filed the following dissenting opinion.
There are some points in the instant case upon which everyone seems to be agreed. The testamentary appointments, under established principles, are generally to be read as though they had been included in the original deed of trust, and if so read in the instant case, violate in some respects the rule against perpetuities. It is also agreed that had the settlor *555retained a complete and unconditional power of revocation, the time from which the rule runs would not have been the date of the deed but the date of the settlor’s death, when the power terminated. This principle was clearly recognized in Ryan v. Ward, 192 Md. 342, 353. See note 7 A.L.R. 2d 1089, and Cook v. Horn, 104 S. E. 2d 461 (Ga.). The theory is that since a general power to appoint by will or deed, or a complete power to revoke, is the substantial equivalent of absolute ownership, and does not restrain alienation, the application of the rule should be postponed. See also notes on the Ryan case in 47 Mich. E. Rev. 1226 (1949), 34 Minn. E. Rev. 152 (1950), and 10 U. Pitt. R. Rev. 556 (1949).
In the Ryan case we held that a limited power of annual withdrawals, which would have made it possible to destroy the entire estate within twenty-two years, did not render the estate “destructible”. Accord: In re Heller’s Trust, 115 N.Y.S. 2d 343. We rejected the argument that this was the equivalent of a complete and unconditional power to consume (or to revoke). The question now before us is whether the fact that the power of revocation was conditional upon the death or resignation of the trustee, Dalrymple, defers the time from which the validity of the appointments is to be determined. His death did in fact occur, but need not have occurred, in the lifetime of the settlor. She did not revoke, but appointed a new trustee. Thus her right to alienate only existed for thirteen days in 1895, and did not exist at the creation of the trust, or at her death when her will took effect.
There seems to be no authority directly in point. 4 Restatement, Property, § 373 (d), discusses the destructibility requisite for an application of the rule stated therein. It is there noted that the power does not exist when the power of appointment is one which “must be jointly exercised by two or more persons or which can be exercised by the donee only with the concurrence of one or more other persons. Similarly it does not exist when the power of revocation is exercisable only with the concurrence of one or more persons other than the settlor, or is otherwise subject to any condition precedent.” (Italics supplied.) Since the power to revoke in the instant case was exercisable only upon the death or resigna*556tion of the trustee, as a condition precedent, it seems clear to me that, up to this point at least, the Restatement does not support the court’s conclusion in the instant case. Reliance is placed, however, on the next sentence which states that, in determining destructibility, the power of revocation need not always be “presently exercisable at the time of its creation, provided that the period, during which the exercise of such power is postponed, does not invalidate all interests created by the exercise of such power, and thus, in effect, invalidate the power- itself. Thus if A limits property to Trustee B for the period of ten years to accumulate the income thereof, and at the end of that time to select some one of the descendants of B, and to pay the income to the person thus selected for life, distributing the corpus to such person or persons and in such shares and interests as the person thus selected shall designate by either deed or will, and in default of an exercise of such power to distribute the income to the children of the person so selected for life and at the death of the survivor of such children to distribute the corpus to the descendants of A then surviving, the entire limitation is valid. The period of ten years, and also the life of the person selected by Trustee B to be life tenant, are both excluded in applying the rules stated in §§ 370 and 371 to interests created by an exercise of the power and to interests limited in default of such exercise (see Comment c). Thus it is possible, under some circumstances, to exclude not only the time ‘during which an interest is destructible’ but also, the time prior to such time.” I am not persuaded that this illustration controls the instant case. There the complete power of disposition by will or deed, which is equivalent to a power of revocation, is by the terms of the instrument itself, postponed for the period of accumulation, ten years, when the donee of the power is selected. It is as though the instrument itself were to become effective only upon the happening of a condition, like a delivery in escrow. No rights are vested in any beneficiary until the selection occurs. But in the instant case the rights of the donee, and her powers of testamentary appointment came into being upon the delivery of the deed, and at that time the power to revoke was wholly conditional upon an event not *557certain to happen in her lifetime. I do not read the passage last quoted as modifying the earlier statement that the power to revoke cannot be made subject to a condition precedent.
I find nothing to the contrary in § 391. This section deals with the validity of general powers of appointment, and is applicable only by way of analogy. If given the construction proposed, it seems inconsistent with § 373. Moreover, the illustration given of a power granted to a corporate trustee, conditional upon the election of a Republican president, which is said to be not “presently exercisable”, seems to me to support my view. The event might have happened during the life of the settlor. While the trustee in the instant case was not corporate, the power was contingent not only on the resignation or death of the first trustee, but of each of his successors. Even the first trustee might have outlived the settlor and all of the named beneficiaries. In 2 Jarman, Wills (8th ed.), p. 796, it is said: “A power limited to arise upon a future or contingent event must be distinguished from a power which takes effect upon a future event, but is presently exercisable. The former, not being exercisable before the event, upon which it is limited to arise, happens, is, it seems, void for remoteness, unless the event is such that it must happen within the legal period.” See also Marsden on Perpetuities, § 238.
The fact that the power was conditional requires a consideration of events occurring years after the delivery of the deed of trust, and after it came into full operation, in order to determine whether or not it was “presently exercisable”. I take it that if the trustee had in fact survived the settlor, it would not be now contended that the settlor ever possessed the complete, or any, power of revocation equivalent to ownership. The appellee’s whole case rests on the fact that for a period of thirteen days the power to revoke was exercisable.1 Consideration of what subsequently transpires violates the established principle that the validity of trusts with*558in the ambit of the rule must be viewed prospectively from the time of their creation. I find no compelling reason to widen the recognized exceptions to the strict application of the rule. If we are to adopt the “wait and see” doctrine advocated by some writers it should be by legislative action and not by judicial fiat.
While perhaps not strictly in point, I think the New York cases clearly support my view. See In re Perkins’ Estate, 157 N.E. 750 (N.Y.), and cases there cited, and Herzog v. Title Guarantee & Trust Co., 69 N.E. 283, 287 (N.Y.). I think the decree in the instant case should be reversed.
. (For present purposes I assume that, had she revoked, she would have had substantial ownership, although it seems clear she could not have conveyed the property in 1895 without the joinder of her husband. See Code (1888), Art. 45, sec. 2).