(concurring).
In my dissent on the first hearing, my observations of what I considered to be the law were based upon the assumed fact, apparently conceded by counsel on both sides, that the time this estate has been in settlement has not been an unreasonable time. On that concession I based my conclusion that the rule against perpetuities was violated by the provision of the will under which the issue was raised. Upon reflection and further consideration, I am now disposed to think that the basis on which I took my former position is untenable, and in that view I am led to concur in the conclusion of my brethren, though I prefer to place my concurrence on somewhat different grounds from those of the court.
The pertinent part of the will is as follows:
“I hereby authorize and empower my said executors and the survivor of them, at their and Ms discretion as to time, to sell and dispose of all or of any part of the aforesaid residue of my estate real and personal, at public or private sale or sales for such price or prices and upon such terms and conditions as to them or the survivor of them, may seem best, and to grant and convey the property sold to the purchaser or purchasers thereof, his, her or their heirs, executors, administrators, or assigns, absolutely, by delivery or in fee simple according to its kind, free from all liability for or on account of the application of the purchase money; and upon full compliance being made with the terms of any such sale or sales thereupon and as soon thereafter as conveniently may be done, to distribute and divide the proceeds thereof, after deducting therefrom a sum equal to three per centum of the gross amount of such sale or sales, which sum I hereby give and allow to my executors, or to the survivor of them, as compensation for their or his services in making such sale or sales — equally, share and share alike, between my four children, Louis P. Shoemaker, Eraneis D. Shoemaker, Clara A. Newman, formerly Clara A. Shoemaker, and Abigail C. Newman, formerly Abigail C. Shoemaker, and between the survivors of them; and if any one or more of my said children should have departed this life leaving lawful issue, him, her or them surviving at the time of making any such distribution or division of the proceeds of a sale or sales of any part of my said estate then and-in that event I direct that said proceeds, less the commission allowed by me, as aforesaid, be distributed and divided equally between my surviving children and the issue then living of my child or children who may then be dead, the issue of such deceased child to take per stirpes and not per capita only the share or respective shares which the parent or respective parents if living would have taken. * * *”
It is argued by appellants that the limi-t tation in the will to the “issue” of a child of testator violates the perpetuities rule.
As will appear from the quoted extract above, testator in his will appointed his two sons, and the survivor of them, as his executors and trustees, and left to them the bulk of his estate to be by them, or him, sold and the proceeds distributed among testator’s children living at the time of distribution or between the survivors of them at the time of distribution and the issue then living of such of his children as might then be dead. This, *215I think, makes the will susceptible to no other construction than that the time of distribution will ultimately determine who are the beneficiaries to take.
The time of sale was not fixed but was to be at the discretion of the named executors or the survivor of them.
In 1901, in a case involving this will, it' was decided that testator’s children could not compel a partition of the property. It would follow as a corollary that they could not call for a conveyance to themselves. The correctness of this decision cannot now be questioned.
It may be that testator, having full and complete confidence in his sons, intended to repose in them a purely arbitrary discretion as to the reasonableness of time of sale, and, if such be the case, then a court would have no right to substitute its opinion as to reasonableness for that of the executors. On the other hand, testator may have intended the discretion not to be an arbitrary one but a reasonable one, and in such a case the court would be required in certain circumstances to interfere.
If the person in whom a discretion is reposed by the testator be living at the death of testator, then he would constitute a life in being by which the period of the rule against perpetuities would be gauged. If he refuse to act at all, or if in certain cases he seek the aid of a court of equity in the exercise of the discretionary power vested in him, then, as to the execution of that power, he has passed out of existence. Certain discretionary trusts fail upon the death of the discretionary trustee. However, trusts for sale, though they be discretionary, ordinarily will not be permitted by a court of equity to fail, for the court can execute them by having a sale within a reasonable time.
Whether the creation of interests in property, contingent for vesting upon the exercise of a power of sale, will violate the rule against perpetuities depends upon whether such power of sale must be exercised, if at all, within lives in being and twenty-one years thereafter. Gray on Perpetuities (2d Ed.) § 478. I think it may be stated as fundamental that a court of equity will, when its aid is sought, direct sales to be had within a reasonable time. What is reasonable time in any particular ease depends upon the conditions and circumstances of that case. To avoid the rule against perpetuities we must say, however, as a matter of law, that in no ease could a reasonable time be more than twenty-one years.
The purpose of the rule against perpetuities was to prevent the tying up of property and the taking of it out of commerce. The gross term of twenty-one years arose, as has been said, out of an accidental circumstance. Nevertheless that such is the limit of the rule is well settled. Por a court of equity to recognize that it must apply the rule in a proper case, as of course it must, and at the same time to say that its own failure to eompel action or that its own view as to what would be reasonable timé for settlement might create a situation whereby such action was necessary would be anomalous — it would be to admit that a court of equity will stifle its own conscience.
Looking at the will in this case as of the date of the death of testator, and applying this reasoning, I necessarily reach the conclusion that the devise is good, for the law is that a limitation is either valid for all time or void for all time from the moment of its creation.
It might be said by some that in this conclusion I am shutting my eyes to actualities, for in this case the discretionary trustee availed of the aid of the equity court, and that court, on the 30th day of October 1901, or more than thirty-one years ago, directed a sale of all the lands “with all reasonable despatch,” and yet to-day there remain unsold certain parcels of land and undetermined the persons who will share the proceeds of sale of those parcels. This delay, however, has been due primarily to the inaetion of the parties in interest. When a court of equity directs a sale to be made with all reasonable despatch, the trustees for sale, though they must not sacrifice the property, yet must not delay sales in speculation as to enhancement in value. If the parties interested in the proceeds of sale want so to speculate with the property, they are not prevented from doing so, but this speculation must be by other means and after the property has passed out of the trustees’ hands.
During this long period of years the parties interested at all times had it within their power to compel, by application to the court, a reasonably immediate — never to be considered to be as much as twenty-one years— winding up of the estate. This power in them puts the limitations over without the operation of the rule against perpetuities (Gra^ on Perpetuities, §§ 203, 444, 486), and failure of any particular party in interest to act *216would give him no cause to complain, nor would it give any one claiming through him a better right.
The closest approach to this conclusion I have found is the case of Brandenburg et al. v. Thorndike et al., 139 Mass. 102, 28 N. E. 575. There testator left his estate to trustees to pay a certain sum to testator’s wife during her life and at the expiration of three years from her death, “or at such time, whether earlier or later, as may, in the discretion of the trustees, be found expedient and practicable for the final settlement and distribution” of his estate, the trustees should distribute the proceeds among certain persons living at the time of distribution. It was contended that these bequests were void for remoteness because the estates might not vest until more than twenty-one years had passed after the death of the widow of testator. The court said:
“But this is not the fair construction of the will. It does not leave it to the unlimited discretion of the trustees to delay the vesting or enjoyment of the estates to such time as they think expedient. They are to pay and transfer the fund at the expiration of three years from the death of the widow, or at such time, earlier or later, as they may find expedient and practicable for the final settlement and distribution of the estate. Taking the view most favorable to the plaintiffs, the discretion of the trustees to delay the payment after the expiration of the three years is limited to such time as is reasonably necessary to settle the estate. They could not delay longer without violating their duty, and in ease of unreasonable delay they would be compelled by a court of equity to make the payment and transfer. In no contingency could it be necessary or reasonable to delay the settlement and distribution of the estate for 21 years after the death of the widow. The estates of the nieces and nephew must.vest within the limitation of time prescribed by the law against perpetuities, and the bequests, therefore, are not void for remoteness.”
The principle on which the case quoted from turned is present here. The sale provided in the will, contemplated by the testator, and directed by the court would have avoided the possibility of the application of the rule. The failure to make the sale was the fault of the parties in interest. The probable enhancement of value of the property doubtless was the motive, but whatever the motive, the fact is the sale might have and would have been had except for inaction on the part of those concerned. Their failure to enforce a sale within a reasonable time will not affect a provision of the will valid at the time of testator’s death.