Rekdahl v. Long

• Decision Date: 28 June 1967
• Docket Number: No. A--11790,A--11790
• Citation: 417 S.W.2d 387
• Parties: Aramis REKDAHL et ux., Petitioners, v. James M. LONG et al., Respondents.
• Court: Texas Supreme Court

Page 387

417 S.W.2d 387

Aramis REKDAHL et ux., Petitioners, v. James M. LONG et al., Respondents.

No. A--11790.

Supreme Court of Texas.

June 28, 1967.

Dissenting Opinion July 19, 1967.

Rehearing Denied July 19, 1967.

Kelley, Ryan & Merrill, C. O. Ryan and William J. Merrill, Houston, for petitioners.

Fulbright, Crooker, Freeman, Bates & Jaworski, Chester M. Fulton, Houston, for respondents.

GRIFFIN, Justice.

This is a suit brought in the District Court of Brazoria County, Texas, by Aramis Rekdahl and his wife, as plaintiffs, against James M. Long, Trustee under the will of Mabel A. Rekdahl, mother of Aramis, and other beneficiaries under this trust, as defendants. The plaintiffs seek to have the provisions of the will establishing the trust declared void as being in violation of the rule against perpetuities set out in Section 26 of Article 1 of the Constitution of this State, Vernon's Ann.St. The cause was tried before the trial judge without a jury, and the trust provision was held to be valid. On appeal to a Court of Civil Appeals, the trial court's judgment was affirmed. 407 S.W.2d 339. We affirm the judgments of both courts below.

It is only Section III of Mabel Rekdahl's will that plaintiffs contend violates the rule against perpetuities. This section is set out in full in the Court of Civil Appeals opinion, and we will refer to the sections pertinent to our discussion.

This Section III is entitled 'TEXAS TRUST.' The first paragraph of this portion of the will provides:

'I give, bequeath and devise to my trustee hereinafter named all property whether real or personal or mixed which I die owning or in which I have any interest upon my death, which is located in or having a legal situs in the State of Texas in trust for the benefit of persons and as follows, to-wit: * * *.'

This created an express trust with the legal title to the trust property in Defendant Long, as trustee, and the equitable or beneficial title in the 'persons' enumerated in the succeeding paragraphs of Mrs. Rekdahl's will. Rust v. Rust (Tex.Civ.App., 1948), 211 S.W.2d 262, 266, approved by Sup.Ct., 147 Tex. 181, 214 S.W.2d 462 (1948); 57 Tex.Jur.2d 411 et seq. and authorities therein cited. The troublesome questions in this case are who are the beneficiaries and when does their title vest?

There are certain rules of construction governing our decision herein. The general rule is that the court should determine the intention of the testator from the language he used in the will. Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903, 906 (1954).

Another rule is that where an instrument is equally open to two constructions, one of which would make the provision valid and the other void, the one will be given which makes the will valid. Kelly v. Womack, supra; Neely v. Brogden (Tex.Com.App., 1922), 239 S.W. 192; 61 Tex.Jur.2d 264, § 143 and authorities cited.

Now, in the light of these rules, let us determine who are the 'persons' beneficiary under the will of Mabel Rekdahl. The second paragraph of the will is styled 'A' and provides in substance that the trustee shall have charge of all of her Texas property, manage the same and collect all income therefrom and pay all expenses, the expenses of administering the trust, and all other proper charges against the trust, and pay the income as follows: First, to pay Aramis Rekdahl $200.00 per month for his lifetime and with authority to increase this amount by adding further sums from the principal (corpus) or income of the trust; second, to pay to testatrix' sister, Mildred Manning, under certain conditions, from the income of the trust $100.00 per month during Mildred's life; third, to pay to Harold Rekdahl, testatrix' brother-in-law, from the income of the trust $50.00 per month during his life. The bequests to Mildred and Harold each are made cumulative so that in the event the income from the trust shall be insufficient to make any monthly payment, future excess income is to be used for the bequests. Next follow directions to the trustee, after payment of the above bequests, to accumulate from the trust income a fund of $25,000.00 to insure the payments from the income above set out to the named beneficiaries. There is established a second accumulation whereby the trustee is to accumulate $10,000.00 from the trust income to be paid in equal shares to her brothers and sisters and the brothers and sisters of her deceased husband, and this also may be used to pay medical expenses, etc., during the life of any or all of these beneficiaries.

There is a common provision in each of the first and second accumulations which states, '* * * provided, however, that if Aramis Rekdahl dies before I die, then such accumulation shall be made until twenty-one years after my death or until the entire trust hereunder terminates, whichever is sooner.'

Paragraph 6 provides that payment of the balance of the net income after the foregoing bequests are paid shall be made to Aramis Rekdahl for his lifetime. Paragraph 7 provides what the trustee shall do with the payments to Aramis Rekdahl upon his death, or if he has predeceased testatrix, upon her death. One-fourth is to be paid to Aramis' widow, Violet, during her lifetime and the remaining 75% Of the income paid in equal shares to 'his (Aramis') Children who survive him,' and 'if any child of Aramis Rekdahl dies leaving issue, then such issue shall take the share which his or her parent would have taken had he or she survived him.' Upon Violet's death her share is to be paid to 'the said children or issue of Aramis Rekdahl.' Then follows a provision for payment of income to continue until 'such child receiving hereunder is thirty-five years of age.' As each such child successively becomes thirty-five years of age, he is to cease receiving any income. In this event, the income is to be divided among the child or children of Aramis who have not reached thirty-five years of age. To make more definite her meaning, the testatrix provides that, 'all such payments from income shall cease when the last of such children has become thirty-five years of age, and for this purpose, issue of any deceased children of Aramis Rekdahl shall not be considered in determining such time.'

Paragraph 8 governs the distribution of the trust estate. Summarizing, it provides that after the death of Aramis Rekdahl 'and after his children have successively attained the age of thirty-five years or have died, so that there is none left to attain the age of thirty-five years, then the trust shall terminate' (except the second accumulation), 'and all of the assets, whether corpus or income of the trust, shall be distributed in equal and undivided shares to the children of Aramis Rekdahl Who survive him, provided, however, that if such children die leaving issue Who survive Aramis Rekdahl, then such issue shall take the share which such parent would otherwise have taken.' Then follow directions as to the disposition of the trust income known as the second accumulation for brothers and sisters. The balance upon termination of the 'second accumulation' is to be distributed in equal and undivided shares to the children of Aramis Rekdahl Who survive him, provided, however, that if any such children die before Aramis Rekdahl, Leaving issue who survive Aramis Rekdahl, then such issue shall take the share which such parent would otherwise have taken if he or she Had survived. (All emphasis that of the Court.)

At this point we will refer to paragraph 9 as the spendthrift trust provision, but will discuss this matter in detail later in this opinion.

The concluding paragraph 10 appoints a trustee of the trust and provides for substitute trustees, etc.

From a reading of the will it is apparent that the beneficiaries of Mabel Rekdahl's estate were: first, and of prime importance, Aramis Rekdahl, who was to receive the major part of the income during his lifetime, with power in the trustee to care for and see to it that Aramis was taken care of in illness or misfortune and in accordance with his customary standard of living. At Aramis' death, his children Who survived him and the Issue of any child who had predeceased Aramis and who survived him were to receive the income from the estate. These are the ones holding the equitable title to the corpus of this trust. The bequests to Mildred Manning, Harold Rekdahl, and the brothers and sisters were only of income from the trust estate, and these are not mentioned as receiving any part of the distribution of the trust fund, and therefore are not owners of any part of the corpus of the trust fund.

The next question to be decided is, 'When does the title of the ultimate beneficiaries of this trust vest?' If at the death of Aramis Rekdahl, then there is no violation of the rule against perpetuities. If there is no vesting of title in the beneficiaries until the final distribution of the trust, then the rule against perpetuities could be violated. This would happen in the event Aramis left a surviving child, born after the death of testatrix, and who lived to be over twenty-one years plus ten months of age and outlived any of the other children of Aramis Rekdahl or the issue of deceased children of Aramis surviving him who were living at the time of testatrix' death. This is true because under this contention the trust could not be distributed until this surviving child became thirty-five years old, and it is contended title would not vest in children or issue of deceased children of Aramis until that time.

The will provides that upon the death of Aramis, his rights in the trust shall pass to his children who survive him, and in the event there be a deceased child of Aramis, then to the then surviving issue of such deceased child who would take the share their deceased parent would have taken if alive at the time of Aramis' death.

When the will became effective on the death of Mabel Rekdahl, Aramis survived her. He was married and had three...