268 Mass. 62 | Mass. | 1929
This is an appeal from a final decree of the Probate Court upon a petition for instructions, presented by the Springfield Safe Deposit and Trust Company, trustee under the will of Solomon Jones Gordon, who died in 1891 at the age of sixty-four.
The testator, an attorney at law, by will dated May 17, 1881, gave his wife, Rebecca Ames Gordon, the use and income of his entire property for life; and established upon her death a trust of all his estate to pay the net income to his only child, Jeannie Gordon Ireland (designated in the will as Jeannie Gordon), during her life, free from all claims of mar
The testator’s widow died in 1912. His daughter was born December 29,1853, and died February 22,1928, leaving a will. The Springfield Safe Deposit and Trust Company is executor of that will and trustee thereunder. Her only child, Gordon Ireland, was alive when his grandfather’s will was drawn, having been born December 23, 1880. The testator knew of the existence of this grandson from the time of his birth. In 1908 Gordon Ireland married; he has two children born respectively in 1911 and 1913. He was formerly trustee under the will of his grandfather, and upon his resignation from that office the Springfield Safe Deposit and Trust Company was appointed in his place.
The petitioner asks to be instructed to whom, at what times, and in what proportions, the income and principal of the trust fund shall be paid and distributed.
The judge of probate decreed that the respondent Gordon Ireland was entitled to the principal and income of the trust fund, and that the trustee under the will of Solomon Jones Gordon, after making certain payments for legal expenses, should convey, transfer and pay over to him all of the trust property for which it is legally chargeable. From this decree the Springfield Safe Deposit and Trust Company as executor and trustee under the will of Jeannie Gordon Ireland, and the guardian ad litem of the minor children of Gordon Ireland have appealed.
The only gift of principal to grandchildren is to those living at the date fixed for the termination of the trust, and there is no gift to any issue of such children except to the issue of any child then deceased, and if no child or grandchild of the daughter should then be alive the whole estate is to be conveyed and transferred to the religious association. The terms of this provision for the religious organization tend to show an intention that the interest in the children or grandchildren of his daughter should not be vested, and also are indicative of a testamentary purpose that no issue more remote than the daughter’s grandchildren should take. The testator undoubtedly hoped that his estate would ultimately go to his direct descendants, but he made it clear that even if his daughter should die soon after his own decease, neither her children nor her grandchildren could receive any part of the principal until January, 1922; and, whatever his reasons may have been for selecting that date, only those then living would be entitled to share in the property.
When it plainly appears that a testator intended to create a contingent estate, the rule favoring so construing the will that estates shall be considered vested must give way, even though the gift is to children, or other descendants, of the testator, and when because of the contingency the limitation is void for remoteness. The gift over in the ease at bar was by way of direction to the trustees to “convey in fee simple, transfer and pay over” the whole estate, and one object of the trust was that the trustees should hold the full legal title and make conveyance at the date fixed after the death of the testator’s daughter.
The controlling rule of interpretation is that the intent of the testator is to govern, and this intent is to be carried out if not in conflict with some rule of law. In case of such conflict the will must fail of effect in so far as it violates the rule, “not because the intent of the testator does not control its construction, but because the law will not permit his intent to be accomplished.” Sears v. Russell, 8 Gray, 86, 94. The rule against perpetuities is not a rule of construction but of law, and is to be applied even if the accomplishment of the expressed intent of the testator is thereby made impossible. Odell v. Odell, 10 Allen, 1, 7. Bundy v. United States Trust Co. of New York, 257 Mass. 72, 79. A will speaks from the death of the testator, and the general rule is that a limitation is void because in violation of the rule against perpetuities unless it is certain at the time of his death that the estate will vest within the period required by the rule, and if by any possibility the event upon which the estate is limited may not occur within that time, the limitation is too remote. The rule applies even if as events actually have happened the estate would have vested in time. Brattle Square Church v. Grant, 3 Gray, 142, 153. Sears v. Russell, supra, at page 98. Sears v. Putnam, 102 Mass. 5, 8.
When the gift is of the whole estate to a class of persons answering a given description, and not separately to its members, and any member of that class may have to be ascertained at a period beyond the limit allowed by law, the whole gift is void. Leake v. Robinson, 2 Meriv. 363. Hall v. Hall, 123 Mass. 120, 124. “In such cases, the person incapable of taking may be the sole representative of the class at the time the estate is to vest, and thus it is possible, at the death of the testator, that the whole estate may vest at a period too remote.” Hills v. Simonds, 125 Mass. 536, 539.
But the testator created an alternative contingency by which, in the event of the daughter continuing to five beyond the first designated date, the estate would vest in the January following her death in “her then living children and the lawful issue of any her child then deceased.” Upon the happening of this wholly distinct and separate alternative event the estate would vest within a period not more than twelve months from the date of death of the testator’s daughter — a limitation which, if standing alone, would not be too remote. The principle governing a case where a testator makes a gift over which would be void for remoteness if one contingency happens and would be valid if another independent alternative contingency happens, is stated by
The gift of income, at the decease of the testator’s daughter, was “in equal shares to her children then living, the lawful issue of any her child then deceased taking by representation their parent’s share.” The apparent purpose of this clause was to make provision for the payment of income for the period between the death of the daughter and January, 1922, if she should die before that date, or, in case she should die thereafter, until the next January after her death.
The petitioner asks to be instructed as to the disposition of income accruing between the' date of the death of the daughter, February 22, 1928, and January, 1929. The gift
Costs as between solicitor and client are to be awarded in the discretion of the Probate Court. Except in so far as the decree may be modified by fixing January, 1929, as the time for termination of the trust and by including such order for costs, it is affirmed.
Ordered accordingly.