Asche v. Asche
| Decision Date | 14 January 1966 |
| Citation | 42 Del.Ch. 545,216 A.2d 272 |
| Parties | Grace Vale ASCHE, William G. Vale and George T. Reed, Jr., Executors under the Will of Ruby R. Vale, deceased, Plaintiffs, v. Grace Vale ASCHE et al., Defendants. |
| Court | Court of Chancery of Delaware |
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 the defendants Vale Asche Ackerman, Bettyann Asche and Bank of Delaware, executors of the estate of Elizabeth W. Vale.
Andrew B. Kirkpatrick, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, guardian ad litem for the 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, Jr., of Killoran & Van Brunt, Wilmington, guardian ad litem for defendants Elizabeth Anne Asche, Frederic Bermingham Asche, III, Edward Craig Asche, Franz Monroe Asche, Elizabeth Vale Asche, the lawful issue of the children of Frederic B. Asche, Jr.
Januar D. Bove, Jr., Atty. Gen., of the State of Delaware since succeeded by David P. Buckson.
MARVEL, Vice Chancellor:
This Court's judgment in the above proceedings having been substantially reversed (see opinion in 210 A.2d 306), the case was remanded with instructions to take such further proceedings therein as may be necessary in conformity with the opinion of the reviewing court. Such opinion, while upholding the judgment below insofar as it had determined that the provisions of the will of the late Ruby R. Vale having to do with the establishment of a charitable foundation were valid, directed that the judgment below be amended so as to permit further examination into the possible validity of intended gifts of the testator following directions to accumulate $2,000,000 of trust income for payment over to the Ruby R. Vale Foundation for educational uses and purposes. Accordingly, that part of this Court's judgment which upheld the validity of those provisions of the testator's will having to do with the establishment of a charitable trust having been affirmed, such amended order 1 provided that the charitable trust directed to be established by the testator in clause Third III of his will and codicil thereto violated neither the rule against perpetuities nor the rule against unreasonable accumulations, but, on the contrary, created a present vested charitable gift in favor of the Ruby R. Vale Foundation. Such amended order went on to state, however, in conformity with the ruling of the appellate court, that the charitable gift in question is not necessarily free from possible partial defeasance due to the fact that certain language of clause Third II(b) '* * * may limit the period during which the entire non-marital trust might continue * * *'. In other words, the basic question framed for this Court's decision on remand is whether or not the testator lawfully expressed an intention to limit the time during which moneys might accumulate for his intended charitable foundation as well to limit the duration of the non-merital trust itself to a period which does not violate the rule against perpetuities. If it should be decided that such attempted limitation was effective, the second question is concerned with which sequential gifts intended by the testator are either vested or must vest, if at all, within the period of the rule.
Accordingly, should this Court now determine that the language found in clause Third II(b) which purports to define the duration of the trust (namely that, subject to clause Fifth, the trust is to terminate after being held during the successive lives of the testator's daughter, all his named grandchildren, and the respective lawful issue of every of his three grandchildren living at his death or during the period of time valid under the law of the State of Delaware '* * * for lawful issue born after my death * * *') serves to cause a cessation of the accumulation of moneys for the testator's intended charitable foundation short of the designated sum of $2,000,000, then it must necessarily be found that such intended and specified total accumulation is subject to partial divestment. In such event the Court must then go on to decide what sequential testamentary gifts intended by the testator are valid, thereby determining which, if any, of the subsequent gifts are either vested or subject to vesting, if at all, within the requisite time. If, on the other hand, this Court should decide that the gift to the charitable foundation is absolute, that is to say that it is vested and not subject to defeasance, then it follows that the testamentary trustees should be permitted to accumulate income for such purpose for as long as is required in order to achieve the collection of the total sum of $2,000,000 designated by the testator for educational uses and purposes whether or not such period of time exceeds that prescribed by the rule against perpetuities for the vesting of testamentary gifts.
Finally, in further conformity with the opinion on remand, after decreeing that the gift of a one-fourth part of the net income of the non-marital trust to the testator's daughter, Grace Vale Asche, for life is valid as being either vested or subject to vesting, if at all, within the period prescribed by the rule against perpetuities, the order on remand recited that the validity of all other gifts following that made to the charitable foundation remained open for determination after the further proceedings which have now taken place. The parts of the Vale will here pertinent are set out in full in the opinion of the Supreme Court and will not be restated here.
In the leading case of Taylor v. Crosson, 11 Del.Ch. 145, 98 A. 375, the basic question before the Court was put at follows:
'The most important point for decision is whether the rule against perpetuities is applicable. Inasmuch as this rule is a peremptory command of law, not a rule of construction, and its object being to defeat intention, therefore, as Professor Gray says:
'Every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied."
See also Equitable Trust Company v. Snader, 17 Del.Ch. 203, 151 A. 712, Emerson v. Campbell, 32 Del.Ch. 178, 84 A.2d 148, and Layton v. Black, 34 Del.Ch. 1, 99 A.2d 244. Compare Myers v. Bank of Delaware, 38 Del.Ch. 228, 149 A.2d 745.
In Girard Trust Company v. Rector, Wardens and Vestrymen of St. Anne's Protestant Episcopal Church, 30 Del.Ch. 1, 52 A.2d 591, on the other hand, the present Chancellor in reaching a determination that a bequest for charitable uses, a traditionally favored purpose, was vested and otherwise valid, stated that if any doubt had existed on the question as to whether or not such gift was vested and so not subject to the rule against perpetuities that under the existing circumstances he would be inclined to adopt the approach suggested in 2 Page on Wills (Lifetime Ed.) § 925:
'* * * If one construction of the will will cause it to violate the rule against perpetuities, restraints on alienation, or against accumulation of income, and another construction will make it comply with these rules, the construction which makes it comply with these rules will be preferred.'
This approach has been used to aid in the vesting of private interests in the case at bar, the Court having stated:
.
Citing Cann v. Van Sant, 24 Del.Ch. 300, 11 A.2d 388, aff'd, Frome v. Cann, 24 Del.Ch. 353, 16 A.2d 248, Myers v. Bank of Delaware, supra, and Girard Trust Company v. Rector, Wardens and Vestrymen of St. Anne's Protestant Episcopal Church, supra.
The Court, noting that the intent of the testator was to comply with the rule against perpetuities, gave paramount emphasis to such purpose. Presumably, earlier determinations of the Court of Chancery to the effect that such rule is a peremptory command of law, its object being to defeat and not to carry out the intention of the testator (see Emerson v. Campbell, supra.) were tacitly modified. The Supreme Court went on to decide that '* * * one part of the will must give way to the other part; that is, either the duration of the trust must be extended until the two million dollars is accumulated, or the accumulation must stop short of that amount.'
It having been decided by the Supreme Court that the duration clause is to take precedence over the testator's instructions to accumulate the specific sum of $2,000,000 as artificial principal, it would seem to follow that inasmuch as a lawful limit is sought to be set on the duration of the entire trust, all of the various gifts made by the testator to members of his family in being at his death and to issue of his grandchildren born after his death are either vested or must vest, if at all, within the period of the rule against perpetuities unless the language used by him for the measuring of time for the vesting of such intended gifts must be construed to include lives not in being at the testator's death, is otherwise defective in legal meaning, or offends some other rule with which a will must comply in order to be valid. In other words, as I interpret the Supreme Court's opinion on the subject of the duration of the trust here in issue, it is the law of the case that Mr. Vale...
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