Asche v. Asche

• Decision Date: 07 February 1964
• Citation: 199 A.2d 314,41 Del.Ch. 481
• Parties: Grace Vale ASCHE, William G. Vale and George T. Reed, J., Executors under the will of Ruby R. Vale, deceased, Plaintiffs, v. Grace Vale ASCHE et al., Defendants.
• Court: Court of Chancery of Delaware

Page 314

199 A.2d 314

41 Del.Ch. 481

Grace Vale ASCHE, William G. Vale and George T. Reed, J. Executors under the will of Ruby R. Vale deceased, Plaintiffs, v. Grace Vale ASCHE et al., Defendants.

Court of Chancery of Delaware, New Castle County.

Feb. 7, 1964.

Blaine T. Phillips of Berl, Potter & Anderson, Wilmington, for plaintiffs and defendants Ruby R. Vale Foundation and Grace Vale Asche, William G. Vale and The Milford Trust Co., as trustees under the will of Ruby R. Vale.

Richard J. Abrams of Richards, Layton & Finger, Wilmington, for defendants Vale Asche Ackerman, Bettyann Asche and Bank of Delaware, executors of estate of Elizabeth W. Vale.

Andrew B. Kirkpatrick, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, guardian ad litem for defendants Asche Ackerman and her unborn issue, the unborn issue of Vale Asche Ackerman and Bettyann Asche, and the unborn issue of Grace Vale Asche.

E. Dickinson Griffenberg of Killoran & Van Brunt, Wilmington, guardian ad litem for the defendants Elizabeth Anne Asche, Frederic Bermingham Asche, III, Edward Craig Asche, Franz Monroe Asche, Elizabeth Vale Asche, the lawful issue born and unborn of Frederic B. Asche, Jr., and the lawful issue of the children of Frederic B. Asche, Jr.

Januar D. Bove, Jr., Atty. Gen., since succeeded by David P. Buckson.

MARVEL, Vice Chancellor:

The executors of the estate of Ruby R. Vale seek instructions concerning the carrying out of testamentary directions given by the testator, who died a resident of Milford, Sussex County, on January 2, 1961, having first made his last will and testament and a first codicil thereto. The late Ruby R. Vale was a well-known attorney at law whose will discloses a purpose to dispose of half of his adjusted gross estate, after payment of taxes assessed against his residuary estate, in a manner designed to make continuing provision for his immediate and remote descendants '* * * during the period of time valid under the law of the State of Delaware for lawful issue born after my death * * *', following the accumulation of $2,000,000 of trust income for educational uses and purposes. Plaintiffs assert that as executors they are under a duty to urge that the will should be upheld in its entirety and do so. However, inasmuch as they entertain doubts as to the entire validity of provisions of the Vale will having to do with the non-marital trust, the device selected by the testator to carry out his basic testamentary plan, their complaint seeks instructions concerning the distribution of property directed to be placed in such trust. In particular, they ask to be informed as to whether or not the provisions of Items Third II and III of Mr. Vale's will pertaining to the vesting and duration of the property interests sought to be given to surviving members of his family violate the rule against perpetuities and its companion doctrines. In the event that such provisions of the trust should be held to be valid plaintiffs ask to be informed whether or not the bequest for educational purposes, also made in Item Third III, is a valid charitable gift. Should such bequest be held to be invalid as violative of the rule against unreasonable accumulations or otherwise, plaintiffs seek further instructions as to whether or not the failure of the attempted bequest for educational purposes brings about a failure of the so-called non-marital trust in its entirety. If not, then the question remains as to what parts of the trust, if any, are valid. All participating parties, other than the Attorney General, have moved for summary judgment.

The basic questions raised in the complaint derive from decedent's directions concerning the administration and distribution of one half of his adjusted gross estate which he directed to be paid into a separate non-marital trust. ¹ Examination of the language employed by the testator discloses that he first directed that the entire income allocable to such non-marital trust property should be held, invested and reinvested by the trustees thereof '* * * until there has been accumulated by the Trustees the sum of Two Million ($2,000,000) Dollars, as artificial principal, at which time the said Trustees shall irrevocably assign, transfer and pay over the said sum of Two Million Dollars * * *' to a corporation to be known as the Ruby R. Vale Foundation '* * * for educational uses and purposes, which perpetual foundation shall be caused to be set up and established by my Trustees solely for said purposes * * *'. The will then goes on to direct that after the accumulation of said two million dollars for educational uses and purposes, that thereafter until the ultimate distribution of the corpus of the trust, income of the separate trust is to be paid to the testator's daughter, grandchildren, and to his great grandchildren living at his death as well as to great grandchildren born after the said testator's death, but as to the latter only for a period of fifteen years.

Guided by the basic principles of the rule against perpetuities and its companion doctrines not only as such rules apply to the vesting and accumulation of the proposed gift to charity but also as they pertain to the vesting of subsequent gifts made to members of testator's family, the Court must accordingly decide whether or not testator's basic intention to provide for his descendants over a long period of time, after first providing for a $2,000,000 gift of accumulated income for educational purposes, has been legally accomplished in its entirety, and, if not, what parts of said plan, if any, are valid.

The attorneys for the plaintiff executors and the defendants Ruby R. Vale Foundation as well as for Gracc Vale Asche, William G. Vale and The Milford Trust Company, trustees under the will, as noted above, take the position that the non-marital trust directed to be set up under the terms of the Vale will is valid not only insofar as it provides for a charitable trust but also in its provisions designed for the ultimate benefit of members of the Vale family. If, however, the Court should determine that the charitable bequest sought to be made by the testator is invalid, such parties alternately contend that in such event the coming into play of the provisions for the payment of income and principal to Mr. Vale's descendants would merely be accelerated. The guardian ad litem for the issue of testator's son-in-law, Frederic B. Asche, and their lawful issue, on the other hand, while conceding that all other interests in the trust estate, including those of his clients, must necessarily vest within the period fixed by the rule against perpetuities, contends that the bequest to the Ruby R. Vale Foundation violates such rule and is accordingly void. Taking a position directly opposed to that of the guardian, the attorneys for the estate of the decedent's widow contend that while the gift to charity is valid, all subsequent interests provided for in the will are invalid as violative of the rule against perpetuities. Finally, the guardian ad litem for the testator's granddaughter, Asche Ackerman and her unborn issue, for the unborn issue of the testator's daughter, Grace, as well as for unborn issue of other granddaughters of the testator, while contending on the one hand that the provisions in the Vale will which direct accumulations of income for the Ruby R. Vale Foundation presumptively violate the rule against perpetuities, apparently takes a secondary position that the entire trust is perhaps valid in toto if construed to be limited in duration to lives in being and twenty-one years thereafter.

The primary argument made by the guardian ad litem for the issue of testator's son-in-law, Frederic B. Asche, and their lawful issue, in support of his contention that the gift to charity contemplated by Mr. Vale is not valid is that such gift, not being vested but one coming into being only after the sum of $2,000,000 has been accumulated, is accordingly contingent.

The basic point sought to be made is apparently that on such theory the gift to charity may not vest within the period allowed by the rule against perpetuities and is accordingly void. The point of distinction between a vested gift to be paid in futuro and a contingent gift to be paid to a person only upon reaching a certain age is made by Chief Justice Booth in the case of Carey v. Pettyjohn, 5 Har. 296, as follows:

'* * * if a legacy be given to a person, payable, or to be paid, at, or when he shall attain the age of 21 years; or at or upon any other definite period or event; the legacy becomes vested immediately on the testator's death; and is transmissible to the executors or administrators of the legatee, although he dies before the time of payment. But if the words 'payable' or 'to be paid' are omitted, and the legacy is given at 21; or at or upon any other future period or event; the interest is contingent, and depends for its vesting on the legatee being alive at the period or event specified.'

On the basis of this principle it is also contended that the gift here in issue is contingent for another reason, it being additionally argued in disregard of the fact that the cy pres doctrine is recognized in Delaware that at the time of Vale's death the corporation contemplated by the testator as the recipient of the ultimate accumulation of $2,000,000 of income was not in existence.

In the first place, while a legacy made to an individual at twenty-one years of age is contingent because of the possibilty of the legatee's death prior to reaching such age, here we are dealing with a charitable gift to a perpetual foundation, the purposes of which exist continuously and do not come of age, as it were, in futuro. However, apart from this practical distinction, the language here used is not, in my opinion, susceptible to the narrow interpretation advanced by the guardian ad litem for the Asche children and their issue. The object of Mr. Vale's bounty is not...