The opinion
TRAYNOR, J.
I concur in the result reached in the majority opinion. I do not agree, however, that the trust instrument violates the rule against restraints on alienation. (Civ. Code, §§ 715, 716, 771.)
In my opinion the beneficiaries can convey an absolute *240 interest in possession upon the death of the settlor. The settlor has not suspended the beneficiaries’ power of alienation by limitations taking effect after a life in being; there is no provision making their interests contingent upon survival until majority or terminating the interest of issue that fail to reach majority. If the settlor does not otherwise dispose of the property by will, her issue will take vested interests in the corpus at her death. Furthermore, the trustor has not restrained the beneficiaries’ power of alienation by means of a spendthrift clause as in Estate of Maltman, 195 Cal. 643, 646 [ 234 P. 898 ]. Unless a trust instrument declares otherwise, the beneficaries are free to alienate their interests. (Civ. Code, § 867; Fatjo v. Swasey, 111 Cal. 628, 637 [ 44 P. 225 ]; see Moxley v. Title Ins. & Trust Co., 27 Cal.2d 457, 463, 471 [ 165 P.2d 15 ].)
The fact that some of the issue may be minors and thus incapable of executing a valid conveyance without court intervention, will not make their interests inalienable within the meaning of the statutes. “The prohibition is against those limitations upon the power of alienation which may be imposed by dispositions of property, and not against limitations made by the law upon the capacity to convey. ’ ’ (Estate of Campbell, 149 Cal. 712, 718 [ 87 P. 573 ].) The minors may be unable to require the trustee to convey the corpus to them (Moxley v. Title Ins. & Trust Co., 27 Cal.2d 457 [ 165 P.2d 15 ]) during minority, but since the trust does not contain a spendthrift clause, they can convey their interests to a third party and thus transfer an absolute interest in possession. (Estate of Yates, 170 Cal. 254, 257 [ 149 P. 555 ].)
At the death of the settlor, a life in being, the beneficiaries will thus not be restrained by the trust instrument from conveying their interests in the trust to a purchaser. The purchaser may terminate the trust and discharge the trustee. (Eakle v. Ingram, 142 Cal. 15 [ 75 P. 566 , 100 Am.St.Rep. 99 ]; see Moxley v. Title Ins. & Trust Co., 27 Cal.2d 457, 465 [ 165 P.2d 15 ].) The purchaser will then have the absolute interest in possession required by Civil Code, section 716.
The trust is not within the prohibitions of Civil Code, section 771, which provides, “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 seven hundred and fifteen.” (Italics *241 added.) In a spendthrift trust, where the beneficiaries cannot alienate their interests, this section would be relevant. It cannot be invoked in the present case, however, for the settlor has not suspended all power to alienate the subject of the trust. There is no spendthrift clause limiting the power of the beneficiaries to alienate their interests upon the death of the settlor.
In re Walkerly, 108 Cal. 627 [ 41 P. 772 , 49 Am.St.Rep. 97 ], on which appellant relies, declared that a trust that might continue longer than the statutory period would violate the code provisions. The court stated that even if it were assumed that the interests of the beneficiary were vested and alienable, a beneficiary “could not alienate his interest 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.” ( 108 Cal. at 649 .) The court relied on New York cases. Those cases, however, were based on a New York statute (L.R.S. 730, § 63, now McKinney’s Consol. Laws of New York, Real Property Law, § 103) which, until 1903, provided that the beneficiary of a New York trust could not assign or dispose of his interest. By contrast, California beneficiaries of a trust not expressly limiting alien-ability have been able to alienate their interests since Civil Code section 867 was amended in 1874. (Fatjo v. Swasey, 111 Cal. 628, 637 [ 44 P. 225 ], See discussion in Hohfeld, The Need of Remedial Legislation in the California Law of Trusts and Perpetuities, 1 Cal.L.Rev. 305, 320-328.) After transfer of the beneficial interests, the transferee would be able to terminate the trust under Eakle v. Ingram, supra, 142 Cal. 15 , and would obtain an absolute interest in possession.
The rule against restraints on alienation is not violated simply because of the duration of a trust. The rule is violated only when the beneficiaries are unable to convey an absolute interest in possession within the statutory period. Thus, sections 715 and 771 are a check upon the creation of long-term trusts only when the interests of all beneficiaries do not become alienable within the allowable period of suspension. (See Turrentine, Suggestions for Revision of Provisions of the California Civil Code Regarding Future Interests, 21 Cal. L.Rev., 1, 19-22.)
The statements or holdings in the cases relied on in the *242 majority opinion that a trust that continues beyond the statutory period must always fail are not justified under the Civil Code and should be disapproved or overruled. Of course, if restrictions in the trust instrument prevent transfer of an absolute interest in possession, alienation is restrained in violation of the statute. But when, as here, the interests vest at the expiration of a life in being at the time of creation of the trust, and the settlor has not restrained the beneficiaries’ power of alienation by means of a spendthrift clause, there is no restraint on alienation.
Carter, J., concurred.
Appellant’s petition for a rehearing was denied January 17, 1952.