Malone v. Herndon , 197 Okla. 26 ( 1945 )

The last sentence of the seventh subdivision of section 4 of the will provides: "but in case of issue surviving the said Wayne Lee Maxwell, said trust shall cease and said trust estate shall be paid over, delivered and conveyed to such issue living at the time of said payment, delivery and conveyance". The appellant argues that this provision is violative of the rule against perpetuities and also of our statute against restraints upon the absolute power of alienation, 60 O. S. 1941 § 31. I think there is merit in this contention.

60 O. S. 1941 § 31 provides: "The absolute power of alienation cannot be suspended, by any limitation or condition whatever, for a longer period than during the continuance of the lives of persons in being," with certain exceptions not here material. This statute was in effect at the time of the death of testator and governs this case. Gray, The Rule Against Perpetuities, (4th Ed.) § 34. This statute is patterned after the New York statute and similar statutes found in California, the Dakotas, and in several other states. These statutes are analyzed in 41 Am. Jur. 56, § 10, Gray, above, §§ 728-752.1, and Simes, Law of Future Interests, §§ 560-585. The statute applies to both direct and indirect restraints. Simes, above § 437. It limits the duration of a permissible restraint to lives in being. It makes the restraint illegal if it extends beyond the lives in being. It applies to all interests in real property, "whether such interests be vested or contingent, present or future." Page on Wills, Lifetime Ed., § 1253, note 10. It applies "when there are no persons in being by whom an absolute interest in possession can be conveyed." 41 Am. Jur. 66, § 22. To satisfy the requirements of the statute there must be such a vesting within the prescribed period that "there are persons in being, who, by combining and conveying all their distinct interests created by the original grant or devise, can pass an absolute interest in possession." In re Walkerly's Estate, 108 Cal. 627, 41 P. 772.

Our statutes do not, in so many words, fix the period for the rule against perpetuities. Our Constitution (sec. 32, art. 2) provides: "Perpetuities and monopolies are contrary to the genius of a free government and shall never be allowed." Similar or identical provisions are found in the Constitutions of several other states (Gray, above, §§ 730, 752; 41 Am. Jur. 56, § 8), and it has been stated or intimated that such a provision puts in force the common law rule of a life or lives in being plus 21 years plus the period of gestation (Estate of McCray, 204 Cal. 399, 268 P. 647; McLaughlin v. Yingling,90 Okla. 159, 213 P. 552; Phillips v. Chambers, 174 Okla. 407,51 P.2d 303; Gray, above, § 752), but the better rule seems to be that such constitutional provisions are "but declarations of policy rather than guides to decision" (Page, above, § 1253), and "are without juristic value, at least on any question of remoteness" (Gray, above, § 730), and that the Legislature may prescribe any period less than the common law period. Whether it could fix a period in excess of the common law period is doubtful.

While the rule against restraints on the absolute power of alienation and the rule against perpetuities are not the same (the one has reference to alienation and the other to remote vesting), they serve the same purpose of preventing "the tying up of property, the taking of it out of commerce." Gray, above, § 119. Statutes against restraints on the power of alienation, like ours, have the effect of superseding or modifying the common law rule against perpetuities, by fixing the period of perpetuities the same as that fixed prohibiting restraints on the absolute power of alienation. 41 Am. Jur. 56, § 10; Thompson on Wills (2nd Ed.) § 452; Simes, above, § 560; Gray, above, §§ 747, 752. In Re Walker's Estate, 179 Okla. 442,66 P.2d 88, we cited our statute, section 31, above quoted, as establishing the rule against perpetuities, but inadvertently and erroneously stated the period to be the "life or lives in being at the death of the testator, and 21 years thereafter." It should be observed, however, that the 1941 Legislature fixed the period of a permissible restraint at the "lives of the beneficiaries in being at the creation of the estate and 21 years thereafter", with certain exceptions, and made it prospectively applicable to both real and personal property. 60 O. S. 1941 §§ 175.47, 175.53.

Under the clause of the will above quoted the property is to be paid over, delivered and conveyed to the issue of Wayne Lee Maxwell"living at the time of said payment, delivery and conveyance." Under the majority opinion this means the issue living at the time of his death. This does violence to the language used. It is clear that some period of time must elapse after his death before there can be a determination of who his children are. At the time of his death there would be a defeasible vesting, subject to change by the death of issue in the interim. But to satisfy the rule against perpetuities, the vesting must be absolute within the period of lives in being. "Remainders which are vested subject to be partly divested are subject to the rule against perpetuities." Simes, above, § 497. "For the purpose of the rule against perpetuities, a class gift is not regarded as vested until the maximum and minimum membership of the class is determined." Simes, above, § 526. "Interests which are truly and in all respects vested, never come within the rule, but when there is a gift in remainder to a class which has become vested in a living person, if the number of persons who will finally constitute the class may not be determined until a remote period, the remainder is void." Gray, above, § 110.1. See, also, Beverlin v. First Nat. Bank, 151 Kan. 307, 98 P.2d 200.

Our statute (15 O. S. 1941 § 15) provides that "a child conceived, but not born, is to be deemed an existing person so far as may be necessary for its interest in the event of its subsequent birth." In view of this statute it might be argued that the provision does not violate the rule against restraints on alienation contained in 60 O. S. 1941 § 31, since upon the death of Wayne there would be persons in being (in contempletion of law) who could unite and convey an absolute interest in possession. We need not decide this question, however, since the provision violates the rule against perpetuities. The period of this rule is limited by 60 O. S. 1941 § 31 to lives in being, and upon the death of Wayne there would not be an absolute, but only a defeasible, vesting, since one of the children might die in the interim.

However, it does not follow that the other provisions of the will should fall. The dominant intention of the testator was to care for Helen and Wayne. If Wayne is adjudged to be competent and comes into possession of the trust estate after the death of Helen, as provided in the Fourth subdivision of paragraph 4, then the Seventh subdivision is rendered immaterial, since the estate would then absolutely vest in him. Said provision is separable and incidental to the other provisions, and is successive in point of time. Under such circumstances, and in view of 84 O. S. 1941 §§ 151, 155, the invalidity of said provision does not render invalid the precedent estates and interests and the other provisions of the will. "If future interests created by an instrument are avoided by the rule against perpetuities, the prior interests become what they would have been had the limitation of the future estates been omitted from the instrument," Gray, above, § 247. See, also, Simes, above, §§ 530, 764-774; 41 Am. Jur. 104-106; 21 R.C.L. 329; 28 A.L.R. 375, annotations; Beverlin v. First Nat. Bank, above.

The Seventh subdivision of paragraph 4, which is the residuary clause, in so far as it gives the residue to Emma Malone, should be held to apply only if Wayne dies without issue and without having come into possession of the estate. If, prior to his death, he comes into possession of the remainder by having been adjudged to be competent as provided in the Fourth subdivision of paragraph 5, he would thereby become the absolute owner of the property, and the Seventh subdivision would thereby be rendered inoperative. If he should die with issue, on the death of both him and Helen, the estate should go to the heirs of testator as intestate property, since the clause in favor of his issue is void and no provision was made in the will for such contingency. 69 C. J. 816, § 1919; Page, above, § 927.

2. The first syllabus of the majority opinion states the rule that it was not error for the trial court to select 10 acres out of the larger tract, under the third paragraph of the will. I think it was error for the court to make the selection, but that Helen Herndon, who had the right to make the selection, has acquiesced in the selection made by the court, and it was harmless error of which no complaint is made by the one entitled to complain.

While the authorities are not uniform on the question, the majority rule, and the better one, seems to be that a provision in a will giving the devisee a specified number of acres out of a larger tract ordinarily carries with it the implied right of the devisee to make the selection. 69 C. J. 359, 384; Jarman on Wills (6th Ed.) vol. 1, p. 361; Schouler on Wills, Executors and Administrators (6th Ed.) § 1111; Thompson, Construction of Wills, § 285. The rule applies generally to deeds, so that the grantee ordinarily has the implied right of selection. 8 R. C. L. 1094; 16 Am. Jur. 588; 26 C.J.S. 218.

In Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723, which is strongly relied upon by plaintiff, the court did not discuss the question as to whether selection by the devisee would be implied.

The case of Case v. Hasse, 83 N.J. Eq. 170, 93 A. 728, is in point. There, the testator bequeathed to a certain person "a painting to be selected, and also a few oriental rugs to be selected by her." It was held that the bequest of the painting was valid and that the donee had the implied right of selection, but that the bequest of "a few oriental rugs" was void for indefiniteness since it did not fix the number of rugs to be selected. See Page, above § 55.

For the foregoing reasons, I dissent to the majority opinion in so far as it holds that the provision above quoted is not violative of the rule against perpetuities. In all other respects, I concur in the result reached in the majority opinion.