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District Court of Appeal, Second District, Division 1, California.


Civ. 14569.

Decided: May 11, 1945

Roth & Brannen and David H. Paltun, all of Los Angeles, for appellant. Julius V. Patrosso, of Los Angeles, for respondents.

By his last will decedent left the residue of his estate in trust for life to his surviving daughter with remainder to her issue, upon contingencies hereafter to be discussed. Thereafter, and shortly before his death, by a codicil to his will he gave to his nurse, a stranger in blood, $15,000. When he died his only next of kind were his daughter and one granddaughter, issue of his daughter.

The granddaughter petitioned the Probate Court to revoke the codicil, upon the ground of undue influence. The nurse's demurrer to the petition was sustained and judgment rendered in her favor, for the reason that the granddaughter was not an interested party, having the right to contest the will as provided in Section 370 of the Probate Code. And this is the sole question involved in this appeal.

The terms of the trust pertinent in this respect are as follows:

‘4. To hold * * * in trust as aforesaid and to pay the net income, thereon quarterly to my daughter, Sylvia Plaut Low, for and during the term of her natural life; and upon her death to pay, transfer, set over and convey the corpus thereof to such one or more of her issue, in such estates and upon such trusts as she shall be last will and testament or any codicil thereto in writing appoint; and in default of appointment, to divide the same among her issue, equally, per stirpes and not per capita. In the event, however, that my daughter shall survive all of her issue so that there shall not be any of her issue living, although she still is alive, then and in that event, anything hereinabove to the contrary notwithstanding, the trust shall terminate and my said daughter be entitled outright to all of the trust estate. * * *;

‘5. In the event that the issue of my daughter shall take in default of appointment, then my trustees shall during the minority of such issue continue to hold the corpus of any such issue and apply the income thereof to the support, maintenance, and education of such issue during his or her minority and shall not pay any part thereof to any guardian of such issue and pay the corpus of such share to such issue on such issue attaining the age of twenty-one years, unless such issue shall have been born in my lifetime, in which event, my trustees shall continue to hold the share of the corpus of my estate going to each of such issue in trust until such issue born in my lifetime shall respectively attain the age of twenty-five years and pay quarterly the income thereon to such issue and upon such issue respectively attaining the age of twenty-five years, my trustees shall pay, transfer and set over to such issue respectively one-half of the corpus then held in trust for him or her, and shall continue to hold the other half in trust until he or she shall attain the age of thirty years, and shall pay quarterly the income thereon to him or her and upon such issue respectively attaining the age of thirty years, shall pay, transfer, and set over to such issue the balance of the corpus to which such issue respectively shall be entitled, together with accumulations of income thereon, the trust thereupon terminating as to him or her then thirty years of age. The provisions of this paragraph shall, however, apply only with respect to such of the issue of my daughter as take in default of testamentary appointment by her.’

These provisions so far as here applicable may be more briefly stated as follows: If the mother dies having exercised her power of appointment and appointed to her issue the trust estate, such issue takes accordingly. If the mother fails to exercise her power, upon her death the granddaughter, or her issue per stirpes, will take ratably with other issue of the mother. If born after testator's death, the trust is continued until such issue reaches the age of 21 years, income in the meantime to be applied to their support. If born prior to testator's death, the trust is continued until such issue attains the age of 25 years, when one-half corpus will be distributed to them, and 30 years, when the remaining one-half of the corpus will be distributed to them, income in the meantime to be applied to their support.

In support of the judgment respondent contends: Firstly, that whatever the granddaughter takes in the trust estate is a mere possibility which does not amount to such interest in the decedent's estate as will enable her to contest his will; and, secondly, in any event the trust is void because it attempts to extend the power of alienation beyond the period permitted by law.

It is unnecessary to decide whether under the power of appointment the granddaughter may be excluded entirely from sharing in final distribution of the trust estate. Perhaps it would do violence to the language of the power to say that if the donee were to have other issue she must appoint at least some fair share of the trust estate to the petitioner. But if it were necessary to ascertain the intention of the testator from a consideration of the will as a whole, and the facts and circumstances surrounding the making of it, it is difficult to believe that he intended to give his daughter the power to deprive this petitioning grandchild of any part of the residue of the trust estate. However, assuming such to be its meaning, it may be separated from other parts of the will and disregarded, to give effect to petitioner's remainder contingent upon the mother's failure to exercise the power. In re Estate of Troy, 214 Cal. 53, 3 P.2d 930.

As stated, in the event the mother fails to exercise her power of appointment, the trust estate is finally to vest in her issue; (1) upon attaining the age of 21 years, if born at any time during the lifetime of the mother, and (2) upon attaining the age of 30 years if born during testator's lifetime.

Since the decision in the Estate of McCray, 204 Cal. 399, 268 P. 647, there should be no confusion in California relative to void future interests. In that case it is stated in 204 Cal. at page 406, 268 P. at page 650: ‘The rule against restraints on alienation has been, in some cases, confused with the rule against perpetuities; but the two rules, while having the same end in view, viz. that of preventing undue interference with the freedom of transfer of property, are of entirely different origin and application. The rule against perpetuities, ingrafted upon our system by the Constitution, relates only to future interests in property, the vesting of which is to be postponed beyond the allotted time. The rule relating to restraints on aliention, on the other hand, is statutory in origin, and has reference to an undue prevention of the transfer of estates already vested.’

The trust now under consideration provides that the corpus shall vest in the testator's grandchildren when they reach the age of 21 years after the death of their mother, testator's daughter. There is no restraint against alienation because the trustee is given power of sale as to all of the trust property. Therefore, the rule to be applied is that known as the rule against perpetuities, to be found in Section 9 of Article XX of the State Constitution. Neither our Constitution nor our statute defines what is meant by the word ‘perpetuities' as so used; but we may assume, as the Supreme Court did in the McCray case, 204 Cal. at page 405, 268 P. at page 649, ‘that the provision of the Constitution which forbids, but does not define, perpetuities has, reference to the rule which had become crystallized under the English common law, that rule merely provides that ‘all future estates' which may ‘arise by way of executory devise, conditional limitation, or shifting and springing uses, must vest within a life or lives in being at the death of the testator and twenty-one years; and in case the person in whom the estate or interest should then vest is en ventre sa mere, nine months more will be allowed; and all estates created as aforesaid, and so limited that they not vest within that time, are void.’'

There is no violation of the rule against perpetuities in the trust here in question, because the whole estate is to vest in the beneficiaries during the life of the daughter and within 21 years thereafter.

There is of course no need to discuss the other provision of the trust to the effect that the corpus under certain contingencies shall vest in grandchildren living at testator's death when they attain the age of twenty-five years, because, obviously, such beneficiaries will be living persons when the trust comes into existence at testator's death.

Inasmuch as some considerable part of the briefs has been devoted to a discussion upon the assumption that the two trust provisions mentioned constitute an unlawful restraint upon alienation, it may be observed that if either of them were a restraint upon alienation, such a restraint would not be unlawful and the trust in this respect would not be void. The first comes within the exception in Civil Code, section 772, to the general rule stated in Civil Code, section 715, i.e.: That the absolute power of alienation cannot be suspended for a longer period than a life in being at the creation of the limitation. Civil Code, section 772, provides that a contingent remainder in fee may be created on a prior remainder in fee if limited to take effect upon any contingency by which the estate may be determined before the final beneficiaries become 21 years of age. The rule against perpetuities is not violated in a devise to children of a person living at testator's death, to be finally distributed when the youngest of such children becomes 21 years of age. This is so because it must necessarily take effect within a life or lives in being and 21 years thereafter. When it is applicable, a fair construction of Civil Code, section 772, is to interpret it in practical effect to allow a suspension of the power of alienation for the same length of time permitted as to perpetuities. In re Estate of Harrison, 22 Cal.App.2d 28, 70 P.2d 522. Inasmuch as the trust estate is to go to the daughter's issue upon attaining the age of 21 years, and as this must be during the lifetime of the daughter and within 21 years thereafter, the rule against perpetuities is not violated, in view of the exception in Civil Code, section 772, there is no restraint upon alienation beyond the period permitted by law. In re Estate of Harrison, supra.

The second provision above mentioned could not be a restraint upon alienation because all members of the class must be living at the death of testator. Civil Code, Sec. 715; Estate of McCray, supra.

Therefore, petitioner has such an interest in this probate estate as might be impaired to the extent of $15,000 if the codicil giving that sum to the nurse is admitted to probate as part of the will. And the petitioner has the right to have her day in court and prove if she can that the codicil was the result of undue influence. In re Estate of Land, 166 Cal. 538, 137 P. 246.

The judgment is reversed.

DRAPEAU, Justice pro tem.

YORK, P. J., and WHITE, J., concur.