53 So. 244 | Ala. | 1910
This appeal requires a decision as to whether certain items of the last will and testament of Thomas Barton Lyons, deceased, are offensive to the rule against perpetuities, and certain subsidiary questions which will be stated in due course.
We begin with the consideration of the question proposed as affecting the devise of testator’s realty within this state. The will contains much detailed direction in respect to the management of.this property, but, putting aside those details as unimportant just now, its substance may be stated as follows: Testator devised his real property to Mary A. Lyons, his widow, to Thomas Barton Lyons, his son, and to appellee Bradley, his son-in-law, to hold and control the same for and during the term of 25 years and during the life of his widow, if she survive the term of 25 years, with power and direction, among other things, to collect the income and profits accruing therefrom during the term, and, at intervals not exceeding one year, to distribute the same equally among his six named children after the payment of an annuity of $5,000 to the widow. The annuity is provided for in an independent item of the will, and is
Testator, a resident of Alabama, died in 1909, leaving surviving him the six children named in the will; they, with the exception of the youngest daughter, who was unmarried, having children. The provisions of the will which have been noted are attacked as void under the rule against perpetuities. The rule against perpetuities, as it is commonly known, or the rule against the creation of remote contingent limitations, was judge-made law in England, and in its modern English form has been adopted by the courts of this country as expressing a wise public policy. “The avowed object of the rule is to favor commerce and the circulation of property by preventing the right of absolute disposition from being tied up or restrained beyond a certain period, and it applies therefore to every description of property, whether real or personal, to every mode of limitation, and to every kind of interest or mode of enjoyment, whether legal or equitable.” — 2 Wend. Black, 174. The period described by the common law or English rule within which contingent interests must become vested is a life or lives in being at the date of the convejmnce and 21 years afterwards, adding thereto, in the case of an infant in ventre sa mere, sufficient time to cover the ordinary period of gestation. Statutory modifications in this country have been in the direction of increased stringency. The statute of this state is in this language: “Lands may be conveyed to the wife and children, or children only, severally, successively, and jointly; and to the heirs of the body of the survivor, if they come of age, and im default thereof,’ over; but conveyances to
Prof. Gray in his work on the Rule against Perpetuities (section 232 et seq. [2d Ed-]) points out that an interest is not obnoxious to the rule if it vests within the permissible period, although it ma.y end beyond that period. Otherwise every fee-simple estate would be bad. Assuming then, for the argument, that it is competent under the law of this state to create a trust for a term of 25 years, the legal title vested in the trustees immediately upon the testator’s death. We will consider Avhether the limitations over the expiration of the term of 25 years transgresses the bounds fixed by the statute
But without regard to any change made by section 3401 of the Code in the law of remainders, the provision of the will here under consideration is void for the leason that whether the ultimate estates are contingent under the section referred to, or were vested under the decision in Smaw v. Young. In the latter case they are liable to become divested by the death of the remainder-men before the expiration of the period of 25 years, or the class may be enlarged by the birth of others, so that during the term no person nor any number of persons can be said to have the right to convey indefeasible estate in the lands. The courts in applying the rules against perpetuities regard all limitations as void ab initio which are not so framed as to take effect of necessity within the legal period, if at all. In Ould v. Washington Hospital, 95 U. S. 303, 24 L. Ed. 450. the Supreme Court of the United States say that: “If the fatal period may elapse before what is to be done can be done, the consequence is the same as if such must inevitably be the result. Possibility and certainty have the same effect. Such is the law upon the subject.” Prof. Gray states the principle in these words: “It is ^enough that a contingent event may happen, or even that it will probably happen, within the limits of the rule against perpetuities; if it can possibly happen beyond these limits, an interest conditioned on it is too remote.” — Section 214. The devise to gran children in
We therefore conclude that the limitations over on the trust of the realty as determined by the lapse of the term of 25 years are void.
If the ulterior estates in the land were limited upon the life of the AvidoAv in the way of an absolute alternative, this disposition might and doubtless would be sustained by cutting out the unlawful limitation upon the term of years, for that construction would sustain the will in its laAvful part without resulting in limitations or in the administration of the trust in a way not contemplated by the testator. But that construction is not open to us. The necessarily deducible purpose of the testator is that the ulterior estates shall not be de
A further question is whether the trusts ought to be preserved for any period; the ultimate estates having fallen. A conveyance may not be made effectual to tie up property beyond the statutory rule by being put in the form of a private trust for a term of years. Otherwise, the statute against perpetuities is an idle device. The legal title cannot be entirely dissociated from the private equitable interests the trust serves and supports, nor from the active duties which must be imposed upon the trustees in order to avoid the statute concerning naked trusts. The interests of cestuis que trust may be too remote. “A perpetuity will no more be tolerated when it is covered by a trust than when it displays itself undisguised in the settlement of a legal estate.” — 1 Perry on Trusts, § 382. In Norfolks Case, 1 Vern. 164, it was said that, “if in equity you should come nearer
At one time we were under the impression that the trust of the real property might be differentiated by its provision that the trustees should pay the annuity out of the income and profits, and that it might be sustained as a trust for the security of an annuity during the life or widowhood of Mrs. Lyons notwithstanding its involvement with illegal limitations of the beneficial estate. But it seems now that such effect cannot be given the will without adding something to the intention of the testator as expressed in the will. The annuity is created and secured independently of the trust by being made a first charge upon the income and profits derived from the land. The trust is not essential to the creation or security of the annuity. The testator’s purpose that the trust should continue during the life
It is urged on the authority of Johnston’s Estate, 185 Pa. 179, 39 Atl. 879, 61 Am. St. Rep. 621, that, the limitations over after the term of 25 years being void, the trust estates are void in toto. In that case, to follow in the main the headnote, the testator devised his real estate to a trustee for a period of- 75 years, and directed that the trustee should collect rents and profits, and,
The learned work of Prof. Gray to Avhich we have already more than once referred states the effect of a too remote interest on prior limitations in this language: “If future interests created by any instrument are avoided by the rule against perpetuities, the prior interests become what they would have been had the limitation of the future estates been omitted from the instrument.”— § 247. And at section 418 it is said: “If the main object of an executory trust were to create too remote limitations, so that apart from such object there remained nothing substantial to carry out, it is probable that the whole trust would fall, although there is no case so holding.” In section 249a and succeeding sections the commentator calls attention to “four recent-cases in Avhich the invalidity for remoteness of a subsequent limitation has been held to destroy prior limita
The decree of the chancellor, so far as it declared the nullity of the trust of stocks and bonds, will be reversed and the cause remanded in order that a decree may be made in accordance with what has here been said.
In other respects the decree will be affirmed.
Affirmed in part and reversed in part and remanded.