Schmitz's Estate, In re

• Decision Date: 15 April 1983
• Docket Number: No. 81-925,81-925
• Citation: 214 Neb. 28,332 N.W.2d 666
• Parties: In re ESTATE OF Elizabeth M. SCHMITZ, deceased. Ava M. SHIELDS, Appellant, v. Ardis E. HINSHAW, Personal Representative of the Estate of Elizabeth M. Schmitz, deceased, Appellee.
• Court: Nebraska Supreme Court

Page 666

332 N.W.2d 666

214 Neb. 28

In re ESTATE OF Elizabeth M. SCHMITZ, deceased.

Ava M. SHIELDS, Appellant, v. Ardis E. HINSHAW, Personal Representative of the Estate of Elizabeth M. Schmitz, deceased, Appellee.

No. 81-925.

Supreme Court of Nebraska.

April 15, 1983.

Syllabus by the Court

1. Wills. The cardinal rule in construing a will is to ascertain and effectuate the

intention of the testator if such intention is not contrary to the law.

2. Decedents' Estates: Wills. The right to dispose of one's property by will at death is a valuable right which is favored by the law, and it will be sustained whenever possible.

3. Wills. In searching for the intention of the testator the court must examine the entire will, consider each of its provisions, give words their generally accepted literal and grammatical meaning, and indulge the presumption that the testator understood the meaning of the words used.

4. Wills: Perpetuities. The rule against perpetuities prohibits only the creation of future interests or estate which, by possibility, may not become vested within a life or lives in being and 21 years, together with the period of gestation when necessary to cover cases of posthumous birth.

5. Wills: Perpetuities. While the rule against perpetuities prevails over intention, a document should be interpreted, if feasible, to avoid the conclusion that it violates the rule.

6. Wills: Perpetuities. Where the language of a will leaves the court in doubt whether the rule has been transgressed, the doubt may within reasonable limits be resolved in favor of the construction that the future estate constitutes a vested rather than a contingent remainder.

Sarah Jane Cunningham of Cunningham Law Office, P.C., McCook, for appellant.

Fred T. Hanson of Hanson & Hanson, McCook, for appellee.

KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and COLWELL, District Judge, Retired.

KRIVOSHA, Chief Justice.

This appeal concerns the last will and testament of Elizabeth M. Schmitz and a certain trust created by the will. Specifically, it concerns whether the provisions creating the trust are void because the trust's termination clause violates the rule against perpetuities. Both the county court of Red Willow County, Nebraska, and the District Court for Red Willow County, Nebraska, found that the provisions in question did not violate the rule against perpetuities. Our examination of the record likewise convinces us that the provisions in question do not violate the rule against perpetuities, and for that reason we affirm.

The testator, Elizabeth M. Schmitz (Schmitz), died on December 24, 1980, and her last will and testament was admitted to probate on January 27, 1981. The court found that Schmitz left, as her heirs and devisees, her two daughters, Ardis E. Hinshaw and Ava M. Shields; four grandsons, Robert E. Hinshaw, H. Cecil Hinshaw, Robert J. Shields III, and John C. Shields; two granddaughters, Ava N. Duba and Anne E. Bowman; one great-grandson, Brandon E. Hinshaw; and three great-granddaughters, Carly May Duba, Kelli Rae Hinshaw, and Lori Ann Bowman.

The two provisions in question are contained in paragraphs 6 and 7 of Schmitz' will. Paragraph 6 of the will provides as follows: "DISPOSITION OF FARMS AND EQUIPMENT. All of my real estate, together with the machinery and equipment on my farms, I devise to a trust to be called the ELIZABETH M. SCHMITZ TRUST for the purpose of managing the same and paying the net income of the same to my said daughters, in equal shares, if they survive me, and if either of them is deceased, or upon the death of either, that right to share the income shall pass to their issue in trust by right of representation."

Paragraph 7 of the will provides for the termination of the trust as follows: "TERMINATION OF THE TRUST. In no event shall the trust continue beyond the lives of the issue of the trustor, living at the date this trust becomes effective, and, after the death of the last of such persons, then for the period required for a descendant to reach the age of 21 or the age of majority, as that age may be determined by law at the relevant time, whichever is reached first. Upon termination of the trust the corpus shall vest in the then income beneficiaries in the proportions in which they are then entitled to the income."

There is, of course, no problem with regard to paragraph 6 of the will. It simply creates a trust for both the daughters of Schmitz and, upon their death during the term of the trust, for their issue, who the county court determined to be the various grandchildren and great-grandchildren earlier named. This is in conformance with Neb.Rev.Stat. § 30-2209(23) (Reissue 1979), which defines issue as meaning all of a decedent's lineal descendants of all generations.

Turning then to the termination clause, we find that the trust is to terminate when all of the issue of Schmitz, living at the date of her death, die and "then for the period required for a descendant to reach the age of 21 or the age of majority, as that age may be determined by law at the relevant time, whichever is reached first." (Emphasis supplied.) It is this clause which gives rise to the controversy and requires interpretation.

In attempting to construe the provisions of a will we are directed by certain rules of construction. "The cardinal rule in construing a will is to ascertain and effectuate the intention of the testator if such intention is not contrary to the law." Slocum v. Hevelone, 196 Neb. 482, 484, 243 N.W.2d 773, 776 (1976). Moreover, the right to dispose of one's property by will at death is a valuable right which is favored by the law, and it will be sustained whenever possible. See Brown v. Applegate, 166 Neb. 432, 89 N.W.2d 233 (1958). "Where a possible construction of the words in a will leads to a highly improbable result, the court will lean toward a construction that will carry out the natural intention of the testator." Olson v. Sampson, 208 Neb....