Estate of Bird

California Court of Appeal Feb 28, 1964 No. Civ. No. 7494Published

Before: Stone

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Holding. The court held that for the purpose of the rule against perpetuities, the period of a general testamentary power of appointment is measured from the time of its creation, but the validity of the appointment is determined based on the facts and circumstances existing at the time of its exercise.

Issues

Whether the period prescribed by the rule against perpetuities for a general testamentary power of appointment is determined at the time of the power's creation or its exercise.
Whether the facts and circumstances used to determine compliance with the rule against perpetuities are those existing at the time of the power's creation or its exercise.

Disposition. reversed

Quotations verified verbatim against the opinion

“We hold that the period is counted from the time the power of appointment is created, but that the facts and circumstances are considered as of the time of its exercise.”

“in determining the validity of an appointment under a special power or a general testamentary power, though the period is counted from the creation of the power, facts and circumstances are considered as of the time of its exercise.”

225 Cal.App.2d 196 (1964) Estate of GEOFFREY ANDREW BIRD, Deceased. LOIS B. TIFFANY, Claimant and Respondent,

CITIZENS NATIONAL BANK, as Executor, etc., Objector and Appellant.

Civ. No. 7494. California Court of Appeals. Fourth Dist.

Feb. 28, 1964. MacFarlane, Schaefer & Haun and William Gamble for Objector and Appellant.

Harwood, Heffernan, Soden & Corfman, James Longtin and Donald D. Harwood for Claimant and Respondent.

STONE, J. [fn. *]

This appeal from a decree determining interests in an estate, presents a question of the manner in which the rule against perpetuities (Civ. Code, 715.2) is to be applied to general testamentary powers of appointment. The case was tried before the 1963 amendments to the Civil [197] Code pertaining to the rule against perpetuities became effective.

Jeannette Miller Bird and Geoffrey Andrew Bird, her husband, executed their wills simultaneously February 17, 1961.

[1a] Jeanette died June 16, 1961, and her will, which was admitted to probate, provided, insofar as here pertinent: "2. This trust shall exist and continue for and during the life of my said husband, GEOFFREY ANDREW BIRD, and shall cease and terminate upon his death. I give and grant to my husband the exclusive power to dispose of the corpus, and undistributed income, under the terms of his Last Will and Testament, and should he have failed to exercise this power as aforesaid, or should his said Last Will and Testament be deemed invalid for any reason whatsoever, then the corpus and any undistributed income shall become a part of the estate of my said husband, and shall be distributed to his heirs at law according to the laws of succession of the state of California then in effect."

Geoffrey Bird died just three months later, September 16, 1961. He exercised the power of appointment created by Jeannette's will, by the following provisions in his will: "FIFTH: I will, devise and bequeath to CITIZENS NATIONAL BANK, in trust, all of the rest, residue and remainder of my property of every nature, kind and description, including the property and assets which are included in the Marital Deduction Trust as set forth in my wife's Will, and I do now specifically exercise my power of testamentary disposition by including such assets in this trust."

Estate of Bird

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