Asche v. Asche

• Citation: 42 Del.Ch. 307,210 A.2d 306
• Parties: Elizabeth Ann ASCHE, Frederic B. Asche, III, Edward C. Asche, Franz M. Asche, Elizabeth V. Asche and Asche Ackerman, Appellants, v. Grace Vale ASCHE et al., Appellees.
• Decision Date: 01 April 1965
• Court: United States State Supreme Court of Delaware

Page 306

210 A.2d 306

42 Del.Ch. 307

Elizabeth Ann ASCHE, Frederic B. Asche, III, Edward C Asche, Franz M. Asche, Elizabeth V. Asche and Asche Ackerman, Appellants, v. Grace Vale ASCHE et al., Appellees.

Supreme Court of Delaware.

April 1, 1965.

E. Dickinson Griffenberg, Jr., of Killoran & VanBrunt, Wilmington, pro se as Guardian ad litem for certain appellants.

Andrew B. Kirkpatrick, Jr., and Richard L. Sutton, of Morris, Nichols, Arsht & Tunnell, Wilmington, for Andrew B. Kirkpatrick, Jr., Guardian ad litem for certain appellants.

Richard J. Abrams, of Richards, Layton & Finger, Wilmington, for the Executors of the Estate of Elizabeth W. Vale.

Thomas Herlihy, III, Deputy Atty. Gen.

Blaine T. Phillips, of Berl, Potter & Anderson, Wilmington, for certain appellees.

WOLCOTT, Chief Justice, CAREY, Justice, and CHRISTIE, Judge, sitting.

CAREY, Justice (for the majority of the Court).

This is an appeal from a decision of the Court of Chancery for New Castle County upon a bill for instructions filed by certain Trustees appointed in a Will.

Ruby R. Vale, an attorney, died on January 2, 1961, leaving a last Will and Testament, dated November 30, 1960, with a codicil dated December 21, 1960. His wife survived him but died on August 28th, 1961. At the time of the testator's death one child, Grace Vale Asche, was living. There were also living three grandchildren and six great grandchildren, all still alive. By his will, after making certain bequests to individuals, the testator divided his residuary estate into a marital and a non-marital trust. The marital trust is of no concern in the case now before us.

The provisions of the will concerning the non-marital trust are complicated and the Trustees filed a declaratory judgment action in the Court of Chancery seeking instructions as to the meaning and validity of certain provisions. The specific questions which the Court was asked to determine are set forth later herein. From the decision and order of the Court some of the parties have filed this appeal. That decision was based upon applications of all parties for summary judgment. No evidence of any nature was before the Court other than the will and codicil, a statement of the identity of the survivors, some information concerning the size of the trust estate, and a copy of the grandson's renunciation of any rights under clause Fifth of the will. We find it necessary to quote at length several provisions of the will.

In the Third clause of the will, after giving unto his trustees his residuary estate, the testator included a paragraph designated 'II' which was intended to constitute a duration clause for the trust, the material language of which is as follows:

'to hold (b) the Other of said separate Estate Trusts, after deducting therefrom every Federal and State estate or other tax assessed against either or both of said separate Estate Trusts, in accordance with and subject to the terms and conditions of subsequent clause Fifth of this last Will and Testament, for and during the successive lives of: (1) my daughter, GRACE VALE ASCHE, wife of Frederic B. Asche; of (2) all my grandchildren, FREDERIC B. ASCHE, JR., VALE ASCHE ACKERMAN, wife of Marion S. Ackerman, III, and BETTYANNE ASCHE and of (3) the respective lawful issue of every of my three grandchildren living at my death, or (4) during the period of time valid under the law of the State of Delaware for unlawful issue born after my death; or in and under the alternative conditions of said clause Fifth, (5) for and during the successive respective lives, or lawful periods of time, of my grandson, FREDERIC B. ASCHE, JR., and his lawful children and their lawful issue as therein provided'. (Emphasis in original).

Paragraph III C (b) contains certain directions for the disposal of income, as follows:

'(b) To accumulate, invest and reinvest * * * the whole INCOME received from the other separate Estate Trust, until there has been accumulated by the Trustees the sum of Two Million ($2,000,000.00) Dollars, as artificial principal, at which time the said Trustees shall irrevocably assign, transfer and pay over the said sum of Two Million Dollars unto 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, with full power herein given so to do. After the accumulation of the said Two Million Dollars as artificial principal, to be used for education uses and purposes as herein provided, the Trustees shall pay over and distribute * * * in quarterly installments as follows: UNDER AND SUBJECT to the terms and conditions of subsequent alternative clause Fifth of this Will, one-fourth part of the said net income unto (1) my daughter GRACE VALE ASCHE, for and during her life; and (2) a one-fourth part of said income in equal per capita shares unto 1. each and every of my grandchildren, and 2. his or her lawful issue, or in the alternative, during the respective lives or lawful periods of time of my grandson, FREDERIC B. ASCHE, Jr., and his lawful children and their lawful issue as herein set forth; PROVIDED, however, the per capita share of each grandchild and of his or her lawful issue living at my death shall be paid to each for and during their respective lives, but the per capita share of any issue of any grandchild born after my death shall be paid to such issue only for the period of fifteen years, when the PRINCIPAL on which such after-born issue received the income shall be paid over absolutely to such issue, who shall take equally between or among them the share the deceased parent would have taken if then living.' (Emphasis in original).

Paragraph III disposes of the remainder in the following language:

'E. At and upon the death of (1) my daughter, of (2) my grandchildren and of (3) their lawful issue living at my death as they successively occur, and (4) fifteen years after the birth of any lawful issue of any grandchild not living at my death, that part of the PRINCIPAL of one separate Estate Trust or of the whole or my Adjusted Gross Estate upon which the deceased daughter, grandchild or his or her lawful issue received the income, shall go absolutely to and be equally distributed between or among the then surviving lawful issue respectively of my daughter, grandchild and his or her lawful issue, such taking per stirpes and not per capita; or in the alternative, to my said grandson, FREDERIC B. ASCHE, JR., and his lawful children and their lawful issue as herein provided in subsequent clause Fifth of this Will.'

The Fourth clause of the Will lists a number of trusts which the testator had previously created and concludes with the following two paragraphs:

'The above facts are essential: (a) to explain the omission from my will of all gifts to charities or to relatives; and (1) in order to prevent the duplication of taxes on successive life estates to my daughter and to her children and grandchildren, and (2) because of the disproportionate fair market value of the principal of some of the above Estate Trusts wherein my daughter is sole or survivor beneficiary for life with remainder over to her surviving issue; and also (b) will make clear why she, every of her children and her grandchildren have been given only life estates or for the periods of time lawful under existing law.

'Since my wish is for equality among all of the children of my daughter and their lawful issue, the disparity between the respective beneficial interests of my grandson and my granddaughters under the above Trust Estates, (c) will make necessary and I Now Will and Direct the Trustees, under and subject to the succeeding alternative clause Fifth of this Will, to add to each of the respective shares, under this Will, of my two granddaughters or to the per stirpes and not per capita share of the lawful issue of any deceased granddaughter, such sum as will make each of their shares equal to the total amounts of principal and artificial principal which my grandson, FREDERIC B. ASCHE, JR., and his lawful issue shall have received as distributees under the two (2) Declarations of Trust dated January 11, 1930, specifically designated in the above clause Fourth as (1) and (2).'

The Fifth clause of the will contains an alternative disposition of income and remainder in the following language:

'Fifth: In natural sequence the probating of this last Will and Testament will precede that of my son-in-law, FREDERIC B. ASCHE; my one concern is that the total reasonable and fair value of the whole share of my grandson, FREDERIC B. ASCHE, JR., and/or his lawful issue at and upon his death, in the accumulated property of his father, under his will and his gifts during life, shall be equal to or shall not be less in total fair worth or reasonable value of the respective shares therein of either of his two sisters and/or their respective lawful issue. Solely in order to equalize the fair market value of the shares of all three grandchildren in the total estates of both their father and their maternal grandfather, and not in any way to affect the definitive action of my said son-in-law, it is my will (a) if said respective shares of all my three grandchildren and/or their lawful issue, are not in fair market value share and share alike approximately equal or (b) if no satisfactory legal agreement to equalize said shares is executed by competent parties in interest, or (c) if no decree of court is entered in purpose and effect transferring or giving to my grandson, FREDERIC B. ASCHE, JR., and/or his lawful issue, a share in all said property of his father approximately equal in fair market value to the whole of that by him transferred in life by gifts or after his death by his will devised or bequeathed to either of my granddaughters, and/or their respective lawful issue, then and on the happening of any one or more of said three events I NOW DECLARE, DIRECT AND...