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AMERICAN SEC. & TRUST CO. v. CRAMER

July 7, 1959

AMERICAN SECURITY AND TRUST COMPANY, a corporation, and Trustee u/w of Abraham D. Hazen, deceased, Plaintiff,
v.
Mary Duffey CRAMER et al., Defendants



The opinion of the court was delivered by: YOUNGDAHL

Six of the eleven *fn1" defendants before the Court have moved for summary judgment. A hearing has been held and memoranda of points and authorities have been submitted. Plaintiff, trustee of a testamentary trust, is a stakeholder in this controversy among competing heirs. Since all the material facts have been stipulated, *fn2" the Court is free to render summary judgment.

Abraham D. Hazen, a resident of the District of Columbia, died in the District on December 4, 1901. His will, executed on October 16, 1900, was admitted to probate on March 11, 1902.

 Testator was survived by Hannah E. Duffey, who is referred to in his will as his 'adopted daughter'. At the time of the testator's death, Hannah had two children: Mary Hazen Duffey (now Cramer), born November 12, 1897, and Hugh Clarence Duffey, born July *fn3" 11, 1899. After the testator's death, Hannah gave birth to two more children: Depue Hazen Duffey, born October 9, 1903, and Horace Duffey, born July 8, 1908.

 The will provided for the payment of debts and certain specific bequests and then provided that the residue of the estate be put in trust for the benefit of testator's wife for life. At her death, one-half of the corpus was to be, and has been, given to testator's sister and brothers; *fn4" the other half, composed of realty, remained in trust for Hannah for life. At Hannah's death, the income was to go to the children of Hannah 'then living or the issue of such of them as may then be dead leaving issue surviving' Hannah, and then '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 according to the laws of descent now in force in the said District of Columbia'. *fn5"

 Testator's widow died on October 31, 1916; Hannah died on May 21, 1915.

 On October 5, 1917, the heirs of the testator brought an action in equity to have the provisions of the seventh paragraph of the will stricken as being in violation of the rule against perpetuities. The Supreme Court of the District of Columbia held that the interests of Hannah's children under the will were valid and the Court of Appeals affirmed. Hazen v. American Security & Trust Co., 1920, 49 App.D.C. 297, 265 F. 447. *fn6" The validity of the remainders over, after the death of each child, was expressly not ruled upon as the life estates were not 'so intimately connected with the gift over as to require us now to determine the validity of such gifts.' *fn7"

 Hugh, one of the four life tenants after the death of the widow and Hannah, died on December 19, 1928 and shortly thereafter the trustee brought a bill for instructions; this time the validity of the remainder over to Hugh's heirs was in issue. On January 2, 1930, Judge Bailey ruled that 'the remainder provided by the will after his (Hugh's) death to the persons who shall then be his heirs at law became vested within the period prescribed by law and is valid.' *fn8"

 On December 13, 1954, Depue died and for the fourth time a suit concerning this trust was started in this court. The trustees desired instructions as to the disposition of Depue's one-sixth share. While this action was pending, on December 18, 1957, Horace died. A supplemental bill was then filed, asking for instructions as to the disposition of this one-sixth share as well. The remainder over after the death of the sole living life tenant, Mary, cannot yet take effect; however, due to the request of all the parties concerned, and in order to save both the time of this court and the needless expense it would otherwise cost the estate, the Court will also pass on the validity of this remainder.

 The law that governs the questions here involved is the law in effect at the time of the testator's death: December 4, 1901. *fn9"

 The common-law rule against perpetuities, as stated by Professor Gray, is as follows:

 A gift to a class is a gift of an aggregate amount of property to persons who are collectively described and whose individual share will depend upon the number of persons ultimately constituting the class. Evans v. Ockershausen, 1938, 69 App.D.C. 285, 292, 100 F.2d 695, 702, 128 A.L.R. 177. The members of the class must be finally determined within a life or lives in being plus twenty-one years and actual periods of gestation, or the gift will fail. Put another way, the class must close within the period of the rule against perpetuities, if the class gift is to be valid. Unless a contrary intent is indicated by the testator, the class will close when any member of the class is entitled to immediate possession and enjoyment of his share of the class gift. Applying these basic principles to the trust here involved, it is seen that the life estates to Hannah's children had to vest, if at all, at the termination of the preceding life estates of the widow and Hannah. Since Hannah's children had to be born within Hannah's lifetime, and since Hannah was a life in being, the class (Hannah's children) physiologically had to close within the period of the rule. *fn11" This has already been so held. Hazen v. American Security & Trust Co., supra, at note 6. Furthermore, the remainder over at Hugh's death has been held valid. The Court now holds that the remainder limited to the heirs of Mary is valid. Both Hugh and Mary were lives in being at the testator's death; the remainders limited to their heirs had to vest, if at all, within the period of the rule. Horace and Depue were born after the testator died; the remainders over at their deaths are invalid.

 In applying the rule against perpetuities, it does not help to show that the rule might be complied with or that, the way things turned out, it actually was complied with. *fn12" After the testator's death, Hannah might have had more children; one of these might have lived more than twenty-one years after the death of all the lives in being at the testator's death. The vesting of the remainder in this after-born's heirs would take place after the expiration of lives in being and twenty-one years, since the heirs could not be ascertained until the after-born's death and an interest cannot be vested until the interest holder is ascertained. Consequently, because of the possibility that this could happen, even though, in fact, it did not, *fn13" the remainders limited to the heirs of Horace and Depue (both after-borns) are invalid as a violation of the rule against perpetuities.

 Counsel have not argued the point of whether the invalidity of the remainders to the heirs of Horace and Depue serves to taint the otherwise valid remainders to the heirs of Mary and Hugh. Of course, the remainder after Hugh's life estate has already been distributed and is not properly in issue. Nevertheless, as shall be demonstrated, it (and the remainder to the heirs of Mary) are not affected by ...


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