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of said estate of William Walkerly, deceased, hereinafter par-
ticularly described, and now remaining in the hands of said ex-
ecutors, and any other property now tdown or which may here-
after be discovered which may belong id said estate, or in which
the said deceased may have- any interest, be and the same is
hereby distributed ubfo Martin Bacon, Frank Barker, and Henry
Davis HawkS; i& trust, for the following purposes and uses, to
wit: .

. ''FiHiti ^o take the possession, charge, and management
thereof, and to collect the rents, issues, and profits thereof.

"Second. Out of the income or rents or profits of said tnut
estate, to pay semi-annually $2,500 to Blanche Walkerly-Bur-
bank, formerly Blanche M. Walkerly, and $2,500 to William
Martin Walkerly, a minor, and to distribute annually the residue
of the rents and profits of said trust estate, after the aforesaid
payments and expenses of the trust property have been paid
equally among the nephews and nieces of said William Walkerly,
deceased, and upon the death of any nephew or niece his or her
share to be divided equally between his or her child or children,
share and share alike.

"Third. To sell and convey all the trust property and estate
as soon as practicable, and convert the same into money, and dis-
tribute the same as follows:

"1. Out of the proceeds obtained from the sale of the Walk-
erly block in San Francisco, hereinafter mentioned, $100,000 to
Blanche Walkerly-Burbank, with interest thereon from the 27th
day of November, 1893, at the rate of five per cent per annum,
payable semi-annually.

"2. Out of the proceeds obtained from the sale of the Walk-
erly block in San Francisco, $100,000 to said William Martin
Walkerly, a minor, with interest thereon from the 27th day of
November, 1893, and after deducting therefrom said sum $2,000
paid as attorney's fees to •*• Arthur Rodgers, the attorney of
said minor, appointed heretofore by this court, and interest aa
stated in the decree.

Digitized by



Sept 1895.] In re Walkerlt. lOS

^3. The remainder of the proceeds of the sale of said Walk-
eriy block in San Francisco, and all other property of said estate,
to be equally divided among the following-named persons.
The nephews and nieces and the children of deceased nephews
and nieces are then named, and their respectave shares allotted to

The residue so distributed to the trustees comprised the Walk-
erly block, block 121 in Oakland, which had been set apart to
Blanche Walkerly and the child as a homestead during her
widowhood, and personal property consisting of moneys to the
amount of four thousand six hundred and fifteen dollars, and
certain stock certificates, judgments, and claims of considerable
amount, but small actual yalue.

The first proposition urged by appellants against the decree
may be thus stated: The decree declares trusts other and differ-
ent from those set up by testator in his will. The trusts sought
to be established by testator in his will are void.

The trust declared by the decree, read by itself and apart from
the will whose provisions it is supposed to formulate, is legal
and requires no independent consideration. But does it fairly
interpret and represent the trusts sought to be created by the
will? This vital point must first receive attention.

Omitting from present consideration the language of the
codicil, Walkerly bequeathed and devised the residue of his
estate to the trustees named upon certain defined trusts: 1. To
pay an annuity of two thousand four hundred dollars to his
widow during her life, making the annuity a charge upon the
Walkerly block; 2. To pay an annuity of five hundred dollars a
year to his sister during her life, and upon her death to her hus-
band during his life; 3. Annually to distribute the remainder' of
the net income and profits of the estate to testator's nephews and
nieces, and, upon the death of •** any nephew or niece, to dis-
tribute his or her share among the children of such decedent.
The trusts so declared belong to those classes of express trusts
which as to real property are alone permitted to be created by
our statutes: Civ. Code, sec. 857, subds. 2, 3. So far, then, as
concerns their objects and purposes up to this point they con-
travene no law and are undoubtedly legal.

But there is still to be considered the life of the trust — the
event upon the happening of which, or the time upon the arrival
of which, the testator has declared it shall cease and determine.
These provisions are found in sections 5 and 7 of the will above
quoted. At the expiration of twenty-five years from the date

Digitized by


104 Lf BE Walkbbly. [Cal^

of testator's death the trnstees are required to sell all the trust
property, and to divide the proceeds among the then living
nephews and nieces, or their heirs, the ^'descendants or heirs'' of
a deceased nephew or niece taking collectively the share of the
ancestor. That there may be no room for construction of hia
meaning as to when the sale shall be mado, the testator further
declares in the same connection that ''no final sale or distribu-
tion of the trust estate shall be made during the lifetime of my
wife, Blanche M. Walkerly, but only after the expiration of
twenty-five years from date of my death, and after her death."

This language is certain, precise, and free from doubt. The
testator had left, as a legacy to his wife, an annuity of two
thousand four hundred dollars, the payment of which was made
a charge upon the most valuable portion of his estate, the Walk-
erly block. His special purpose was to preserve this property
unaliened and inalienable for at least twenty-five years; for a
longer period if his wife should live longer, but, if she should
die sooner, still for twenty-five years. This purpose is made
manifest, not only from the clauses of the trust already discussed,
but in addition by the exemption of this property from the
operation of the power of sale conferred in the seventh para*
graph of the will. To the ®*"^ grant of power to sell, therein
made, is expressly attached a reservation excepting this property.

Turning now to the codicil, which is to construed with the
main instrument, it will be seen that the testator's declared
purpose therein is to make a more liberal provision for his widow
and for the child with which he has been informed she is preg-
nant. This he does by revokiug the annuity and giving her a
present legacy of one hundred thousand dollars, with payment
only deferred. It is to be paid "when the Walkerly block shaU
be sold as described and provided for in my will," and in the
mean time to be a charge upon that property. There is here not
only no modification of the original time of the sale of this land
and the extinguishment of the trust, but the provisions of the
will in this regard are referred to with particularity as fixing the
time of pajnnent. The circumstance that the time of payment
thus fixed must be after the death of the widow, and that there-
fore the legacy could not be paid to her, cannot aflfect or modify
the terms of tarust. The legacy is put wholly without and made
entirely independent of the trust except as to the date of pay-
ment. It is a present gift, vesting immediately, and, if the con-
dition deferring the time of its payment is repugnant to it as
being impossible upon its face, the condition would be void:

Digitized by


Sept 1S95.] In be Walkekly. 106

Hone V. Van Schaick, 20 Wend. 668; Oxley y. Lane, 85 N. T.
350. In passing may be pointed out the radical and important
distinction between the present gift to the wife and child each
of one hundred thousand dollars, to be paid when the Walkerly
block is sold, and the future interests of the nephews and nieces
to whom nothing was directly given. All of the residue was*
deyised to the trustees, who were to sell as provided, and, upon
■ale, to distribute the proceeds to the nephews and nieces who
should be then alive, and the ''descendants or heirs'' of those
who might be dead.

The legacy to the child presents no features meriting special

•*• No other conclusion, therefore, can be reached than that
the general purpose of the testator as to all his property, clearly
expressed by his will, was that it should be held by the trustees
for twenty-five years before distribution, and that his special
purpose as to that particular property called the Walkerly block
was that in no event should it be sold or aliened before the ex-
piration of twenty-five years from his death.

But the trust estate consisted: 1. Of the Walkerly block;
2. Of the homestead block 121 in Oakland; and 3. Of personal
property — and, as the terms and conditions of the trusts are not
uniform as to these, a separate and more particular consideration
of them and of the law bearing upon them becomes necessary.

We proceed to consider:

1. The trust declared upon the Walkerly block.

This property comprises by far the greater portion in value of
the testator's estate. It was devised to the trustees upon the
trusts indicated, namely, to manage the property and apply the
proceeds for the use of the persons designated, and, at the ex-
piration of twenty-five years, or if the widow should at that time
be alive, then upon her death, to sell the property and distribute
the proceeds among the then living nephews and nieces and the
''descendants or heirs" of those who might be dead. The
purposes indicated come within the purview of subdivisions 1
and 3 of section 857 of the Civil Code. The fatal defect in the
trust is that it provides for an absolute period of years for its
determination, during which period the power of alienation is

The absolute power of alienation cannot be suspended, by
any limitation or condition whatever, for a longer period than
during the continuance of the lives of persons in being at the
creation of the limitation or condition": Civ. Code, sec. 715.

Digitized by


iUti In B£ Walkbrly. [CbL

"Every future interest is void in its creation which, by any
possibility, may suspend the absolute power of alienation for a
longer period than is prescribed in this •^'^ chapter. Such
power of alienation is suspended when there are no persons in
being by whom an absolute interest in possession can be con-
veyed": Civ. Code, sec. 716.

"The suspension of all power to alienate the subject of a trust,
other than a power to exchange it for other property to be held
upon the same trust, or to sell it and reinvest the proceeds to be
held upon the same trust, is a suspension of the power of aliena-
tion, within the meaning of section 716": Civ. Code, sec. 771.

"The delivery of the grant, where a limitation, condition, or
future interest i» created by grant, and the death of the testator,
where it is created by will, is to be deemed the time of the crea-
tion of the limitation, condition, or interest, within the meaning
of this part of the code": Civ. Code, sec. 749.

It would seem as though all need of discussion were foreclosed
as to the trust under consideration by the plain terms of the coJe
above set forth, yet, because of the great value of the property
involved, and the serious consequences which must follow to the
interests of respondents, it would perhaps be unjust to leave this
consideration without further amplification. We will, therefore,
discuss, 80 far as we have been able to follow theAi, the proposi-
tions made by respondents in support of this trust

A perpetuity is any limitation or condition which may (not
which will or must) take away or suspend the absolute power of
alienation for a period beyond the continuance of lives in being.
The absolute power of alienation is equivalent to the power of
conveying an absolute fee: Chaplin on Suspension of Alienation,
sec. 64. The law against the suspension of the power of aliena-
tion applies to every kind of conveyance and devise. It applies
to all trusts, whether created by will or deed, whether providing
for remainders or executory devises, or, as here, merely restrain-
ing the power of alienation for a fixed period of years, and then
providing for sale with gift over. In short, it "covers the entire
•** field of estates, interests, rights, and possibilities'*: Chaplin
on Suspension of Alienation, sec. 2. Says Perry: '*A per-
petuity will no more be tolerated when it is covered by a trust
than when it displays itself undisguised in the settlement of a
legal estate** (Perry on Trusts, sec. 382), and section 771 of the
Civil Code is but an enactment of this rule.

Every express trust, valid in its creation, vests the whole estate
in the trustees. The beneficiaries take no estate or interest in

Digitized by


Sept. 1895.] Ih bi Walkebly. 107

the property, but may enforce the performance of the trust: Civ.
Code, sec. 863. If this trust be not vahd in its creation, the
trustees would take no estate, but neither would the beneficiaries
whoee rights are dependent upon the validity of the trust. If it
be valid, then the *Vhole estate'* vests in the trustees. The
"whole estate," as has been pointed out (Embury v. Sheldon, 68
N. Y. 227), means the whole of such an estate as is necessary to
the performance of the trust. In the one under consideration it
embraces the whole legal and equitable estate which the testator
enjoyed, since no less would be sufficient to enable the trustees
to carry out the purposes: 1. To apply the income for twenty-
five years (Civ. Code, sec. 857, subd. 8); and 3. At the expira-
tion of that time to sell the property and dispose of the proceeds:
Civ. Code, sec. 857, subd. 1. The beneficiaries herein then take
no estate as such, their interest being the right to the enforce-
ment of the trust

But, if we understand the position of respondents, it is con-
tended that the nephews and nieces take a future estate, which
future estate is vested and is alienable, and that therefore it is a
valid estate, since only those future interests are void which by
possibility may unduly suspend the power of alienation. Fol-
lowing this argument, and for this purpose treating the interest
of the beneficiaries as a future interest or estate within the con-
templation of the code (Civ. Code, sec. 716), it may be first sug-
gested that all expectant estates, whether vested in interest, or
contingent with a vested right, or entirely ***• contirgent, pass
by succession, will, and transfer, like present estates and inter-
ests: Civ. Code, sec. 699. But the fact that such 'nterests may
pass does not relieve from the operation of the rule, unless there
are persons in being who, by combining and conveying all their
distinct interests created by the original grant or devise, can pass
an absolute interest in possession* Conceding that the future in-
terest of the beneficiaries is vested in the sense in which re-
mainders are spoken of as vesting, and that the interest would
thus be alienable, it still is not such an interest as would by trans-
fer carry an absolute interest in possession. As is pointed out by
the court in Vanderpoel v. Loew, 112 N. Y. 167, the vesting of
an estate involves absolute alienability only so far as that particu-
lar estate is concerned. The lact that a given remainder is
vested renders it absolutely alienable, so far as it is itself con-
cerned, but the absolute fee may at the same time be inalienable.
Therefore, to convey this absolute interest in possession the bene*
ficiaries would be compelled to unite with their conveyance that

Digitized by


108 Ln b£ Walkekly. [CaL

'of the trustees in whom the fee is vested. But the trustees can-
not convey until the expiration of twenty-five years. An attempt
by them to convey before that time would contravene the trust,
and be a void act (Civ. Code, sec. 870), and so even by thia
method of progression our path leads to that barrier of per-
petuity which cannot be surmounted.

So, even though the beneficiary should be a remdnderman
under such a trust as this, he still could not alienate the land
within the trust period so as to avoid the statute. Such a trust
cannot be terminated or destroyed during the period fixed for the
existence, even by the consent nnd joint act of all the trustees
and beneficiaries: Douglas v. Cruger, 80 N. Y. 15; Penfield v.
Tower, 1 N. D. 216.

Hence the question whether the interest of the beneficiaries is
contingent or vested is here of no possible moment. Tlie abso-
lute alienability required by section 715 of the Civil Code does
not imply vesting, and it ®^® affords no escape fruin the opera-
tion of the rule, because the interest which the beneficiaries take
may be relieved from uncertainty as to persons or event. When
so relieved the interest may be said to be vested. But it is not
such a vesting nor yet such an interest as removes the bar of the
statute, since all of the interests and estates, contingent and
vested, cannot convey the fee so long as the terms of the trust
from which alone their interests are derived stand in the way.
The perpetuity here does not result from too remote limitations
or the failure of future estates to vest, but it arises by the direct
act of the testator in forbidding his trustees to alienate for a
period not tolerated by the law.

Nor is the twenty-five years a ^'condition" which may be re-
jected as void because repugnant to the interest conveyed. It
is a limitation, a restraint upon alienation, forming an integral
part of the trust. To the constitution of every valid ex-
press trust it is essential that there should be a trustee, an
estate conveyed to him, a beneficiary, a legal purpose, and a legal
term. While equity will, in certain instances, make good the
absence of the first requisite, if the <5ocond or third be lacking, or
the fourth or fifth be illegal, the trust itself must fail. Of tha
express trusts permitted by the statute there are two great
classes, one of which does, and the other does not, involve a sus-
pension of the power of alienation. Under the first class are
included all those whose very purpose and essence it is that the
land shall not be alienated by the trustee during the trust term,,
and where, consequently, a sale by him would be in direct con-

Digitized by


bept. Ib95.] Iv BE Walkbblt. 109

travention of the trust. In the case of such express trusts m
occasion the suspension of the absolute power of alienation, the
term of duration is the vital subject of inquiry: Chaplin on Sus-
pension of Alienation, 146, 148.

Trusts such as these under consideration in their very nature
operate to suspend the power of alienation. That power must
be suspended in the one case, while the trustee is distributing the
rents and profits, and in the ^^ other case it is suspended by
the express duty imposed upon the trustee to sell only at the ex-
piration of a fixed period.

The law has seen fit to insist that the measure of the period of
suspension shall be lives in being, and^it will not countenance the
suspension for any fixed period or term of years not depending
upon the duration of life, for the sufficient reason that during
the time of such a limitation, however short, the person or per-
sons capable of conveying the absolute interest might die — a
possibility not to be endured. So it happens that whenever a
testator, through temerity or ignorance, violates the plain man-
date of the statute, as in this case, and creates a trust by which
the absolute power of alienation is sought to be suspended for a
term of years, he must pay the penalty of bis rashness or folly in
the destruction of his cherished design.

Snch, though grievous to the beneficiaries, have always been
the necessary and logical decisions of the courts, and the books
abound in cases which, while monuments to the learning of the
judges, are equally monuments to the persistency of testators or
to the recklessness of their advisers. Thus it is, as is said by the
vice-chancellor in Field y. Field, 4 Sand. Ch. 528, that ''the
statute restricts the suspension of alienation and ownership to
lives and lives only. It does not admit of a suspense for a term
of years, however short, nor one dependent in part upon life and
in part upon a fixed period of time/* The rule has been applied
in New York alone to terms of varying length of from twenty-one
years to three, from the leading case of Hone v. Van Schaick, 20
Wend. 568, through a long and unvarying series of judicial de-
terminations (BoUes* Suspension of Alienation, note to section
78 where cases are collated), while in other states the authorities
are as uniform, if not so numerous: Mandelbaum v. McDonnell,
29 Mich. 78; 18 Am. Rep. 61; Farrand v. Petit, 84 Mich. 671;
De Wolf V. Lawson, 61 Wis 473; 50 Am. Eep. 148; Penfield r.
Tower, 1 N. Dak. 216.

•*■ Nor can the doctrine of equitable conversion be invoked
to aid this trust. If we understand the argument of counsel

Digitized by


110 In BK Walkeblt. [CaL

upon this pointy they urge that under that doctrine the land
should be treated as now sold and converted into personal prop-
erty^ and that such a trust in personal property would be valid,
and that, therefore, this trust must be upheld. This would not
only be a surprising application of the doctrine, but would be a
novel and startling method of evading the law against perpe-
tuities by invoking an equitable fiction. The rule of equitable
conversion merely amounts to this, that where there is a man-
date to sell at a future time, equity, upon the principle of regard-
ing that done which ought to be done, will, for certain purposes
and in aid of justice, consider the conversion as effected at the
time when the sale ought to take place, whether the land be then
really sold or not. But whenever the direction is for a future
sale, up to the time fixed the land is governed by the law of real
estate: Savage v. Bumham, 17 N. Y. 561; Vincent v. Newhouse,
83 N. Y. 605; Underwood v. Curtis, 127 K Y. 533; De Wolf v.
Lawson, 61 Wis. 473; 50 Am. Rep. 148. Whether a trust of per-
sonalty for a fixed term would be valid is a matter of considera-
tion hereinafter.

The intestacy of the testator as to the Walkerly block is the
harsh result which must follow this void trust, and the property
will descend to his heirs. It is true that such was not the tes-
tator's intent, but a testator must do more than merely evince an
intention to disinherit before the heirs' right of succession can be
cut off. He must make a valid disposition of his property: Har-
bergham v. Vincent, 2 Ves. Jr. 204; Hawley v. James, 16 Wend.
150; HajTies v. Sherman, 117 N. Y. 433.

2. The trust as to block 121.

The first objection presented by the appellants to the disposi-
tion of this land made in the decree is that it has been removed
from administration, and no longer forms a part of the residue of
the estate or of the trust property.

®** The argument in support of the contention is based upon
the following facts: Upon application the court set apart block
121 as a homestead to the widow and minor child "during her
widowhood.'* This life estate was terminated by her marriage
to William P. Burbank, whose wife she now is. Section 1468 of
the Code of Civil Procedure declares that if the property as-
signed as a homestead be selected from the separate property of
the deceased, the court can only set it apart for a limited period^
to be designated in the order, and the title vests in the heirs of
the deceased, subject to such order.

The claim of the widow, therefore, is that the title to block

Digitized by


Sept 1895.] In re Walkerly. Ill

121, notwithstanding the testamentary disposition made of the
property to the trustees, vested in herself and child, by virtue of
this section, eo instanti when the court made the homestead or-
der, and that consequently her subsequent marriage, while it
terminated the homestead right, had no eflfect upon the title to
the property which had vested in her as an heir of her husband.
Against this respondents urge that the word *Tieirs" was not
used in the section to exclude devisees, and that it should be
construed as broad enough to include them.

The right of testamentary disposition is itself only a right given
by statute, and may be restrained, modified, or abrogated entirely.
But still it is unquestionably the general policy of our law to
allow full power of testamentary disposition — saving as that
power may be abridged by specific enactments. The code pro-
visions making disposition of the homestead and of estates in

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