Lee's Estate, In re
| Decision Date | 26 July 1956 |
| Docket Number | No. 33606,SEATTLE-FIRST,33606 |
| Citation | 49 Wn.2d 254,299 P.2d 1066 |
| Parties | Matter of the ESTATE of Anna Williams LEE, Deceased. Fairman Burbidge LEE, David H. Lee, and Margaret F. Lee Nelson Humberstone, Appellants, v.NATIONAL BANK, as Executor and as Testamentary Trustee, Susan Janice Humberstone, Virginia Ellen Lee, and Phyllis Ann Lee, great-grandchildren of said deceased, and unborn grandchildren and great-grandchildren of said deceased, and The Children's Orthopedic Hospital, Respondents. |
| Court | Washington Supreme Court |
Savage, Gaines & Lechner, Seattle, for appellants.
Jones & Grey, Seattle, for Seattle-First Nat. Bank.
Hay & Hamlin, Seattle, for D. O. Hamlin.
Holman, Mickelwait, Marion, Black & Perkins, Seattle, for Children's Orthopedic Hospital.
This appeal from a decree of distribution involves the construction of the trust provisions of a will. The pertinent provisions are as follows:
'Sixth: If all of my grandchildren shall die prior to attaining the age of forty (40) years, without issue, then all of the remainder of the estate in the hands of my trustee shall be used by my trustee to endow beds in the Children's Orthopedic Hospital of Seattle, Washington, in the names of Anna Williams Lee, Chester Fairman Lee and Fairman Burbidge Lee.
'Eighth: If any provisions of this Will should be void on account of the rule of perpetuities or any other rule of law pertaining to such trusts, then the trusts herein provided shall continue in force for the full period permitted by law and on the day prior to the expiration of such full period, trustee shall make distribution of any remainder of the trust estate to the persons herein named who would be entitled to take distribution thereon upon termination of the trust.
'Tenth: I direct that if any part or provision of this, my Will, shall be declared illegal or void by any court, such illegality or invalidity shall not affect any other portion of this instrument and that all other parts thereof shall remain in full force and effect the same as if no part thereof had been declared void, and also that this instrument be construed under the laws of the State of Washington, and that notwithstanding the date of its execution, so far as the administration of the trust is concerned and the provisions for the beneficiaries, it shall be construed as becoming effective as to the date of my death for all purposes.'
In the fourth paragraph of her will, the testatrix provided a life estate for her son, which is concededly valid. It was also conceded in the trial court that the remainders provided in the fifth and sixth paragraphs violate the rule against perpetuities; and the only question which the trial court was asked to decide was whether the trust was saved by the eighth and tenth paragraphs. The trial court concluded that the provision for distributing estate to the 'persons herein named who would be entitled to take distribution thereon at the termination of the trust' was sufficiently definite to enable the court to ascertain to whom distribution was to be made upon termination of the trust one day before the expiration of the full period permitted by law. It is the contention of the appellants that the provision is too indefinite to be enforced, that if this paragraph is ineffective, the dispositive scheme is destroyed and the entire trust has failed. Consequently, they say, Mrs. Lee died intestate and the estate should be distributed immediately to her only heir at law, her son, Fairman Burbidge Lee.
The respondents devote a considerable portion of their brief to a theory that the remainders to the grandchildren when and if they reach age forty, and to the great-grandchildren if no grandchild lives to attain age forty, are not contingent but vested remainders, even though they are gifts to a class, and therefore do not violate the rule against perpetuities. No argument was made on this point in the trial court; however, since we are asked to construe the will, which involves only a question of law, we will dispose of the theory presented. Three cases are cited from other jurisdictions which have held that if a beneficiary is to receive the income from a trust and, upon the happening of a named contingency, he is to receive the corpus, the gift of the corpus is not contingent but is vested, subject to divestment. Insofar as these cases are contrary to the rule which has been laid down by...
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