Taylor v. Crosson

• Decision Date: 26 June 1916
• Citation: 98 A. 375,11 Del.Ch. 145
• Court: Court of Chancery of Delaware
• Parties: EUGENE A. TAYLOR and GEORGE A. TAYLOR, JR., v. JOHN B. CROSSON and COMMONWEALTH TITLE INSURANCE AND TRUST COMPANY OF PHILADELPHIA

98 A. 375

11 Del.Ch. 145

EUGENE A. TAYLOR and GEORGE A. TAYLOR, JR., v. JOHN B. CROSSON and COMMONWEALTH TITLE INSURANCE AND TRUST COMPANY OF PHILADELPHIA

Court of Chancery of Delaware, New Castle

June 26, 1916

BILL FOR SPECIFIC PERFORMANCE. The bill is to enforce specific performance of a contract for the sale by the complainants to the defendant, Crosson, of the premises No. 816 Van Buren Street, in Wilmington, which Mary E. Adams, the grandmother of the complainants owned at the time of her death. By her will, dated June 27, 1904, and a codicil thereto, both probated October 28, 1912, Mary E. Adams, being then the widow of Lorendo H. Adams, after directing the payment of debts and certain pecuniary legacies given to her two grandsons, the complainants, children of her daughter, Mary A. Taylor, the testatrix gave and devised all the residue of her estate, real and personal, to her executors, John B Crosson and the Commonwealth Title and Trust Company of Philadelphia, in trust for her daughter, Mary A. Taylor, for life and then provided as follows:

"At the death of my daughter should she have issue the trust is to continue until my daughter's youngest child shall have reached the age of twenty-five years (25) when the principal shall be equally divided between my grandchildren if they shall be then living, and in case any of my grandchildren shall be then deceased leaving lawful issue, the surviving such issue to take the share their parent would have taken if living, and in case any of my said grandchildren should be then deceased without lawful issue the same to go to my other grandchildren share and share alike.

"If my daughter Mary A. Taylor should die without leaving lawful issue, then the principal is to be appropriated. * * *"

One of the executors and trustees, John B. Crosson, renounced and letters testamentary were granted to the other, the Commonwealth Title Insurance and Trust Company of Philadelphia, one of the defendants. Mary A. Taylor survived the testatrix and died September 27, 1912, intestate, leaving to survive her her husband and as her only heirs at law two children, the complainants, one of whom is and the other of whom is not now twenty-five years of age. Afterwards the husband of Mary A. Taylor by deed released to the complainants his interest in the land.

For the complainants it is claimed in the bill that the devise of the land as part of the residuary estate was void, being in violation of the rule against the creation of perpetuities in that the gift to the complainant was a contingent remainder and might not certainly vest in the beneficiaries within a life or lives in being and twenty-one years, but might continue for a longer period, viz.; for a life or lives in being and twenty-five years. Therefore, it was urged that as the remainder was void the testatrix died intestate as to the land, and it descended to them as heirs at law, so that the deed made by them and tendered to Crosson would convey to him a good title.

For the defendants it was claimed that the devise was not invalid and that the title to the land was in the executor, the Commonwealth Title Insurance and Trust Company of Philadelphia, one of the defendants.

At the death of Mary A. Taylor one of her children was more than four years of age.

Complainants entitled to a decree for specific performance.

Herbert H. Ward, for the complainant.

E Ennalls Berl, for the defendants.

OPINION

THE CHANCELLOR

The most important point for decision is whether the rule against perpetuities is applicable. Inasmuch as this rule is a peremptory command of law, not a rule of construction, and its object being to defeat intention, therefore, as Professor Gray says:

"Every provision in a will or settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied."

If there be two constructions, as to each of which there is doubt, the one consistent with and the other repugnant to the law, the former will be adopted; but if the meaning is clear it must be adopted even if the law renders the gift so construed illegal. Phillips v. Phillips, 10 Del.Ch. 314, 91 A. 452, 456. It is a duty, therefore, first to construe the will and then see whether the gift is legal. As to the construction of the will, it was urged by the defendants that there was a trust after the death of the daughter of the testatrix in favor of the children of the daughter until the youngest attained twenty-five years of age, and then a remainder in fee to the children. As authority for this the well-established rule was cited, viz: that where there is a devise or bequest to children as a class, no child being specifically named in the will, those children who are in existence at the death of the testator are to be the beneficiaries and later born children do not benefit thereby. But this construction is not applicable to the will of Mary E. Adams, for under it the class was not determined until at or after the death of the life tenant. Besides, the principle above referred to is only applicable where there is a present gift payable in the future. State, use Richardson v. Raughley, 6 Del. 561, 1 Houst. 561; Ingram v. Girard, 6 Del. 276, 1 Houst. 276.

Inasmuch, therefore, as by a proper construction of the will, if any children had been born to the daughter of the testatrix after the death of the testatrix, they would have become beneficiaries, it is necessary to consider whether for that reason the gift is too remote, for being a contingent and not a vested interest the rule may be applicable. So far as disclosed by reported cases the ancient rule prohibiting devises which may take effect beyond a life or lives in being and twenty-one years thereafter, has not been applied in Delaware to testamentary gifts, to private persons, though its application to charitable uses and trusts has been denied in State v. Griffith, 2 Del.Ch. 392, 399, and Griffith v. State, 2 Del.Ch. 421, 460.

A court of competent jurisdiction in Pennsylvania, where the will was probated, has, in a cause tried there in the Superior Court determined that the particular provision of the will under consideration here was invalid because a violation of that rule. See Adams's Estate, 23 Pa. D. [1914] 271. This decision being an adjudication in a cause requiring the determination of the validity of the gifts under the same will is entitled to great weight. But inasmuch as the subject matter of the contract is property in Delaware, this...