Opinion,
Mr. Justice Clark :
John Lawrence died domiciled in the city of Philadelphia, in the month of March, 1847. By his last will and testament he devised all his real and personal estate to certain persons therein named, in trust, to pay over the net income, during her lifetime, to his daughter, Ann Appleton; to assign the real estate, upon her decease, in fee to the appointees of her last will; or, failing such appointment, to pay over the same to and amongst her then living children, and the issue of children then deceased.
The trustees named in the will were removed by the Orphans’ Court of Philadelphia county, during the lifetime of Ann Appleton, and George W. Appleton and Henry Pomerene were duly appointed trustees in their place. All the property, except certain real estate in Philadelphia, was lost by the devastavit of the original trustees, the remaining property being known as No. 43 South Second street, No. 221 Arch street, and Nos. 1127 and 1129 Pine street.
Ann Appleton, the donee of the power, died in March, 1883, domiciled in the state of New Jersejr, leaving to survive her certain children, all of whom, it is conceded, were born during the lifetime of John Lawrence. By her last will and testament in writing, which was afterwards duly probated, she devised to George W. Appleton, and, in the event of his renunciation or decease, to the Philadelphia Trust etc. Company, certain property of her own, in Haddonfield, N. J., and also all that remained of the property over which she held the power of appointment under the will of John Lawrence, deceased, specifically referring thereto, in trust, to care for the same and collect the income thereof during the joint lives of her children, all of whom, as we have said, were living at the death of John Lawrence; to pajr out of such income and the proceeds of sale of the Haddonfield property, if sold under the authority given, certain annuities mentioned, during that period, and, after the [363]*363expiration of said joint lives, to transfer the corpus of the property to the New York Baptist Union for Ministerial Education, which is the corporate name of what is known as the Rochester Theological Seminary.
George W. Appleton died December 1,1886, and, the Philadelphia Trust etc. Company having renounced the trust, the office of trustee under the appointment in the will of Ann Appleton became vacant; whereupon Ann Eliza Griffin, one of the annuitants for life, presented her petition for the appointment of a successor to the trust created by the donee of the power. The appellants resisted this application, alleging that the execution of the power by Ann Appleton was invalid, and that Mrs. Griffin had therefore no standing in court to ask for the appointment of a trustee, the estate having passed to those entitled in remainder under the will of John Lawrence, deceased, as if Ann Appleton had died intestate. Their contention is, first, that the appointment violates the rule against perpetuities, and is therefore wholly void; and, second, that whilst the donee of the power, by its terms, could make a direct, immediate, and absolute appointment of the fee, she was not authorized to declare uses and trusts as contained in her will.
The rule, as stated in Gray on Perpetuities, is as follows: “No interest, subject to a condition precedent, is good, unless the condition must be fulfilled, if at all, within twentj^-one years after some life in being at the creation of the interest.” This rule is in force in all of the states where the principles of the common law prevail, excepting as it may have been modified by statute. In Pennsylvania it is unaffected by statute, only as it is modified by the acts of April 18, 1853, § 9, and April 26, 1855, § 12, which were suggested by the Thelluson Act, and operate only in restraint of accumulations. It seems to be conceded, and rightly too, we think, that, although Ann Appleton was domiciled at her death in New Jersey, the validity of the appointment, if there should be any conflict, is to be determined/ny the laws of Pennsylvania, which is the lex rei sitae: any Inquiry as to the law of New Jersey is therefore rendered'Unnecessary. The rule as stated, applies to interests in realty or in personalty, whether legal or equitable, but has no application to an interest which i.i vested, for a vested interest by its very nature cannot be subject to a condition precedent..
[364]*364So, also, where a power of appointment is given, either by deed or will, the rule applies as well to the power as to the appointment. If a power can be exercised at a time beyond the limits of the rule it is bad. As, in the case at bar, however, the power must be exercised, if at all, in the lifetime of Ann Appleton, a life in being at the time of its creation, it cannot be impeached upon that ground; and, although the power, to be exercised by will only, is in the most general terms, it is not rendered bad by the fact that, within its terms, an appointment might possibly have been made which would be too remote: Gray on Perp., § 510. The direct and specific object of the power, according to its terms, is not to create a perpetuity; and, as the exercise of it is necessarily according to a certain discretion or latitude of choice in the donee, the security, which the law provides against the violation of the law of remoteness, is in the failure of any disposition which results from the abuse of that discretion: Lewis on Perp., 487. The question, therefore, is upon the validity of the appointment which was in fact made.
As a general rule, whether an appointment made in execution of a power is too remote, depends upon its distance from the creation of the power, and not from its execution: Gray oh Perp., § 514; Lewis on Perp., 484. The exception is, when the power is general to the donee to appoint to whomsoever he may choose, either by deed or will; in such case, the donee has absolute control as if he had the fee, since he can appoint as well to himself as to any other person; he is practically the owner. In such case, the degree of remoteness is measured from the time of the exercise of the power, and not from the time of its creation: Bray v. Bree, 2 Cl. & F. 453; Sugden on Powers, 394, 683; Lewis on Perp., 483; Gray on Perp., §§ 477-524; Mifflin’s App., 121 Pa. 205. But it will be seen that the power given to Ann Appleton is a power to be exercised by will only: her authority is not commensurate with the entire ownership; she could not appoint to herself, nor to any other person to take in her lifetime. She had not the absolute control; and, although rhe decisions are somewhat conflicting, and the question not free from doubt, the better opinion seems to be that the'power must be regarded as special, and therefore the remcceness of the estate created by the appointment must be measured from the time of the creation of the power, which v as at the death of John Lawrence: [365]*365See In re Powell’s Trusts, 37 Law J. Ch. 188; Gray on Perp., § 526; and cases there cited. No estate or interest can be limited under a particular power, which would have been too remote if limited in the deed or will creating the power: Lewis on Perp., 488.
But, assuming that the remoteness of the appointment depends upon its distance from the creation of the power, it is plain that the several bequests and annuities made in the last will and testament of Ann Appleton, deceased, were to persons named, and in being, for distinct and separable sums of money by way of bequest or annuity out of the proceeds of her own and the income of the original trust estate.
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Opinion,
Mr. Justice Clark :
John Lawrence died domiciled in the city of Philadelphia, in the month of March, 1847. By his last will and testament he devised all his real and personal estate to certain persons therein named, in trust, to pay over the net income, during her lifetime, to his daughter, Ann Appleton; to assign the real estate, upon her decease, in fee to the appointees of her last will; or, failing such appointment, to pay over the same to and amongst her then living children, and the issue of children then deceased.
The trustees named in the will were removed by the Orphans’ Court of Philadelphia county, during the lifetime of Ann Appleton, and George W. Appleton and Henry Pomerene were duly appointed trustees in their place. All the property, except certain real estate in Philadelphia, was lost by the devastavit of the original trustees, the remaining property being known as No. 43 South Second street, No. 221 Arch street, and Nos. 1127 and 1129 Pine street.
Ann Appleton, the donee of the power, died in March, 1883, domiciled in the state of New Jersejr, leaving to survive her certain children, all of whom, it is conceded, were born during the lifetime of John Lawrence. By her last will and testament in writing, which was afterwards duly probated, she devised to George W. Appleton, and, in the event of his renunciation or decease, to the Philadelphia Trust etc. Company, certain property of her own, in Haddonfield, N. J., and also all that remained of the property over which she held the power of appointment under the will of John Lawrence, deceased, specifically referring thereto, in trust, to care for the same and collect the income thereof during the joint lives of her children, all of whom, as we have said, were living at the death of John Lawrence; to pajr out of such income and the proceeds of sale of the Haddonfield property, if sold under the authority given, certain annuities mentioned, during that period, and, after the [363]*363expiration of said joint lives, to transfer the corpus of the property to the New York Baptist Union for Ministerial Education, which is the corporate name of what is known as the Rochester Theological Seminary.
George W. Appleton died December 1,1886, and, the Philadelphia Trust etc. Company having renounced the trust, the office of trustee under the appointment in the will of Ann Appleton became vacant; whereupon Ann Eliza Griffin, one of the annuitants for life, presented her petition for the appointment of a successor to the trust created by the donee of the power. The appellants resisted this application, alleging that the execution of the power by Ann Appleton was invalid, and that Mrs. Griffin had therefore no standing in court to ask for the appointment of a trustee, the estate having passed to those entitled in remainder under the will of John Lawrence, deceased, as if Ann Appleton had died intestate. Their contention is, first, that the appointment violates the rule against perpetuities, and is therefore wholly void; and, second, that whilst the donee of the power, by its terms, could make a direct, immediate, and absolute appointment of the fee, she was not authorized to declare uses and trusts as contained in her will.
The rule, as stated in Gray on Perpetuities, is as follows: “No interest, subject to a condition precedent, is good, unless the condition must be fulfilled, if at all, within twentj^-one years after some life in being at the creation of the interest.” This rule is in force in all of the states where the principles of the common law prevail, excepting as it may have been modified by statute. In Pennsylvania it is unaffected by statute, only as it is modified by the acts of April 18, 1853, § 9, and April 26, 1855, § 12, which were suggested by the Thelluson Act, and operate only in restraint of accumulations. It seems to be conceded, and rightly too, we think, that, although Ann Appleton was domiciled at her death in New Jersey, the validity of the appointment, if there should be any conflict, is to be determined/ny the laws of Pennsylvania, which is the lex rei sitae: any Inquiry as to the law of New Jersey is therefore rendered'Unnecessary. The rule as stated, applies to interests in realty or in personalty, whether legal or equitable, but has no application to an interest which i.i vested, for a vested interest by its very nature cannot be subject to a condition precedent..
[364]*364So, also, where a power of appointment is given, either by deed or will, the rule applies as well to the power as to the appointment. If a power can be exercised at a time beyond the limits of the rule it is bad. As, in the case at bar, however, the power must be exercised, if at all, in the lifetime of Ann Appleton, a life in being at the time of its creation, it cannot be impeached upon that ground; and, although the power, to be exercised by will only, is in the most general terms, it is not rendered bad by the fact that, within its terms, an appointment might possibly have been made which would be too remote: Gray on Perp., § 510. The direct and specific object of the power, according to its terms, is not to create a perpetuity; and, as the exercise of it is necessarily according to a certain discretion or latitude of choice in the donee, the security, which the law provides against the violation of the law of remoteness, is in the failure of any disposition which results from the abuse of that discretion: Lewis on Perp., 487. The question, therefore, is upon the validity of the appointment which was in fact made.
As a general rule, whether an appointment made in execution of a power is too remote, depends upon its distance from the creation of the power, and not from its execution: Gray oh Perp., § 514; Lewis on Perp., 484. The exception is, when the power is general to the donee to appoint to whomsoever he may choose, either by deed or will; in such case, the donee has absolute control as if he had the fee, since he can appoint as well to himself as to any other person; he is practically the owner. In such case, the degree of remoteness is measured from the time of the exercise of the power, and not from the time of its creation: Bray v. Bree, 2 Cl. & F. 453; Sugden on Powers, 394, 683; Lewis on Perp., 483; Gray on Perp., §§ 477-524; Mifflin’s App., 121 Pa. 205. But it will be seen that the power given to Ann Appleton is a power to be exercised by will only: her authority is not commensurate with the entire ownership; she could not appoint to herself, nor to any other person to take in her lifetime. She had not the absolute control; and, although rhe decisions are somewhat conflicting, and the question not free from doubt, the better opinion seems to be that the'power must be regarded as special, and therefore the remcceness of the estate created by the appointment must be measured from the time of the creation of the power, which v as at the death of John Lawrence: [365]*365See In re Powell’s Trusts, 37 Law J. Ch. 188; Gray on Perp., § 526; and cases there cited. No estate or interest can be limited under a particular power, which would have been too remote if limited in the deed or will creating the power: Lewis on Perp., 488.
But, assuming that the remoteness of the appointment depends upon its distance from the creation of the power, it is plain that the several bequests and annuities made in the last will and testament of Ann Appleton, deceased, were to persons named, and in being, for distinct and separable sums of money by way of bequest or annuity out of the proceeds of her own and the income of the original trust estate.
The manifest purpose of the trust was to preserve the estate for the legatees and annuitants, for the life of her children and the survivor of them. At the death of the last child her surviving, this object would be fully attained; the annuities, whether to children, grandchildren, or to others, were then to terminate, and the entire trust-estate then remaining was to be conveyed to the New York Baptist Union, etc., in fee, to be applied as by the will is directed. We have, then, a devise to the trustees, in trust for the annuitants, for the life of the children of the donee and the survivor of them, with a remainder over in fee to the Baptist Union. Ann Appleton, as the donee of the power, had the right by her will to appoint to whom she chose: she certainly had a right to appoint to her children for life, or to trustees for their use for life, whether they were born before or after the decease of John Lawrence; and that, although the estate in remainder might be too remote, for the annuitants would take at her decease. “ Where, under a power, interests are given by way of particular estate and remainder (including analogous gifts of personal estate), and the particular estate is limited to a valid object of the power, but the remainder is too remote, the appointment will not be wholly void, but only the gift in remainder. In such case, the interests, in respect of which there is an excess of the power, being distinct and separable from the valid portion of the appointment, there is no reason for involving the primary limitation in the remoteness of the remainder: ” Lewis on Perp., 496 ; citing Adams v. Adams, Cowp. 651; Bristow v. Warde, 2 Ves. Jr. 336; Routledge v. Dorril, 2 Ves. Jr. 357; Brudenell v. [366]*366Elwes, 1 East 442 (7 Ves. 382); Butcher v. Butcher, 9 Ves. 382; Gray on Perp., §§ 232, 239, 242, citing Read v. Gooding, 21 Beav. 478 (4 De Gex, M. & G. 610), and other cases. See, also, Davenport v. Harris, 3 Gr. 168. In this respect we think the ruling in Smith’s App., 88 Pa. 492, was wrong; for, although Ryan’s daughter, Mrs. Smith, might have had children born after his decease, her children, whether born before or after Ryan’s death, would have taken at her death, and the life-estates were therefore good, whereas it was held that her appointment was wholly bad. This statement of the law would seem to be decisive of the casé at bar, for the proceeding is not by the party entitled in remainder, for a conveyance, but by one of the annuitants, for the appointment of a trustee for the purposes of the trust subsisting under the will of Ann Appleton, for the benefit of the annuitants, during the life of her children.
But the estate of the Baptist Union also vested at the death of Ann Appleton. The beneficiaries under her will are described by name; to each is given a separate and distinct sum by way of legacy, or annuity, to each one eo nomine, and, as we have said, their rights vested at their mother’s death. The remainder was ready, at any time after the death of Ann Appleton, to come into the possession of the Baptist Union whenever and however the life-estate might determine: it was subject to no condition precedent, save the determination of the preceding estate: the contingency was not annexed to the gift, or to the person entitled, but to the time of enjoyment merely, and, according to all the cases, the remainder must be treated, not as a contingent, but as a vested estate. If this be so, the rule against remoteness is satisfied; for, not only the particular estate, but the remainder supported by it, took effect within lives in being at the creation of the power. “ The particular feature,” says Mr. Lewis, in his treatise on Perpetuities, “ in limitations of future interests, with which the rule against perpetuities is connected, is the time of their vesting, or, in other words, of their becoming interests transmissible to the representative of the grantee, devisee, or legatee, and disposable by him. When they are so limited as necessarily to allow this quality, within the legal period of remoteness, they are free from objection in reference to the perpetuity rule.” Upon [367]*367this question we may also refer to Mifflin’s App., 121 Pa. 205: “ If a remainder is vested, that is, if it is ready to take effect whenever and however the particular estate determines, it is immaterial that the particular estate is determinable by a contingency which may fall beyond a life or lives in being: ” Gray on Perp., § 209. ^Perpetuities are grants of property wherein the vesting of an estate is unlawfully postponed: Philadelphia v. Girard’s Heirs, 45 Pa. 26; Barclay v. Lewis, 67 Pa. 816. The main question decided in Smith’s Appeal is therefore not involved in this case. The accuracy of that decision has been somewhat doubted by the learned judge who wrote it: Coggins’ App., 124 Pa. 10; but the subject can only be further considered when a proper case is presented.
Nor do we think the appointment is invalid, because in the exercise of the power the donee, without special direction of John Lawrence, the testator, to that effect, in appointing the fee declared certain uses and trusts for life, with remainder over. The power conferred upon Mrs. Appleton by her father’s will was “to grant and convey the real estate in fee,” “in such parts or shares ” as she by her last will should direct. The power is wholly unrestricted: the entire discretion is committed to the donee of the power, to grant the fee in such form and to such persons as she chose. In the exercise of that power she did appoint the fee, and we think she was authorized, observing the rule against remoteness, to declaim such uses and trusts for life as would best carry out her wishes with respect to the ultimate disposal of the property. No axithorities have been cited to any different effect. On the contrary, appointments in trust, even under restricted powers, would seem to have been sustained, and, as illustrations of this, we have been referred to Alexander v. Alexander, 2 Ves. Sr. 642, Trollope v. Linton, 1 Sim. & S. 477; Crompe v. Barrow, 4 Ves. 681; Willis v. Kymer, 7 Ch. Div. 181; 2 Sugden on Powers, 273, 274.
The decree of the Orphans’ Court is affirmed, and the appeal dismissed at the cost of the appellants.