Upon consideration of the opinion of Mr. Justice WIEST, I am constrained to note the following relative to the 2/10ths interest in the corpus of the trust primarily set apart for plaintiff's grandson, James Bateson.
The opinion states: "The trust deed grant of the 2/10ths interest suspended the power of alienation during the lifetime of the grantor and for 15 years *Page 434 thereafter. The grantor is still living. Upon execution of thedeed there were no persons in being by whom an absolute fee inpossession could be conveyed." Notwithstanding subsequent context of the opinion might be construed so to qualify the foregoing that it would be an accurate statement of the law, there is reason to believe that the italicized portion of the quotation, if passed unchallenged, will lead to confusion and misinterpretation of our statutory provisions touching suspension of the power of alienation.
First, it should be noted that the mere inclusion of the 15-year limitation incident to this trust provision does not render it invalid, because wholly independent of that limitation the period of suspension is measured by two lives in being — i. e., the life of plaintiff and that of his grandson. But a more serious aspect in the italicized portion of the quotation is that by necessary implication it voices the inaccurate statement that because "Upon execution of the deed there were no persons in being by whom an absolute fee in possession could be conveyed" the grant was invalid. Such is not the test of validity or invalidity of an attempted suspension of the power of alienation. A provision suspending the power of alienation may be perfectly valid notwithstanding there are no persons in being who can convey an absolute fee in possession. But such suspension must be measured by the lives of a person or persons in being and the provision for suspension will be invalid if it is "for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section." 3 Comp. Laws 1929, § 12935 (Stat. Ann. § 26.15).
Nor am I in accord with that portion of my Brother's opinion wherein he holds that 2/10ths interest *Page 435 in the corpus of the trust provision for the grandson is voidin toto. Instead, the provision as to the one-half of this 2/10ths which upon the death of the grandson will forthwith vest in fee in defendant George Bateson (or in the surviving wife and children, if any, of the grandson), is valid because it does not suspend the power of alienation beyond two lives in being. The pertinent portion of the trust provision reads:
"If said James Bateson should die within the above referred period of 15 years from the date of grantor's death without leaving a wife and/or child or children, then the trustee shall convey 1/2 of this undivided 2/10 interest in the fee of said trust property to the grantor's son, George F. Bateson, and thereupon as to 1/10 portion this trust shall cease. * * *
"If however the said James Bateson should die within the above-referred-to period, 15 years from date of grantor's death, leaving a wife and/or child or children, then the fee of 2/10 interest upon which income only was therefore [theretofore?] paid to him, shall thereupon be by the trustee hereunder conveyed in equal shares to such wife and/or child or children or survivors of them outright."
Except to the extent herein before noted, I concur in the opinion of Mr. Justice WIEST.
BUSHNELL, C.J., and McALLISTER, J., concurred with NORTH, J. The late Justice POTTER took no part in this decision. *Page 436