In re the Estate of Hendy

HENSHAW, J. Joshua Hendy by bis will left a legacy of five thousand dollars to bis niece, Mrs. Josepbine Green. By a codicil, which was admitted to probate with and as a part of that instrument, be provided as follows:

“Tbe bequest of five thousand dollars to my niece Mrs. Jos-epbine Green is to be held in trust by my executors for her benefit and tbe interest is to be paid hir monthly, at bear deth tbe same to be continued to bear two children Ilarrold and Mildred Green until they are each twenty-five years of age, when tbe five thousand dollars shall be paid to them share and share alike.”

Josepbine Green petitioned for distribution to her absolutely of the legacy of five thousand dollars, and the court decreed distribution in accordance with her prayer, under tbe conviction, as appears from the statement and argument of her counsel, that tbe trust declared in tbe codicil was void for undue suspension of tbe power of alienation. (Civ. Code, sec. 715.)

This consideration is tbe only one to which our attention is directed upon this appeal.

It is apparent that tbe codicil does not create a single trust, but establishes: 1. A trust for the benefit of Mrs. Josephine Green; and 2. A trust for tbe benefit of her two children, Har-rold and Mildred. Harrold and Mildred were in being a.t tbe creation of tbe trust, and are still living and in their minorities. Therefore, whatever conclusion may be reached as to the validity of the trust for the children, it is obvious that there can be no legal objection advanced against the trust to Mrs. Green. The [658]testator had the unquestioned right to revoke his absolute legacy of five thousand dollars, or to substitute for it a provision under which she would receive the income of that sum set apart in trust during her life.

It is manifest, therefore, that the decree awarding Mrs. Green five'thousand dollars as an absolute legacy must be reversed; since the trust as to her being valid and distinct from that on behalf of the children, the utmost she would be entitled to receive in any event would be the income from the fund during her life. The future disposition of the principal of the fund would concern only the children and the residuary legatees.

As to the trust for the children, we need here go in its construction only so far as to see whether or not it violates the rule against perpetuities. That rule, enunciated in section 715 of the Civil Code, permits property to be held inalienable, provided that the power of alienation be not suspended beyond the existence of lives in being. Therefore the duration of designated lives must always be, and be made, the ultimate measure of durartion. But it matters not what other measures be taken, so- long as they cannot extend the period of suspension beyond, and are controlled by the duration -of, designated lives. Thus it was said in the Estate of Walkerly, 108 Cal. 627, 651, 49 Am. St. Rep. 97: “The law has seen fit to insist that the measure of the period of suspension shall be lives in being, and it will not countenance the suspension for any fixed period or term of years ■not depending upon the duration of life.” In the Walkerly. case the court was dealing with an attempted suspension for an absolute, definite, and fixed period of twenty-five years. It was there held, as uniformly it has been held under laws similar to our own, that the utmost limit of the period of the suspension of the power of alienation by any trust or future estate must not by any possibility exceed existing lives, or the trust or estate will be void in its creation. No absolute or certain term, however short, can be supported.