270 F. 507 | 6th Cir. | 1921
(after stating the facts as above).
“will follow the scheme of the testator so far and so long as that scheme is consistent with the rules of law, and when that consistency ends, the law seizes hold of the property, and distributes it according to its own rules.” Dayton v. Phillips, 28 Wkly. Law Bul. 327, 330.
The will devises and bequeaths all the testator’s property, real and personal, to trustees, to be held by them during the life of Madelaine, Romaine, and Vinton Goddard, or the last survivor of them, all of whom were persons in being at the time the will was made and when the testator died. Power is conferred to convert, sell, and reinvest, but no direction so to do is given, such as would operate as an equitable conversion of land into money. The title is vested in the trustees during the longest life of these three persons, and is then to vest and be transferred and conveyed. In the meantime the annual income only is to be distributed. Our present inquiry has to do with the intended disposition of that annual income.
Three contingencies appear to be provided for in distributing this income. The first has to do with the distribution to Madelaine, Romaine, and Vinton Goddard, during their joint lives, and is an equal distribution. The second has to do with the distribution of the income, if Madelaine dies without leaving other issue by a future marriage, and for the distribution in the event either Romaine or Vinton shall in the meantime die without issue. The third has to do with the distribution in the event Madelaine shall remarry and shall die leaving issue by a future marriage. It is this third contingency which has actually happened. The language of the will providing for this contingency is as follows:
*512 “And if my said daughter shall die leaving lawful issue by a future marriage, said Romaine and Vinton Goddard, or either of them surviving her, then and in that case, the said net annual income shall be, during the continuance of the trust of said estate, equally divided, among all the children of my said daughter, share and share alike, the surviving children of my said daughter to take per capita in making the distribution of said income, and the issue of such children as may be deceased shall take per stirpes.”
The contention of the appellees is that a class of beneficiaries is created by this clause, and that this class is to be ascertained and is finally closed as of the date of the death of Madelaine. The class thus ascertained, and if finally closed, would consist of the testator’s four living grandchildren, Romaine, Ulrica D., Eric B., and John V., Sr., being all the surviving children of Madelaine. If Vinton, who had previously died, had left children, or if any of these four had died before.Madelaine, leaving issue, that issue would become members of the class and take per stirpes. Consequently it is argued that, once this class of beneficiaries is ascertained and closed, it does not open to let in other persons, and that, inasmuch as there is no devise or bequest over on the subsequent death of any member of the-class, the issue of such deceased member does not participate, but those remaining in the class take thereafter during the continuance of the trust the entire income. In support of this contention aré cited numerous authorities holding that the members of the class who are to take are presumed to be those who answer the description at the time the event happens upon which depends their right to participate, and that upon the death of any member of the class, and if there was no 'bequest or devise over of that member’s share the survivors take the entire estate.
Upon a consideration of the whole will, as well as of this specific clause, such seems to us to have been the testator’s obvious intention. The scheme of disposition provided at the termination of the trust supports this conclusion. The trustees are then to transfer and convey the estate to all the living issue and descendants of his daughter. It seems improbable that he intended in the meantime to drop out: some of his daughter’s descendants, whom he was so careful to bring back for a full and equal share in the corpus.
Nor are we impressed with the view of the learned District Judge, nor with the argument made here, that the “testator’s solicitude was exclusively for his daughter and her Goddard grandchildren, his grandchildren whom he knew and loved, and only incidentally and contingently extended to other of his grandchildren, if it should so happen that his daughter would marry again.” In support of this view, reliance is placed on the expression in the will:
“My object in creating the trusts of this will being to provide usual support during their several lives for my said daughter and her children, Itomaine Goddard and Vinton Goddard.”
This expression does not, it seems to us, support, much less require us to adopt, that view. This expression was used not in connection with the distribution of the annual income or the persons who were to take it, but in connection with the termination of the trust and for the purpose of giving greater certainty to the time when it was to terminate. The language of the will, particularly the clause disposing of the income after the death of his daughter, discloses no intent to discriminate against any of his grandchildren or their issue. The only discrimination against his grandchildren by his daughter’s future marriage is during the life of his daughter. In this period they do not participate in a distribution of the income. On the death of his daughter, all of them arc brought in. They are then placed on a footing of exact equality with his other grandchildren, and nothing appears to indicate any intention that they or their issue should thereafter be treated differently. The share of the Goddard grandchildren is cut down by bringing them in at that time. It is not: probable that the testator had in mind increasing that share by the subsequent death of any of the Dahlgren grandchildren.
Our next task is to determine whether this intended scheme of distribution is unlawful. One contention of the appellees is that it comes in conflict with the common-law. doctrine of perpetuities, in that it would be a limitation’ of the estate to the unborn issue of a person unborn at the testator’s death. This contention, it seems to us, is based upon a misapprehension either of the terms of the will or of the law. The entire estate, real and personal, as has been said, was devised and bequeathed to trustees. It is to be held in trust by them durr ing certain lives then in being, and it is to vest at the death of the last survivor. The trust'thus created was not one for accumulation, but to provide the usual support during the several lives of such living persons. The estate is not tied up or made inalienable, except during the period of lives then in being. This offends against no rule of law known to us or to which our attention has been called.
“The rule of the common law, by which an estate devised must in all events vest with a life or lives in being and 21 years afterwards, has reference to time and not to persons. Even the ‘life or lives in being’ have no reference to the persons who are to take, for the testator is allowed to select, as the measure of time, the lives of any persons now in existence; and the ‘21 years afterwards’ are not regulated by the birth of the coming of age of*515 any person, for tlioy begin, not with a birth, but with a death, and are 21 years in gross, without regard to the life, or to the coming of age, of any person soever.”1
An examination has been made of the authorities cited, in support of appellees’ contention. In the brief, Gray on Perpetuities, § 375a, and Coggins’ Appeal, 124 Pa. 10, 16 Atl. 579, 10 Am. St. Rep. 565, appear to be relied upon as most nearly in point. In order to make clear our view and to disclose why the cases cited are not in point, we shall refer more at length to the case last mentioned. In that case the testator had bequeathed his estate in trust for the benefit of Ills wife and children. At the death of his wife, the trustees were to distribute the. net income to each of his four children during their respective lives. Upon the death of any one of his children the trustees were to pay that child’s share of the corpus to his children who have attained or shall attain the age of 25 years. The case turned on the point as to whether the estate vested in the grandchildren at the death of
Nor does the rule of Whitby v. Mitchell, 44 L. R. Chan. Div. 85, have any application. It has to do exclusively with the -feudal doctrine relating to the creation and limitation of estates in remainder in real estate, which require intervening particular estates to support the remainder. It forbids the creation of a remainder in real estate limiting a possibility upon a possibility; that is, a remainder to the unborn issue of a person unborn at the time the estate is created. It has never been applied to executory devises such as we are now dealing with and to meet which the doctrine of perpetuities was invented. Furthermore, it is much criticized by English judges, and is said not to be the American rule on the subject. In re Clark’s Settlement, 1 L. R. Chan. Div. 467 (1916).
)The testator’s disposition is also said to be void because in conflict with the Ohio statute against perpetuities (Act December 17, 1811, now section 8622, G. C., cited in the margin),
The contention is that John V. Dahlgren, Jr., is not the immediate issue or an immediate descendant of a person in being at the time this will was made, because his father was born after the testator’s death, and outlived his mother, Madelaine, and died at a later time.
The conclusion to -which we have come renders unnecessary any consideration or decision of the contention made and earnestly pressed upon us on behalf of appellant that the decrees made from time to
The decree of the court below will be reversed, with costs to the appellant, and the cause remanded for further proceedings in conformity herewith.
It Is worthy of note that the will considered in this case was written by the testator, ¡Samuel F. Vinton.
See. 8622. No estate in iee simple, fee tail, or any lesser estate, in lands or tenements, lying within this state, shall be given or granted, by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail.