Lux v. Lux
| Decision Date | 21 March 1972 |
| Docket Number | No. 1285-A,1285-A |
| Citation | 109 R.I. 592,288 A.2d 701 |
| Parties | Anthony J. LUX, Jr., as Executor u/w Philomena Lux v. Donna M. LUX et al. |
| Court | Rhode Island Supreme Court |
The artless efforts of a draftsman have precipitated this suit which seeks the construction of and instructions relating to the will of Philomena Lux who died a resident of Cumberland on August 15, 1968. We hasten to add that the will was drawn by someone other than counsel of record. At the conclusion of an evidentiary hearing held before a justice of the Superior Court, an order was entered certifying this case to us pursuant to the provisions of G.L.1956 (1969 Reenactment) § 9-24-28.
Philomena Lux executed her will on May 9, 1966. She left her residuary estate to her husband, Anthony John Lux, and nominated him as the executor. Anthony predeceased his wife. His death triggered the following pertinent provisions of Philomena's will:
'Fourth: In the event that my said husband, Anthony John Lux, shall predecease me, then I make the following disposition of my estate:
'1. * * *
Philomena was survived by one son, Anthony John Lux, Jr., and five grandchildren whose ages range from two to eight. All the grandchildren were children of Anthony. The youngest grandchild was born after the execution of the will but before Philomena's death. The son is named in the will as the alternate executor. He informed the trial court that he and his wife plan to have more children. At the time of the hearing, Anthony was 30. The Superior Court appointed a guardian ad litem to represent the interests of the grandchildren. It also designated an attorney to represent the rights of individuals who may have an interest under the will but who are at this time unknown, unascertained or not in being. The parties have posed eight questions. It is the will and not the questions which is certified to us and we will, therefore, reply only to those questions which are cognizable under the statute. Davison v. Deslauriers, R.I., 288 A.2d 250, filed March 7, 1972; Bank of Delaware v. Industrial National Bank, 105 R.I. 751, 255 A.2d 150 (1969).
At the time of her death, the testatrix owned real estate valued at approximately $35,000 and tangible and intangible personal property, including bank accounts, that totaled some $7,400. The real estate, which consists of two large tenement houses, is located in Cumberland. The sole dispute is as to the nature of the devise of the real estate. Did Philomena make an absolute gift of it to the grandchildren or did she place it in trust for their benefit? The guardian takes the view that the grandchildren hold the real estate in fee simple. All the other parties take a contrary position.
Admittedly, the language before us is unclear. Accordingly, it is the duty of this court to ascertain the testator's intent as it is expressed in the will having in mind the circumstances surrounding its formulation and effectuate that intent so long as it is not contrary to law. Industrial National Bank v. Glocester Manton Free Public Library, 107 R.I. 161, 265 A.2d 724 (1970); Industrial National Bank v. Budlong, 106 R.I. 780, 264 A.2d 18 (1970).
From the record before us, we believe that Philomena intended that her real estate be held in trust for the benefit of her grandchildren. In reaching this conclusion, we must emphasize that there is no fixed formula as to when a testamentary disposition should be classified as an outright gift or a trust. The result reached depends on the circumstances of each particular case.
We are not unmindful of the formal requirements necessary for the creation of a testamentary trust. It is an elementary proposition of law that a trust is created when legal title to property is held by one person for the benefit of another. Gooding v. Broadway Baptist Church, 46 R.I. 106, 125 A. 211 (1924). Bogert, Trust & Trustees § 1 (2d ed. 1965); 1 Scott, Trusts § 2.3 (3d ed. 1967). It is generally accepted that such a relationship cannot be created by will unless the beneficiaries of the trust are identifiable. 1 Scott, supra, § 54. However, no particular words are required to create a testamentary trust. The absence of such words as 'trust' or 'trustee' is immaterial where the requisite intent of the testator can be found. Priestley v. Tinkham, 68 R.I. 103, 26 A.2d 599 (1942); Wood v. Hartigan, 59 R.I. 333, 195 A. 507 (1937); Town of South Kingstown v. Wakefield Trust Co., 48 R.I. 27, 134 A. 815 (1926). A trust never fails for lack of a trustee. Jorge v. da Silva, 100 R.I. 654, 218 A.2d 661 (1966); Goffe v. Goffe, 37 R.I. 542, 94 A. 2 (1915).
The guardian contends that the testatrix has vested in the grandchildren an absolute and unconditional title to her real and personal property and that any subsequent conditions which purport to limit such an estate are repugnant and void. In taking this position, he places great emphasis on the holding of Howard for an Opinion, 52 R.I. 170, 159 A. 143 (1932). There, the residuary estate, both real and personal property, was given to the beneficiary and 'her heirs and assigns forever' with a proviso that if the beneficiary had not reached her majority at the time of the testator's decease, then she was to receive all the income from 'bank deposits, bonds, stocks, notes, rents or otherwise' until such time as when the beneficiary 'shall come in full possession thereof.' The court ruled that the first part of the residuary clause gave the beneficiary, in clear and unequivocal language, title to the real estate in fee simple and an absolute gift of the personalty and that the second provision did not diminish the original grant. None of the language of the will before the court in the Howard case showed any intent by the testator to deprive the beneficiary of full and complete ownership of the residuary. We must concede that the court in Howard remarked that, had the testator intended a trust, he would have designated a trustee and delineated his powers and duties. This observation is pure dicta. A close examination of the case shows that the controlling element which led to the court's ultimate holding was the language found in the residuary clause. See Washington Trust Co. v. Arnold, 69 R.I. 121, 31 A.2d 420 (1943).
When the residuary clause in the instant case is viewed in its entirety, it is clear that Philomena did not give her grandchildren a fee simple title to the realty. It appears that she, realizing the nature of this bequest and the age of the beneficiaries, intended that someone would hold and manage the property until they were of sufficient age to do so themselves. The property is income-producing and apparently she felt that the ultimate interest of her grandchildren would be protected if the realty was left intact until the designated time for distribution. The use of the terms 'shall be maintained' and 'shall not be sold' is a strong indication of Philomena's intent that the property was to be retained and managed by some person for some considerable time in the future for the benefit of her son's children. This is a duty usually associated with a trustee. We therefore hold that Philomena's will does create a trust on her real estate.
Having found the trust, the question of who shall serve as trustee is easily answered. The general rule is that, unless a contrary intention appears in the will or such an appointment is deemed improper or undesirable, the executor would be named to the position of trustee. Jorge v. da Silva, supra; Priestley v. Tinkham, supra; Pomroy v. Lewis, 14 R.I. 349 (1884). We think this issue should be more appropriately resolved in the Superior Court since it is authorized to appoint a trustee whenever an instrument creating a trust fails to name the residuary fiduciary. Section 18-2-1.
Before determining the individuals who may benefit from Philomena's benevolence, it should be noted that the residuary devise to the grandchildren is a class gift 1 which in no way violates the rule against perpetuities. The rule, in seeking to insure the free administration of property, requires that interest must vest within a life or lives in being at the time of the creation of the future interest plus twenty-one years thereafter including an allowance for the period of gestation in those instances where there is a posthumous birth. The person whose life serves as the measuring rod need not be mentioned in the will, nor need he take any interest in the property. He need not be connected in any way with the property or the persons designated to take it. Gray, Rule Against Perpetuities § 219.2, n. 2 (4th ed. 1942); Leach, Perpetuities in a Nutshell, 51 Harv.L.Rev. 638 (1938). 2 The life in...
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