Merrill v. Wimmer
| Decision Date | 13 September 1983 |
| Docket Number | No. 2-1282A424,2-1282A424 |
| Citation | 453 N.E.2d 356 |
| Parties | Dennis A. MERRILL and Walter O. Merrill, in their capacities as two of the three Co-Executors of the Last Will and Testament of Newell M. Merrill, deceased; Dennis A. Merrill and Walter O. Merrill in their capacities as Trustees of the Trust purported to be established by Item 3 of the Last Will and Testament of Newell M. Merrill, deceased; Dennis A. Merrill; Walter O. Merrill; Judith I. Yarling; Richard Dennis Merrill; Kathryn Jo Anderson; Margaret Yarling Ruegg; Cynthia Lou Rink; and Virginia Beth Yarling, Appellants (Petitioners Below), v. Wayne O. WIMMER, Co-Executor of the Estate of Newell M. Merrill, deceased; Barbara Jean Merrill; and the unborn grandchildren of Newell M. Merrill, deceased, Appellees (Respondents Below), Pamela Sue Yarling, Appellee (Petitioner Below), Erpha B. Merrill, Appellee (Non-Participating Interested Party Below). |
| Court | Indiana Appellate Court |
Dan R. Winchell, Baker & Daniels, Indianapolis, Philip S. Cooper, Busby, Austin, Cooper & Farr, Anderson, for appellants.
Larry E. Swick, Wimmer, Lockwood & Swick, Elwood, for Wayne O. Wimmer.
Stephen D. Clase, Braddock & Clase, Anderson, attorney of appellee-guardian ad litem.
Appellants, the majority of beneficiaries under the will of Newell M. Merrill (Newell), appeal the trial court's decision construing Newell's will.
We reverse.
Did the trial court err by modifying some trust provisions and upholding others under the rule against perpetuities?
In 1970, Newell executed a will containing a residuary trust. Essentially, it devised the income to his three children, Judith, Dennis, and Walter, during their lives. As to distribution of the corpus, item 3(E) of Newell's will read as follows:
E. That when my youngest grandchild reaches the age of twenty-five (25) years, said Trust shall terminate as to two-thirds ( 2/3) of the corpus of said Trust, and that said two-thirds ( 2/3), together with the accumulated income to be credited to said two-thirds ( 2/3) interest, shall be divided as follows, to-wit: One-Third ( 1/3) shall be divided one-half ( 1/2) to my daughter, Judith I. Yarling, and one-half ( 1/2) to her children, share and share alike; One-Third ( 1/3) shall be divided one-half ( 1/2) to my son, Dennis A. Merrill, and one-half ( 1/2) to his children, share and share alike; One-Third ( 1/3) of the corpus of said Trust, together with any accumulated income, to be credited to said one-third ( 1/3) interest, shall be continued in Trust for my son, Walter O. Merrill, and he shall have the income from this Trust for and during his natural life and upon his death, if he has bodily issue, then one-half ( 1/2) of his one-third ( 1/3), in Trust, shall go to his bodily issue and the other one-half ( 1/2) of the one-third ( 1/3), in Trust, or all of said one-third ( 1/3), in Trust, in the event he has no bodily issue, shall go to my grandchildren, living at the time of the termination of said Trust, share and share alike.
Newell died in 1977. Appellants petitioned the court to construe the will.
The trial court, adopting the probate commissioner's findings, held the provisions regarding the corpus's distribution to Judith, Dennis and their children were invalid under the rule against perpetuities. It modified the trust by (a) deleting the condition of distribution of the remainder when the youngest grandchild reached 25 years, and (b) awarding one-third of the corpus each to Judith and Dennis outright. It upheld the entire trust provision regarding Walter.
Appellants appeal.
Reversed.
In probate cases concerning the competence of a testator or where undue influence is alleged, our standard of review requires us to view the facts most favorable to the appellee. 1 Here, however, we are asked to review the trial court's judicial construction and modification of a will. No witness credibility is involved. The will speaks for itself, as well to us as to the trial court. Therefore, we are not bound by the trial court's construction. We review the case de novo, but if we find its construction is reasonable and consistent with the testator's intent, we will affirm. 2
The trial court found the residuary clause as written violates the rule against perpetuities as to Newell's children Judith and Dennis.
"An interest in property shall not be valid 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." Ind.Code 32-1-4-1. Under the rule, all vesting must be done during the period of the rule. Bailey v. Bailey, (1967) 142 Ind.App. 119, 232 N.E.2d 372. The possibility of vesting after the time of the rule, not only the probability, will void the gift. Id.
Here, it is possible the youngest grandchild may reach the age of 25 years more than 21 years after the death of the lives in being, Newell's children, at the creation of the interests. While the youngest grandchild living at the time of trial was sixteen, Newell's children are all still alive. We are required to presume they are still capable of having more children. Reasoner v. Herman, (1922) 191 Ind. 642, 134 N.E. 276. Therefore, the class of beneficiaries is not closed.
Such class must close within the period of the rule. L. Simes & A. Smith, The Law of Future Interests Sec. 1265 (2d ed. 1956) [hereinafter Simes ]. Here it may not close until after the period prescribed in the rule. Under the will's terms, it was possible for one or more of Newell's children to outlive him (as they did), and then have a child which would not reach the age of 25 within 21 years of Newell's child's death. Therefore, the possibility exists that grandchild's interest 3 would not vest within the time required by the rule. For that reason, the entire gift fails. Simes.
Appellants concede the proposed distribution of two-thirds of the corpus to Judith, Dennis and their children when the youngest grandchild reached 25 violates the rule against perpetuities, Ind.Code 32-1-4-1. They argue, however, the trial court erred by (a) eliminating the provision for payment of the trust's income to Judith and Dennis for life, (b) accelerating the distribution of two-thirds of the corpus to Judith and Dennis, and (c) upholding the entire provision regarding Walter. We agree.
There are several guidelines used by a court when construing a will. [T]he cardinal and paramount rule is to ascertain the intention of the testator and give it effect as long as it is not prohibited by law or violates public policy. This intention may be ascertained by the language or the words of the will itself and an examination of the entire will or from the four corners thereof. (Citations omitted.)
Weishaar v. Burton, (1962) 132 Ind.App. 597, 604, 179 N.E.2d 211, 214-15.
A will should be construed to prevent intestacy if it can be done without doing violence to the intent of the testator.
It is the settled rule that when the striking of an invalid part results in defeat of the main and dominant purpose of the testator, incidental provisions which constitute with it the entire testamentary scheme must fall with it.
Conversely it is the settled rule that where the testator's dominant intent is legal and valid, an invalid, separable, incidental provision will be stricken out and the provisions carrying out the dominant intent of the testator will be sustained. (Citations omitted.)
Sipe v. Merchants Trust Co., (1941) 109 Ind.App. 566, 571, 34 N.E.2d 968, 970-71. The court may not rewrite the will for the testator. Szulkowska v. Werwinski, (1941) 109 Ind.App. 511, 36 N.E.2d 948.
By creating life estates for his children and by providing the corpus was not to be distributed until his youngest grandchild reached 25, Newell made his underlying intent clear, he did not want his property to pass immediately to his children. He wanted the grandchildren to share but only when they reached 25, presumably an age at which he believed they would be mature enough to handle their inheritance wisely. Given this as his intent, 4 the trial court erred by extinguishing the grandchildren's interests and giving a full two-thirds of the corpus immediately to Judith and Dennis. 5 While we try to avoid intestacy, the trial court here has rewritten Newell's will. This it may not do.
We also find the trial court erred by upholding the provision of the trust regarding Walter. While we agree this section does not violate the rule against perpetuities, it was an integral part of Newell's testamentary distribution scheme and may not stand alone. All the specifications for the distribution of the corpus and its income were contained in one section and separated by semi-colons, not periods. The appellees argue Newell intended to create three trusts, one for each child. However, the document itself only refers to "this Trust", singular. Such format demonstrates the testator intended this distribution scheme to be interrelated.
The trial court's construction clearly subverts the testator's intent and cannot stand, but that is not the end of the matter. In an attempt to give effect to both Newell's intent and the rule against perpetuities, we will examine these provisions in light of the doctrine of equitable approximation. Because the cy pres doctrine, the doctrine of equitable deviation, and the equitable doctrine of approximation have often been confused and not clearly distinguished, we will discuss each separately before determining whether the doctrine of equitable approximation may be appropriately applied in this case.
The cy pres doctrine has been codified in Indiana. The pertinent statute states:
If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible, impracticable, or illegal to carry out the particular purpose, and if the settlor manifested a more general...
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