the limitation placed on Leake by Catlin is that if the ultimate takers are not described as a single class but rather as a group of subclasses, and if the share to which each separate subclass is entitled will finally be determined within the period of the rule, the gifts to the different subclasses are separable for the purpose of the rule.
In the instant case, the language of the will compels the Court to read it as a devise of remainders to subclasses and within the rule of Catlin. The provision in issue reads, in part:
'* * * and each of the children of said adopted daughter shall take only for and during the terms of their respective lives and upon the death of each the share of the one so dying shall go absolutely to the persons who shall then be her or his heirs at law * * *'. (Emphasis supplied.)
The Court deems it advisable to mention that it thoroughly explored the possible applicability here of the Rule in Shelley's Case. Prior to January 2, 1902, this ancient principle of law
was in force in the District of Columbia.
Noyes v. Parker, 1937, 68 App.D.C. 13, 92 F.2d 562. If it could be utilized in the case at hand, the remainders limited to the heirs of each of Hannah's children would be converted into a remainder in the child himself. This, for one thing, would save the two remainders found invalid and prevent their defaulting to the heirs of the testator.
Assuming, without deciding, that the remainders here are equitable (because the trust is active), nevertheless the rule does not apply because the remainders were not limited to 'heirs' but instead went to 'her or his heirs at law according to the laws of descent now in force in the said District of Columbia'.
When a remainder in fee after a life estate fails, there is no enlargement or diminution of the life estate; rather there is then a reversion in the heirs of the testator. Hilton v. Kinsey, 1950, 88 U.S.App.D.C. 14, 17, 185 F.2d 885, 888, 23 A.L.R.2d 830; Simes and Smith, supra, at note 10 § 1263, and numerous cases cited. The two one-sixth shares held invalid shall pass to the successors in interest to the heirs of Abraham D. Hazen.
Since it is undisputed that the late George E. Sullivan, an attorney, had a contingent fee contract, dated March 16, 1922, with the heirs of the testator, entitling him to twenty percent of whatever property was finally held to pass to the heirs of the testator by virtue of the failure of the remainders, and since this has now been brought to fruition, the estate of Edith B. Sullivan, the sole heir of George E. Sullivan, is entitled to a twenty percent share of the two one-sixth interests.
Counsel have stipulated that Hannah was referred to in testator's will as his 'adopted daughter'; there is no agreement as to whether she actually was legally adopted. No proof of a legal adoption has been offered. On the other hand, there is considerable reason to say that Hannah never was, in fact, legally adopted. In 1927 a full hearing was held on the matter and at that time Hannah's husband, mother and numerous friends were alive and testified; these persons have since passed away and the Court is of the opinion that nothing could be gained by ordering a further hearing at this time.
It is clear from the transcript of the hearing that Hannah was treated by the testator and his wife just as if she were their natural daughter. She lived with them, was always referred to as 'our daughter', and used their name. Her formal wedding invitation referred to her as the Hazens' daughter; the community believed she was the Hazens' natural daughter. While there is little testimony on the question of whether she was ever legally adopted, what there is, leads to the conclusion that she had not been.
Moreover, it would appear that it was impossible for her ever to have been legally adopted since the original adoption statute provided for the adoption of 'minor children' only. 28 Stat. 687, ch. 134 (passed February 26, 1895).
Hannah was at least twenty-six years of age in 1895.
One matter remains. The Court has been urged to terminate the trust and order distribution of three-sixths of the original corpus to the life tenant, Mary. This life tenant is presently sixty-two years of age; she is a widow and has three adult children. These three children and their wives have signed an 'assignment' of their interests in the trust to Mary. Although the legal significance of this 'assignment', standing alone, is questionable, in light of the fact that the children are not their mother's heirs but only presumptive heirs until she dies, nevertheless, it is significant to show that the only persons likely to become remaindermen are willing to have the income beneficiary take the corpus. The intent of the testator is clear:
'* * * I do direct that Mary Hazen Duffey, the daughter of my adopted daughter and the namesake of my wife and for whom my wife and I have the greatest affection, shall if living at the death of her mother take a share three times as large as the share of each of the other children of my said adopted daughter * * *.'
It seems obvious that the testator had Mary's interest uppermost in his mind. Last year, Mary's share of the income from the trust amounted to $ 750.51 which was hardly sufficient for her subsistence; her needs would be amply provided for were she to receive the share of the corpus. If General Hazen were now alive, there would seem to be little doubt but that he would wish to join with Mary's children to have the trust terminated and the corpus distributed to the one for whom he had 'the greatest affection' and who was to receive 'a share three times as large as the share of each of the other children'. In light of the realities of the situation, the desire of all concerned to have the trust terminated, and the evident purpose of the will, the Court shall order the trust terminated and the corpus distributed to the life tenant. Cf. Wolcott's Petition, 1948, 95 N.H. 23, 56 A.2d 641, 1 A.L.R.2d 1323. This, however, is conditioned upon the furnishing of a bond to protect any unascertained remaindermen.
Defendant Blakelock's motion for summary judgment is granted. Defendant Mary Duffey Cramer's prayer for additional relief is granted to the extent of having her receive that portion of the corpus presently supplying the income to which she is entitled as a life tenant, conditioned on her furnishing a bond or undertaking with surety approved by the court.
Counsel will submit an appropriate order.