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Court Discusses the Rule of Perpetuities


A New York Probate Lawyer said that a woman died on March 1, 1968 and her will dated October 8, 1958 was admitted to probate on March 20, 1968. On August 29, 1968, the appellee filed his petition for construction and revocation wherein he renounced any disposition and bequest made to him under said will and wherein he petitioned that paragraph FIFTH of the will be revoked and declared invalid. On September 18, 1968, the appellant as respondent filed his answer to said petition;

On December 19, 1968, the appellant filed his amendment to said answer which amendment embraced a revocable designation by a man of those relatives and corporations which were to take the principal of the trust at its termination. A New York Will Lawyer said this designation was executed on September 3, 1968.

On October 22, 1969, the distinguished probate judge entered his order adjudicating paragraph FIFTH to be null and void as violating the rule against perpetuities. The said order also held that the power of appointment given to the man could not be exercised until the death of the brother and that man’s attempt to do so was void. The trial court found it unnecessary to decide the question of whether the power was impossible of performance because of ill-defined, vague and ambiguous classes of recipients described therein. This latter question formed the basis of the appellee’s petition; the rule against perpetuities not being raised therein.

The questions herein to be decided are is whether paragraph FIFTH violated the rule against perpetuities. Bronx Probate Lawyers said it is to be known if the designation by the man is valid and is the description of the classes of recipients named in the power of appointment ill-defined, vague and ambiguous?

The trial court found that paragraph FIFTH was an attempt by the decedent to convey a power of appointment to the man and that this was subject to a condition precedent, to-wit: the death of a young man and that the power does not exist until such death. The court further found that since the man might die before the young man, there would be no one to exercise the power and it violated the rule against perpetuities.

Bronx Probate Lawyers said the trial court was correct in holding that the power was a special power only exercisable by the man. However, the fact that the man may die before the young man and therefore the power would never be exercised, is not violative of the rule. If the man died first, without exercising the power, the trust residue would pass by intestacy at the death of the young man. The rule provides that no interest is good unless it must vest, if at all, not later than 21 years after lives in being at the creation of the interest. In this case, the interest must vest within the lifetime of the young man plus 21 years if it is going to vest at all.

The order appealed correctly states that one of the essential elements of the Rule against Perpetuities is that at the time the future interest is created it must appear that the condition precedent to vesting must necessarily happen, if it happens at all, within the period described by the rule.

As long as the man makes a valid designation the interest can and must vest within the time prescribed by the rule. The court cannot void a power where the vesting must happen, if at all, within the rule. ‘If at all’ are the life-giving words to an interest, where the only possible way it can vest falls within the rule and the only alternative is that it can never vest. In this event it would vest by intestacy. The power granted herein does not violate the rule against perpetuities.

The power of appointment was set forth in the Will of the deceased and it came into existence upon her death and can be exercised by the donee from the date of said death subject to the terms of the grant of said power and applicable law.

The wording of the grant of power (Paragraph Fifth clearly states that the trust shall terminate upon the death of the testatrix’s brother and the trustees thereupon to distribute the principal to those beneficiaries (within the designated classification), as the man shall designate. It does not say as the man shall thereupon designate, or at that time designate. The court does not construe the said paragraph to mean that the man must await the death of the young man to exercise his power of appointment but he may do so. If two constructions are possible, the one must be followed which gives effect to the intent of the testatrix. Here such intent was that the man should designate the contingent beneficiaries. To say that the power did not exist or could not be exercised before the death of the young man would defeat or curtail such intent.

If the will is acceptable of two constructions, one of which would turn it into an illegal perpetuity and the other make it valid and operative, the latter should be adopted. Every presumption should be indulged in favor of validity. It should be upheld unless it clearly violates some rule of law or public policy and, if possible, give effect to the intent of the testator.

A testamentary power is not exercisable before the time intended by the donor; and it may be exercised only at such time or within such period as may be prescribed by the will created and conferring it. In the absence, however, of any restrictions, express or implied, in the donor’s will, as to the time of exercise, a power is exercisable at any time during its existence and continuance. A power granted a life tenant may be exercised before the estate is settled and the property delivered to the life tenant; but it has been held that the life tenant of a residuary estate may not exercise a power of disposal until the estate is settled, even though he is the executor. A power to appoint a remainder may be exercised before the termination of the precedent estates.

In this case the only time limitation for the exercise of the testamentary power is upon the death of the young man, the trustees must forthwith make distribution and the man must have already exercised his power or must immediately do so. He could not wait any protracted time to act but would have to proceed forthwith in order that the will of the testatrix be carried out. The designation by the man is valid.

The classes of eligible recipients are adequately defined. The description of the relatives who survived the brother is specific and clear. The same is true of the three types of corporations. The fact that the number of such corporations is extremely high does not render the description vague or uncertain.

There can be a trust of which the beneficiaries are relatives of a designated person among whom the trustee is authorized to select who shall take and in what proportions.

A testator may devise or bequeath property in trust for charitable purposes without designating the particular purposes to which he wishes the property to be applied. He may leave the property to trustees for such charitable purposes as they may select. Such a disposition is valid according to the great weight of authority. If the trustee is ready and willing to make the selection, there is no reason why he should not be permitted to do so. This is true where the testator designates the general nature of the charitable purposes to which he desires the property to be applied. It is true also where the trustee is left free to devote the property to any charitable purpose he may select.

The order appealed is reversed.

When someone trusted you with a will and you want to make sure that it is a valid one, ask the assistance of the Bronx County Probate Attorney. A Bronx County Will Contest Lawyer together with a Bronx County Estate Administration Attorney from Stephen Bilkis and Associates can help you on your will-related problems.

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