*1 QUAN OF CHUN ESTATE MATTER OF THE IN THE Q. YEE HOP, AS C. KNOWN YEE ALSO HOP, DECEASED.
No. 4881. May 14, 1970. Kobayashi, JJ., Levinson, Richardson, C.J., Abe, Judge in Place Kabutan and Circuit Disqualified. Marumoto, J., LEVINSON, BY J. THE COURT OPINION OF question presents whether the orthodox This case strictly, ap- will be law Rule common nullify plied trust which violates part or all of it will be or whether some issue, We choose to resolve to take effect. allowed - equitable approximation (also applying doctrine of pres doctrine) cy so that the trust will not known as policies underlying and the testa- the Rule or violate expressed be satisfied. tor’s desires parties. stipulated by the been The facts have August Hop, Qüan died on Yee Chun testator, September 1953. His leaving wife, executed a will daughters living, sur- and twelve his four sons is still who filed in 1967 his issue this action was When him. vived great grandchil- grandchildren, including children, living 85 were not less than of wliom dren numbered 135, died. when testator *2 question provided portion of the testator’s will upon the death trust cease and determine
that: “This shall years thirty (30) my from the Chun Lai wife, Sliee, theAt . .. .” last my occur, shall date whichever death, including prin- the trust estate of the trust, termination trans- cipal in and be to vest income was and accumulated the trust three-fourths ferred to beneficiaries with going of the four sons and law- estate survivors remaining any one-fourth and the ful issue of deceased son, going of the twelve survivors of the trust estate daughter. daughters deceased and the lawful might be in the trust counsel that On advice of Against Perpetuities, the trustees violation of the Eule asking petition court for instructions. in the circuit filed a repre- duly parties and notified After all interested were hearing, trial court determined after sented and following ques- upon the well-founded there was a doubt court for answer to this were reserved tions of law which pursuant § HES 642-1: and decision Perpetuities, the Eule under
Whether, entirety provi (1) and all valid in trust is lan: with the out in accordance be carried can sions guage of the will; partially partially in-
(2) valid the trust respect and in what it is valid in what if and, so, valid, respect effect is and what is invalid, validity invalidity trust partial on the overall responsibilities in the adminis- of the trustees and the of the trust; tration entirety, if in its and, so, trust is invalid responsibilities in the of the trustees are the
what of the trust. administration lawyers resolving bedeviled which has
In an issue engaged legal since scholars Lord Nottingham began all in the Duke Case in we are aided of Norfolk’s very able briefs of counsel and a wealth law review articles and treatises on the subject.2 we Fortunately, not confronted by some the more chimerical characters and situations dealt Professor Leach in his writ We ings. are simply dealing with a which might vest in the ultimately residuary legatees at a beyond time a specified life in testator’s being (the widow) and twenty-one years thereafter.3 Since wife háve died might within nine after his there death, no assurance at the timé of his the trust death éstate would or 21 years vest within life' of his wife thereaftér. The will expressly says *3 cease and determine the death of testator’s wife or on the years from whichever shall last occur. thirty his death, The the orthodox Rule trust, Against violated therefore, Perpetuities.4 1, 49, Eng. Rep. 931, (1682). Ch.
1 3 22 960 Cas. petuities: recent and Rule petuities, cerning 32-34 51 [2] Harv. The Against Perpetuities (3d perpetuity ABA leading L. Rev. 638 ed. The Nutshell comprehensive was Professor Leach’s famous 1967) Section of Real article reform found prepared (1938). Revisited, contributing, book on is by The Property, the Committee on in-Perpetuity article was A 78 comprehensive bibliography to reform subject Harv. Probate and Perpetuities L. is R. updated in Legislation of the Rev. 973 Rules Lynn, Trust Law. in a Leach, (1965). Handbook Nutshell, Against Modern Per- Per- con A 3 Chipman Gray’s of orthodox Rule John revised statement is Gray Against Perpetuities (4th 1942); § his The ed.’R. found in 201 twenty- vest, all, good “No is must if at not later than interest unless it being one after some life in at the creation interest.” 4 grounds equitable on we decide of Since the case validating (ey pres), of we do not of forms reach the merits other ably by (a) holding presented trust which were counsel. These included striking thirty contingencies “separable” and invalid alternative year the and doctrine; contingency; (b) (c) applying finding the “wait and see” gifts respective separate gifts to be their children and treating vesting; (d) gift separately each as to the time holding the income to children and their distribution of trust each twenty-one years be on the basis that issue to valid for at least gifts .preclude provides for of income. do not intend to annual W.e arguments being and others from raised in the future.
.43 part The Rule is to be said English applicable common therefore in Ha law and is (1906), waii. Fitchie v. 69 211 Haw. Brown, 52, aff’d validity (upholding U.S. 321 of a by being trust whose duration measured lives plus years). legislation no in Hawaii on the There is subject except provision general 1-1§ HRS which exceptions with relevant to this cáse “[t]lie not states English England, common as ascertained American to be the common law is declared decisions, “common law” the State of Hawaii'in all spoken This cases,....” in a does not somnolent statute remain sedentary repeatedly state. We have maintained juris genius upon our which “[t]he law, the common prudence orderly growth.” capacity for is its based, Fergerstrom Fullaway, (1958) Lum v. ; Haw. 500, Hawaiian Ocean View 50 Haw. Estates, P.2d the Rule is a creature of
Since judicial respect any growth with of the law construction, purely unless it is one of wisdom state judge-made legislature a’ rule of chooses law, to act.5 As firmly court not Hawaii that this so ensconced judicial origin other rule cannot deal with it like change times.6 must which no'surprise court held should testamentary trusts have
several occasions' that various *4 complied with the common keep accepted techniques
using
to
construction
of
Hospital
violating
v.
Queen’s
the Rule.
the trust from
legislation
5
comprehensive study
Per-
he found in
can
A
of state
supra
petuity Legislation Handbook,
2.
note
d
(1969)
6
DeGama,
74, 450
998
P.2
v.
51
Tamashlro
Haw.
See
Breeden,
abolished) ;
426,
(parent-child
immunity
51
Lemle v.
Haw.
tort
warranty
habitability
agreements);
(1969) (implied
in lease
of
We do not mean to that the say Rule Against Perpetui ties has outlived its many so rules of usefulness. Unlike property which were handed down from feudal England, this rule is of vitality. This court said in continuing Ins. Co. v. Von Hamm-Young Co., Manufacturer’s Life Haw. Perpetuities: “This rule was not feudal but has its origin support the practical needs of modern and was devised times, order to restrain the in future estates tying up property for an unreasonable of time.” period in future es- policy against up property tying tates has One is the free- aspects. a number important channelled into ing open wealth so that it can. commerce the limited discretion without to subjecting it of a rule conducive trustee. Another is that aspect is. of man- complete power the ultimate giving recipient to be He over that which is his. agement disposition than be sub- sink or his own rather may then swim on trustee. The ordinated to the control paternalistic living letting last and most is that important policy allowing rather than control the wealth on earth, here passed away have since those who once owned reasons all that wealth. These retain some over powers loosen policy is wise support proposition one from passed hand’s the wealth grip upon dead *5 to next. Revision generation Dukeminier, in Perpetual Trusts Calif. L. Permitted, California: Eev. L. Public. and the (1967); Simes, Policy Dead Hand 58 (1955). policy against tying
The in future up property estates is not inconsistent with the of the doc- application trine equitable of a testamentary trust.
Limiting an invalid term of thirty years twenty-one year prescribed the rule period by does no violence to any of the above or policies to general intent. recognition a decedent’s testa- general intent in mentary recognized has been analogous an body which the doctrine applies of equitable approxi- to a mation charitable trust which would otherwise fail. it
If is impossible, impractical illegal carry to out the terms aof charitable trust specific which settlor has indicated charitable general many a courts purpose, authorize the substitution of another charitable scheme within the testator’s general Eestate- purposes.
ment We Trusts should also (Second) § mind keep analogies mentioned Chief Justice Doe 66 N.H. 31 A. Edgerly Barker, 909-10 434, 462, : “The feudal doctrine of forfeiture for and a of a interest than the conveyance larger grantor is no our common ... A lease law. for 40 made part years, to for power under a lease for 21. . . years, good a to a restricting Under statute term not exceeding time tenant for for life can be years empow- which gift ered to a tenant life of a lease, is not he lease for 63 void. If makes a power more than 21 is void for the years, lease for excess, omitted.) more.” (citations no the fact that decision should not be influenced by
Our to distribute estate ¿mong testator’s intent his plan their which according his children and a.
may appear to some favoring as Ms male lopsidedly prog: of eny. Tliis bis. The right. wishes the was, course, testator could have accomplished exactly been he wished as without the if violating attorney Buie drafted who the will had that to continue until specified trust was 21 years after death of.the last and his survivor wife all of his living at the time of his death not to hut exceed 30 from the date of years death. Without his last mentioned limitation the trust could have continued for nearly years 100 from the date of his death without violating the Buie.
We are not alone in the doctrine judicially adopting The equitable approximation. Hamp- courts New doctrine in. applied varying shire have Mississippi The rule of degrees adoption and circumstances.7 an is further recommended equitable although number of commentators8 overwhelming and, been adopted doctrine has origins, We therefore hold legislatures.9 number of state the Buie Against interest which would violate approxi- limits of that rule to shall reformed within the be inter- the intention the creator closely mate most vio- est. In the where present case, trust “shall cease by providing lated the rule Berry, 7 (1891) Barker, Edgerly v. 31 A. Carter 66 900 : N.H. (1962). 843 Miss. 140 So.2d 243 cy by Judge 8 pres in Quarles James advanced The doctrine was Involving Application Gy to Oases The Pres' Doctrine: Its in 1946 Accumulation, Against Perpetuities L. Trusts 21 N.Y.U. (1946). in revision his earlier article Rev. 384 This Gy to the Rule Pres with Doctrine Reference —An Adoption Jurisdictions, All Rev. 683 Advocation Its in 38 Am. L. (1904). exposition arti- be found in Professor Browder’s A can current Against Perpetuities, Construction, Reformation, and the Rule cle, Invalidity: Fletcher, Discrete (1963). A-Rule See L. Rev. 1 also Mich. Waiting, Rev. without Stan. L. Reform (1957) ; (1963); § 715.5 Idaho Code Ann. 56-111 § Civ. Cal. Rev. Code (1966) (1963) ; ; Ky. § 381.216 Mo. Ann. 442.555 § Stat. Stat. (1959); Rev. 11.98.030 § § "Wash. Code Vt. Ann. Stat. upon my determine the death of Chun Lai or wife, Shee, thirty years my from the date of whichever death, thirty year period only . last need shall occur, .”, twenty-one years bring reduced order to response questions In the rule. within reserved may this court we then answer trust is that the valid entirety provisions and all be carried out language excep- accordance with of the will upon tion trust shall cease and determine twenty-one death of the testator’s Chun Lai wife, Shee, date from the of the testator’s whichever death, shall last occur. so ordered. *7 (Padgett, Greeley,
Asa M. Akinalca & AM? Marumoto counsel) petitioners. naka of for Trustees, Temporary Donald H. O.Low, Administrator of Estate Sing (Nakamura of Yee & Shun, deceased, of coun- Low sel) pro se. Waddoups (Anthony
Arthur B. Reinwald & of coun- sel) Hung respondents. for Lum et Chun, al.,
Henry Shigekane Shigekane (Damon, H. é Ohar of counsel) respondents. for Lee Chun et Shee, al., (Lo, and Richard Youth O. Lo Youth & Ika- Wilfred counsel) Wong mki for Alsona Bobert J. Chun, respondents. Tsukiyama, T.
Ted Guardian for Litem the Minor ad Q. Hop, of the Unborn Issue C. Yee deceased. sons (Ashford Jubinsky counsel) John &Wriston of Guard: daugh ian ad Litem for the Minor and Unborn Issue Hop, Q. ters of C. Yee deceased. (Fong, Ghoy Y. &
Edward G. Ghun Robinson Miho, counsel) respondent. for Kwai Dick Chun, G,. Joseph (Alfred Wong Wee M. K. on K. the brief, counsel) Joseph Weej for Okumura Takushi of G. K. respondents. et al., KOBAYASHI, J.,
DISSENTING OPINION OF ABE, J„ WITH WHOM JOINS.
I dissent. clearly case involves a This Against acknowledged Perpetuities, violates as majority involving not the court. It is a case Hospital ambiguity an in the as Queen’s Hite, Haw. Neither a situation does involve may proposition “the a idiot” wherein law is ass, applicable.1 court is confronted with the basic, this Thus, actually enforcing proposition naked vitiating vitality the Rule! or of enforce the Rule under facts I choose to majority, opinion, caused case. The now instant appellate effec- the list of courts to be added to court application escape tuating of the Rule to the “harsh” an Perpetuities. attention has been called to Our escape: upon as relied said doctrines various contingen- pres cy the doctrine of alternative doctrine premised “separable”, both which are cies that alleged giving intent of the testator.2 effect thinking and avoidance is of such contradiction following proponents doc- either of above obvious: say original intent. To the testator’s must violate trines given testator of the intent that an question. simply begging In the ma- essence effect is *8 power jority a that does not has “exercised” the court making for the testator. The decision a new have: strongly majority appears to be influenced attorney alleged for the testator could fact that have drafting amazing, job is to in will. It better done a give say or rele- the court would substance that the least, Nutshell, 1 Leach, 638 at 645 Perpetuities in 51 Harv. L. Rev a Nutshell, supra. Perpetuities 2 Leach, in a Revisited, Perpetuities: L. Rev. 973 Leach, Harv. Nutshell vancy attorney. to the of thé so-called failure actually competing
The issue boils down to “rules” or “policies”: against vesting rule remoteness of future encourage property interests to circulation of rule of vs.
giving effect to the testator’s intent because law abhors intestacy. policies
It is clear that the two rules or are not com- patible Gray emphatically case. As Professor states:
“The Rule is not a rule of con- peremptory but a law. struction, command It is not, rule like a more or artifi- less construction, test, object determine to Its cial, intention. is to defeat * * * intention. Therefore to Rule is be remorse- lessly applied.”3 (Emphasis added.) logic majority’s
I fail to see ratio decidendi: thirty years “limiting an invalid term of to the twenty-one year period prescribed by the rule does no policies Against violence to of the above [of Rule Perpetuities] general (Em- or to intent.” added.) rely phasis reasoning aWhat tenuous to on to justify attempt gross Against violation Perpetuities. majority ironic to claim indeed actuality helping Against Perpe- the Rule “grow”; that the common remain tuities law “does not sedentary in a somnolent and state.” majority say,
To as the does, yet has not outlived its usefulness and re- height apply it in clear fuse to the face of a violation is the illogic. “logic” of contradiction and Such adds justification confusing court-made If no volumes law. policy grounds public for the in reason or
exists
should,
enforcement
this court
continued
Rule,
1916).
Gray,
(3d
§ 629
ed.
The Rule
*9
do away with the Rule.4
directness,
Supreme
Court of
Lucas v.
California,
Hamm,
56 Cal. 2d
P.2d
15 Cal.
Rptr.
(1961),
cert.
Rule
Justice
Doomed?”,
Simes,
52 Mich.
“Is the
See
Invalidity: Perpetui
Fletcher,
(1953) ;
Rule of Discrete
“A
L. Rev. 179
ties
Leach,
(1968) ;
Waiting”, 20
Rev. 459
Stan. L.
Reform Without
Legislation,
L. Rev.
108 U. Pa.
Walker,