Perry v. Twentieth St. Bank

Decision Date12 July 1974
Docket NumberNo. 13304,13304
CourtWest Virginia Supreme Court
PartiesWalker W. PERRY et al. v. The TWENTIETH STREET BANK, a Banking corporation, as trustee, etc., et al.

Syllabus by the Court

By virtue of the authority of Article 8, Section 21 of the Constitution of West Virginia and of Code, 1931, 2--1--1 it is within the province of the legislature to enact statutes which abrogate the common law.

W. Merton Prunty, Huntington, for appellants.

No appearance, for appellees.

CAPLAN, Chief Justice:

In a civil action instituted in the Circuit Court of Cabell County the plaintiffs sought a declaratory judgment, the purpose of which was to construe a certain clause of the will of Lillian Perry. Therein they prayed that said clause be declared invalid as being in violation of the rule against perpetuities. The defendant, The Twentieth Street Bank, a banking corporation, as trustee under the will and as executor thereof, filed an answer to the petition wherein it asserted that the trust set up by the questioned will provision did not violate the rule against perpetuities but that such trust was established pursuant to the provisions of Code, 1931, 35--5--6, as amended.

Thereupon, the plaintiffs filed a motion for judgment on the pleadings which motion was argued in open court and sustained. Upon the entry of a final order entering judgment for the plaintiffs the defendant prosecuted this appeal.

Lillian Perry, who departed this life on June 20, 1971, disposed of her estate by her last will and testament, Paragraph Eighth of which gives rise to this proceeding. Inasmuch as the entire controversy revolves around that provision of said will it is quoted in full as follows:

All the rest, residue and remainder of my estate I give, bequeath and devise unto THE TWENTIETH STREET BANK, of Huntington, Cabell County, West Virginia, as TRUSTEE, IN TRUST, to invest in savings accounts and time deposits of a bank (including itself) or trust company, shares of savings and loan associations, or securities, including shares or participations in a common trust fund, as deemed prudent by said TRUSTEE, for the establishment of a Flower Fund for the decoration with flowers of the graves of my father, JOHN DAVID PERRY, my mother, ADA PERRY, and myself, at the Ridgelawn Cemetery, in Huntington, Cabell County, West Virginia, and to expend and apply the net income for flowers to be placed upon said graves each and every Easter Day, Memorial Day, Father's Day, Mother's Day, Christmas Day, and a day in October, and at any other time deemed suitable and proper by the TRUSTEE if net income is sufficiently available from said Flower Fund. The flowers so purchased are to be purchased from ARCHER'S FLOWERS, INC., OR ITS SUCCESSOR, AS LONG AS IT, OR ITS SUCCESSOR, CONTINUES IN THE FLOWER BUSINESS.

The following plaintiffs constitute all of the heirs at law of Lillian Perry: Walker W. Perry, Otis V. Perry, Oval F. Perry, Odell Perry, Charles C. Perry, brothers of Lillian; Mattie May Perry, widow of Arnold Perry, deceased brother of Lillian; and Cedric U. Perry, Margie E. Browning, Harold E. Perry, Florabell Morris, Marshall M. Perry, Rosemary Stoler, children of Otho Perry, deceased brother of Lillian. In their petition for a declaratory judgment the said plaintiffs allege 'that said clause above quoted is invalid and incapable of being placed in effect in accord with the expressed wishes and desires of the deceased in that it violates the rule against perpetuities * * *.' As aforesaid, the defendant bank in its answer denied that said Clause Eighth violates the rule against perpetuities and further asserts that the trust created by the testator in Clause Eighth is expressly permitted by Code, 1931, 35--5--6, as amended. Ruling on the plaintiffs' motion for judgment on the pleadings the court held 'that Paragraph Eighth of the will of Lillian Perry establishes a private trust and violates the...

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7 cases
  • Verba v. Ghaphery
    • United States
    • West Virginia Supreme Court
    • June 19, 2001
    ...2-1-1 it is within the province of the legislature to enact statutes which abrogate the common law." Syllabus, Perry v. Twentieth St. Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974) (footnote added). "[T]he indisputable fact [is] that the legislature has the power to change the common law of thi......
  • State Public Bldg. Asbestos Litigation, In re
    • United States
    • West Virginia Supreme Court
    • January 6, 1995
    ...1931, 2-1-1 it is within the province of the Legislature to enact statutes which abrogate the common law." Syl., Perry v. Twentieth Street Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974). 5. W.Va.Code, 55-2-19 [1923] abrogates the common law doctrine of nullum tempus occurrit regi thereby making......
  • Macdonald v. City Hosp. Inc.
    • United States
    • West Virginia Supreme Court
    • June 22, 2011
    ...the power to “set reasonable limits on recoverable damages in civil causes of action.” Id. See also Syllabus, Perry v. Twentieth St. Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974). In this appeal, the MacDonalds assert the same constitutional challenges previously considered in Robinson and Ver......
  • Holsten v. Massey
    • United States
    • West Virginia Supreme Court
    • July 16, 1997
    ...7 it is within the province of the Legislature to enact statutes which abrogate the common law." Syllabus, Perry v. Twentieth Street Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974) (footnotes added). The legislature, however, has not expressly abrogated the public duty doctrine in the Act as we ......
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