Decided February 2, 1932.
Devise in trust to children for life and "after the death of my last child . . . to my grandchildren then living . . . and after their decease . . . said property to be kept for their descendants . . . in the same way . . . as long as the same can be legally done." Several children and two grandchildren survived the testatrix. The children have since died without other issue. There is one great grandchild born since the testatrix's death. The trust continues as long at least as either grandchild lives. In no event can the trust continue more than twenty-one years and a fraction beyond the death of the last surviving granddaughter, but the trustee will not be now entitled to instructions in anticipation of that event as advice must be based upon the facts then existing. A trustee's opinion that the best interests of property held in trust require that the trust should be terminated is immaterial where he has been given no discretion in the matter.
PETITION, for instructions by the trustee under the will of Mary A. Ball. The testatrix created a trust providing for the payment of income to her children for life, and as follows:
"After the death of my last child, I give, devise and bequeath to my grandchildren then living the use and income of the said block to be divided among them and kept as in the case of my said children, and after their decease it is my will that said property be kept for their descendants and treated in the same way as in the case of my children and grandchildren as long as the same can be legally done."
Three children and two grandchildren survived the testatrix. The children have since died. They had no other children. There is one great grandchild, Katherine A. Bigelow, born since the death of the testatrix.
One of the grandchildren claims that the trust period has terminated, and that distribution of the principal should be made.
The trustee alleges that he is advised that they are entitled to such distribution and "that because of the conditions above described he believes that it is for the best interests of the property that the trust be terminated and the property turned over to the heirs, if the same may be legally done."
The following questions were transferred without ruling by Matthews, J.
1. Is the trust terminated under the terms and conditions of the will and are Eleanor Eastman Gale and Mary B. Bigelow entitled to have one-half of the principal of said trust fund paid to each of them free of trust at this time?
2. What is the interest of Katherine A. Bigelow in this trust fund?
3. What other interests, if any, are there in the income or principal of the trust fund?
Horace B. Gale, pro se.
Roy M. Pickard, for Eleanor E. Gale.
Philip H. Faulkner and Ernest T. Bell, Jr., for Mary B. and Katherine A. Bigelow.
The legal intent of the testatrix as expressed in the language in the will, is to be carried out. Otherwise expressed, it is her will. Edgerly v. Barker, 66 N.H. 434. Being in apparent doubt as to how far the law permits the limitation of estates, she did not undertake to express that feature of her act in concrete terms. Instead thereof she provided that the trust she created was to continue for the benefit of her descendants "as long as the same can be legally done."
In Edgerly v. Barker, supra, where the testator had placed limitations on the trust estate slightly in excess of those permitted by law, and it appeared that there was a primary intent that the devise take effect even though the precise limitation stated could not, it was held that there was a good limitation of so much of restriction as the law permits. This doctrine was approved in Wentworth v. Wentworth, 77 N.H. 400, and Flanders v. Parker, 80 N.H. 566. The Barker case is decisive of the present controversy. In the former case the intent to fix the limitation allowed by law was implied. There is no such issue here for that intent is expressed. As it could be given effect there, when found by implication, it is evident that it is effective here, when stated in terms.
The law permitted her to limit the estate for lives in being at the time the estate was created, that is, at her death. McAllister v. Elliot, 83 N.H. 225. Whether such limitation could be upon all the lives then in being, whether it should be restricted to those whose duration could be reasonably ascertained, or whether it could be limited at all by lives of those not interested in the estate, are questions upon which there is difference of opinion and which are not settled in this jurisdiction. Edgerly v. Barker, supra; Rolfe c. Asylum v. Lefebre, 69 N.H. 238.
It is not necessary to consider them here. The provisions for the devolution of the property at the death of one and another of the testatrix's descendants demonstrates that she had no other lives in mind as the measure of what she gave If she could have made any such widely measured limitation she did not intend to do so.
Adding to the words of her will the rule of law which she made a part thereof by express reference, the trust is to continue during the lives of her descendants who were living at her decease, and the life of the last survivor of them.
It is argued that the line of reasoning followed in the Barker case is unsound; and that the criticism of it by eminent authority, (Gray, Perpetuities, s. 884; 9 Harv. Law Rev. 242) expresses the correct theory. The criticism is based in part upon the assertion that the true doctrine is that the will is to be read and construed without reference to the rule against perpetuities, and after it has been so interpreted is to be measured by the rule. Another criticism of more substantial character is that by fixing the period of vesting at twenty-one years instead of forty there was a change of the class to whom the property would go. There is no occasion to undertake a revision of the conclusions reached in that case. If it were conceded that the views of Professor Gray are sound and ought to be adopted here despite the contrary conclusion in the Barker case, it would not affect the result of this controversy. This testatrix made the rule against perpetuities a part of her will. By no process of reasoning can any intent of hers to violate that rule be found. In the Barker case such an intent was expressed, in the form of a limitation violative of the rule, and the criticism of the decision has been directed against the manner in which that expression of intent was dealt with. The foundation for the argument against the Barker decision is wholly lacking here.
To prevent misapprehension, it may be added that the feature of the Barker case relied upon earlier in this opinion does not appear to have been the subject of adverse comment. Granting that the testator expressed a purpose to impose only the limitations the law allows, no one has suggested that such expressed intent should not be carried out. The criticism has been that the court used the rule which was not referred to in the Barker will to modify what the testator said in his will in transgression of the rule.
The first question transferred is answered in the negative. The trust continues as long as either grandchild lives.
The allegation of the trustee that it would be for the best interests of the property that the trust be terminated is immaterial. It is not his judgment, nor the fact that his judgment is proved to be correct, that controls. The testatrix directed otherwise. While details of administration have been changed upon proof of practical necessity (Barker v. Barker, 73 N.H. 353), no authority has been found for the proposition advanced by the trustee. The substance of the trust cannot be changed.
The other questions transferred relate to rights and the state of the title at a future time. The trustee has no occasion to be advised at present as to what his duties will be at and after the death of the last surviving granddaughter of the testatrix. If all the facts necessary to a disposition of that question were now known, it might well be argued that final instructions, covering the whole duration of the trust, should be given. It is of course evident that in no event can the trust continue more than twenty-one years and a fraction beyond such death. Whether it can continue for that period may depend upon whether there are minors who will then be the present beneficiaries. If there are not, the question will arise whether this extension of the limitation is restricted by law to provisions for the protection of minors, or whether it may be made "in gross," that is, without regard to the age of the beneficiaries. The authorities are not decisive of this issue, and it is an open question in this state. Edgerly v. Barker, 66 N.H. 434, 461.
Future events may show that advice upon this question would be superfluous. It is the practice to decline to presently deal with a supposititious situation. Nashua Trust Company v. Burke, 84 N.H. 490, and cases cited.
ALLEN, J., did not sit: the others concurred.