Green v. Green

• Decision Date: 18 November 1966
• Docket Number: No. 658815,658815
• Citation: 9 Ohio Misc. 15,221 N.E.2d 388
• Parties: , 37 O.O.2d 394, 38 O.O.2d 51 Richard C. GREEN, Plaintiff, v. Helen GREEN et al., Defendants.
• Court: Ohio Court of Common Pleas

Page 15

9 Ohio Misc. 15

221 N.E.2d 388, 37 O.O.2d 394, 38 O.O.2d 51

Richard C. GREEN, Plaintiff, v. Helen GREEN et al., Defendants.

No. 658815.

Probate Court of Cuyahoga County, Ohio.

Nov. 18, 1966.

Jack F. Smith, Cleveland, for plaintiff, Richard C. Green.

Eileen Flynn, Cleveland, guardian ad litem, for defendant Betsy Green, Minor.

Report and Opinion of Referee

ANDREWS, Chief Referee.

This is an action for a declaratory judgment, in which plaintiff asks for a construction of Item III, paragraph (6) of the will of Roy C. Green, and for a judgment declaring that the provisions therein for termination of the trust violate the rule against perpetuities and are therefore void. He contends also that the provision for termination of the trust upon the death of defendant Helen Green is against public policy and void.

The petition was filed on June 24, 1964, and the case was partially heard by another referee of October 13, 1965. The matter was referred to me on September 14, 1966.

Apparently as a result of the October 1965 hearing, plaintiff filed a second brief, in which new points were argued. I will postpone consideration of these additional points until I have disposed of the issues raised in the petition and in plaintiff's original brief.

Roy C. Green executed his will on December 22, 1952. A codicil was executed on September 7, 1954, but it does not affect the legal problems involved.

Mr. Green died on July 24, 1955. He was survived by his only child, Richard C. Green; by a sister, Helen Green; and by Richard's wife, Elsie L. Green, and their three children, William, Judith, and Betsy.

Counsel for plaintiff has given us the birthdays of these three children. They are as follows: William, February 1, 1941; Judith, May 21, 1942; Betsy, July 28, 1947.

On August 3, 1955, testator's son, Richard, was appointed executor of his father's estate. On March 7, 1958, he was appointed trustee of the trust created by Item III of his father's will, and he has continued to serve as such since that time. However, he brings the present action as an individual rather than as a fiduciary.

Plaintiff's petition is based upon Item III, paragraph (6) of the will. For a proper understanding of the issues, it is necessary to refer to four previous paragraphs of that item.

By Item III, testator gives all the rest and residue of his estate, real and personal, to his son, Richard C. Green, in trust.

Paragraph (1) of the Item III directs the trustee to pay to testator's sister, Helen Green, 'so long as she shall live,' $375.00 quarterly (reduced by the codicil to $300.00) from the net income derived from the trust.

Paragraph (2) directs the trustee to pay all of the net income derived from the trust not paid to testator's sister, to his son, in quarterly installments 'so long as he shall live.'

Paragraph (3) directs that after the death of testator's son, the trustee shall pay all the net income derived from the trust not paid to testator's sister, to his daughterin-law, Elsie L. Green, 'if she shall be married to my said son at the date of his death, so long as she shall live and remain unmarried.'

Paragraph (4) reads as follows:

'After the death of my said son and the death or remarriage of my said daughter-in-law, I direct the Trustee to pay the net income derived from the said trust not paid to my said sister to the lineal descendants of my son, per stirpes.'

For purposes of clarification, mention should be made here of Item III, paragraph (12), by which, if Richard for any reason ceases to act as trustee, testator appoints his daughter-in-law as trustee; and if she fails to qualify or ceases to act as such, testator appoints the Central National Bank of Cleveland as trustee.

We come now to the controversial paragraph (6) of Item III, which I quote.

'(6) The trust shall terminate upon the last to happen of the following counts:

(a) The death of my son, Richard C. Green.

(b) The death or remarriage of Elsie L. Green.

(c) The day the youngest living child of my son, Richard C. Green, in being on the date of my death, attains twenty-five (25) years of age.

(d) The death of my sister, helen Green.

'Upon the termination of the trust, the Trustee shall assign, transfer, convey and deliver all of the property then comprising the trust to the lineal descendants of my son, Richard C. Green, per stirpes.'

As already mentioned, plaintiff contends in his petition that the provision for the termination of the trust upon the death of Helen Green is against public policy and void. He also contends that the provision that the trust terminate on the day the youngest living child of Richard C. Green, in being on the date of the testator's death, attains the age of twenty-five, violates the rule against perpetuities and is void.

As to the first contention, no reason or argument is given, and the point is not mentioned in either of plaintiff's briefs. As noted, paragraph (6) provides for the termination of the trust upon the last of four occurrences, designated as 'counts.' Hence, if Helen Green's death is the last of these, the trust will then terminate. I can think of no reason for holding such a provision contrary to public policy and void. In my opinion, the provision is valid.

With reference to plaintiff's second contention, the Ohio legislature has condified the common law rule against perpetuities in section 2131.08 of the Revised Code, the pertinent parts of which are here quoted.

'No interest in real or personal property shall be good unless it must vest, if at all, not later than twenty-one years after a life or lives in being at the creation of the interest. * * * It is the intention by the adoption of this section to make effective in Ohio what is generally known as the common law rule against perpetuities.'

The gift of the trust corpus to 'the lineal descendants of my son, Richard C. Green, per stirpes,' is a class gift. Although the rule against perpetuities is concerned with vesting, there is an additional requirement in the case of a class gift that the class must be certain to close within the prescribed period. 6 American Law of Property sec. 24.3; 42 Ohio Jur.2d, Perpetuities sec. 50; 4 Restatement, Property Secs. 371, 383; Simes and Smith, Future Interests sec. 1265 (2d ed. 1956). And obviously the closing of the class results in the vesting of the interests if they have not vested previously.

Under the provisions of paragraph (6), it is clear that upon the happening of the last in time of the events there enumerated, the trust property will vest immediately in the lineal descendants of Richard Green, and the class will close.

Apparently, plaintiff concedes that if the last of the four events to occur is his own death, the death or remarriage of his wife, or the death of testator's sister, the vesting and closing of the class will be in time under the rule against perpetuities. Indeed, this is the only possible conclusion. But he claims that if the above three events happen first, leaving us, so to speak, with subparagraph (c) of paragraph (6), the rule will be violated.

In the ensuing discussion, it is assumed that the events set forth in subparagraphs (a), (b), and (d) have taken place prior to the event set forth in subparagraph (c).

Because this perpetuities problem relates to a will, we are in the odd position of having to go back in time to July 24, 1955, the date of testator's death; and in deciding the question of remoteness, we must start with the facts as they existed on that date. Gray, Rule Against Perpetuities sec. 231 (4th ed. 1942); Simes and Smith, Future Interests sec. 1228, p. 118 (2d ed. 1956); 42 Ohio Jur.2d, Perpetuities sec. 25; 4 Restatement, Property sec. 374, Comment b; 41 Am.Jur., Perpetuities and Restraints on Alienation sec. 19.

Thus, we are not permitted to commence our computation by assuming a hypothetical state of facts contrary to the real factual situation existing at the time of the testator's death.

Bearing in mind, then, the factual situation present on the day the testator died, we must determine whether any possible combination of future events, within the scope of the clause or clauses in question, would postpone the vesting beyond the permissible time. The rule is neatly put by Simes and Smith:

'In applying the rule against perpetuities to contingent future interests, the question is not: Will the future interest probably vest within the period? Rather it is this: Must it necessarlly vest within the period, if it vests at all?' Simes and Smith, Future Interests sec. 1228, p. 118 (2d ed. 1956).

Oddly enough, in implementing the principle that possibilities, not probabilities, are what count in determining remoteness in vesting, the law regards some things as possible even though science may have declared them physically impossible. For example, women are deemed capable of bearing children as long as they live, and, similarly, men are deemed capable of insemination no matter how old they may be. See Gray, Rule Against Perpetuities sec. 215 (4th ed. 1942). As remarked by counsel for the plaintiff, this is often referred to as the doctrine of the fertile octogenarian.

In considering possibilities, we must shut our eyes to what has actually happened since the testator's death. For instance, we know that William, the oldest child of Richard Green, has already attained the age of twenty-five; but in determining whether or not subparagraph (c) of paragraph (6) violates the rule against perpetuities, we are not permitted to take cognizance of this fact.

Let us see, then, how subparagraph (c) of paragraph (6) fits into the applicable rules of law. It will be recalled that this subparagraph provides for the termination of the trust, with the resultant distribution to the lineal descendants of Richard Green, on the day the youngest living child of Richard Green, in being on the date of testator's death, attains the age of twenty-five.

It is important to note...