Deacon v. St. Louis Union Trust Company

• Decision Date: 27 July 1917
• Citation: 197 S.W. 261,271 Mo. 669
• Parties: ARTHUR R. DEACON and ARTHUR W. LAMBERT, Trustees, et al. v. ST. LOUIS UNION TRUST COMPANY et al., Appellants
• Court: Missouri Supreme Court

197 S.W. 261

271 Mo. 669

ARTHUR R. DEACON and ARTHUR W. LAMBERT, Trustees, et al. v. ST. LOUIS UNION TRUST COMPANY et al., Appellants

Supreme Court of Missouri, Second Division

July 27, 1917

Appeal from St. Louis City Circuit Court. -- Hon. Leo. S. Rassieur Judge.

Affirmed.

Charles S. Reber for appellants.

(1) In cases of remoteness, the court is bound to construe the will as though the rule against perpetuities was non-existent. The intention of the testator must be discovered from the words of the will alone, and these words must be given effect according to their natural and ordinary meaning. It is not permissible for the court to put a strained or unnatural construction on the will, for the mere purpose of avoiding the effect of the rule. 1 Jarman on Wills (6 Eng. Ed.), p 364; Gray on Perpetuities (3 Ed.), sec. 629, p. 497; Speakman v. Speakman, 8 Hare, 180; Cattlin v Brown, 11 Hare, 376; Savings Co. v. Watson, 254 Ill. 419. (2) The contingency of survivorship contained in clause 8 of the will, which makes the gift of the corpus of the estate, applies to children of the testatrix and issue of deceased children alike. MacGregor v. MacGregor, 2 Coll. 192; In re Coulden, 1 Ch. 320; Re Fox's Will, 35 Beav. 163; Knight v. Poole, 32 Beav. 548; Atkinson v. Bartrun, 28 Beav. 219; In re Poultney, 81 L. J. 748; In re Mervin, 3 Ch 197; Mount v. Harris, 158 N.Y.S. 339. (3) Thus construed, the interests created by the will are purely contingent and vest for the first time in children or issue, at the end of the thirty-year trust period. Emison v. Whittlesay, 55 Mo. 254; DeLassus v. Gatewood, 71 Mo. 371; Dickinson v. Dickinson, 211 Mo. 483; Sulivan v. Garesche, 229 Mo. 496; Buxton v. Kroeger, 219 Mo. 224; Dameron v. Langan, 234 Mo. 627; Lick v. Lick, 158 Mo.App. 400. (4) A future interest or estate to be good must vest, if at all, within the perpetuity period, i. e., during a life or lives in being and twenty-one years afterward. It is not sufficient that it may vest within such time. It must be good in its creation and unless it is created in such terms that it cannot vest beyond the perpetuity period, it is not good; and subsequent events cannot make it so. If by any possibility it may not vest in due time, it will be void. Dungannon v. Smith, 12 C. L. F. 546; Hancock v. Watson, H. L. A. C. 14; 22 Laws of England, p. 300; Gray on Perp. (3 Ed.), sec. 201, p. 174, sec. 214, p. 185; Lockridge v. Mason, 109 Mo. 66; Buxton v. Kroeger, 219 Mo. 224. (5) Where a gross term is selected by the testator, as here, the interest or estate given must absolutely and indefeasibly vest, not later than twenty-one years after the testator's death, to avoid objection on the score of remoteness. 1 Jarman on Wills (6 Eng. Ed.), p. 298; 22 Laws of England, p. 310; Johnson's Estate, 185 Pa. 179; Curtis v. Luken, 5 Beav. 137; Baker v. Stuart, 28 Ont. 423; Speakman v. Speakman, 8 Hare, 180; Thorndike v. Loring, 15 Gray, 391; Stevens v. Stevens, 21 Ky. L. R. 1315; Hooper v. Hooper, 9 Cush. (Mass.) 122; Reid v. Voorhees, 216 Ill. 236; Crooke v. De Vandes, 9 Ves., Jr., 197; Palmer v. Holford, 4 Russ. 403; Coleman v. Coleman, 23 Ky. L. R. 1479; Andrew v. Andrews, 110 Ill. 223; Sears v. Putnam, 102 Mass. 5. (6) A gift to a contingent class of persons, not necessarily ascertainable within the perpetuity period, consisting in whole or in part of incapable members, i. e., after born children or issue, is void for remoteness. Hale v. Hale, 123 Mass. 120; Lawrence v. Smith, 163 Ill. 149; Pitzel v. Schnyder, 216 Ill. 87; Schuknecht v. Schultz, 212 Ill. 43; Dime Savings Co. v. Watson, 254 Ill. 419; Dodd v. Wake, 8 Sin. 615; Re Whitten, 62 L. T. 391; Re Kountz, 213 Pa. 390; Quinlan v. Wickham, 223 Ill. 37; Hewitt v. Green, 77 N.J.Eq. 245. (7) The trust contained in the will of Lily Lambert violates the rule against perpetuities. The interests attempted to be created by that trust do not absolutely and indefeasibly vest until too remote a period, i. e., until the time fixed for the final distribution, to-wit, thirty years after Mrs. Lambert's death; or otherwise expressed, the class to take the corpus is not ascertainable until beyond the perpetuity period, until thirty years after the testatrix's death. Until that time the class to take is wholly uncertain, as is also the exact share of each member thereof. Gray on Perp. (3 Ed.), secs. 381-2, p. 385; Pearks v. Mosely, H. L. 5 App. Cas. 714; Leake v. Robinson, 2 Mer. 363; Hale v. Hale, 3 Ch. D. 643; Smith v. Smith, L. R. 5 Ch. 342.

Taylor & Chasnoff and Manley O. Hudson for appellants.

(1) The will must be read as a whole and as though there were no rule against perpetuities. Eckle v. Ryland, 256 Mo. 441; Gray on Perpetuities (3 Ed.), sec. 629; Dungannon v Smith, 12 Cl. & F. 599; Heasman v. Pearse, L. R. 7 Ch. 283. (2) The whole will shows an intent to tie up the property for such children and such of the descendants of deceased children as should be living at the end of thirty years, and in the meantime to have the income distributed among such of them as might be living from time to time. The beneficial interests are contingent because the thirty-year trust was created by the testatrix for reasons personal to the beneficiaries and not merely for the convenience of the estate. Collier's Will, 40 Mo. 385; Buxton v. Kroeger, 219 Mo. 224. The beneficial interests are contingent upon the beneficiaries being alive at the time of the distribution, because there is no gift to them but by way of directions to the trustees to distribute and divide. In re Eve, 93 L. T. R. 235; Hall v. Terry, 1 Atkyns, 502; In re Kountz's Estate, 213 Pa. 399; Eldred v. Meek, 183 Ill. 26; Hewitt v. Green, 77 N.J.Eq. 345; In re Blake's Estate, 157 Cal. 517; Buxton v. Kroeger, 219 Mo. 224. The natural meaning of the expressions used in clause 8 of the will impels the conclusion that the testatrix intended that none of the beneficial gifts should vest until they were distributed by the trustees. Inderwich v. Tatchell, App. Cases (1903), 120. (3) The testatrix has used apt technical language to make all the beneficial interests contingent. "Issue" includes descendants of every degree and is not to be restricted to mean "children," nor to mean "children or descendants alive at the death of the several children of Lily Lambert." The context shows that the word "parent" does not restrict the meaning of the term "issue" in this case. In re Loan Co., 213 N.Y. 168; Re Embury, 109 L. T. R. 511; Berry v. Fisher, 1 Irish Rep. Ch. D. 484; Jackson v. Jackson, 153 Mass. 374; Hills v. Barnard, 152 Mass. 67. The provisions for survivorship relate to the end of the thirty-year period and not to the death of the children of the testatrix. Naylor v. Godman, 109 Mo. 543, 550; Crowder v. Stone, 3 Russ. 217; Jarman v. Vye, L. R. 2 Eq. 784; Faust's Admrs. v. Birner, 30 Mo. 414; Yocum v. Siler, 160 Mo. 281; Gannon v. Albright, 183 Mo. 238; Abbott v. Middleton, 7 H. L. C. 68; Cascaden's Estate, 153 Pa. 170; Jarman, Wills (6 Ed.), p. 1963. (4) The directions with reference to the income furnish no basis for an argument that the beneficial interests in the corpus are vested. In re Kountz's Estate, 213 Pa. 399. The reference to interests by the terms "rights" and "share" does not make them vested. Hewitt v. Green, 77 N.J.Eq. 357; Barnes v. Johnston, 233 Ill. 620; McCartney v. Osburn, 118 Ill. 403; Leake v. Robinson, 2 Mer. 363. To construe any of the beneficial interests as vested would defeat the intent to keep the property in the family. Buxton v. Kroeger, 219 Mo. 224; Johnson's Estate, 185 Pa. 186; Buckworth v. Thirkell, 3 B. & P. 652, note; Moody v. King, 2 Bing. 447; Tiffany, Real Property, sec. 183; 2 Jarman, Wills (6 Ed.), 1452. (5) If the children took vested equitable interests in fee simple it was intended that they should be subject to executory limitations. But there can be no executory limitations over after an absolute interest in personalty. Simmons v. Cabanne, 177 Mo. 336; Sullivan v. Garesche, 229 Mo. 496; Brown v. Tuschoff, 235 Mo. 449; Buckner v. Buckner, 255 Mo. 371; Wilson v. Cockrell, 8 Mo. 1; Vaughn v. Guy, 17 Mo. 429; Halbert v. Halbert, 21 Mo. 277; State ex rel. v. Tolson, 73 Mo. 320; Shepperd v. Fisher, 207 Mo. 208. The executory interests of children's issue are in turn subject to shifting executory limitations. Ashley v. Ashley, 6 Sim. 358; Gray, Perpetuities (3 Ed.), sec. 120; Claflin v. Claflin, 149 Mass. 19; Rector v. Dalbey, 98 Mo.App. 289; Dado v. Maguire, 71 Mo.App. 641; Gray, Perpetuities (3 Ed.), sec. 121c; Gray, Restraints on Alienation (2 Ed.), sec. 124. (6) The rule against perpetuities operates to defeat the intended interests. Since all of the beneficial interests created by the will remain contingent for a gross period of thirty years, all which are given to persons not in being at the death of the testatrix are remote and void. Any interest which might possibly not vest within the prescribed period violates the rule against perpetuities. Gray, Perpetuities (3 Ed.), sec. 629; Gates v. Seibert, 157 Mo. 254. The contingent interests of the children of Lily Lambert are not too remote. Lockridge v. Mace, 109 Mo. 162; Gray, Perpetuties (3 Ed.), sec. 214; 2 Leading Cases in Am. Law of Real Property, p. 487; Gray, Perpetuities (3 Ed.), sec. 201, note 2; Lawrence's Estate, 136 Pa. 366. All other intended beneficial interests violate the rule against perpetuities. Even if the beneficial interests of the children of the testatrix vested immediately on her death and the gifts over on the death of the children of the testatrix were to vest immediately on the death of such children, still the vesting of the other gifts over is so postponed that they are remote and therefore void. Gray, Perpetuities (3 Ed.), secs. 108, 201; Gates v. Seibert, 157 Mo. 254. (...