Palms v. Palms

• Decision Date: 02 February 1888
• Citation: 68 Mich. 355,36 N.W. 419
• Court: Michigan Supreme Court
• Parties: PALMS ET AL. v. PALMS ET AL.

36 N.W. 419

68 Mich. 355

PALMS ET AL. v. PALMS ET AL.

Supreme Court of Michigan

February 2, 1888

Appeal from circuit court, Wayne county; WILLIAM JENNISON, Judge.

Francis F. Palms, Michael W. O'Brien, and Clotilde Palms executors of the will of Francis Palms, filed a bill in equity against Charles L. Palms, Martha C. Palms, Bertha A Palms, Viola Palms, Corrine Palms, Francis Palms, and William J. Palms, to obtain a construction of the will of Francis Palms. The court held the will to be void, and Francis F Palms, Michael W. O'Brien, and all the defendants appeal.

The common-law rule limiting suspension of the power of alienation of personal property to the period of any life or lives in being, and 21 years afterwards, is applicable here. Gray, Perp. � 171 et seq.; Toms v. Williams, 41 Mich. 562, 2 N.W. 814; Wilson v. Odell, 58 Mich. 536, 537, 25 N.W. 506. The only question is whether the court will sustain the trust as to the personalty if it should hold it void as to the realty. The authorities answer affirmatively. Toms v. Williams, 41 Mich. 562, 2 N.W. 814; Manice v. Manice, 43 N.Y. 303; Knox v. Jones, 47 N.Y. 389; Scott v. West, 63 Wis. 529, 24 N.W. 161, and 25 N.W. 18.

If the tenth paragraph of the will extends the trust beyond the period allowed by law, it may be disregarded as a void incumbrance upon the estate. In the case of Toms v. Williams, cited supra: "If the estate created by the will is a vested one, subject only to these trusts, then whether they are good or bad trusts cannot concern the other heirs at law. *** There is nothing in the case requiring us, so far as the appellants are concerned, to discuss at large the effect of the statute prohibiting the creation of future estates suspending the power of alienation beyond two lives in being. If the trusts in the will would otherwise have that effect, they would merely be void incumbrances, and leave the estate clear." The New York cases, under statutes similar to our own, are to the same effect. Kane v. Gott, 24 Wend. 641, 7 Paige, 521; Savage v. Burnham, 17 N.Y. 561; Scott v. West, 63 Wis. 529, 585, 24 N.W. 161, and 25 N.W. 18.

The statutory provisions against perpetuities in real estate, so far as they relate to the point under discussion, are as follows:

"Sec 5530. Sec. 14. Every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter: Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.

"Sec. 5531. Sec. 15. The absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section."

Thatcher v. Church, 37 Mich. 267: This was an action of ejectment brought by the church against Thatcher, and taken by him to this court on writ of error. The title to the property in controversy was originally in Minerva E. Mundy, and the plaintiff claimed title under a trust deed executed by her to four gentlemen therein named, "to have and to hold, use and enjoy, the same, and lease and dispose of the same, or cause the same to be sold, and to receive the rents, profits, or income thereof, and use or dispose of the same in trust, and for the uses and purposes following, that is to say: *** Thirdly. From the income to furnish to my husband a comfortable support, with the aid of such assistance as he ought to render towards such support himself; and if at any time there may be a surplus of income, that the same is judiciously and safely made to accumulate. Fifthly. To pay the expenses of the last sickness and funeral of said John C. Mundy, and, upon the execution and satisfaction of the trust above mentioned, then this trust to cease; and I do hereby grant, bargain, sell, release, and convey to the Episcopal Church and Society of the City of Ann Arbor all the remainder of said real estate for a parsonage for the use of said society." After Mrs. Mundy's death her surviving heirs conveyed the same property to Fay Thatcher, wife of the co-defendant. Subsequently the same Mundy heirs quitclaimed to plaintiff. The defendants claimed that the trust deed executed by Mrs. Mundy was void, in that it suspended the power of alienation for more than two lives in being at the time of its execution. And as to the validity of the trust deed the court said, (page 270:) "This objection may be considered with the next, which hinges thereon, viz., that the trust was void under sections 4081, 4082, Comp. Laws, (being sections 5530, 5531, How. Ann. St.,) so that it suspended the power of alienation for more than two lives. We think that it is a self-evident proposition that the absolute power of alienation is not suspended when the instrument gives the trustees power to dispose of the property at their option. But there is no absolute suspension whatever, where the trustees have power to sell. It is true they may not dispose of the estate, but it is not a question of what they may or may not do in fact, but one of power."

Church v. Clark, 41 Mich. 733. Complainant claimed title under a deed of the land to its trustee "in trust, that they shall erect and build thereon a place of worship, for the use of the members of the M. E. Church of the U.

S. A., and upon the trust and confidence that they shall, at all times forever hereafter, permit such ministers as shall be duly authorized by the general conference of the said Methodist Episcopal Church to preach and expound God's Holy Word therein." The court (page 740) held the trust void as a perpetuity, and, proceeding upon the assumption that it was for the exclusive benefit of the local society, and that, if valid, the land would pass to the church society when incorporated, the court said of the trust (page 740) "that it was in terms, and apparently in intent, perpetual. *** The terms of the trust may well be thought inconsistent with any alienation of the land by the trustees, for it was to be perpetually devoted to a particular use; and, if so, a conveyance would defeat the trust itself. The question which remains open, therefore, is whether a perpetual trust, without power of alienation in the trustees, was not designed. Certainly there could be no power of alienation in any other person or persons if the trust was valid."

Wilson v. Odell, 58 Mich. 535, 25 N.W. 506: A bill to construe the will of Odell. Here was a trust to continue during four lives in being, and as many minorities as there might be grandchildren of the testator, but the court say, (page 535:) "No question is made about the validity of the trust. *** so far as the personalty or realty which may be liable to sale is concerned. The portion of the third clause which retains the land described, and exempts it from sale, is admitted to be invalid as continuing control beyond two lives in being." See Amory v. Lord, 9 N.Y. 403; Hobson v. Hall, 95 N.Y. 588. The doctrine of Thatcher's Case seems also to prevail in Minnesota. Simpson v. Cook, 24 Minn. 180. The doctrine of Thatcher's Case, reaffirmed by two subsequent decisions of this court, should be adhered to. It established for this state a rule of property upon which all persons were entitled to rely. The soundness of this view finds countenance in the judgment of this court in the case of Emerson v. Atwater, 7 Mich. 23. See, also, People v. Cicott, 16 Mich. 283; Jackson v. Blanshaw, 6 Johns. 54.

Our statutes were copied from the Revised Statutes of New York. The revisers did not intend to establish any rule different from that of the common law, except to reduce the common-law limitation of any life or lives in being, and 21 years afterwards, to any two lives in being, and an actual minority. 3 Reviser's Notes, 572, quoted post. The Revised Statutes of New York were adopted in 1828. Blackstone, (2 Cooley, Ed. 174) says perpetuity is "the settlement of an interest which shall go in the succession prescribed without any power of alienation." Rand. Perp. 48; Gilb Uses, 260; Sand. Uses and Trusts, 204; Scatterwood v. Edge, 1 Salk. 229; Canal Co. v. Cartwright, 11 Ch. Div. 433; Railway Co. v. Gomm, 20 Ch. Div. 462.

The only New York case that holds that a power to sell vested in a trustee does not take the case out of the operation of the rule against perpetuities, when the proceeds may be held for a period prohibited by the rule, is Brewer v. Brewer, 11 Hun, 147, affirmed, 72 N.Y. 603.

The beneficiaries under the will take in severalty. The will, therefore, creates not one entire trust, but as many separate and distinct trusts as there are separate and distinct interests disposed of by it. This proposition cannot be successfully disputed. Wells v. Wells, 88 N.Y. 332. See, also, Mason v. Mason, 2 Sandf. Ch. 432; Deheyster v. Clendining, 8 Paige, 39; Gillman v. Reddington, 24 N.Y. 9; Woodgate v. Fleet, 64 N.Y. 570; Moore v. Hegeman, 72 N.Y. 376; Purdy v. Hyat, 92 N.Y. 447; Tiers v. Tiers, 98 N.Y. 568.

Assuming that the tenth paragraph of the will extends the trusts beyond the lives of testator's son and daughter, during the several minorities of the grandchildren, the trust is still valid within the statute. After referring to the English act, (40 Geo. III. c. 98,) passed after the decision upon the will of Peter Thelusson, the Newe York revisers proceed: "This act has not been re-enacted in this state; but the revisers have proposed some new regulations on this subject which will considerably abridge the present power of rendering real estate inalienable; and they have restrained the accumulation of profits within still narrower limits than are now allowed in England. The difference...