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July 7, 1959

AMERICAN SECURITY AND TRUST COMPANY, a corporation, and Trustee u/w of Abraham D. Hazen, deceased, Plaintiff,
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:

 'No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.' *fn10" The effect of the rule is to invalidate ab initio certain future interests that might otherwise remain in existence for a period of time considered inimicable to society's interest in having reasonable limits to dead-hand control and in facilitating the marketability of property. The policy of the law is to permit a person to control the devolution of his property but only for a human lifetime plus twenty-one years and actual periods of gestation. With careful planning, this period could be as long as one hundred years -- and this is long enough.

 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 the two invalid remainders, since the four remainders are to subclasses and stand (or fall) separately.

 Beginning with Jee v. Audley, 1 Cox Eq.Cas. 324 (1787) and flowering with Leake v. Robinson, 2 Mer. 363, 35 Eng.Rep. 979 (Chancery 1817), there has been the curious anomaly in future interests law that if the interest of any potential member of a class can possibly vest too remotely, the interests of all the members of the class fails. In other words, the rule is that a class gift is inseparable. For example, T creates a trust to pay the income to A for life and then to pay the corpus over to such of A's children as attain the age of twenty-five. When A dies he might have a child who is not yet four years of age and who was not in being at T's death; this child would not take a vested interest until he satisfied the contingency of reaching the age of twenty-five; since a child under four could not become twenty-five within twenty-one years, the child's interest is void by virtue of the rule against perpetuities. While this much may be sound, the rule in Leake v. Robinson goes on to invalidate the entire class gift. That is, even if the child under four has two brothers who are over twenty-five when A dies, these two brothers take nothing because the invalid interest of their little brother (who, remember, may only be imagined) is contagious -- so says Leake. Unless the testator intended to have all of the twenty-five-year-old sons take, or none at all (and this is difficult to imagine in the absence of an express provision in the will), the rule is a dubious one. Fortunately, the Court need not apply it in this case because of the limitation put on it by a long line of cases beginning with Catlin v. Brown, 11 Hare 372, 68 Eng.Rep. 1318 (Chancery, 1853).

 In Catlin, the devise was of mortgaged property to A for life, then to the children of A in equal shares during their lives, and after the death of any such child, his share to his children and their heirs. Some of A's children were in being at the time that the testator died; some were born after his death. Counsel conceded that the remainders over to the heirs of those children of A born after the testator's death were invalid. The question was whether those concededly invalid remainders tainted the otherwise valid remainders and rendered them invalid. The Court held that they did not; the remainders to the heirs of the children in being at the testator's death were valid. Leake was distinguished on the ground that it concerned remainders to one class (A's children that reach twenty-five) while the remainders involved in Catlin were to a group of subclasses (the heirs of each of A's children was a subclass). *fn14" In other words, 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 *fn15" was in force in the District of Columbia. *fn16" 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'. *fn17"

 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 ยง 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. *fn18" 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). *fn19" Hannah was at least twenty-six years of age in 1895. *fn20"

 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.

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