Dotten v. Glennie

Beach, J. The will makes no disposition of the corpus of the trust fund, and the question is how far the trust may be carried out without violating the rule against perpetuities. *474 The trust for Mrs. Dotten’s life use was good and separable. Considered by itself the trust for the use and benefit of Mrs. Dotten’s children is also good, but the continuance of the trust for the benefit of the heirs of the grandchildren of the testatrix is bad. If the trust “for the use and benefit of the children, or said children’s heirs, of said Catherine,” could be treated as two separate trusts without doing violence to the expressed intent of the testatrix, the trust for the use and benefit of the children ought to be held valid, in order to carry out the express intent of the testatrix as far as that might lawfully be done. But it is clear from the language of the testatrix that she intended the trust for the use and benefit of the children, and the trust for the heirs of deceased, to operate simultaneously and so as to produce equality of distribution among the children and the heirs of deceased children per stirpes. This being impossible under the rule against perpetuities, we think it would violate rather than carry out the express intent of the testatrix to exclude, as we must, the heirs of any deceased child from the use and benefit of the trust, and at the same time continue the trust for the use and benefit of the surviving children. The result would be that on the death of any child, his or her share would go to the surviving children until the entire income was appropriated to the last survivor, to the exclusion of the representatives of the other children. Such a result would pervert the express intent of the testatrix. Under the will the trust for children or said children’s heirs is an indivisible trust, and being void in one part is wholly void. On the death of Mrs. Dotten the trust fund became intestate estate of Mrs. Holcomb, and on the face of the will is to turned over to the executor or administrator de bonis non of Julia A. Holcomb to be administered and distributed as her intestate estate. *475 Counsel for the children of Mrs. Dotten suggests that because all the other heirs at law of Julia A. Holcomb have assigned all their right, title and interest in and to the trust fund to such children, the latter are now entitled to the principal as well as the income of the trust fund. But this is an action brought by the trustee for the construction of the will, and our advice must be limited to the construction and effect of the will. The Superior Court is advised, in answer to the first and second questions, that the grandchildren of Mrs. Dotten have no interest in the continuance of the trust, and no interest at all arising out of the will of Julia A. Holcomb in the trust fund, — a conclusion which answers the third question in the negative; and that with respect to the fourth question, the trust terminated at the death of Mrs. Dotten, and the trust fund is intestate estate of Mrs. Holcomb. No costs in this court will be taxed in favor of either party. In this opinion the other judges concurred.