Goetz v. Old Nat. Bank of Martinsburg

• Decision Date: 23 November 1954
• Docket Number: No. 10673,10673
• Citation: 140 W.Va. 422,84 S.E.2d 759
• Court: West Virginia Supreme Court
• Parties: Carl B. GOETZ, v. OLD NATIONAL BANK OF MARTINSBURG, etc., et al.

Page 759

84 S.E.2d 759

140 W.Va. 422

Carl B. GOETZ, v. OLD NATIONAL BANK OF MARTINSBURG, etc., et al.

No. 10673.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 12, 1954.

Decided Nov. 23, 1954.

Syllabus by the Court.

A testatrix whose estate consisted solely of personal property died testate. By her will she bequeathed the necessary amounts for the care of the family mausoleum and burial lot; directed that her funeral expenses and debts be paid; and bequeathed the residue of her estate as follows:

'All the rest, residue and remainder of my estate, of every kind and character, wheresoever the same may be situated, real, personal and mixed, of which I shall die seised and possessed, or to which I may in any manner be entitled, I give and bequeath unto The National Bank of Washington, a National bank having its principal place of business in the District of Columbia, and the Old National Bank of Martinsburg, a National Bank having its principal place of business in the City of Martinsburg, State of W. Va., their and each of their successors and assigns, to distribute and pay over the same unto such religious, charitable, scientific, literary, educational, or fraternal corporations and associations, as they may, in their discretion select and determine, it being my request, however, that they shall select only such institutions as are located within the United States. In connection with any such corporation, organization or institution, said Executors are hereby given discretion as to the terms and conditions upon which such distribution is to be made, that is to say, whether absolutely and in fee simple, or upon conditions by them imposed.'

Held:

1. The intention of the testator does not prevail over positive law or public policy. 2. A will may be valid in part and invalid in part.

3. A trust created by the residuary clause of a will which also permits the trustees in their uncontrolled discretion to use the property for charitable or other purposes, is a mixed trust and is void.

4. Properly construed and applied, Code, 35-2-1 and 2, do not validate the bequest in the residuary clause above mentioned.

5. The above residuary bequest is not valid under Code, 35-1-4, as a religious trust.

6. The rule against perpetuities applies to a private trust or trust for profit, and the property involved in such trust must vest within the requisite period as required by the rule.

7. A power of appointment contained in the will is effective on date of such will, and the property to be transferred under such power must be disposed of within the period prescribed in the rule against perpetuities.

8. The residuary estate of the testatrix reverts to her next of kin under the statutes of distribution existing at the time the will takes effect.

James M. Mason, 3d, Mason & Mason, F. Dean Nichols, Charles Town, Clarence E. Martin, Jr., Martin & Seibert, Martinsburg, Charles L. Nichols, Beverly Hills, Cal., for appellant.

L. I. Rice, Thomas W. Steptoe, Martinsburg, Forrest A. Brown, Charles Town, Louis M. Denit, Washington, D. C., for appellees.

LOVINS, Judge.

This is a declaratory judgment proceeding by which Carl Goetz, a nephew of the testatrix hereinafter mentioned, prays for a declaratory judgment, holding the residuary clause of the will of Jennie S. Goetz invalid.

The petition names as defendants The Old National Bank of Martinsburg, a National Banking Association, The National Bank of Washington, a similar association, individually in their own proper persons and as executors of the estate of Jennie S. Goetz, deceased; Ralph Goetz, another nephew of the deceased; Ernestine Goetz in her own proper person and executrix of Harry S. Goetz, a deceased nephew of the testatrix, and F. Dean Nichols, ancillary administrator of the estate of Harry S. Goetz. Carl B. Goetz and Ralph Goetz are surviving nephews and next of kin of Jennie S. Goetz. Ernestine Goetz is the California executrix of Harry S. Goetz.

There is no dispute as to the facts. Jennie S. Goetz departed this life in Jefferson County, West Virginia, on the 10th day of February, 1953, leaving the above named nephews as the nearest next of kin. Harry S. Goetz died testate on the 23rd day of May, 1953, in the State of California. By his will he devised all of his property, real, personal and mixed, to the defendant, Ernestine Goetz, who has qualified as executrix of Harry S. Goetz' will. Copy of that will is recorded in the office of the County Clerk of Jefferson County, West Virginia. The defendant, F. Dean Nichols, was appointed ancillary administrator of the estate of Harry S. Goetz on the 5th day of January, 1954.

Jennie S. Goetz executed her will, bearing date the 26th day of April, 1951, which has been duly probated and recorded in the office of the Clerk of the County Court of Jefferson County, West Virginia.

The two defendant banks were appointed executors of the will of Jennie S. Goetz, having duly and properly qualified as such executors and are now acting as such. The executors of Jennie S. Goetz have the exclusive possession of the estate consisting of personal property. The executors have denied the claims of the petitioner, the living nephews and the beneficiary under the will of Harry S. Goetz.

The will of Jennie S. Goetz provides for her burial and vests in the executors of her will discretion as to the kind of funeral and the amount to be paid therefor. By the second paragraph, she directs that her executors shall make provisions for the perpetual care of the family burial lot and mausoleum thereon. Full discretion is vested in the executors as to the amount to be expended by them for such purposes. The third clause of the will directs that the testatrix' funeral expenses and debts be paid. The fourth or residuary clause reads as follows: 'All the rest, residue and remainder of my estate, of every kind and character, wheresoever the same may be situated, real, personal and mixed, of which I shall die seised and possessed, or to which I may in any manner be entitled, I give and bequeath unto The National Bank of Washington, a National bank having its principal place of business in the District of Columbia, and the Old National Bank of Martinsburg, a National Bank having its principal place of business in the City of Martinsburg, State of W.Va., their and each of their successors and assigns, to distribute and pay over the same unto such religious, charitable, scientific, literary, educational, or fraternal corporations and associations as they may, in their discretion, select and determine, it being my request, however, that they shall select only such institutions as are located within the United States. In connection with any such corporation, organization or institution, said Executors are hereby given discretion as to the terms and conditions upon which such distribution is to be made, that is to say, whether absolutely and in fee simple, or upon conditions by them imposed.'

The fifth paragraph of the testatrix' will gives the executors power to sell, convey, mortgage or lease her real estate and property if they deem it expedient and advantageous, and vests in the executors full discretion to make, execute and deliver all writings necessary and proper to be made and executed in carrying out the transfer or mortgage of the bequeathed property. An unnumbered paragraph appointed the two executors and requested that such executors be permitted to serve without bond.

The appraisement of the property of the deceased shows that she died possessed of two automobiles, jewelry and household furniture; that she also owned certain bonds, corporate stock and cash deposited in banks. The total appraised value of all property is shown to be $1,095,444.66. The appraisement was duly accepted by the proper officers of the corporate executors.

In this proceeding, Ralph Goetz and Ernestine Goetz, in her individual and representative capacity, filed joint and separate answers, admitting the material allegations contained in the petition and praying that the will of Jennie S. Goetz be construed and the respondent's rights and claims be declared and established. F. Dean Nichols, ancillary administrator, likewise filed his answer admitting the material allegations in the petition. He also avers that his only interest in the questions presented by the petition is whether he as representative of Harry S. Goetz, deceased, is entitled to a distributive share of Jennie S. Goetz' estate.

The corporate executors filed their joint and several answers by which they admit the material allegations of the plaintiff's petition. They further admit that they hold the estate of Jennie S. Goetz as executors under her will. But they aver that the residuary clause of such will is not invalid for any of the reasons assigned in the petition, nor for any other reason. They also deny that the petitioner, Carl B. Goetz, the respondents, Ralph Goetz and Ernestine Goetz are entitled to any portion of the estate of Jennie S. Goetz.

The executors allege that unless they are otherwise directed by the Court, they will make distribution of all the residuary estate of Jennie S. Goetz' estate as directed in the fourth or residuary clause of the will, and pray that the Court hear the proceeding upon its merits and declare and adjudicate that Carl B. Goetz, Ralph Goetz, Ernestine Goetz or the estate of Harry S. Goetz have no right or interest in the estate of Jennie S. Goetz. They pray that the Court will find and declare that the will of Jennie S. Goetz is a valid and enforceable testamentary disposition of the estate of the testatrix.

The trial court decreed adversely to the claims of the nephews of Jennie S. Goetz and the executrix of Harry Goetz, deceased nephew, and granted the prayer of the executors' answer.

From that decree, the petitioner, Carl Goetz, prosecutes this appeal. In his petition to this Court, Carl Goetz sets forth the following questions: '(a)...