Fidelity & Columbia Trust Co. v. Tiffany

• Decision Date: 28 March 1924
• Citation: 260 S.W. 357,202 Ky. 618
• Parties: FIDELITY & COLUMBIA TRUST CO. ET AL. v. TIFFANY ET AL.
• Court: Kentucky Court of Appeals

260 S.W. 357

202 Ky. 618

FIDELITY & COLUMBIA TRUST CO. ET AL. v. TIFFANY ET AL.

Court of Appeals of Kentucky.

March 28, 1924

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Isabelle Weissinger Tiffany and others against the Fidelity & Columbia Trust Company, trustee, and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Trabue Doolan, Helm & Helm, Harris W. Coleman, and David R Castleman, all of Louisville, for appellants.

Shackelford Miller and Muir Weissinger, both of Louisville, for appellees.

TURNER C.

Col Harry Weissinger died in May, 1915, about 72 years of age. Something more than a year before he made and published his last will and testament, one provision of which is the subject of this controversy. He left surviving him his wife, Belle Weissinger, five children, two sons and three daughters, and at the time of his death three surviving grandchildren. His wife died in January, 1920.

Thereafter his five children and the executor of his deceased wife brought this equitable action against the trustee named in his will, the three grandchildren living at his death, some five or six other grandchildren thereafter born, and their guardian, in which there is sought an interpretation of his will, and particularly that clause of the same wherein he sought to create a trust and dispose of a certain piece of valuable real estate on Fourth street in the city of Louisville.

The trustee and the guardian of the infant defendants demurred to the petition, and also filed their respective answers, asserting an interpretation different from that desired by the plaintiffs, and attempting to uphold the trust. The cause was submitted on the pleadings and a stipulation of facts, the demurrers to the petition were overruled, and the plaintiffs' demurrers to the several answers sustained, and the court entered a judgment that the clause attempting to create the trust was null and void in its entirety, and that the devises therein attempted were each void, and that the testator died intestate as to the property involved. From that judgment the trustee, the guardian of the infants, and the infants themselves have appealed.

The testator, after providing for the payment of his debts, and attempting to create the trust hereafter considered, and making certain provisions as to advancements, devised the residuum of his large estate to his wife, expressing the belief she would in the end be just to all of their children. The clause in question deals with a specific piece of property advantageously located in the retail district of the city of Louisville, and which the stipulation shows was, at the date of his death and at the time his will was made, bringing a gross income of $17,500 a year. That clause is as follows:

"Second. I devise the lot I now own and all the improvements thereon, known as No. 417 South Fourth street, between Green and Walnut streets, in the city of Louisville, Kentucky, to the Fidelity & Columbia Trust Co., to be held by it in trust for the following purposes, namely: Out of the net income derived therefrom said trustee shall invest and reinvest, for the use and benefit of each of my grandchildren living at the time of my death and for each of those that may be born within ten years after my death, the sum of ten ($10.00) dollars per month. As each of my said grandchildren arrives at the age of twenty-two (22) years, said trustee shall pay to him or her the amounts so invested for his or her benefit, with the accumulations thereon. If one or more of my said grandchildren shall die before attaining the age of twenty-two (22) years, then the shares of those so dying shall be held for the use and benefit of said other grandchildren who have not then attained the age of twenty-two (22) years, share and share alike.

After setting apart said ten ($10.00) dollars per month for each of my grandchildren, as hereinbefore provided, said trustee shall, at the end of each three months, pay the remainder of said net income to my wife. When all of my said grandchildren shall have either died or attained the age of twenty-two (22) years, said lot, together with all the improvements thereon, shall then be sold by said trustee and the proceeds thereof shall be divided into five equal portions, one of which shall go to each of my five children now living; and if either of them be dead at the time said distribution is made leaving descendants, then his or her portion shall go to such descendants; if there be no such descendants, then to such of my other children as may be then living, and to the descendants, if any, of those that may be dead, per stirpes."

A careful scrutiny of the provisions of this clause, taken in connection with the fact that he had amply provided for his wife, and had expressed confidence in her purpose to do exact justice between their children in the disposition of her estate, including that which he had devised to her, is convincing that by the creation of this trust he had constructed in his own mind a scheme by which he was to provide for his grandchildren living as his death, and to be born within 10 years thereafter. Knowing the uncertainties of life, and appreciating the misfortunes that befall men, and the many unforeseen vicissitudes which may wholly wipe out or materially lessen their worldly possessions, he constructed this scheme primarily and essentially for his grandchildren, thereby hoping and intending, whatever might happen to their parents, to place them in a position where they were not wholly dependent upon such misfortunes and uncertainties. We start, therefore, with the proposition that the testator in the creation of this trust had in mind primarily, and to the exclusion of all other things, the welfare and future independence of his said grandchildren. He knew he had made ample provision for his wife, who at the date of the will was about 67 years of age, and he expressed full confidence in her purpose to make, at her death, ample provision for their children. It may therefore be safely assumed that, if the testator had believed the dominant feature of this trust, which he had constructed primarily for the benefit of his grandchildren, was unenforceable or invalid, and that his primary purpose in creating the trust would fail, it would not have been created.

The whole question depends upon whether the common-law rule against perpetuities, and our statute which is merely declaratory of that rule, is applicable to the devises to the grandchildren, or any of them, in the quoted provisions of the will. Cammack v. Allen, 199 Ky. 268, 250 S.W. 963. The fundamental difference between the parties is whether the devise to the testator's grandchildren is a vested or only a contingent devise, and the determination of that question at the outset will materially simplify the remaining questions.

A vested interest is a present right or title to a thing which carries with it an existing right of alienation, even though the right to possession or enjoyment may be postponed to some uncertain time in the future. It is the present right, as distinguished from a future right, which may never materialize or ripen into title, that distinguishes a vested from a contingent devise. It matters not how long or for what length of time the future possession or right of enjoyment may be postponed, if the present right exists to alienate and pass title.

A contingent estate is one which gives no present right, but the vesting of which depends upon some uncertain event in the future, or the happening of a certain event in the future at an uncertain time in the future.

Keeping therefore, in mind these distinctions between a vested and a contingent estate, let us analyze the language of the devises to the testator's grandchildren, and see whether it was his purpose to vest in them any estate before they severally reached the age of 22 years. After authorizing the trustee to invest for the use and benefit of each of his grandchildren...