Opinion
The rule against perpetuities does not require that the particular individuals in whom the estate must vest shall be definitely ascertainable at the testator's death; it is enough if it is certain that they will be definitely ascertainable within the period limited after that event. A trust is not obnoxious to the rule if the beneficial interest vests within the time limited, though it may continue beyond that time. "Issue" is construed as a word of purchase unless the context shows it to have been used as one of limitation. The testatrix bequeathed to "my executor hereinafter named whom I shall constitute as trustee for the purpose," $100,000 in trust to pay the net income to his son C during his life to and for the support and maintenance of himself, his wife and children in such proportion and manner as the trustee deems for their best interest, as well as any part or all of the principal, and upon the death of the son to pay over the income to his wife during her life, and upon her death or remarriage to distribute the principal among the issue of the son in equal shares per stripes. The plaintiff was appointed the trustee in place of the husband who was named as executor and trustee, but deceased while so acting. At the time of the execution of the will and at the testatrix's death in 1912 S was the wife of C, but she was thereafter divorced and when C died in 1926 he left surviving a second wife and two children. At the decease of C the income of the trust collected prior to his death and remaining for his credit in the hands of the trustees and accrued and uncollected amounted to over $21,000. Held: 1. That the plaintiff, substituted trustee, has the same rights, privileges, powers and duties as to the payment of the principal and income of the trust fund as did the original trustee, and the provisions for the payment of income and principal to the wife of the son C, were for the personal benefit of the second wife who took the place of his divorced wife, both of these questions having been determined upon a former construction of this will. 2. That the trustee must dispose of the net income which had accrued at the death of C (a) in the payment of any of his debts incurred for the support and maintenance of himself, his wife and children, and (b) for the support and maintenance of his wife and children in such proportion and in such manner as the substituted trustee may deem for their benefit. 3. That the gift over of the income of the trust to the wife of C does not violate the rule against perpetuities, since the beneficiary will be definitely ascertainable within the period limited, and there is no rule which limits the continuance of the trust to any period of time. 4. That the disposal of the remainder among the issue of the son is invalid, since there is nothing evincing an intention on the part of the testatrix to use the term issue in its limited sense, and the remainder might vest in descendants of any degree and beyond the time limited by the rule.
Argued June 6th, 1929
Decided October 8th, 1929.
SUIT for the construction of the last will and testament of Jessie M. Converse, late of the town of Greenwich, deceased, brought to the Superior Court in Fairfield County and reserved by that court ( Jennings, J.), upon an agreed statement of facts, for the advice of this court.
On September 3d 1912, Jessie M. Converse of Greenwich deceased, leaving a will which was duly admitted to probate. Article Fifth of her will provided, among other things, as follows: "I give and bequeath unto my executor hereinafter named whom I shall constitute as trustee for the purpose, the sum of One Hundred Thousand Dollars ($100,000) in trust to hold during the lifetime of my son Edmund C. Converse, Jr., and to manage, invest and reinvest the same in such manner as my said executor shall deem best, with full power to my executor to continue any investments that I may leave in the form in which I may leave the same, and to change or vary the same from time to time, and to make any investments that he may deem proper, whether the same be authorized by law or not, and to receive the income and revenue thereof, and to pay over the net income thereof during the lifetime of my said son to and for the support and maintenance of himself and of his wife and child or children, in such proportion and in such manner as my said executor may deem for the best interest of my son and his said family, with full power to my executor in his absolute discretion, to pay over and advance from time to time any part of, or to pay over at any time all, of the principal of said trust fund to or for the benefit of my said son or his wife and children, and upon the death of my said son, if he leave a wife him surviving, to continue to hold such part of the principal of said trust fund as may be then in his hands, and to invest and reinvest the same and to receive the income and revenue thereof, and to pay over the said income unto the wife of my said son during her lifetime or until she remarry; and upon her death, or upon her remarriage or if she do not survive my son then upon his death, to distribute such part of the principal of said trust fund as may be then in his hands to and among the issue of my said son in equal shares per stripes and not per capita."
Edmund C. Converse, husband of the decedent, was constituted executor and trustee of the trust created by Article Fifth. He duly qualified as such executor and trustee and continued to act as such trustee until April 4th, 1921, when he deceased. The plaintiff was duly appointed trustee in place of the deceased, accepted the appointment and is now acting as such trustee.
The defendants are the executors of Edmund C. Converse, sometimes known as Edmund C. Converse, Jr., the son of Edmund C. Converse. He died on November 2d 1926, a resident of California. He left surviving him a widow, Estella Converse, and two children, Edmund C. Converse, 3d, and Roger Converse, a minor of the age of sixteen, who resides with his mother Judith A. Salisbury in California. At the time of the execution of the will of the testatrix and at her death, Judith A. Salisbury was the wife of the decedent known as Edmund C. Converse, Jr., but after the death of the testatrix she was divorced from Edmund C. Converse, Jr., and remarried. Bankers Trust Company of New York is the sole surviving executor of the will of Edmund C. Converse, husband of Jessie M. Converse, and residuary legatee and devise under her will. At the decease of Edmund C. Converse, Jr., the income of this trust collected prior to the date of his death, and remaining for his credit in the hands of the trustees and accrued and uncollected amounted to $21,377.77, exclusive of a deduction of $73.30 for the trustees' compensation. At the death of Edmund C. Converse, Jr., the plaintiff trustee held as the sole assets of the trust $72,000 in bonds and $144.45 in cash.
Walter N. Maguire, for the plaintiff.
David Day, for the defendants A. L. Shively and Estella Converse, executors. and Estella Converse, individually.
Ralph Royall of New York City, for the defendant Bankers Trust Company, executor.
Mark W. Norman, for the defendant Roger A. Converse.
Two of the questions reserved for our advice were determined upon a former construction of the will of the testatrix, namely, that the plaintiff, substituted trustee, "has the same rights, privileges, powers and duties with reference to the payment of the principal and income of the trust [fund] as did the original trustee," and that the provisions for the payment of income and principal to the wife of the son of the testatrix, Edmund C. Converse, Jr., were for the personal benefit of the wife of the son, Estella Converse, who took the place of the divorced wife of the son. Greenwich Trust Co. v. Converse, 100 Conn. 15, 28, 122 A. 916. The scheme of the trust fund, created by the will of Edmund C. Converse and construed by us in Cromwell v. Converse, 108 Conn. 412, 143 A. 416, for the benefit of Edmund C. Converse, Jr., the life tenant, was very similar to the trust fund created by the testatrix for the same life tenant in the will before us for construction. The question there determined as to the distribution of the income accrued prior to November 2d 1926, the date of death of Edmund C. Converse, Jr., is the question we are here asked to answer. The considerations which led us to hold that the testator in that case intended that the income from the trust fund arising prior to the decease of the life tenant should be paid to the executors of Edmund C. Converse, Jr., were dependent upon the special facts of that case, that the trustees had at the beginning of their administration decided to pay the entire income to Edmund C. Converse, Jr., for his maintenance and support and set up on books of account opened for this and other trusts an income account for him and thereafter credited all income as it accrued to him. We held that each credit made was a reaffirmation of the decision by the trustees made at the beginning of their trusteeship, revocable in the lifetime of the life tenant but irrevocable at his decease. The facts in this case merely state that there was an amount to the credit of Edmund C. Converse, Jr., in the hands of the trustees accrued and uncollected of a stated amount. This falls short of the facts of the other case; as a consequence, we cannot agree with the admission of counsel for the Bankers Trust Company that this decision controls the present case. Some of its reasoning, it is true, is equally applicable here. Quite manifestly the testatrix intended all of the income from this fund, accrued in the lifetime of the son, to be devoted by the trustee to the support and maintenance of her son and of his wife and children. The trustee was given power to make this, and only this, disposition of this income. The trustee was in duty bound to dispose of the net income which had accrued at the death of Edmund C. Converse, Jr., (1) in the payment of any debts or obligations of Edmund C. Converse, Jr., incurred by him for the support and maintenance of himself, his wife and children, and (2) for the support and maintenance of his wife and children in such proportion and in such manner as the substituted trustee may deem for their benefit.
The entire income, which had accrued, and whether collected or not, from the trust fund provided for in Article Fifth to the wife of Edmund C. Converse, Jr., surviving him, was payable to Estella Converse during her lifetime or until she remarried, and upon her decease or marriage to her estate. Since this wife might not be in being at the death of the testatrix, the defendant executors claim the limitation upon her life "is too remote and violates the rule against perpetuities." The claim can only be sustained provided (1) the nonexistence of the wife at the decease of the testatrix offends this rule, or (2) the existence of the estate in the wife at his death offends this rule by bringing the estate in her beyond the period limited by the rule. We have held that the vesting is not required to be ascertainable at the testatrix's death but only within the period limited by the rule.
The statement of our rule is unequivocal. "The plaintiff claims that the will contravenes the commonlaw rule against perpetuities. That the legal estate vested upon the death of the testator in his executors is, in respect to this point, immaterial. The law searches out the beneficial estate and demands that this shall vest within a life or lives in being and twenty-one years (or, as the case may be, twenty-one years and the period of gestation) thereafter. It does not demand that the particular individuals in whom it must be vested shall definitely ascertainable at the testator's death. It is enough if it is certain that they will be definitely ascertainable within the period limited after that event." Bates v. Spooner, 75 Conn. 501, 505, 54 A. 305.
The second ground in support of this claim is equally untenable. The period of the rule must begin "within lives in being and twenty-one years, although it may end beyond them," therefore it is not obnoxious to the rule. The Rule against Perpetuities, Gray (3d Ed.) p. 207; Colonial Trust Co. v. Brown, 105 Conn. 261, 272. 135 A. 555. When in Loomer v. Loomer, 76 Conn. 522, 57 A. 167, the validity of a trust was attacked as a restraint against alienation, we said (p. 527): "There is no rule which limits the continuance of a trust to any period of time. A trust is no more invalid for the reason that it may continue thirty years than is a life estate or estate in fee simple. The essential thing is that the beneficial interest under the trust vest in the cestui que trust within the time limited by law for the vesting of legal estates." A similar holding was made by the Supreme Judicial Court of Massachusetts in Gray v. Whittemore, 192 Mass. 367, 78 N.E. 422, upon almost identical facts.
The remainder of the trust fund under this Article is distributable, upon the death or remarriage of the wife, Estella Converse, "among the issue of my said son in equal shares per stripes and not per capita." "Issue," under our decisions, is construed as a word of purchase, unless the context shows it to have been used as one of limitation. As a word of purchase its primary and therefore presumptive meaning is heirs of the body, and includes descendants of any degree. Neither in the will nor in the surrounding circumstances is there anything evincing an intention on the part of the testator to use the term issue in its limited sense for children or grandchildren. Middletown Trust Co. v. Gaffey, 96 Conn. 61, 66, 112 A. 689; Bartlett v. Sears, 81 Conn. 34, 70 A. 33; Bankers Trust Co. v. Greims, ante, p. 36, 147 A. 290. It cannot be ascertained in whom the remainder would vest at the death of the life tenant Estella Converse. It might vest in descendants of any degree; it might, for example, include grandchildren born after the death of Edmund C. Converse, Jr. Such vesting would be obnoxious to the rule because beyond its limited period. Since the disposal of the remainder under this Article of the will of the testatrix is invalid, the remainder passed under Article Seventh, the residuary clause of the will of the testatrix, to the defendant Bankers Trust Company, as surviving executor of the will of Edmund C. Converse.
We answer the questions as follows: 1. The same as the original trustee. 2 and 3. Yes, as set forth in the opinion. 4. Yes. 5. No. 7. The substituted trustee shall pay over the remainder of the principal of the trust fund upon the death or remarriage of Estella Converse to Bankers Trust Company, sole surviving executor of the will of Edmund C. Converse. 9. No.