Williams v. Herrick

• Decision Date: 20 September 1895
• Citation: 32 A. 913,19 R.I. 197
• Parties: WILLIAMS et al. v. HERRICK et al.
• Court: Rhode Island Supreme Court

32 A. 913

19 R.I. 197

WILLIAMS et al.

v. HERRICK et al.

Supreme Court of Rhode Island.

Sept. 20, 1895.

Bill by George W. Williams and others against William H. Herrick and others, trustees. Defendants' demurrer to the bill overruled.

Francis Colwell, Walter H. Barney, and Albert A. Baker, for complainants.

James Tillinghast, William R. Tillinghast, Theodore F. Tillinghast, Comstock & Gardner, E. S. Hopkins, and A. S. Hopkins, for respondents.

STINESS, J. The complainants, heirs at law and next of kin of Amos W. Olney, who died August 21, 1880, seek to recover certain property given by him in his will to the respondents, in trust. The will gives all his estate to ins widow, now dead, during her life, and the remainder, after her decease, to a board of live trustees, in trust, among other things, to erect a brick block on his lot on High street, in Providence, to be forever known as the "A. G. & A. W. Olney Block." All the remainder of the trust estate is to be held by the board of trustees, and managed in such manner as they may deem for the best interest thereof; the whole to be known as the "A. W. Olney Trust Estate." The rents and income are to be divided among such of his heirs as shall present satisfactory proof of their claims to the board of trustees, in the same proportion as they would inherit his intestate estate. Such dividends are to be made whenever the accumulations shall reach such proportions that the board of trustees shall deem such dividends advisable. Vacancies in the board of trustees are to be filled by the court of probate having jurisdiction of the will, "ever thereafter." The complainants claim that the devise is void, as a perpetuity, and the respondents demur to the bill.

We cannot conceive of a clearer case of perpetuity. It is so clear that it defines itself. The testator provides for a building to forever perpetuate his name; for a pool of all hits capital, including the building, to be known as his "Trust Estate"; for a board of trustees to manage it without limit of time; for dividends to be declared to heirs, who shall produce satisfactory proof of their right, and this without limit of time; for vacancies to be filled "ever thereafter." Noprovison is made for a vesting of the estate in anybody, other than the trustees, at any time; and no provision is made for anybody to take any interest therein, except by way of dividends, as the trustees may award them. Indeed, as we strive to follow the provisions of the will, they seem to go beyond a legal perpetuity, and reach into eternity. The scheme is simply to have a perpetual trust estate, which shall pay dividends to heirs like a stock company. It is so clearly contrary to the established rule against perpetuities that it is needless to discuss it. The cases relied on by the respondents to support the will are chiefly cases of a direction to trustees to erect a monument. But those cases are radically different from this. They relate to something to be done immediately, and ended. No title is carried along, no estate is held in abeyance, but the monument is in the nature of an improvement put upon land, which vests in devisees or heirs. We make no question that the devise of an estate with a simple direction to trustees to erect a building would be good. Such was the case of Lombe v....