. "" * * The difference between the preceding sections and the existing law consists in the following particulars: 1. Alienation cannot be pro*232tracted by means of mere nominees unconnected with the estate, beyond the period of two lives. 2. iio more than two successive estates for life can be created. 3. The period of twenty-one years after a life or lives in being is no longer allowed as an absolute term; but the rule is restored to its original object by being confined to the case of actual infancy. * * * To prevent a possible difficulty in the minds of those to whom the subject is not familiar, we may also add that an estate is never inalienable unless there is a contingent remainder, and the contingency has not yet occurred. Where the remainder is vested, as where the lands are given to A. for life, remainder to B. (a person then in being) in fee, there is no suspense- of the power of alienation ; for the remainderman and the owner of the prior estate, by uniting, may always convey the whole estate. This is the meaning of the rule of law prohibiting perpetuities, and is the effect of the definition in § 14.” (5 Edm. Stat. at Large, 306.) By section 14 of the statute as thus proposed, and which was enacted, it is provided that “ Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this Article. Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” By section 15 it is provided that “ The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case mentioned in the next section.” (1 R. S. 723.)
We have thus a clear meaning of the change intended in the law as it stood by the adoption of these provisions of the Revised Statutes, and that change consisted in substituting, for a period during which an estate could be rendered inalienable, two lives in being at the time of the creation of the estate and an actual minority, instead of any number of lives in being at that period and twenty-one years thereafter. ISTo change was made in respect to what would constitute an inalienable estate, or as to what condition rendered an estate inalienable; but, as stated by the revisers, the provision in the section before referred to, that “ Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed,” is in effect a statement *233that an estate is never inalienable “ unless there is a contingent remainder and the contingency has not yet occurred.”
This general rule has been almost uniformly recognized and applied, as appears from the authorities cited by Mr. Justice Rumsey. In Williams v. Montgomery (148 N. Y. 519) the rule is stated as follows: “ The test of alienability of real or personal property is that there are persons in being who can give a perfect title. * * * Where there are living parties who have xmitedly the entire right of ownership, the statute has no application. * * * The ownership is absolute, whéther the power to sell resides in one individual or in several. If there is a present right to dispose of the entire interest, even if its exercise depends 'upon the consent of many persons, there is no wnlawful suspension of the power of alienation. The ownership, although divided, continues absolute.”
In determining the question whether this will unduly suspends the power of alienation, and thus violates these two sections of the statute to which reference has been made, we must ascertain whether, by the creation of the trust, this„ real property was rendered inalienable for more than two lives in being at the time of the creation of the trust. An express trust is created within subdivision 3 of section 55 of the article upon Uses and Trusts in the Revised Statutes (1 R. S. 728), which provides that an express trust may be created to receive the rents and profits of lands, and to apply them to the use of any person during the life of such person, or for any shorter term, subject to the rules prescribed in the 1st article of the title.
The trust was thus valid unless it violated some of the provisions of the article providing for the creation of estates. The court below held that it violated sections 14 and 15, before cited, in that the power of alienation was suspended for a period greater than two lives in being at the creation of the trust. By section 63 of this article upon Uses and Trusts (1 R. S. 730), prior to the amendment of 1893, to which attention will be called, it was provided that “ Ro person beneficially interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest.” This section, as originally enacted, clearly made the fee of the land inalienable during the continuance of the trust, and, under that section, but for the amendment hereafter referred to, there could be no *234question that the trust would be void. The beneficiaries or life tenants being disqualified from conveying their beneficial interest in the property during four lives in being when the estate was created, the power of alienation was suspended, for there were no persons in being by whom an absolute fee in possession could be conveyed. The power of sale in the trustee would not help the trust, for if it were thereby changed into personal property the trust would be void under section 1, title 4, chapter 4, part 2 of the Be vised Statutes (1 B. S. 773). But by chapter 452 of the Laws of 1893, section 63 of the article upon Uses and Trusts was amended by adding to it the following provision : “ Always provided that, whenever the person beneficially interested in the whole or any part of the income of any trust heretofore or hereafter created for receipt of the rents and profits of lands, or the income of personal property, shall have heretofore become, or may hereafter be or become, entitled in his or her own right * * * to the remainder in the whole or any part of the principal fund so held in trust, subject to such estate for a life or lives or a shorter term, then and in any such case it shall and may be lawful for such person so beneficially interested in the whole or any part of the income of such trust estate, for a life or lives or a shorter term, and become entitled to the remainder in the whole or any part of the principal fund so held subject to said trust estate, for a life or lives or a shorter term, to make' and execute a conveyance or release duly acknowledged, * * * whereby such person so beneficially interested in the whole or any part of the income of such trust, for a life or lives or a shorter term, shall convey or release to himself or herself * * * all his or her right, title and interest in and to the income of such trust estate, * * * and thereupon the estate of the trustee- or trustees as to the whole or such portion of the principal fund so held in trust to which such person so releasing shall have heretofore become or may hereafter become entitled to the remainder as aforesaid, shall cease and determine, and the' trust estate for a life or lives, or a shorter term so far as it affects the whole or such portion of the income and principal fund to the remainder in which said person so releasing has heretofore become or may hereafter be or become entitled, shall be and become forthwith merged in such remainder or reversion.” The effect .of this amendment is to render trust estates alienable *235where a vested remainder, which is not subject to be divested, is created. The moment that the remainder absolutely vests, there were parties in being who could by conveyances create an absolute fee in the beneficiary for life which he could convey.
By the will in question a trust has been created with a vested remainder over, and under the operation of this section, as amended by the act of 1893, there is nothing to prevent the persons in whom such remainder vested from conveying such remainder to the persons beneficially interested in the trust; and then upon a conveyance or release of their interest in the property, or the income therefrom, to themselves as persons in whom is vested the remainder, the trust would cease by operation of the statute and the fee would vest in these life tenants, and the property at once would become alienable. It would seem that the Legislature intended to allow such a destruction of the trust and thus render alienable what prior to the passage of this amendment would have been inalienable, and that this statute accomplished that purpose. That being so, as there are persons beneficially interested in the rents and profits of land, and a person in whom there is vested an absolute remainder in the same land, who can unite to terminate the trust and at once render the property alienable, there is no suspension of the power of alienation. The first impression, in considering the provisions of this statute and its effect,, was, that it tended seriously to modify the settled policy of the State by allowing trusts to be created for a-period longer than two lives in being, and thus render property inalienable for a longer period; but a further consideration has produced the conviction that the effect of the statute is just the contrary, and that in a case in which a vested remainder is created (and to which this proviso added to section 63 only would apply), the effect is to add a limitation to the power of a person to render property inalienable. Take the ordinary case of a bequest to trustees for the benefit of A. for life, with remainder to B. Before the adoption of this provision, this trust was inalienable dvft-ing the life of A. Under the provisions of this section, as amended, the trust is at any time alienable by the united action of A. and B., by which the title of the trust property vests absolutely in A., who then could convey- “ an absolute fee in possession.” Certainly, in such a case, it could not be said that the power of alienation of this property was suspended *236where B., by a simple conveyance to A. of the remainder, would put it in A.’s power to grant an absolute title to the land in fee.. And does it make any difference as to the alienability of the land that there are four persons beneficially interested in the rents and profits instead of one ? Williams v. Montgomery (supra), and the other cases cited, seem to me to settle that question. I am quite-aware that the effect of this decision may at first appear startling, and it is very much in conflict with the views that I entertained upon the argument; but after a careful study of the question and the effect to be given to this amendment, I can see no escape from this conclusion.