90 W. Va. 80 | W. Va. | 1922
John W. McCreery departed this life in the year 1917 leaving surviving him as his heirs-at-law five daughters, one son- and four grandchildren, offspring of a deceased son. He left a large estate which he attempted to dispose of by will, and it is some of the provisions of this will that we are now called upon to define.
The will gave to each of the children and grandchildren above mentioned legacies of particular sums of money, .-amounting in the aggregate to more than forty thousand dollars, and also devised to some of his children certain specific real estate, and' empowered the executors to sell any of his real or personal property for the purpose of raising a fund to -pay his debts and the particular legacies. Without making sale of any of the real estate, which consists of large holdings •of mineral lands in the county of Raleigh, all of the debts ■of the testator have'been paid, and all of the particular legacies have been discharged. The testator devised the residue
It is insisted by the plaintiff John Earle McCreery that the ¡ language used by his father in the will is not apt to create a ; spendthrift trust, and that even though the language used is j sufficient for that pfirpose, still it is ineffectual to that end; for the reason that it is an attempt to engraft such a trust ’ upon an equitable fee simple estate. That the will devises ; to the plaintiff an equitable fee simple estate cannot be ques- / tioned. The devise to the executors for the benefit of the plaintiff is of a full one-seventh of the estate without any limitations as to -time, and this devise is for the sole benefit of the plaintiff. This undoubtedly created in the plaintiff an equitable fee simple estate in one-seventh of the residue of the estate. Can such an estate be burdened or limited by having attached to it a spendthrift trust as was attempted in this case ? It must be borne in mind that all restraints upon alienation are against the policy of our law. The policy of the law is that all property should, so far as is possible, be free to be aliened or disposed of by the actual owner thereof. There are, of course, limitations upon this rule, but they are carried no further than the necessity of the occasion warranting them requires. One of the exceptions in this jurisdiction, and in most other jurisdictions in this country, is that an. owner of property may create what is popularly called a spendthrift trust for the benefit of some improvident relative or friend.
In England the validity of such trusts is denied, and the same is true in some jurisdictions in this country. However, the right of the owner of property to dispose of it in such a way that it will secure a maintenance to an improvident or impecunious relative, and save him from the effect.of his own prodigality is firmly established in this state by our decisions. Guernsey v. Lazear, 51 W. Va. 328; Hoffman v. Beltzhoover, 71 W. Va. 72. This relaxation of the policy of the law against the imposition of restraints upon alienation is allowed only to the extent necessary to aecompish the very laudable pur-póse of the owner of the property. The desire of a parent to make ample provision for a spendthrift child, whose habits of prodigality have been the result, most probably, of lack of.
The next question presented for consideration is, what is the effect of clause nine of the will above quoted upon the devises and bequests made by the testator to his five daughters? It is insisted that this attempt to control the devolution of the estate of the testator is void as violating the rule against perpetuities, and in order to determine whether or not this is true it is necessary to ascertain what the clause means. It will be observed that the testator, by the terms of his will, made certain specific devises and bequests to his five daughters, and in addition to these specific devises and bequests he devised and bequeathed to them each a one-seventh interest in the residue of his estate. These provisions for his daughters he then attempted by clause nine, above quoted, to limit or restrict, by providing that if any of his daughters should die without leaving children, or if all the children of any of his daughters should die without leaving or having children, then the legacies, devises and bequests given in the will to any such daughter should revert to and be divided among his children or his descendants. It seems quite' clear that the intention of the testator was to vest his estate in his descendants, at least until the death of his grandchildren. He provides for its devolution down to that point. The clear meaning of this provision is that if anyone of his daughters should die without children, then the part of the estate so devised or bequeathed to such daughter would become vested in his remaining children, or their descendants. If he had gone no further than this, there would have been no objection, of course, to the limitation, but he provides further that if any daughter died leaving children, the part of the estate descending to such child or
This conclusion clearly renders void clause nine of the will, unless it can be limited in its application so as to make the estates devised vest upon the death of the testator’s daughters. This can be done if we are permitted to divide the provision and strike out that part providing for the vesting of the estates upon the death of the children of testator’s daughters. Can this be done? To do so would certainly make a different distribution of his estate from that intended by the testator, and while to hold the limitation void makes a different distribution, this is because of the application of the arbitrary rule of law known as the rule against perpetuities, and does not arise because of any construction
There is some question raised as to the proper construction of paragraph ten above referred to. It will be noted that this clause authorizes and directs the executors to sell the whole estate and reinvest the same in certain kinds of •securities, and to pay to each of the devisees the bequests provided for them. The record in this case shows that to .sell the estate at this time would be very disadvantageous to the interested parties; that while at the date of the will it consisted largely of wild, undeveloped lands, at this time these lands have been developed, and are now producing a larger revenue than could be produced by investing the
Our conclusion is to modify the decree of the circuit court, in relation to the duties of the executors under paragraph 10 so as to provide that under- the showing made there is no present duty upon the executors to convert the estate into cash, and to affirm such decree in all other respects.
Modified and affirmed.