Tiffany v. Citizens National Bank

STONE, J.* 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.

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, GEOFFBEY AND BE W BIBD, and shall eease 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.

(a) Said property is to be held by the Trustee for the following purposes:

“1. The net income shall be distributed in monthly or other convenient installments to or for the benefit of my said children in equal shares for life.

“2.............

“3. This trust shall terminate on the death of the last survivor of my children and my grandchildren living at the time of my death, and the entire corpus and undistributed net income shall go and be distributed to the children of my grandchildren per capita.”