chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed." (Civ. Code, sec. 716.)

"The suspension of all power to alienate the subject of a trust, other than a power to exchange it for other property to be held upon the same trust, or to sell it and reinvest the proceeds to be held upon the same trust, is a suspension of the power of alienation, within the meaning of section 715." (Civ. Code, sec. 771.)

"The delivery of the grant, where a limitation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest, within the meaning of this part of the code." (Civ. Code, sec. 749.)

It would seem as though all need of discussion were foreclosed as to the trust under consideration by the plain terms of the code above set forth, yet, because of the great value of the property involved, and the serious consequences which must follow to the interests of respondents, it would perhaps be unjust to leave this consideration without further amplification. We will, therefore, discuss, so far as we have been able to follow them, the propositions made. by respondents in support of this trust.

A perpetuity is any limitation or condition which may (not which will or must) take away or suspend the absolute power of alienation for a period beyond the continuance of lives in being. The absolute power of alienation is equivalent to the power of conveying an absolute fee. (Chaplin on Suspension of Alienation, sec. 64.) The law against the suspension of the power of alienation applies to every kind of conveyance and devise. It applies to all trusts, whether created by will or deed, whether providing for remainders or executory devises, or, as here, merely restraining the power of alienation for a fixed period of years, and then providing for sale with gift over. In short, it "covers the entire

field of estates, interests, rights, and possibilities." (Chaplin on Suspension of Alienation, sec. 2.) Says Perry: "A perpetuity will no more be tolerated when it is covered by a trust than when it displays itself undisguised in the settlement of a legal estate" (Perry on Trusts, sec. 382), and section 771 of the Civil Code is but an enactment of this rule.

Every express trust, valid in its creation, vests the whole estate in the trustees. The beneficiaries take no estate or interest in the property, but may enforce the performance of the trust. (Civ. Code, sec. 863.) If this trust be not valid in its creation, the trustees would take no estate, but neither would the beneficiaries whose rights are dependent upon the validity of the trust. If it be valid, then the "whole estate" vests in the trustees. The "whole estate," as has been pointed out (Embury v. Sheldon, 68 N. Y. 227), means the whole of such an estate as is necessary to the performance of the trust. In the one under consideration it embraces the whole legal and equitable estate which estate which the testator enjoyed, since no less would be no less would be sufficient to sufficient to enable the trustees to carry out the purposes: 1. To apply the income for twenty-five years (Civ. Code, sec. 857, subd. 3); and 2. At the expiration of that time to sell the property and dispose of the proceeds. (Civ. Code, sec. 857, subd. 1.) The beneficiaries herein then take no estate as such, their interest being the right to the enforcement of the trust.

But, if we understand the position of respondents, it is contended that the nephews and nieces take a future estate, which future estate is vested and is alienable, and that therefore it is a valid estate, since only those future interests are void which by possibility may unduly suspend the power of alienation. Following this argument, and for this purpose treating the interest of the beneficiaries as a future interest or estate within the contemplation of the code (Civ. Code, sec. 716), it may be first suggested that all expectant estates, whether vested in interest, or contingent with a vested right, or entirely

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contingent, pass by succession, will, and transfer, like present estates and interests. (Civ. Code, sec. 699.) But the fact that such interests may pass does not relieve from the operation of the rule, unless there are persons in being who, by combining and conveying all their distinct interests created by the original grant or devise, can pass an absolute interest in possession. Conceding that the future interest of the beneficiaries is vested in the sense in which remainders are spoken of as vesting, and that the interest would thus be alienable, it still is not such an interest as would by transfer carry an absolute interest in possession. As is pointed out by the court in Vanderpoel v. Loew, 112 N. Y. 167, the vesting of an estate involves absolute alienability only so far as that particular estate is concerned. The fact that a given remainder is vested renders it absolutely alienable, so far as it is itself concerned, but the absolute fee may at the same time be inalienable. Therefore, to convey this absolute interest in possession the beneficiaries would be compelled to unite with their conveyance that of the trustees in whom the fee is vested. But the trustees cannot convey until the expiration of twenty-five years. An attempt by them to convey before that time would contravene the trust, and be a void act (Civ. Code, sec. 870), and so even by this method of progression our path leads to that barrier of perpetuity which cannot be surmounted.

So, even though the beneficiary should be a remainderman under such a trust as this, he still could not alienate the land within the trust period so as to avoid the statute. Such a trust cannot be terminated or destroyed during the period fixed for the existence, even by the consent and joint act of all the trustees and beneficiaries. (Douglas v. Cruger, 80 N. Y. 15; Penfield v. Tower, 1 N. D. 216.)

Hence the question whether the interest of the beneficiaries is contingent or vested is here of no possible moment. The absolute alienability required by section 715 of the Civil Code does not imply vesting, and it

affords no escape from the operation of the rule, because the interests which the beneficiaries take may be relieved from uncertainty as to persons or event. When so relieved the interest may be said to be vested. But it is not such a vesting nor yet such an interest as removes the bar of the statute, since all of the interests and estates, contingent and vested, cannot convey the fee so long as the terms of the trust from which alone their interests are derived stand in the way. The perpetuity here does not result from too remote limitations or the failure of future estates to vest, but it arises by the direct act of the testator in forbidding his trustees to alienate for a period not tolerated by the law.

Nor is the twenty-five years a "condition" which may be rejected as void because repugnant to the interest conveyed. It is a limitation, a restraint upon alienation, forming an integral part of the trust. To the constitution of every valid express trust it is essential that there should be a trustee, an estate conveyed to him, a beneficiary, a legal purpose, and a legal term. While equity will in certain instances make good the absence of the first requisite, if the second or third be lacking, or the fourth or fifth be illegal, the trust itself must fail. Of the express trusts permitted by the statute there are two great classes, one which does, and the other does not, involve a suspension of the power of alienation. Under the first class are included all those whose very purpose and essence it is that the land shall not be alienated by the trustee during the trust term, and where, consequently, a sale by him would be in direct contravention of the trust. In the case of such express trusts as occasion the suspension of the absolute power of alienation, the term of duration is the vital subject of inquiry. (Chaplin on Suspension of Alienation, 146, 148.)

Trusts such as these under consideration in their very nature operate to suspend the power of alienation. That power must be suspended in the one case, while the trustee is distributing the rents and profits, and in the

other case it is suspended by the express duty imposed upon the trustee to sell only at the expiration of a fixed period.

The law has seen fit to insist that the measure of the period of suspension shall be lives in being, and it will not countenance the suspension for any fixed period or term of years not depending upon the duration of life, for the sufficient reason that during the time of such a limitation, however short, the person or persons capable of conveying the absolute interest might die—a possibility not to be endured. So it happens that whenever a testator, through temerity or ignorance, violates the plain mandate of the statute, as in this case, and creates a trust by which the absolute power of alienation is sought to be suspended for a term of years, he must pay the penalty of his rashness or folly in the destruction of his cherished design.

Such, though grievous to the beneficiaries, have always been the necessary and logical decisions of the courts, and the books abound in cases which, while monuments to the learning of the judges, are equally monuments to the persistency of testators or to the recklessness of their advisers. Thus it is, as is said by the Vice-Chancellor in Field v. Field, 4 Sand. Ch. 528, that "the statute restricts the suspension of alienation and ownership to lives and lives only. It does not admit of a suspense for a term of years, however short, nor one dependent in part upon life and in part upon a fixed period of time." The rule has been applied in New York alone to terms of varying length of from twenty-one years to three, from the leading case of Hone v. Van Schaick, supra, through a long and unvarying series of judicial determinations (Bolles' Suspension of Alienation, note to section 78 where cases are collated), while in other states the authorities are as uniform, if not so numerous. (Mandelbaum v. McDonnell, 29 Mich. 78; 18 Am. Rep. 61; Farrand v. Petit, 84 Mich. 671; De Wolf v. Lawson, 61 Wis. 473; 50 Am. Rep. 148; Penfield v. Tower, supra.)