*1
contract,
his
he
have insisted that the
might
prepared by
Or
own
contain
attorney,
language making completion
pur-
tests,
on future
contingent
gravel
chase
some warranty
element here
or re-
inexperience,
There was
content.
no
representations
Kap-
of a
agent,
liance
trusted
Bowie,
86, 89,
The
Corp.
v.
201 Md.
pelman
Glendale
on the
Crawford,
Davis There, there where facts. a bidder was allowed to rescind mistake, nature, in the computa of a clerical palpable was a submitted, in the of amounts bid tion summarized ac and corrected before the bid was mistake discovered was not instant case the mistake forward put In the cepted. case, trial apparеntly until and was defense as a event, In think mistake we afterthought. any ex possibilities instant went the commercial only case risk within fairly tract in which was question, ploiting bar parties within realm contemplation gain. costs.
Decree affirmed, FITZPATRICK MERCANTILE-SAFE al. et COMPANY, & TRUST DEPOSIT Etc.
Trustee Term, 1959.] 11, September [No.
Decided November The cause Bruñe, argued before C. J., Hender- son, Hammond, Horney, Prescott JJ. Jr., Gerber, Orth, Franklin
L. whom were Charles B. *4 Jr., Orth, brief, & Orth Gerber on for the appellants. III, Alexander,
Albert A. F. Wheltle and Bugene for the appellee.
Prescott, J., delivered of the opinion Court. Ghent, This natural to appeal sequel Hawkins v. 140 A. wherein it was held that the primary under life estates created the will of Amanda M. Hawkins and, were violative the rule against perpetuities (Rule) therefore, valid; but the question validity subse- quent limitations—all being contingent—was left open. In W. Hawkins, Hawkins and Amanda his John wife, certain conveyed real and personal property Augustine Dalrymple Hawkins, trust for Amanda one of James her grantors, trust, during life. among things, directed be property was to held: the sole and for use separate “[I]n Amanda life during said Hawkins her free * * * control of her or future husband present any with full said Amanda to devise bequeath property part or any aforesaid thereof or interest therein or estate to or for any use such benefit of of her children and descendants and fit proportions may in such as she see and such part she fit thereof as see her or fu- may present any for bequeath ture husband life and devise and said as she see any part whole or property may fit in she shall leave no descendant liv- case child or at the time of her death from and immedi- ing she after the death of said Amanda case ately un- shall not have aforesaid disposed far expressed and so as she powers der the above in trust disposition thereof not have made shall or children of said Amanda whо the child time of her death take living at may than issue then liv- shares if more one and equal or of hers such child children deceased any ing their its or portion take share or issue to if be entitled living. parent parents Augustine Dalrymple in case said “And James in his herein place pro- trustee appointed or any resignation writing make die or for should vided incapacitated trust or become said Amanda of to said life time of the in the said the same execute given reserved and is hereby full power Amanda *5 feme to appoint by as if she were a sole deed her in be executed and recorded trustee his duly another with all powers original and stead place at her hereunder or such option by trustee deed to cancel revoke rescind and annul deed there- and shall upon the latter case she stand and seized to her possessed own use con- property hereby then held hereunder the title thereto veyed or and be shall as vested her intents for fully to all as presents all if these had been purposes made ” 5j« % trustee, 24, 1895, Augustine July Dalrymple, On James Thereafter, in the contained deed of upon authority
died. trust to another trustee or at her appoint by option by deed cancel, revoke, and annul deed deed rescind trust, Hawkins, M. August deed dated Amanda Robertson, successor trustee un- Alexander H. appointed trust. der said deed of Hawkins a will which leaving
Amanda died estate “in- all of her bequeathed residuary she devised in the of trust” all the mentioned deed cluding “in there- quoted, pursuance which we have of said respect property,” in contained Alexander H. the net into Robertson, trust to divide income four equal paid, respectively, directed be for life she parts, sons, Hawkins, Mowell Hawkins W. Joseph her and John her Ghent M. daughters, E. and Amanda Jr., Sarah Carter, payment life specific annuities out of to designated children of the portions principal three of then will provided beneficiaries life. children, her the trust with each of said relation
death of would continue for 20 portion years each child’s after said death, time the trust at which would terminate and the child’s was, course, There con- provision distributed. corpus income between each the distribution child’s death cerning termination trust. children, Hawkins, four Mowell en these One of J. the execution of the at the time of sa mere ventre hence, 1876; it is conceded that the limitations secondary *6 with reference to the one-fourth part to him primarily limited for life are The three good. other were born after the execu- tion of the of deed trust but before 1895.
Mrs. Hawkins had another child aby previous marriage, P. Emma Fusselbaugh, who was born prior 1876 and pre- mother, her deceased leaving her, descendants some surviving of whom are still living. Court, on the former appeal, decided that the primary
life estates were valid whether the execution of the power,
with respect to
Rule,
the application of the
were referable to
the date of the execution of the
trust
deed of
or the time
effect,
when Mrs. Hawkins’ will took
left
and
open
ques-
tion
toas
the date when the Rule
began
operate in regard
limitations.
secondary
(
The matter was referred to the Master of the Courts Equity Baltimore, of the Supreme Bench of both he and Chancellor below that limitations secondary concluded valid, were one that the Rule was ref- determining properly Hawkins; erable to the death of Mrs. the other to the time expiration in Mrs. Hawkins to revoke of trust in death of the following original trustee.
In the rule against and determin- considering perpetuities facts, it is application given what and certain ing gen- recognized rules and thereto must erally principles relating mind; be borne the same applies consid- proper eration powers. full, been that
It no and com- frequently complete has said definition has ever been the Rule. prehensive givеn Many however, text-writers, have the statement adopted courts that interest is good of Professor unless must Gray “[n]o vest, all, not than later after some life twenty-one years at the interest.” out creation of the It sets prac requirements same were enumerated tically case, in this with the that the previous appeal exception Court there stated time for an interest vest was period law, ten months.” It “twenty-one years and rule of construction,3 applies legal one of and equitable estates of both rule that personalty. realty which last but interests which long, invalidates interests too words, concerned remotely; vest too the Rule estates, vesting.5 with the duration the time their but Powers are classified as to appointment generally manner or their conferred mode exercise and authority the donee be directed pоwer. They may *7 donor to be the last will testament of exercised exercisable, (testamentary) (presently donee his deed no postponement (also if of the exercise or both directed) is A presently postponement directed). exercisable no no when there is appointment general said be nor manner), limitation as its exercise as (except exercised, nor it is to as persons as to whose favor be De v. the amounts to be to such given persons. Lamkin Safe Co., 472, 479, A. Mary Trust Md. 64 2d 704. posit & 192 rule, in all when respects, the majority land has followed In the instant with dealing general testamentary powers.6 Perpetuities (4th Ed.) Gray, Against 301. 1. the Rule Sec. Ward, Ryan Ghent, 264, also v. 154 Md. 265. 2. v. Hawkins period 342, 348, 258, “plus the usual 64 A. 192 Md. 2d where Mary only gestation” For for “ten months.” is substituted 93, concerning same, (1957) 347. see Code Art. land statute Sec. 609; 248, 275, Whitridge, A. A. 58 36. 3. Graham v. p. 265; op cit., Ghent, supra, Gray, 4. 303. Hawkins v. Sec. always Ghent, supra, p. has not been the 265. This Hawkins subject. Against Perpe Maryland ruling Jones, Rule The on Applied Appointment Maryand, 18 Md. tuities as Powers “great Gray thinks there has been con Rev. 93. Professor E. Maryland Gray, op. fusion” in some of the decisions. Secs. 378.4, 345.3. Jur., 33; Jones, Powers, Against 6. 41 Am. The Rule Per- case, however, testamentary we are not dealing with general but refer to powers, general because of certain analo powers later to be made exercisable gies general concerning powers deed. If donee of a be limited making not in appointments small relatively group persons, .7 donee, the power cluding clearly special that Mrs. reserved appellants contend Hawkins’ of trust only upon to revoke was exercisable and, therefore, events, uncertain did possible happening the estate “destructible” that term used render Rule; the sec- relation application viewing limitations the date of the deed prospectively from ondary trust, rule, are invalid be- general accordance with the they too so as to violate would have vested they remotely cause hand, on claim that Rule. The appellees, under from which the time is to reckoned quo terminus a Mrs. Hawkins the Rule is the date death of earliest, but, August it should be determined as at the be- expired; revoke when Mrs. Hawkins’ power of that she year cause the 24th of until July August from authority unconditional the absolute and had had the estate. to destroy to ap- did concededly Hawkins exceed
Mrs. reference to in the contained deed of point limitations, she could make secondary to whom persons the Rule in those unless created persons, nor to interests All valid. effective and the limitations prevents that of date of the Rule is that if referable parties agree *8 1876, estates involved all of the secondary of trust the deed have invalid; necessarily would because they herein are Maryland, Md. Appointment 18 Applied of petuities to Powers as Co., Dep. Wyeth 176 93, 94, & Trust 95. v. Safe Rev. Cf. L. Testamentary Rights 376, 753; under a 369, 375, Creditors of 4 A. 2d Appointment, Rev. 397. 4 Md. Power L. General 33.13b; Property, cit., p. Jones, op. 94; Sec. American 7. Law correctly the fact Jones, attention to page calls 94 Professor at Gold, special. clearly general powers or also are not that some Appointment, Mich. Powers of L. The Classification Some Rev. 337. fact, within a life or lives
vested did [and, vest] twenty-one years gestation, usual plus period hand, the other also that if the agree thereafter. On they 1895, referable date is either Mrs. when Hawkins’ au- to revoke the of trust thority expired, deed when effective, her will all became limitations are secondary then as would good, they have had become vested within therefore, prescribed time Our is: question, Rule. What is the crucial date when the Rule began operate upon interests secondary created will of Mrs. Hawkins?
Before
shall
considering
principal question involved we
state two
that enter
subsidiary principles
into a
de-
proper
course,
termination
it is
of the instant
Of
well recog-
case.
power
that if a
can be
nized
exercised at a time beyond
rule,
bad;
limits
it
interest
every
is
because each and
on a
appointed under
is
at
contingency
may happen
time
a
the estate
will be
appointed
too remote.
cit.
Gray, op.
474.1. Cf.
v.
(4th Ed.) Secs.
Lamkin
Safe
Co.,
little
Deposit
supra,
& Tr.
There can be
pointed out Maryland has in all re- been in her spects, entire accord with sister states). What time we are considering Mrs. Hawkins’ reserved cancel trust, and revoke the fact that so, she done have had she would all of the future destroyed limitations; manner, and what these any, factors affected the critical date for the of the Rule beginning this case.
We must determine the effect “destructibility” has up on time to be starting used remoteness calculating of estates under Rule. The rule that the re general moteness appointment depends upon distance from creation and exercise of the power. Ryan Ward, 348; supra, at page Gray, op. v. 192 Md. p. on Perpetuities, Chapter perpetuity defining Lewis includes future limitation which provision would vest within necessarily prescribed conse period (and too remote quently ordinary operation not be “destructible the time Rule) person should limitation property subject entitled future with the concurrence except individual interested under that limitation.” This definition was quoted by Judge Chief Whitridge, supra, McSherry Graham 99 Md. at p. *10 in opinion (p. his he is 275) stated “and where its rendered inalienable or is vesting longer pe deferred for a riod prescribed the the law denounces the de by [that Rule] vise, the or it bequest grant the as a declares perpetuity and void.” (Emphasis Professor cit. supplied.) Gray, op. (4th 203, interest, Ed.), says Section “a future if destructible at the mere of pleasure the owner the present of is property, all, regarded an interest as at the Rule not concern does itself with 524.1, it.” In Section is headed “Revocable Trusts,” he in repeats the statement lan different slightly the guage, saying, the owner in present interest prop “[i]f interest, at to future interest erty a liberty destroy not within He of the Rule scope against Perpetuities.” then an illustration gives as limitation after estate tail a vest, all, which must if at at or before the termination Rule; estate tail as not being obnoxious to the because in at tenant tail can any time such future limitation destroy entail. by He states that the barring also Section doctrine prevailing one necessarily Maryl followed [not and],8 the remoteness of limitations under a general power appoint to deed is to be reckoned from the by exercise of creation, and not its furnishes a argument, strong has by way of what he said with analogy, reference revocability.
There are authorities deal many with ques tion but we will not into “destructibility,” here them go further, dealt for this Court recent fairly a Ward, supra, case. In v. 192 Ryan Chief Judge Md. Court, for the considered effect Mаrbury of revocability necessary in 8. It is this case decide whether a limitation by general power, made a exercisable deed or donee will reckoned from the creation or exercise. Jones, 108, 109; op. pp. Md. Rev. also Ortman Du Cf. L. gan, 82,A. a where remoteness of limitation general power appoint by default of the exercise or deed power. from the creation will was calculated Professor says Gray, op. Ed.), point (4th p. 512, cit. n. that the appoint by apparently deed well as will was not con sidered. date of the Rule as starting applied the power under in the deed. Be-
interests created contained 348, he many reviews of the authorities and page ginning their for the reasons conclusions reached. He then gives stated: au- recognized
“These cases statements from that, sustain amply proposition thorities where settlor has his lifetime to revoke or power during estate, the trust whether inter- question destroy ests, them, are any created a deed of against because violation the rule perpetui- void ties, of the settlor’s be determined as of date death, instant be the case would time at [in *11 Hawkins’ of which Mrs. revoke deed the future estates termi- destroy trust thereby when the of not as of date deed trust nated] observed, however, It that effect. will takes re- situations where the trust is cited involve cases will, at or could be a destroyed by single vocable in change beneficiary the settlor such as a act of or the trust property insurance a sale policy, in It is stated arti- proceeds. use of and the to, Review, in referred already 51 Harvard cle Law 663: p. at “ interests future analogous situation is ‘The tail, the period perpetuities estаte where after an date of estate expiration from the computed in tail the tenant tail; disentail makes interests after owner and causes the substantial in the last tenant gifts by tail to be substance estate his estate. expiration the time of tail of the default analogous gifts also situation is will, the deed power by general exercise of the ex- computed from of perpetuities period ” of the donee.’ the death power—i.e., piration that the estate in the above case determined was While in the sense “destructible” involved there was, Rule, in the with the there in connection used word is clear-cut quoted part opinion, recognition by above Court that where settlor of an estate has the power estate, his life to during destroy the Rule does reference to begin operate with future estates under creаted until such time as the future estates become inde structible. this is supported And all of au by practically Foulke, thorities. Against Perpe Powers and Rule tuities, cit., 541; ; 16 Col. Rev. Gray, op. 524.1 Re T. statement, Simes, 373; cit., 537; Property, op. Sec. Sec. Leach, Perpetuities Nutshell, 51 Harv. Rev. 638. T. Restraints, Fratcher, Perpetuities Simes, Cf. 376; and Other Interests, Future 516; cit., op. Law Jones, Sec. Smith, Rev. pp. op. T. Simes state principle very when clearly they say: long person as one
“So has an unrestricted present power to alienate absolutely and fee simple benefit his own no future interest can be void under the rule against perpetuities. For the policy rule to prevent restriction of practical alienability is not violated. that, follows when such power exists, the period the rule against perpetuities counted, not inception instrument the future interest crеating question, but from the termination of such power.” The reasons for case, quoted from the Ryan statements *12 supra, and Simes and Smith seem quite The apparent. Rule established was the courts to the preserve freedom alien of ation, prevent to restrictions on and the circulation of prop i.e., that erty, property would extra be commercium for too a duration long Deposit time. & Co. Tr. v. Safe Sheehan, 536; Ward, Md. A. v. Ryan supra. 169 179 Cf. cit., op. Md. Jones, Rev. If 108. the settlor prop L. right has a revoke the erty to deed and thereby become the revocation, owner of the he may, after property, immediately desires; therefore, any person alienate to to whom he in such case, no a there is restraint the alienation of the property Smith, cii., within the Rule. policy op. Simes Sec. if a person 1250. And has the present right uncоnditioned is the absolute interest he acquire present property, regarded the Gray, Rule as such already having interest. 526.2; Nutshell, op. Leach, Perpetuities in a 5l Ward, 638; Rev. Ryan supra, Harv. at page L. expounds St. same with principle Lord Leonards general to a power reference presently saying exercisable by that Rule, for the such a is purposes power equivalent to a fee He simple. states "To proposition as follows: (cid:127) take distinction between exer- general power a a [presently fee, a limitation in is to at a whilst shadow grasp cisable] no substance creation of the escapes. By per- not even petuity, tendency to a is effected. perpetuity, sell estate the next Powers Sugden, donee moment.” may (8th Ed.),-396. however, refer- that the rule with suggested, general is bar, in the at be-
ence tо case revocability apply should revoke, of its time cause Mrs. Hawkins’ authority case, creation, have been referred to no contingent. We none, that with as exactly have found deals a situation text-writers, who sub- But the deal with the we it here. find to general powers either ject, directly by analogy presently exercisable, seem to be accord revoke unconditional instrument and become sole and thereby under the instrument involved owner of property exercised, all, if at must be within revoke Rule, then to revoke itself period Rule; future limitations appointed remote under the too they revoke are treated as though the donee of the in re- the donee the Rule calculated from are received date of the termination the power them from gard accord proposition We think to revoke. the Rule. One of the terms of purposes well as the policy out of prevent Rule being that, Mrs. Hawkins will noted had long, too commerce exercisable over the presently prop- general power retained a contingent power revocation at instead involved erty creation, Rule, doc- prevailing applying the time of the date her death in be reckoned from trine, *13 power of the of the to revoke 1895— expiration instead twenty-nine some later. years case, shall we with this of the dealing particular phase
In said. heretofore been repeat things a few have inter- future that Professor that a Gray says We stated above owner est, if at the pleasure destructible mere present all, is not regarded as an interest at and property, 203), itself Rule does concern (Section to interest present liberty thе owner of do interest he does not though a future destroy so] [even interest the scope within of the Rule (Section 524.1, Trusts.”) under “Revocable specific heading, Smith, cit., op. supra; Ryan also Simes Sec. Ward, can that Mrs. supra, 192 352. There be no doubt Plawkins, interest in who was the owner the then present right, had the property, authority destroy involved, future mere stroke of her all of the interests aby from pen, August July
As manifestations of above stated Pro- principle 24.36, fessor 6 American Gray, Property, gives Sec. Raw of two illustrations as how relates to default gifts exercised, where appointment valid case, our present have analogy per- considerable way that the donee of general power pres- suasion. states ability exercisable has to himself and ently appoint make himself the sole owner of the (And thereby property. when he hаs this he is regarded Rule ability actually- Thus, Gray, op. the owner. when he 526.2.) or when he power, without releases exercising dies effect, he, in at that moment himself gift makes a from power, of appointment, takers default validity be determined as if the should donee had gifts appointed himself, thus himself the owner of the making property, then made the takers gift appoint- had default ment, words, the Rule calculated should donee or from the death date And, released. as the other illustration of principle, that an of con- the same states unlimited authority tenant, life the same principal, given to a has effect. suming *14 Restatement, also c; Simes, 4 Property, See 2 op. cit., Sec. 516. Restatement, Property, Sec. deals with de- directly It
structibility. states of period time which “during destructible,” an interest is pursuant to the uncontrolled vo- lition and for exclusive benefit personal of hav- person destruction, such power of in ing not included determin- whether the limitation is ing under the invalid Rule. In com- d, ment it qualifies explains and this statement as follows: to
“Destructibility-Prerequisites completeness power. The destructibility for an prerequisite ap- of of the rule in plication only stated this exists Section when some person possesses of complete power disposition over the matter in- subject future terests have been can limited and exercise this power of disposition for his own benefit. exclusive * * * not exist Similarly does when the revocation is exercisable only with concurrence settlor, of one or more than the persons other or is otherwise to condition The any precedent. an destructibility prerequisite for application rule can when the power stated exist Section disposition is not revocation) presently (or creation, exercisable at the time of provided which the exercise of period, such during invalidate all interests cre- postponed, does thus, power, ated exercise of such and by effect, invalidate the itself Com- (see § ment itself b). words the should [In be so remote as violate Rule. also Smith, op. Simes Sec. 1272.]” B for 10 then that if A limits to Trustee states and, thereof, end of accumulate income years descendant of B we shall (whom to select some years, life, distributing to X for the income designate X), pay in such shares and person persons corpus X either or will designate (this, shall interests as course, exercisable), X a gives general power presently X to distribute the power by exercise default of X death of at the children of life and income corpus of such children distribute the survivor the entire limitation surviving, then valid. of A descendants section then concludes: ten years, “The and also the life period tenant, life are selected Trustee B to be person rules 370 and applying both excluded §§ interests created exercise of the 371 to of such exercise interests limited default Thus under some c). possible, Comment (see *15 circumstances, ‘during to time only exclude also, an interest destructible’ but time added.) to such time.” prior (Emphasis Thus, Restatement out specifically points it seen that the circumstances, power certain it under that is possible, some time at revoke or to to become exercisable destroy 391, by the time its And of creation. subsequent Section than of that an cases analogy,9 states appointment (other way 390, concerned) are here which we governed by Sec. which is either exercisable power undеr a general presently creation, presently time of or “becomes deed from by before deed at the end the maximum pe exercisable or Rule, invalid, the Rule because permitted by riod” limitations, extent that its time of viewed only added.) violate the Rule. making appointment, (Emphasis out, b, that then under comment a limitation which points It exercisable, certain become at creates a general if Rule, all, at before maximum period allowed substantial of the final ascer “permits very postponement a those the ultimate owners of tainment of who are become disposition.” matter of the also comment e.10 See points Restatement, i, Property, Comment out The 9. Sec. grantor a deed or the fact that “the when the rather obvious revoke, legal relations his reserves settlor a general appоint- reserved much the same as if he are Smith, op. cit., presently exercisable.” also Sec. ment Simes 1333, p. 174. adopting may to note here that 10. interest Section the most Perhaps typical case of a valid contingent power11 all, arise, if the future is a general power presently exercisable to the unborn given child a living person. contingent because of the condition precedent born, the child must be something occur. may never done, occasions, This on settlements, was where marriage given to a husband for their joint and wife lives, and, deaths, on their such one their or more of chil dren as the parents or survivor of them If appoint. may parent appoints to surviving one persons any their children may appoint, appointment by child is because good; if becomes exercisable at power, all, must do so within life or lives twenty-one exercisable, thereafter, and, years does become the child have absolute control of the as if he property, exactly fee, situation had which is obnoxious to the Rule. Gray, op. Ed.), cit. (4th Secs. Smith, op.
Simes and that a says is, substance, “in to revoke but a general power presently outstanding specialists Restatement, 373 of the some of Perpetuities Against participated, on the Rule as well as world distinguished many members of the most eminent and George country. among Included bench and bar of this them were Institute, Pepper, President of The American Wharton Law *16 School, University of the Re- Richard R. Powell Columbia Law School, porter, University the A. Harvard Casner Law James just .completed Special Reporter, Gray, pub- Roland had and who highly regarded lished 4th known and the well Edition Fraser, text, Against Perpetuities,” Simes, “Gray, Messrs. Thе Rule Reporter, Judge Bigelow the A. as advisors to Morris Sims Soper Appeals, Judge the Circuit Court of Hand Fourth Learned Augustus During proceedings Judge the Hand. which the Halpern considered, adoption of the tentative draft Mr. was jurisdiction York, regulated Rule is of New statute, which the putting motion, In moved to strike 373. the the Section repeated particular attention chair and called to the illustration given one, except Halpern, spoke No Mr. in behalf the above. Proceedings, In- motion which was lost. The American Law stitute, pp. 352, seq. et Smith, op. 1272, give cit. several Simes and illustrations contingent powers. possible 1272, Then, in they 1271 and consider exercisable.” Sections that powers—contingent powers due to fact contingent before not be exercised a condition happening could It that are still con- should be remembered we precedent. to revoke the deed power Mrs. Hawkins’ reserved sidering trust, which its contingent was at because inception exercise was that the trustee precedent condition 1895, die, on but became absolute and remained so July until that the con- August year. 6 of reach Simes Smith clusion, writers that where upon subject, as do it contingent will be the Rule unless power void under is bound to occur within the maximum contingency pe- Rule; riod but where to a given allowed to be person upon exercised a condition living precedent, bad, it since the ordinarily condition would make all, exercised, must be within the life of the named per- son.
After well-recog- what has been these considering said authori- authorities and without subject, any nized decision on we reach to us seems directly point, tative what conclusion that the condition to Mrs. the inevitable precedent it Hawkins’ to revoke not render too remote under did all, Rule, because, if it exercisable at were to become lifetime; hence, must so her have done within from July the absolute August until she and unconditional had of trust power to revoke all thereby destroy the future therein interests mentioned. And we reach her further conclusion to revoke was although creation, fact, alone, at the time of its this does not contingent rule—when general person one has an unre- prevent alienate for stricted fee his present power absolutely benefit, the Rule own is counted inception interest, instrument the future from the termina- creating but of such power—from applying tion case. but further consideration.
This leaves one for proposition is, also, suggested Mrs. Hawkins’ ownership estate, revoke, she her had exercised absolute, have beеn spouse necessary join *17 in in the trust 1876 and she would not case of (in 554 abso- right had the
revocation) convey property, have lutely, without his consent. To here would suggested hold as in much relation to destroy general law and revocability powers appointments presently exercisable as applied the Rule. in married real person Maryland convey No may destroy spouse’s so dower interest as therein the consent but it spouse; without cannot fact, alone, that seriously necessarily contended which are require holding estates revocable general to a exercisable appointment presently referable, Rule, to should be the date of regard creation rather than the date of their exercise powers or termination.
As Mrs. Hawkins had absolute and unconditioned 6, 1895, between 24 and to make herself August power, July estate, in trust the sole owner of the we hold that the Rule this case must be reckoned from date of expiration Smith, 6, power, namely, August 1895. Simes Nutshell, cit., Leach, 1250; Perpetuities 51 Harv. op. Sec. 524.1; 638; op. Ed.), Rev. cit. Gray, Secs. (4th L. Foulke, Col. Perpetuities, Rule Against Powers Simes, Restatement, 373; 541; Property, Rev. Sec. L. cit., All supra. 537. also 6 American op. Law Sec. Ward, supra, Cf. Property, Ryan 24.33. ren- 352; Rev. This Jones, 18 Md. op. pp. L. valid, ders here involved good limitations secondary within the the Rule. prescribed by as vested time they
Decree affirmed, costs below paid to be out this Court estate. Henderson, J., opinion. filed following dissenting There the instant every- are some case points un- appointments, one seems agreed. testamentary to be to be principles, though der established are read generally trust, so had been included deed of they original case, the rule the instant violate some respects read It is had settlor against perpetuities. agreed also
555 revocation, retained a and unconditional complete power the time from which the rule runs would not have been the death, date of the but the date of the when the settlor’s power terminated. This in was principle recognized clearly Ward, Ryan 192 Md. note 7 2d See A.L.R. Horn, and Cook v. 104 theory S. E. 2d 461 The (Ga.). that deed, is since general a power appoint to will or or by revoke, complete power is to the substantial equivalent alienation, absolute not ownership, and does restrain the ap- plication the rule postponed. should be also notes on Ryan the in case 47 Mich. Rev. 1226 34 Minn. (1949), E. Rev. 152 (1950), and 10 U. Pitt. Rev. 556 (1949). E. R.
In the Ryan case we that held of annual power limited withdrawals, which have possible destroy made the entire estate within twenty-two not render years, did estate Trust, re “destructible”. Accord: In Heller’s N.Y.S. 2d 343. rejected argument We this was the equivalent complete and unconditional to consume (or before revoke). question now us is whether fact of revocation conditional or resignation trustee, death the time Dalrymple, defers from which the validity appointments is be deter- occur, mined. His death in did fact but not need have oc- curred, in revoke, lifetime settlor. not but She did appointed a trustee. new Thus her right to alienate only existed for thirteen not days and did exist at the trust, creation of the at her death when her will took effect. There seems to be no authority Restate- directly point. ment, Property, (d), discusses destructibility requi- § an application site for of the rule stated therein. there is that the power noted not exist does when ap- one which pointment “must be jointly exercised two or more can persons or which be exercised the donee only concurrence one or more other persons. Similarly it does not exist when of revocation exercisable with the concurrence of one or more only persons than settlor, or is otherwise condition any prece- dent.” (Italics power to revoke supplied.) Since instant case was exercisable only upon death or resigna- trustee, as a
tion condition seems clear precedent, that, least, me point Restatement does up the court’s conclusion the instant case. Reliance support however, that, on the next placed, sentence which states destructibility, the determining power of revocation need creation, always be exercisable at time of “presently period, thаt the which the exercise of provided during such interests postponed, does invalidate all created effect, thus, the exercise power, invalidate itself. Thus A limits Trustee B for *19 power- thereof, ten years the of to accumulate the period income of that time select the at the end some one of descendants B, the income to the pay person of and to thus selected life, the distributing corpus to such or person persons in such interests the person shares and as thus shall selected will, either in default an exercise designate deed or of by income to of distribute the the children of power at the so for life and death person selected of survivor of distribute the such children to descendants of corpus then the entire limitation A surviving, is valid. The period ten of years, of and also life the person selected Trus- tenant, to be life are both in tee B excluded the rules applying in 370 and 371 to interests stated created exercise §§ of the and to interests exer- power default of such limited it c). cise Comment Thus is under some (see possible, cir- cumstances, to exclude not only time which an ‘during also, interest destructible’ but the time to such time.” prior in- am not that this illustration controls the persuaded I complete stant There the of will power disposition by case. deed, revocation, which equivalent power to a of itself, instrument for the postponed period the terms accumulation, ten when the years, donee of power the instrument It is as itself were to though selected. become condition, a like a de- only upon happening effective are rights escrow. No vested un- any beneficiary livery in the instant til the selection occurs. But case rights donеe, her powers came testamentary appointment deed, into upon and at time being delivery conditional not upon to revoke was an event power wholly certain to her I happen passage lifetime. do read last quoted earlier statement that the modifying to revoke cannot be made a condition precedent.
I section find This deals nothing contrary 391. § with the validity general powers of and is appointment, applicable If the construction only by way analogy. given Moreover, proposed, seems inconsistent with § trustee, given illustration granted corporate conditional the election upon Republican president, of a exercisable”, to be not “presently is said seems to me to sup- port view. The event my might happened during have life the settlor. While the trustee the instant case was not corporate, the on the res- contingent only trustee, death first ignation or but of his each of suc- the first cessors. trustee have outlived the settlor might Even all of the named beneficiaries. In 2 Jarman, Wills (8th 796, it “A to arise ed.), p. upon is said: limited future or event must be contingent distinguished from a event, which takes effect upon a future but is presently former, exercisable. The exercisable before event, is, seems, arise, which it is happens, limited to remoteness, void for unless event is such that it must happen within legal on Per- period.” also Marsden *20 petuities, 238. § fact that
The was conditional a con requires sideration of events after occurring years delivery trust, it after full operation, came into order to it determine whether or not I “presently exercisable”. settlor, it that if in fact take the trustee had survived would be settlor ever now contended possessed revocatiоn own complete, any, power of equivalent that for appellee’s whole case rests on fact ership. of thirteen to revoke was exercisa period days subsequently ble.1 Consideration of what vio transpires principle trusts with- validity lates the established that, revoked, purposes (For present I assume had she she although ownership, it seems clear she have had substantial conveyed joinder in 1895 not have without could (1888), 2). sec. of her husband. Code Art. See 558
in the the rule ambit of must be viewed prospectively time of their creation. I find no reason to widen compelling recognized exceptions strict application of the rule. we If are adopt “wait and see” doctrine advocated by some legislative writers should action and not by ju- dicial fiat.
While I perhaps strictly point, think New York cases view. clearly support Estate, In re Perkins’ my cited, and cases there (N.Y.), N.E. Title Herzog v. Co., Trust Guarantee & I think (N.Y.). N.E. decree the instant case should be reversed. PRESSLEY STATE Term, September [No. 1959.]