Slade v. Patten

• Citation: 68 Me. 380
• Parties: JAMES SLADE et al. v. JAMES T. PATTEN et als.
• Decision Date: 27 July 1878
• Court: Supreme Judicial Court of Maine (US)

68 Me. 380

JAMES SLADE et al. v. JAMES T. PATTEN et als.

Supreme Judicial Court of Maine.

July 27, 1878

BILL IN EQUITY, asking the construction of a will.

W L. Putnam, for the complainants.

N Webb, for Ann Augusta Whittlesey et als.

C. W Larrabee, for George P. Slade et als.

M. M Butler & B. F. Thomas, for Statira Elliot.

S. C. Strout & H. W. Gage, for James T. Patten et als.

APPLETON, C. J.

This is a bill in equity, brought in pursuance of the provisions of R. S., c. 77, § 5, by the complainants claiming under the will of George F. Patten, to obtain the construction of the same. All having an interest in the question to be determined have been made parties to the bill, and have entered an appearance.

The will is in these words: " I give, devise and bequeath, all and singular, my estate, real and personal, as follows; that is to say, to each and all my children an equal part or proportion of all and singular my property, viz: To Catherine F. Walker, Hannah T. Slade, wife of Jarvis Slade, James T. Patten, Statira Elliot, wife of John Elliot, Paulina Tappan, wife of Winthrop Tappan, Augusta Whittlesey, wife of Eliphalet Whittlesey, and George M. Patten, one-seventh part to each of them and their heirs, with the proviso, that the parts and proportions hereby devised and bequeathed to Catherine F. Walker, Statira Elliot, Paulina Tappan and Augusta Whittlesey and their heirs, instead of passing into their hands, is to go into the hands of James Slade, of New York, and George M. Patten, of Bath, whom I hereby appoint trustees, to hold, manage and dispose of said parts, and the property received therefor, for the use and benefit of said Catherine F. Walker, Statira Elliot, Paulina Tappan and Augusta Whittlesey and their heirs, according to the discretion of said trustees."

It is apparent that the testator intended to treat all his children with perfect equality, giving " to each and all his (my) children an equal part and proportion of all and singular his (my) property; " and, while he placed " the parts and proportions" of four of his daughters in the hands of trustees, the trustees were " to hold, manage and dispose of said parts, and the property received therefor, for the use and benefit" of his said daughters and their heirs. True, it was to be according to the discretion of the trustees, but that discretion related solely to the holding, managing and disposing of these parts. There is no provision for the termination of the trust estate. It continues for the heirs of the daughters named, equally as for the daughters.

If the trustees are to hold the estate for the four daughters and the heirs of the daughters, then the trust is void as creating a perpetuity.

But it has been argued that the intention of the testator was that the trust, as to each of his daughters, should cease as to such daughter and vest in the children of such daughter. But this is against the express terms of the will, by which the trustees are to hold the estate " for the use and benefit" of the four daughters named " and their heirs." The trust is as much for the heirs of the daughters as for the daughters. The will makes no provision for the termination of the trust at the death of the daughters or their heirs. It continues as much for the latter as for the former. The devise is one and indivisible to the trustees to hold, manage and dispose of, for the use and benefit of the daughters and their heirs. In no legal sense can the daughters be deemed the first takers, and the trust valid as to them and not as to their heirs.

But assuming it to have been the testator's intention that on the decease of his daughters their respective shares should go to the heirs of such daughters in fee simple, still, this would create a perpetuity, because it was possible, that they might have heirs unborn at the testator's death and in whom the estate would not vest within lives in being and twenty-one years and a fraction afterwards.

" This rule is imperative and perfectly well established. An executory devise, either of real or personal estate, is good," observes Merrick, J., in Fosdick v. Fosdick, 6 Allen 41, " if limited to vest within the compass of a life or lives in being, and twenty-one years afterwards; adding thereto, however, in case of an infant en ventre sa mere, sufficient to cover the ordinary time of gestation of such child. But the limitation, in order to be valid, must be so made that the estate, or whatever is devised or bequeathed, not only may, but must necessarily, vest within the prescribed period. If by any possibility the vesting may be postponed beyond this period, the limitation over will be void." In any view of the trust, therefore, it must be deemed void, as creating a perpetuity. 1 Perry on Trusts, §§ 381, 382, 383.

Here, in the first instance, there was an absolute gift to the daughters and their heirs. Upon this gift a limiting or restrictive clause was attempted to be grafted, which, it has been seen, was void. The first gift remains in full force, if the attempted qualification becomes ineffectual. The presumption is that " the testator intends the prior absolute gift to prevail, except so far only as it is effectually superseded by the subsequent qualified one." 1 Jarman on Wills, § 257. " Whenever there is a limitation over," remarks Merrick, J., in Fosdick v. Fosdick, 6 Allen 41, 43, " which cannot take effect by reason of its being too remote, the will is to be construed as if no such provision or clause were contained in it; and the person or persons otherwise entitled to the estate or property will take it wholly discharged of the devise, bequest and limitation over. Sears v. Russell, 8 Gray 86, 97. Brattle Square Church v. Grant, 3 Gray 142."

The conclusion is that the trust for the daughters is void as creating a perpetuity, and the absolute gift remains.

It is obvious that there are no words of inheritance in the trustees. But that cannot be deemed material. Courts of equity do not...