Opinion
No. 4783.
Submitted December 2, 1959.
Decided December 31, 1959.
1. Where the residuary clause of a testamentary trust provided that the income was to be paid to certain named beneficiaries during their natural lives and the balance remaining at the end of forty years to be paid to certain named charities, with no indication from the will as a whole that the testator intended the forty-year period in gross as a condition precedent to the right of the remaindermen to receive the balance of the fund, the gifts to the life beneficiaries as well as to the charities were vested although enjoyment of the gift to the latter was postponed until the death of the last life beneficiary or a period of forty years.
2. Since the testamentary trust in such case provided for vested interests both to life beneficiaries and to remaindermen, even though the duration of the trust could have exceeded lives in being and twenty-one years, the rule against perpetuities is not violated and the trust is valid.
3. In such case, where all the life beneficiaries have deceased and all the remaining interested parties either pray for termination of the trust or do not object thereto and no useful purpose will be served by continuation of the trust, it should be terminated and the balance of the fund paid to the named charities, both in existence, as remaindermen.
PETITION, by the plaintiff, as testamentary trustee, for instructions and advice. The following case was reserved and transferred by Grant, J.
"This case arose as a Bill for Instructions filed by the. Citizens National Bank as Trustee under the will of John E. French, late of Bradford, New Hampshire. Defendant Ernest R. D'Amours has appeared and answered said Bill as Director of the Register of Charitable Trusts of The State of New Hampshire representing the public interest in the matter, with the other defendants having failed to appear and answer. The following facts have been agreed to between the parties:
"1. That the Citizens National Bank was duly appointed Trustee under the will of John E. French, late of said Bradford, in accordance with a decree of the Probate Court of Merrimack County entered March 8, 1932.
"2. Paragraph 16 of the Will of said John E. French provides as follows:
`When my Executors close my estate I direct that all the money left after all bequests are paid, be paid to the Trustee of my Estate and be held and disposed of as I direct by said Trustee of my Estate. I direct that it shall be invested in at least two good Savings Banks in New Hampshire the income from the same be paid out annualy as it can be collected to the below named persons during their natural lives, to be paid equaly to each one named, Mabel P. Morgan, my Niece, Sarah M. Cheney my Niece, Susie E. Cheney our friend of Bradford, N.H., and Frank B. Day of Kensington, Conn. my wife's nephew. If Mabel P. Morgan deceases before the length of time this is to run I direct her part of this income to be paid to Herbert R. Morgan, her husband if alive, same as it was to Mabel. If Frank B. Day deceases before the length of time this is to run I direct his part of this income to be paid to his wife, Florence S. Day, if alive same as it was to Frank. The Trustees to take out their pay for services annualy. Then all balance remaining at the end of forty years, this is to run, I give bequeath one half to St. Peters Lodge of Masons No. 36 of Bradford, N.H., if they are holding their Charter. The other half to the First Baptist Church of Bradford Village. If St. Peters Lodge or the Church is out of existance then, or either one, so not to receive this money, I give their part to the Town of Bradford.'
"3. That the said Mabel P. Morgan, Sarah M. Cheney, Susie E. Cheney, Frank B. Day, Herbert R. Morgan and Florence S. Day, named in Paragraph 16 of said Will, are all deceased.
"4. That St. Peters Lodge of Masons No. 36 of Bradford, New Hampshire is still holding its Charter and that it and the First Baptist Church of Bradford Village, New Hampshire, are both presently in existence.
"The following questions raised by the petitioner in its Bill are reserved and transferred without ruling:
"(a) Has said Trust created by Paragraph 16 of the Will of John E. French terminated?
"(b) If said Trust has terminated, to whom shall your petitioner pay the balance of said Trust as legally entitled thereto?"
Kenneth E. Shaw and Shulins Duncan for the plaintiff.
Ernest R. D'Amours, Director of Charitable Trusts, pro se.
A trust that is dead but cannot be buried is a minor disaster that the progressive development of the law of trusts seeks to avoid or alleviate whenever possible. In the present case termination of the trust is sought to prevent the trust from continuing in a dormant state until 1972. Whether this relief can be granted is necessarily dependent upon a proper construction of the trust provisions. 4 (Part 2) Bogert, Trusts Trustees, s. 1002.
In preliminary summary the testamentary trust in the sixteenth and residuary clause of the will provided that the income was to be paid equally to four named beneficiaries for life or to the respective spouses of two of them if they should die during the term of the trust, and the balance remaining at the end of forty years was to be divided equally between two named charities and in case either should not be in existence, it was to go to the town in which the testator resided. It has been suggested in the briefs of counsel that this trust may violate the common-law rule against perpetuities and that therefore the doctrine of Edgerly v. Barker, 66 N.H. 434 and Merchants c. Bank v. Curtis, 98 N.H. 225, should be invoked to save the trust. We find it unnecessary to reach that point since a reasonable construction of the will indicates that the testamentary trust was valid even though "crudely drawn" (Adams v. Hospital, 82 N.H. 260, 261) by the testator. In this connection it should be noted that the authorities are in general agreement that there is constructional preference for an interpretation of the will which results in a valid rather than a void disposition and that a construction which avoids the application of the rule against perpetuities is preferred to one that will offend the rule. 3 Simes Smith, The Law of Future Interests (2d ed. 1956) s. 1288. VI American Law of Property, s. 24.45; Restatement, Property, ss. 375, 377, comment c.
The fact that the will contains some seeds of ambiguity (Wilkins v. Miltimore, 95 N.H. 17, 18) does not deprive it of the benefit of the single broad rule of construction prevailing in this jurisdiction which gives maximum validity to the testamentary disposition whenever consistent with the terms of the will as a whole. In re Lathrop Estate, 100 N.H. 393, 395; Merchants c. Bank v. Curtis, supra, 230; V American Law of Property, s. 21.3c; Restatement, Property, s. 243 (c).
The sixteenth and residuary clause of his will bequeathed the income of the trust fund to the beneficiaries "during their natural lives." These gifts would terminate at the death of the beneficiaries or in forty years, at which time the will provided that the balance should go to the two named charities. However the will as a whole gives no indication that the testator considered a forty-year period in gross as a condition precedent to the right of the remaindermen to receive the balance of the fund. It has already been decided that the gift to the life beneficiaries was vested. Citizens' Nat. Bank v. Morgan, 94 N.H. 284, 288, 289. The gift of the remainder to the charities was likewise a vested gift although the enjoyment thereof was postponed until the death of the last named life beneficiary or a period of forty years. Upton v. White, 92 N.H. 221, 226.
Under the common-law rule against perpetuities, a trust is not invalid, either in whole or in part, merely because the duration of the trust may exceed lives in being and twenty-one years, if all the interests vest within the period. Restatement, Property, s. 378. Since the sixteenth clause of the will provided for vested interests both to life beneficiaries and to remaindermen, even though the duration of the trust could have exceeded lives in being and twenty-one years, the trust was valid. Restatement (Second), Trusts, s. 62, comment n (1959).
"The beneficiaries of a trust, if all consent and none is under an incapacity, can compel its termination if the continuance of the trust is not necessary to carry out a material purpose of the trust, although the period fixed by the terms of the trust for its duration has not expired." Restatement (Second), Trusts, s. 337, comment a. Eastman v. Bank, 87 N.H. 189; Bellows v. Page, 88 N.H. 283. In the present case all the life beneficiaries have deceased and all the remaining interested parties either pray for the termination of the trust or do not object to it. Inasmuch as the trust will serve no useful purpose if continued for another twelve years and the charities are presently in existence, it can and should be terminated without interfering with any material purpose of the trust. See IV Scott on Trusts, s. 367A, pp. 2623, 2624.
Because the trust should be terminated the trustee is advised that the balance of the trust fund should be paid in equal shares to the two charities mentioned in the last sentence of the sixteenth clause of the will. This construction of the trust and its termination are consistent with the legitimate wishes of the testator, however inartfully expressed. It is likewise consistent with the basic purposes of trust law as expressed by an eminent authority. "The evolution of the trust has been a great adventure in the field of jurisprudence. It has not ended. As long as the owner of property can dispose of it in accordance with his legitimate wishes, the great adventure will go on. The law of trusts is living law." IV Scott., Trusts (2d ed. 1956) Epilogue, p. 3439 at p. 3440.
Remanded.
All concurred.