Opinion,
Mr. Justice Green :
If the element of indestructibility of the estate of the person who, for the time being, is entitled to the property subject to the future limitation, is an essential in the definition of a perpetuity, the decision of the court below is right. In at least two instances, this court has approved a definition which does include that element. Thus in Hillyard v. Miller, 10 Pa. 334, Chief Justice Gibson said: “ A perfect definition of a pepetuity has not been given, and the nearest approach to it is found in Lewis on Perpetuities, ch. 12, where it is said to be a future limitation, whether executory or by way of remainder, and of real or personal property, which is not to vest till after the expiration of, or which will not necessarily vest within, the period prescribed by law for the creation of future estates, and which is not destructible by the person for the time being entitled to the property subject to the future limitation, except with the concurrence of the person interested in the contingent event.” The same judge in the same opinion said: “ It was the indestructibility not only of springing and shifting cases (uses ?) and of executory devises, but also of future trusts, which forced upon the judges the rule against perpetuities, in order to set bounds to the remoteness of not only legal, but equitable limitations ; and it acts upon perpetuities wherever they appear, except in conveyances in mortmain or to charitable uses.” In Smith’s Appeal, 88 Pa. 495, the foregoing extract containing the definition by Lewis was repeated by our Brother Paxson in the course of the opinion which was delivered by him.
In the definition given by other text writers the same idea is expressed. Gray in his work on the rule against perpetuities, in sections 140 and those which follow, clearly points out that a perpetuity is an indestructible and inalienable interest in its original sense; and, while he shows that it has another or artificial meaning, to wit, that “ it is an interest which will not vest till a remote period,” yet in all his illustrations he shows that interests which were destructible were not perpetuities. [222]*222At § 203' he says: “ Thus a future interest, if destructible at the mere pleasure of the present owner of the property is not regarded as an interest at all, and the rule does not concern itself with it. For instance, limitations after an estate tail are never too remote ; the present tenant in tail can destroy them all at any moment by docking the entail.” Again, at § 443' he says: “ A future estate which at all times until it vests is in the control of the owner of the preceding estate, is, for every purpose of conveyancing, a present estate, and is therefore 'not obnoxious to the rule against perpetuities.” Under the head of Powers, at § 477 he says : “ A power given to the unborn child of a living person is too remote ; that is, if it is a power to be exercised by will only, or a special power to be exercised by deed. But if such unborn child has a general power to appoint by deed, he has the absolute control exactly as if he had the fee, since he can at once appoint to himself. Such general power to appoint by deed is therefore not obnoxious to the rule against perpetuities; ” citing Bray v. Hammersley, 3 Sim. 513. Again, at § 524: “ If property is given to A. for life with power to appoint it by deed or will to whom he pleases, he has the absolute control over it. There is in truth no future interest; the life tenant can deal with the property as if he owned it in fee. Therefore, in the execution of such a power, the remoteness of an appointment under it is to be judged from the point of time of its exercise, and not from the time of its creation; ” citing a number of authorities.
Mr. Lewis in his work on Perpetuities, on p. 483 says, “The great aim of the law against remoteness is secured in the immediate and unrestrained alienability of the property by means of the power.” Farwell on Powers, p. 226, says, “ The rules against perpetuities apply to instruments executing powers, as well as to other instruments ; but there is an important distinction between general and particular powers in this respect. The donee of a general power is virtually the absolute owner of the property on which his power extends, and he is regarded as absolute owner for the purpose of considering the application of the rule against perpetuities to him.” In Gray’s work at section 526 i the author says : “ And if a man who has a vested limited interest in property has the present unconditioned right to turn that limited interest into an [223]*223absolute interest, and thus to acquire the present unconditioned absolute interest, he is regarded by the rule against perpetuities as already having such interest. A tenant in tail is such a person; a life tenant with a general power exercisable by deed is also such a person. To this extent the rule sacrifices form to substance, but the substance must be there. There must be a person with a vested limited interest who has the immediate right to become the present absolute owner. Such is not the case when a life tenant has a power which he can exercise only by will. The general rule must govern unless the exception is made out, and the exception is not made out unless there be a present right to acquire the present absolute interest.”
In Lewis on Perpetuities, at page 484, the author speaking of general powers says: “ Of this kind is a limitation of property to such uses or upon such trusts as A. shall appoint, and subject to any appointment to A. in fee, or to B. in fee, or to any other person or succession of persons for life, in tail, in fee or otherwise. In such cases, as the power is so general and absolute as to be equivalent, for the purposes of alienation, to the ownership in fee simple, an appointment under it, so far as concerns the proper period for the vesting of the interests thereby conferred, rests on the same footing with an original conveyance. Nor is there any greater tendency to a perpetuity in a general power of appointment over property, and the possibility of the exercise of such power in opposition to the laws of remoteness, than in a simple absolute right of ownership. The general power authorizes as complete and as immediate a disposition of the property as could be effected were the donee entitled to the fee or absolute interest; and it is of course clear that such a power may be exercised by the donee in favor of himself. And, as regards the estate limited in default of appointment, when not given to the donee of the power, there can be no necessity to consider how far a perpetuity may be created; because, although that estate may be defeated at any time by an exercise of the power, yet the great aim of the laws against remoteness is secured in the immediate and unrestrained alienability of the property by means of the power. It may be true that any alienation of the property must be merely and simply by virtue of the power, and tháft [224]*224the exercise of such' power must take effect by reference to the'deed or will creating it, and, so far, a necessity may seem to exist, for restricting the donee to the appointment of interests which would have been good if limited in the original will or settlement; but if the essence of a perpetuity be wanting in the nature of the power, or rather if the scope and spirit of the power be directly adverse to a perpetuity, it seems too much to argue that it will not authorize limitations which might have been created by a person having the absolute dominion, i. e.,
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Opinion,
Mr. Justice Green :
If the element of indestructibility of the estate of the person who, for the time being, is entitled to the property subject to the future limitation, is an essential in the definition of a perpetuity, the decision of the court below is right. In at least two instances, this court has approved a definition which does include that element. Thus in Hillyard v. Miller, 10 Pa. 334, Chief Justice Gibson said: “ A perfect definition of a pepetuity has not been given, and the nearest approach to it is found in Lewis on Perpetuities, ch. 12, where it is said to be a future limitation, whether executory or by way of remainder, and of real or personal property, which is not to vest till after the expiration of, or which will not necessarily vest within, the period prescribed by law for the creation of future estates, and which is not destructible by the person for the time being entitled to the property subject to the future limitation, except with the concurrence of the person interested in the contingent event.” The same judge in the same opinion said: “ It was the indestructibility not only of springing and shifting cases (uses ?) and of executory devises, but also of future trusts, which forced upon the judges the rule against perpetuities, in order to set bounds to the remoteness of not only legal, but equitable limitations ; and it acts upon perpetuities wherever they appear, except in conveyances in mortmain or to charitable uses.” In Smith’s Appeal, 88 Pa. 495, the foregoing extract containing the definition by Lewis was repeated by our Brother Paxson in the course of the opinion which was delivered by him.
In the definition given by other text writers the same idea is expressed. Gray in his work on the rule against perpetuities, in sections 140 and those which follow, clearly points out that a perpetuity is an indestructible and inalienable interest in its original sense; and, while he shows that it has another or artificial meaning, to wit, that “ it is an interest which will not vest till a remote period,” yet in all his illustrations he shows that interests which were destructible were not perpetuities. [222]*222At § 203' he says: “ Thus a future interest, if destructible at the mere pleasure of the present owner of the property is not regarded as an interest at all, and the rule does not concern itself with it. For instance, limitations after an estate tail are never too remote ; the present tenant in tail can destroy them all at any moment by docking the entail.” Again, at § 443' he says: “ A future estate which at all times until it vests is in the control of the owner of the preceding estate, is, for every purpose of conveyancing, a present estate, and is therefore 'not obnoxious to the rule against perpetuities.” Under the head of Powers, at § 477 he says : “ A power given to the unborn child of a living person is too remote ; that is, if it is a power to be exercised by will only, or a special power to be exercised by deed. But if such unborn child has a general power to appoint by deed, he has the absolute control exactly as if he had the fee, since he can at once appoint to himself. Such general power to appoint by deed is therefore not obnoxious to the rule against perpetuities; ” citing Bray v. Hammersley, 3 Sim. 513. Again, at § 524: “ If property is given to A. for life with power to appoint it by deed or will to whom he pleases, he has the absolute control over it. There is in truth no future interest; the life tenant can deal with the property as if he owned it in fee. Therefore, in the execution of such a power, the remoteness of an appointment under it is to be judged from the point of time of its exercise, and not from the time of its creation; ” citing a number of authorities.
Mr. Lewis in his work on Perpetuities, on p. 483 says, “The great aim of the law against remoteness is secured in the immediate and unrestrained alienability of the property by means of the power.” Farwell on Powers, p. 226, says, “ The rules against perpetuities apply to instruments executing powers, as well as to other instruments ; but there is an important distinction between general and particular powers in this respect. The donee of a general power is virtually the absolute owner of the property on which his power extends, and he is regarded as absolute owner for the purpose of considering the application of the rule against perpetuities to him.” In Gray’s work at section 526 i the author says : “ And if a man who has a vested limited interest in property has the present unconditioned right to turn that limited interest into an [223]*223absolute interest, and thus to acquire the present unconditioned absolute interest, he is regarded by the rule against perpetuities as already having such interest. A tenant in tail is such a person; a life tenant with a general power exercisable by deed is also such a person. To this extent the rule sacrifices form to substance, but the substance must be there. There must be a person with a vested limited interest who has the immediate right to become the present absolute owner. Such is not the case when a life tenant has a power which he can exercise only by will. The general rule must govern unless the exception is made out, and the exception is not made out unless there be a present right to acquire the present absolute interest.”
In Lewis on Perpetuities, at page 484, the author speaking of general powers says: “ Of this kind is a limitation of property to such uses or upon such trusts as A. shall appoint, and subject to any appointment to A. in fee, or to B. in fee, or to any other person or succession of persons for life, in tail, in fee or otherwise. In such cases, as the power is so general and absolute as to be equivalent, for the purposes of alienation, to the ownership in fee simple, an appointment under it, so far as concerns the proper period for the vesting of the interests thereby conferred, rests on the same footing with an original conveyance. Nor is there any greater tendency to a perpetuity in a general power of appointment over property, and the possibility of the exercise of such power in opposition to the laws of remoteness, than in a simple absolute right of ownership. The general power authorizes as complete and as immediate a disposition of the property as could be effected were the donee entitled to the fee or absolute interest; and it is of course clear that such a power may be exercised by the donee in favor of himself. And, as regards the estate limited in default of appointment, when not given to the donee of the power, there can be no necessity to consider how far a perpetuity may be created; because, although that estate may be defeated at any time by an exercise of the power, yet the great aim of the laws against remoteness is secured in the immediate and unrestrained alienability of the property by means of the power. It may be true that any alienation of the property must be merely and simply by virtue of the power, and tháft [224]*224the exercise of such' power must take effect by reference to the'deed or will creating it, and, so far, a necessity may seem to exist, for restricting the donee to the appointment of interests which would have been good if limited in the original will or settlement; but if the essence of a perpetuity be wanting in the nature of the power, or rather if the scope and spirit of the power be directly adverse to a perpetuity, it seems too much to argue that it will not authorize limitations which might have been created by a person having the absolute dominion, i. e., such limitations as will necessarily vest within lives in being and twenty-one years, computed from the time at which they are raised.”
The foregoing views are undoubtedly correct; they are not at all impeached by text writers or decisions. In our opinion they control this case. As a matter of course, if Mrs. Mifflin had actually executed the power of sale and caused the title to be conveyed to herself in fee simple, as she had the plain right to do, the limitations of her will would have to be determined upon their own merits, regarding her as the owner in fee and disregarding the previous state of the title. But so far as the application of the rule against perpetuities is concerned, the situation is precisely the same as if she had executed the power. For the question i.s, whether the provisions of the original deeds of 1818 and 1816 are inoperative because of the rule against perpetuities. They are, if they create inalienable and indestructible estates, to continue longer than the prohibited period. But the estate of Mrs. Mifflin was neither inalienable nor indestructible. It was destructible by her own act. It was entirely within her power to become the owner in fee simple of the estates granted and to totally defeat any ulterior limitations. It proves nothing to say she did not exercise her power and .that therefore the situation is the same as though she never had the power. For certain purposes and in certain cases that, of course, is true. But in considering merely the application of the rule against perpetuities, it is not true, because that rule requires that the estates in question should be indestructible, and an estate which can be destroyed by the person who holds it for the time being is not indestructible.
We do not think it necessary to follow the learned counsel, [225]*225on both sides, through the very able and interesting discussions contained in their paper boobs. We will say, however, that Smith’s Appeal, 88 Pa . 492, does not control this case. Mrs. Smith had only a limited ¡lower -of appointment by will which, of course, could only operate after her death. She could in no manner acquire the title herself, and her estate was an indestructible one, whereas Mrs. Mifflin’s estate was destructible beyond all question. In our opinion the-learned court below was right in the view taken of Mrs. Mifflin’s estate and therefore
The decree is affirmed, and appeal dismissed at the costs of the appellant.