Van Riper v. Hilton

| New York Court of Chancery | Feb 17, 1911

Garrison, V. C.

The sole question in the case is whether the rule against perpetuities has been violated by the testator by the provisions made by him in the tenth clause of his will which is quoted in full above.

The relevant facts are few and are as follows: The will was made on the 20th day of November, 1902; the testator died on the 24th day of December, 1902. At the time of his death he left him surviving his widow, Jane E. Van Riper; Jane Van Riper and Maggie Van Riper, grandchildren, they being the children of his deceased son George Van Riper, who had died some ten years prior to the death of the testator; Lawrence A. Yan Eiper, a son; William P. Van Riper, the oldest child of Lawrence A. Van Riper, and Lawrence A. Van Riper, Jr., the youngest child of Lawrence A. Van Eiper, the said Lawrence A. Van Riper, Jr., having been born on the 27th of April, 1893.

At the time that the testator executed his will, on the 20th day of November, 1902, the wife of Lawrence A. Van Eiper was not enceinte. The youngest living grandchild, therefore, was Lawrence A. Van Riper, born on April 26th, 1893, and at the date of the making of the will he was, therefore, nine years, six months and twenty-four days old; and since the only living child of the testator was Lawrence A. Van Eiper, and his wife was not enceinte at the tipie the will was made, there was no possibility of the testator’s having at the date of the will any younger grandchild than the above-mentioned Lawrence A. Van Riper.

The contention of the complainant is based on the language in the tenth, clause above quoted which fixes the period of non-vesting or o£ accumulation. The language under review occurs in two places and is practically identical in each. It is as follows: In the first paragraph of the tenth clause the trust is to last “until my youngest grandchild now living shall attain the age of twenty-six years or would be of the age of twenty-six years if then living,” and in the third paragraph of the same clause the language is “when my youngest grandchild now living shall attain the age of twenty-six years, or would, if then living, be of the age of twenty-six years,” &e. The argument of the complainant is that since it might have been the fact that the testator’s living son Lawrence A. Van Riper, who was married at that time, might have been the father of a child en ventre sa mere, there was a possibility of a younger grandchild than Lawrence A. Van Eiper, Jr., and if such had been the case the computation based upon his age would have carried the period beyond the limit allowed by the rule against perpetuities.

With respect to the terms of the rule there is no dispute; and since I intend to concede in favor of the complainant the utmost liberality of application of the rule, it does not seem worth while to me to burden this opinion with citations of authority. For the purpose of this decision, I shall assume the rule to be that an estate must vest, or accumulations may not be permitted for longer than a life or lives in being at the date of the testator’s death and twenty-one years after the cessation of such life or lives (allowing also for the usual period of gestation); and, further, that if no lives are used, the period must not exceed twenty-one years after the date of the testator’s death; and, further, that if by any possibility the period provided for by the testator, using the elements which he based his computation upon, could exceed the term of life or lives in being at the date of the testator’s death and twenty-one years thereafter, such provisions are void.

Applying the rule as just stated to the case at bar, I find, as a matter of fact, that there was no possibility, using the elements that the testator used, which could prolong the period of the non-vesting or of accumulation beyond the time allowed by law. The elements used by the testator were, first, the youngest grandchild living at the time that he made Ms will, November 20th, 1902, and twenty-six jnars from the date of the birth of such youngest grandchild. Of course, if at that time there had been living a grandchild any younger than five years, the provision of the will under review would have to be declared void, and of course this result would follow had the wife of the testator’s son been with child at the time that the testator made his will. But, as a fact, Lawrence A. Yan Riper, Jr., then nine years and six months old, was the youngest living grandchild. And, to my mind, it is utterly immaterial that if the circumstances had been different than what they were the result would be different, because we are not dealing with the validity of this clause applied to different facts than those which existed, but with its validity tested by the existing facts.

The testator was subject to the universal presumption of knowledge of the law. He is presumed to have known that he could not prolong the time for vesting of his estate, or within which it might be accumulated beyond a certain period. He was charged, therefore, with the responsibility of definitely fixing a period within the rule; and, in my view, he did so. It is, in my view, entirely wide of the mark to say that Lawrence A. Van Riper, the son, who was the father of two children then living, might have had other children after the birth of Lawrence A. Van Riper, Jr., his youngest child, who was born more than nine years before the testator made his will. The fact is that there was not any child of his younger than the said Lawrence A. Van Riper, Jr. It is equally true that the said Lawrence A. Van Riper, the son of the testator, might have been the father of a child still in the womb of his wife, but, as a matter of fact, he was not; and this, therefore, equally disposes of that supposition. The testator was dealing with actually existing facts. How he acquired knowledge of such facts which enabled him to use them without fear of consequences is immaterial. Suppose that it should appear in a similar case that after the birth of a child born nine years before the testator made his will, his only living son and the wife of such son had separated and the wife had gone to live in some other community, entirely apart from her husband, and the latter had remained with his father, the testator, during all of the years and had never left him, so that the testator was assured for that reason that there was no younger son of his son than the one born some nine years before the time the will was made, can there be any question that he would be entitled to use those facts as a warrantable basis for a computation based upon the age of his youngest grandchild then living ? Innumerable instances could be given of a similar nature, but they all lead to the conclusion which I have stated above. This testator dealt with existing facts. The proofs before me demonstrate what those facts were. In the eye of the law they were as apparent to him then as they are to me now, and he had a right to deal with them as existing facts, and did so.

I can see no more force in the contention that if there had been a child en ventre sa mere this provision would have been void than an argument based upon the supposition that the testator might have been ignorant of the age of Lawrence A. Van Eiper, Jr., and that the said Lawrence A. Van Eiper, Jr., might have been younger than he was, or any other similar supposition.

In my view of this case there is no room for any suppositions. The testator was dealing with existing facts, and we have a right to presume that, if, as a fact, he had learned that the wife of his son were enceinte, he would have made his provision with respect to that fact, and would have made it within the law; and that since she was not enceinte, and the youngest living grandchild was the boy born more than nine years before, he dealt, as he had a right to do,'with that as an existing fact.

The result, therefore, of my consideration of this case is that the provisions of this will under review do not violate the rule against perpetuities or with respect to accumulations.

The industry of counsel furnished me with very many citations from text-books and authorities, and I have read most, if not all, of them, and have also continued the investigation personally with the result that 1 read many not cited by counsel. I have purposely refrained from citing authorities, because I have found them, with respect to this case, confusing and not helpful. I found no case (and counsel were not able to furnish me with any) tire facts of which were so nearly like the present case as to aid in its determination; and the general principles are too well settled to require citation.

As above stated, I assume the law to be as strongly in favor of the complainant as it seem possible for me to make it, and find, upon the facts, that it does not apply favorably to him in the case in hand.