In re Estate

• Decision Date: 11 October 1922
• Parties: IN RE PECK'S ESTATE
• Court: Vermont Supreme Court

118 A. 527

96 Vt. 183

IN RE PECK'S ESTATE

Supreme Court of Vermont

October 11, 1922

May Term, 1922.

APPEAL from a decree of distribution made by the probate court for the District of Chittenden. Trial by court, upon an agreed statement of facts, at the September Term, 1921, Chittenden County, Wilson, J., presiding. Judgment affirming the decree of the probate court. The appellants excepted. The opinion states the case.

Judgment affirmed. Let the result be certified to the probate court.

Theo. E. Hopkins for appellants.

Max L. Powell for Nichols' Estate.

Douglas Campbell of New York City for Katherine Keyes Peck and others.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

This is an appeal from a decree distributing the testate estate of Edward W. Peck, late of Burlington, who died June 26, 1906.

By his will, executed April 25, 1904, Mr. Peck gave the residue of his estate to the executors therein named, in trust, to pay the net income thereof, semi-annually, to his niece Katherine Keyes Peck and his nephews, Benjamin M. Peck and John H. F. Peck, in specified proportions, during their respective lives. He also provided that at the death of any of these beneficiaries, his or her share of income should be paid to the survivor or survivors of them; and that at the death of the last survivor, the said residue should be divided among the heirs of said beneficiaries in the same proportions as said income was given.

By a codicil executed July 21, 1904, a legacy of $ 5,000 given in the will to Sayles Nichols, one of the executors, was conditionally increased to $ 10,000.

By a codicil executed December 8, 1904, the testator, after referring to the provisions of the residuary clause of the will, made the following provision: "I hereby change and revoke so much of said residuary clause of my will as directs the disposition of the share of income of a deceased beneficiary, and also of the residuum after the death of all said beneficiaries, and in lieu thereof I direct as follows that if said Katherine Keyes Peck shall die before the other beneficiaries or either of them, then the share of income theretofore paid to her shall thereafter be paid to her heirs; that upon the death of said Benjamin M. Peck and John H. F. Peck, respectively, the share of said income theretofore paid to such deceased beneficiary shall thereafter be paid to the said Katherine Keyes Peck, if she be surviving,--otherwise to her heirs."

The only questions submitted relate to (1) the validity of the trust created in the residuary clause of the will, as affected by the second codicil and (2) the amount of the legacy to Sayles Nichols.

The appellants insist that the second codicil entirely and finally revokes the will so far as the disposition of the residue of the estate is concerned; that the provision therein for the heirs of Katherine Keyes Peck offends the rule against perpetuities and is therefor void; that the trust, as attempted, is entire and indivisible, and the ultimate gift over being void, the whole trust fails; and that the result is an intestacy as to the residue, which residue should have been decreed to the heirs of Edward W. Peck according to the statutory provisions.

It is agreed that under the law no future interest in property is valid unless it must vest not later than twenty-one years (and the period of actual gestation) after some life in being at its creation. So, the interest here in question is too remote to be valid if it might vest after the termination of a life in being at Mr. Peck's decease and twenty-one years and the fraction specified, thereafter. Brattleboro v. Mead, 43 Vt. 556. This question is unaffected by the fact that Katherine Keyes Peck has outlived the other beneficiaries of the trust; for it depends not at all on what has come to pass, but wholly on what might have happened looking forward from the time when the will took effect. In re Wilcox, 194 N.Y. 288, 87 N.E. 497; In re Rong's Estate, 109 Minn. 191, 123 N.W. 471, 806, 26 L.R.A. (N.S.), 825; Coggins Appeal, 124 Pa. 10, 16 A. 579, 10 Am. St. Rep. 565. The test is not to be applied until after the instrument has been construed (Taylor v. Crosson, 11 Del. Ch. 145, 98 A. 375, Rhode Island Hospital Trust Co. v. Peck, 40 R.I. 519, 101 A. 430, Merrill v. Winchester, 120 Me. 203, 113 A. 261); but then the question is to be determined by the remotest time when by any possibility the gift over may take effect. Brattleboro v. Mead, supra; In re Wells's Estate, 69 Vt. 388, 38 A. 83.

It is admitted that the will and codicil are free from legal infirmity clear down to the last four words of the latter as quoted above. But it is earnestly argued that these words, taken in connection with the revocation already referred to, postpone the vesting of the principal of the trust fund beyond the period allowed by the law. There is only one possible construction of the whole instrument that could bring about this result. If, as claimed by the appellants, the effect of the codicil is to cancel the trust created for the duration of the three lives mentioned and to erect in its place another, the income of which was to be paid to the heirs of Katherine Keyes Peck, direct and collateral, year after year as long as any might exist,--the principal then, and not before, to be distributed,--the logic of their argument is irresistible and their conclusion sound. But is this the purpose and effect of the codicil? Did the testator intend thus to change the whole scheme of his benefaction? We think not.

The law presumes that a testator intended to give his will a meaning that will make it legally effective. In re Anderson's Estate , 269 Pa. 535, 112 A. 766. It favors a testamentary construction that vests the estate. So, if two constructions are fairly open, one of which will turn a bequest into an illegal perpetuity, and the other will make it valid and operative, the latter should be preferred. Allen v. Almy , 87 Conn. 517, 89 A. 205, Ann. Cas. 1917B, 112; Towle v. Doe , 97 Me. 427, 54 A. 1072; In re Phelps Estate , 182 Cal. 752, 190 P. 17; In re Stickney's Will , 85 Md. 79, 36 A. 654, 35 L.R.A. 693, 60 Am. St. Rep. 308; Coggins Appeal , 124 Pa. 10, 16 A. 579, 10 Am. St. Rep. 565; Taylor v. Crosson , 11 Del. Ch. 145, 98 A. 375. In support of their interpretation of this will, the appellants call attention to the fact that the original provision distributing the principal of the trust after the death of the three beneficiaries is in express terms revoked by the codicil, and the income alone is disposed of by the latter. This, they say, results in an intestacy as to such principal, and the whole trust being void under the codicil, such principal should have been decreed to the heirs of Mr. Peck in their proper proportions. But if the trust is not void under the codicil, we have no present concern with what may ultimately become of the principal. It is plain that the primary purpose of the testator, as shown by the original will, was to provide an income for his niece and two nephews. When the last of these deceased, the principal was to be divided. The codicil changes the survivorship rights in the income, but is insufficient to show a change in the testator's purpose as to the duration of the trust. His purpose as to the income changed, and Katherine Keyes Peck became the favorite of the will. But the testator manifests no special regard for her heirs, and only makes provision for them in case she died before his nephews. If the provision of the codicil was that the share of a deceased nephew should thereafter be paid to Katherine Keyes Peck, and nothing more, there would be no difficulty and the meaning would be plain. Such share would then be payable to her during the life of the trust as originally created and no longer. This, we think, is as long as the testator intended under the codicil to hold the fund together.

The use of the words "her heirs," without more indicates that the testator did...