Specially Concurring in the Result. — This is a suit by the seller to enforce specific performance of a contract whereby the defendant agreed to buy certain lands, provided the plaintiff had a fee-simple title thereto. The plaintiff derives title under the will of his father, Robert Imbrie, who died January 5, 1897. Other clauses of the testament devise lands to the sons of the testator in fee, but the title of the plaintiff depends upon and is affected by two clauses, the seventh and the twelfth. The seventh reads thus:
“I give, bequeath and devise to my son, Ralph Imbrie, all the land that I now own in and being a part of the donation land claim of Caleb Wilkins and wife, # * subject to the following restrictions, to-wit: said land shall not in whole or part be sold of mortgaged until the said Ralph Imbrie is forty years of age, nor subject to his debts and should he sell or mortgage it, or any part of it, before that time, all his interest in said land shall cease and terminate, and said land shall descend to his children, if he then have any, and if not, then to all his brothers then living. This devise to be accepted and received by him in full of my indebtedness to him, except five hundred dollars. The incumbrance upon his land to be paid out of my estate.”
The twelfth cláuse here follows: ■
“I further bequeath, devise and direct that should any of the above named devisees die without leaving lineal descendants, children or grandchildren, then, in *604that case, all of the property above devised to such devisee shall go in equal shares to Ms or her brothers and sisters then living, or to the children of any brother or sister then deceased, by right of representation.”
The complaint states that the plaintiff became 40 years of age on October 8,1916, and prior to that time did not sell the realty in whole or in part, or mortgage the same or permit it to become subject to his debts. The pleading also recites the names of the children of Eobert Imbrie, the testator, then living and one daughter dead, survived by her two children, gives the names of all the grandchildren of the testator, and avers that on January 29, 1920, all the brothers and sisters of the plaintiff then living and all their children and the children of the deceased sister, naming all of them, conveyed to him all their right, title and interest in the property by deeds of conveyance duly executed, acknowledged, delivered and recorded. He states that he himself has one child, Gladys Imbrie, a minor, born after the death of the testator. Upon this narration of facts, claiming he has no plain, speedy or adequate remedy at law, he prays for a decree to the effect that his title be adjudged a marketable one and that the defendant be compelled specifically to perform the contract; together with other and further relief as may seem equitable.
The sole defense interposed is a general demurrer to the complaint, which being overruled, the defendant refused to answer further; whereupon the court rendered a decree according to the prayer of the complaint, and the defendant has appealed.
It is conceded that the testator had the fee-simple title absolute to the land, hence the question to be determined is, whether or not the plaintiff Ealph *605Imbrie has tbe same title, that being the estate which he contracted to convey. The devising words in the seventh clause are sufficient to pass to Ralph that interest in the land, although neither the word “heirs” nor the words “fee simple” appear in the will. Although at common law, in a conveyance it was requisite to the creation of a fee-simple estate that it run to the grantee and his heirs, yet even then the words “fee simple” and “heirs” were not necessary in a will devising real property to a devisee: 2 Blackstone, 108. In Oregon the rule is settled by statute, to the effect that—
“A devise of real property shall be deemed and taken as a devise of all the estate or interest of the testator therein subject to his disposal, unless it clearly appears from the will that he intended to devise a less estate or interest”: Section 10121, Or. L.
It is admitted that all of the conditions in the seventh clause restraining the alienation of the land until Ralph is 40 years of age have been fulfilled. Without regard, therefore, to the question, academic here, of whether this condition is void as a restraint upon alienation, under the authority of Hawley v. Northampton, 8 Mass. 3 (5 Am. Dec. 66), and many other precedents, or whether it is fulfilled, the question to be determined is: What effect has the twelfth clause of the will on the estate of Ralph? We note that the entire fee-simple estate passed out of the testator by virtue of his will and succeeding death. There is no remainder to anyone by virtue of that devise. The case does not involve either vested or contingent remainders. The whole estate went to Ralph Imbrie with the conditional limitation laid down in the twelfth clause.
It is impossible by deed to convey a fee-simple title to one, and in the same conveyance to limit the same *606fee simple to another. The conveyance would contradict itself. In wills, however, a fee-simple estate' may be devised and on certain conditions the identical fee may be limited to another individual. This would be good as an executory devise. This executory devise, however, must be one that is recognized by the law. Its conditions must conform to public policy. In other words, since the testator has devised a fee-simple estate to Ralph, if the former would limit this estate and divert it in the future to someone else, it must be by a lawful limitation. At common law the effort of landed proprietors was to perpetuate their holdings throughout the successive generations of their families. The effort of the king and courts was to break down these perpetuities and make the land alienable within certain reasonable conditions. ' The result was, that the common-law rule provides that the limitation to be worked out by executory devise must not extend the perpetuation of the estate beyond a life or lives in existence at the time the will takes effect at the death of the testator, plus the period of twenty-one years with nine months, as the period of gestation, added. As stated by Mr. Chief Justice Parker in Hawley v. Northampton, 8 Mass. 3 (5 Am. Dec. 66), the limitation of twenty-one years was to meet the case of a minor, and that of nine months was to let in a child yet unborn. The weight of authority is, that the mention of this fractional year was superfluous, for the reason that, if it be to his interest, a child en ventre sa mere is deemed to be living at the time the will takes effect.
Another principle to be observed is thus expressed in 21 R. C. L. 289:
“In enforcing the rule against perpetuities, it is a firmly established principle that every future limitation of an estate is void as too remote unless it is *607apparent that it must take effect and vest, if at all, within the period allowed by the rule. * * Thus, where a breach of condition on which a limitation depends, if it occurs at all, must occur within the period allowed by the rule, it will be upheld. It is not sufficient that the future estate may by possibility become vested within the period allowed by the rule against perpetuities or even that it will probably become vested in such period. If it may possibly happen beyond the established time limits or if there is left any room for uncertainty or doubt on the point, the limitation is void. If a future limitation may not by possibility take effect within the prescribed period it cannot be made good by subsequent events. In other words, the validity of the future estates under the rule against perpetuities depends not on what actually happens after the time at which the rights of the parties are fixed, but on what may happen as viewed at the time when the deed or will creating them takes effect. Thus, it makes no difference that one to whom a future interest is given happens to be born within the period allowed by the rule if he might have been born beyond that period.”
A leading case on perpetuities is Brattle Square Church v. Grant, 3 Gray (Mass.), 142 (63 Am. Dec. 725). The syllabus of that case reads thus:
“A limitation, by way of executory devise, which may possibly not take effect within the term of a life or lives in being at the death of the testator, and twenty-one years (adding in case of a child en ventre sa mere, about nine months) afterwards, is void, as too remote, and tending to create a perpetuity. A devise, subject to a conditional limitation void for remoteness vests an absolute estate in the first taker.”
In the exhaustively reasoned case of Moody v. Walker, 3 Ark. 147, 190, the rule is thus stated:
“An executory devise cannot be barred by fine or a common recovery, and therefore to prevent perpetuity, it became necessary to prescribe bounds and limits beyond which it should not extend, The time *608to which they were limited was definitely settled in Stephens v. Stephens and that decision received the sanction of the court of chancery and of the judges of the king’s bench. According to the resolution of that case the devise over must vest within the compass of a life or lives in being and twenty-one years and nine months thereafter. But should an executory devise be not limited to an event within the prescribed period of time mentioned, as upon an indefinite failure of issue, it was void by reason of its remoteness, as favoring the doctrine of entailed estates and thereby creating perpetuities. ‘It is of no importance how the fact turns out to be; it is void at the commencement if the event on which its existence depends may, by possibility, extend beyond the duration of the time prescribed’: 6 Cruise, title ‘Devise,’ 32, Chap. 17.”
In Lawrence’s Estate, 136 Pa. St. 354 (20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925), it is said that no interest subject to a 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. In Barnum v. Barnum, 26 Md. 119 (90 Am. Dec. 88), it was decided that:
“An estate so limited that it may by possibility extend beyond life or lives in being at the time of its commencement, and twenty-one years and a fraction of a year (to cover the period of gestation) after-wards, during which time the property would be withdrawn from the market or the power over the fee suspended, is a perpetuity, and void as against the policy of the law, which will not permit the property to be inalienable for a longer period.”
In Graham v. Whitridge, 99 Md. 248 (57 Atl. 609, 58 Atl. 36, 66 L. R. A. 408), the principle is thus enunciated:
“If the contingency upon the happening of which the remainders over * * are to vest is one that might or might not happen during a life or lives in being at *609the time of the death of the testator and twenty-one years and a fraction of a year in addition, then the condition is too remote and the remainders fail to take effect. In determining this question of remoteness it is an invariable principle that regard is to be had to possible and not merely actual events. It is not determined by looking back on events which have occurred and seeing whether the estate has extended beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing whether according to its terms there was then a possibility that it might so extend. The event upon the happening of which the remainder is to vest must be one that is certain to happen within the prescribed period or the limitation will be had.”
The court there, speaking of remainders, said the same rule already mentioned respecting remainders applies to executory devises: See, also, Andrews v. Lincoln, 95 Me. 541 (50 Atl. 898, 56 L. R. A. 103); Wells v. Heath, 10 Gray (Mass.), 17; Coggins’ Appeal, 124 Pa. 10 (16 Atl. 579, 10 Am. St. Rep. 565); Lasnier v. Martin, 102 Kan. 551 (171 Pac. 645); Minot v. Paine, 230 Mass. 514 (120 N. E. 167, 1 A. L. R. 365); Hopkinson v. Swain, 284 Ill. 11 (119 N. E. 985); Ortman v. Dugan, 130 Md. 121 (100 Atl. 82); Moroney v. Haas, 277 Ill. 467 (115 N. E. 648); Taylor v. Crosson, 11 Del. Ch. 145 (98 Atl. 375); Riley v. Jaeger (Mo.), 189 S. W. 1168; Overby v. Scarborough, 145 Ga. 875 (90 S. E. 67); Camden etc. Trust Co. v. Guerin, 87 N. J. Eq. 72 (99 Atl. 105); O’Hare v. Johnston, 273 Ill. 458 (113 N. E. 127); Harmon v. Harmon, 80 Conn. 44 (66 Atl. 771); Shepperd v. Fisher, 206 Mo. 208 (103 S. W. 989); Bartlett v. Sears, 81 Conn. 84 (70 Atl. 33); Haydon v. Layton (Ky.), 128 S. W. 90; Starr v. Minister, 112 Md. 171 (76 Atl. 595); Hewitt v. Green, 77 N. J. Eq. 345 (77 Atl. 25); Gambrill v. Gambrill, 122 Md. 563 (89 Atl. 1094); Hollan*610der v. Central etc. Co., 109 Md. 131 (71 Atl. 442, 23 L. R. A. (N. S.) 1135); Hays v. Martz, 173 Ind. 279 (89 N. E. 303, 90 N. E. 309); Dime Savings Trust Co. v. Watson, 254 Ill. 419 (98 N. E. 777).
With these principles in mind, let ns advert to the conditions described in the complaint. We remember that Ealph’s father, the testator, died on January 5, 1897, and that Ealph’s daughter, Gladys, yet a minor, was born after the death of the testator. As to Ealph’s devise, his own was the only life in being at the death of his father. Yet the estate to be taken under the executory devise by Ealph’s brothers and sisters is made by the twelfth clause of the will to depend on possibly three lives: First, Ealph’s'; second, that of his yet unborn daughter; and third, that of her potential child or children; for this twelfth clause makes the estate of the brothers and sisters to depend upon the conditional limitation that Ealph shall die without leaving lineal descendants, children or grandchildren. Contrary to the law, the testator essayed to control the devolution of his property through and beyond two generations yet unborn. In other words, it is possible that grandchildren be born to Ealph; that he survive both them and his own children and that he then die “without leaving lineal descendants, children or grandchildren.” Extending, as possibly it may, over three lives, two of which in succession were not in being when the will took effect, January 5, 1897, the conditional limitation by way of ex-ecutory devise which was designed to defeat Ealph’s fee and pass it to his collateral kindred is void within the rule against perpetuities. The result is that since there is no valid restriction now operative on the estate given to him by the seventh clause of the will, Ealph has a fee-simple absolute in the property mentioned. His title is therefore marketable. There is *611no excuse shown on the pleading to relieve the defendant from performing his contract. The decree of the Circuit Court should therefore be affirmed.