Bickers v. Shenandoah Valley National Bank

88 S.E.2d 889, 197 Va. 145, 1955 Va. LEXIS 206

• Court: Supreme Court of Virginia
• Decided: September 14, 1955
• Docket: Record 4356
• Status: Published

Opinions

Miller, J.,

delivered the opinion of the court.

The question presented in this case is whether or not an instrument purporting to be an inter vivos trust is valid.

On December 10, 1949, Myron B. Bickers entered into a written agreement with the Shenandoah Valley National Bank of Winchester wherein it was recited that policies of insurance upon Bickers’ life, payable at death, have been made payable to and delivered to the bank as trustee. In the instrument the bank agreed to act as trustee. Eight insurance policies upon settlor’s life (upon which $41,830.46 was realized at his death), made payable to “Shenandoah Valley National Bank of Winchester, Trustee,” were in fact delivered to the trustee.

By an addendum of the same date made a part of the agreement, it was expressly provided that the trust was revocable by Bickers; that he had the right to withdraw any of the policies placed for safekeeping with the trustee, and that “the trustee’s only rights in the trust and policies placed in safekeeping prior to the death of the Settlor are to hold the policies in safekeeping until and unless they are withdrawn by the Settlor.”

Had Bickers died at the time the instrument was executed, his heirs And distributees would have been Constance Melvin Bickers, his wife, and Frances Yager Pinnell, Betty Bray Bickers, Jane Stuart Bickers and Barbara Rae Bickers, daughters by a former marriage.

In the writing it was provided that upon the settlor’s death the trustee should receive all sums payable upon the policies and administer the fund as follows: In the event the widow of the settlor survived him and elected to “reject the provisions made for her in the will of the Settlor and shall elect to claim her marital rights” in his estate, the insurance funds were to be divided into four equal parts. One part was to be paid to each of his two adult daughters, i.e., Frances Y. Pinnell and Betty Bray Bickers, and the other two parts were to be paid to the “Shenandoah Valley National Bank of Winchester, Virginia, as trustee under the will of the Settlor” for his infant daughters, Jane Stuart Bickers and Barbara Rae Bickers. On the other hand, if settlor’s widow elected “to take under the will,” the trustee was directed to divide the insurance proceeds into five equal parts. One part was to be paid to the widow, one part paid to each adult daughter, and the shares of the two infant daughters were to be paid to the Shenandoah Valley National Bank of Winchester as trustee under the will of the settlor for the benefit of the two infants. After expressly directing that the shares of the two infants be paid to the will trustee, the trust instrument nevertheless undertook to direct for what period of time and how the will trustee should hold and administer those shares and what disposition it should make of those funds in case of the death of either or both beneficiaries. No provision whatever was made for administering or disposing of the funds to be derived from the insurance policies if Bickers died without a will. In case of his intestacy there was no designated beneficiary, and the alleged trust was wholly inoperative.

On the same date, December 10, 1949, Bickers executed his will. In it two specific bequests, i.e., a piano and $10,000, were made to his daughter, Barbara Rae Bickers, and all of his tangible personal property not Used in his business was bequeathed in equal shares to his wife and four daughters. The will then directed that the residue of his property, real and personal, (which amounted to some $153,000, of which about $50,000 was personalty and about $103,-000 realty), be divided by his executor into five equal parts. One part of this residue was left to his wife “in lieu of her dower and marital claims upon my estate;” one part to each of his two adult daughters, and the other two parts to the Shenandoah Valley National Bank of Winchester as trustee for his two infant daughters.

By an additional writing of May 15, 1952, executed as an amendment to the trust agreement of December 10, 1949, the clause providing for the administration of Jane’s share by the trustee was slightly changed and clarified, and by codicil of May 15, 1952, the corresponding paragraph in Bickers’ will providing for the administration of Jane’s share by the trustee was likewise changed and clarified.

When Bickers died on June 15, 1952, the trust agreement had not been revoked and the insurance policies remained unchanged in the trustee’s possession.

Had he died intestate, his widow would have been entitled to one-third of his personal estate after payment of debts, §64-11, Code of 1950, and dower in his real estate as allowed by § 64-27, Code of 1950. However, as he died testate, she was entitled to renounce the provision made for her in his will. Section 64-13, Code of 1950. Under the provisions of § 64-16, she would, upon renunciation, be entitled to one-third of the surplus of decedent’s personal estate and dower as allowed by § 64-27.

After the death of Myron Bickers, his widow, being dissatisfied with the provisions made for her in the will and trust, filed her bill against the bank as executor of Bickers’ will and as trustee under the insurance agreement. She also named Bickers’ four daughters as parties defendants. She asserted that the agreement was a mere will in disguise and ineffectual as an inter vivos trust, and prayed that it be declared invalid; that the proceeds of the policies be paid to the executor of decedent’s estate for distribution and that she be granted additional time within which to determine whether or not she would renounce the provisions made for her in the will.

Respondents demurred and asserted that the bill failed to allege grounds for equitable jurisdiction; that the corpus in the trust agreement constituted no part of decedent’s estate, and that the agreement constituted a valid inter vivos trust and the proceeds from the policies should be administered by the trustee under the terms of the trust.

By decree of April 26, 1954, the court sustained the demurrers except insofar as they related to an order entered on June 20, 1953, extending the time within which the widow might renounce the provisions made for her in the will, and to that extent the demurrers were overruled. Section 64-14, Code of 1950.

The effect of that decree was to hold that the writing constituted a valid inter vivos trust. From the decree the widow appealed.

In her brief appellant states that the only issue presented is whether the trust agreement of December 10, 1949, is testamentary in character and therefore of no effect because of its failure to comply with the statute of wills.

Appellant does not contend that life insurance policies in which provision is made for change of beneficiaries may not be made the subject matter of an inter vivos trust. There is high authority for the proposition that they may be.

In Scott on Trusts, § 57.3, it is said:

“Where a person takes out a policy of insurance upon his life payable to a third person as trustee, and reserves the power to change the beneficiary of the policy, and perhaps in addition the power to change the beneficiaries of the trust, the question arises whether the disposition is testamentary and invalid for failure to comply with the requirements of the Statute of Wills. It is arguable that the trust does not arise until his death, and that since his death is a condition precedent to the creation of the trust, the disposition is testamentary. The answer is, however, that the beneficiary of the policy as soon as he is named trustee holds his rights as beneficiary of the policy in trust. The mere fact that those rights can be terminated at any time by the insured, and that the rights of the beneficiaries of the trust are enjoyable only after the death of the insured, and that the trustee has no active duties until the death of the insured, does not prevent a trust -from arising immediately. * * * It is true that until the death of the insured it is a pretty thin trust, and it would not be difficult to hold that the disposition is testamentary. The difficulty in upholding the trust, however, seems to be no greater than in upholding the rights of the beneficiary of an insurance policy where no trust is involved but where the insured reserves power to change the beneficiary. A policy of life insurance where the insured has reserved the right to change the beneficiary is in a sense testamentary in character, but the courts have never had any difficulty in permitting the beneficiary to recover the proceeds on the death of the insured if he had not in fact revoked the policy. It would seem that the fact that the policy is payable to a beneficiary as trustee for others makes it no more testamentary than if it were payable to the beneficiary absolutely.

“Moreover, the fact that the insured may have reserved power not only to change the beneficiary of the policy but also to change the beneficiaries of the trust or otherwise to modify the terms of the trust, would seem to make the disposition no more testamentary. The danger of fraud which lurks in ordinary unattested testamentary dispositions is not serious in these cases. The courts have therefore had no difficulty in upholding insurance trusts, although they are not executed with the formalities necessary for a will.”

Of like effect are Smith, Personal Life Insurance Trusts (1950), § 17, p. 74; Restatement of Trusts, § 57, comment (f); 27 Rocky Mountain Law Rev. 240.

Nor does appellant rely chiefly upon a contention that the agreement is invalid because revocable at will. This point we do not now decide though the invalidity of an instrument of this character, because of its revocability, is strongly intimated in Gentry v. Bailey, 6 Gratt. (47 Va.) 594, 603, where it is said:

“This right, by our law, on the part of the wife, I think is clear the husband cannot defeat by any contrivance for that purpose: He cannot, by any device, die testate or intestate in regard to his personal estate, in such wise as to bar her distributive share. Whatever may be the form of the transaction, if the substance of it be a testamentary disposition by the husband of his property, it cannot be effectual in relation to the wife. If this were otherwise, the statute might be rendered a dead letter at the volition of the husband.

“It follows, that where a husband by a voluntary deed of gift of personals, in whatever form made, retains to himself the possession and enjoyment of the property during his life, and making the gift effectual only from the time of his death, reserves on his own part an absolute and complete power of revoking the same; such an instrument, so far as regards the distributive share of the wife, is in its nature testamentary only, and cannot affect the rights conferred upon her by law in contemplation of his dying either testate or intestate.” Cited with approval in Hall v. Hall, 109 Va. 117, 63 S. E. 420. See also 1 Scott on Trusts, § 57.5, p. 350, and 64 A.L.R. 472, 473.

Appellant attacks the instrument on the ground that it is testamentary in character because Bickers had no intent to create an inter vivos trust and in the instrument conveyed no estate, vested or contingent, prior to his death.

It is argued that the agreement is wholly inoperative as a trust until Bickers’ death, and was intended to be so by the maker, and to be effectual even then is dependent upon his executing and leaving; a will. Appellant contends that the actual effect of this alleged' trust is merely to make the policies payable to a trustee at death and then dispose of the proceeds through testamentary acts and writings.

For a clear understanding of the interlocking and dependent provisions of the two instruments and how by their integration Bickers sought to retain control of the subject matter of the trust and never actually convey any interest in the policies to the trustee until his death and yet prevent the proceeds of the policies from passing as a part of his estate, the material parts of the two writings are set out below.¹

Insured, having reserved the right to change the beneficiaries in the policies, certainly at all times before execution of the alleged trust agreement, was the full owner of the contracts of insurance; and the beneficiaries, whosoever they may have been, enjoyed a mere expectancy in the policies. Smith v. Coleman, 184 Va. 259, 35 S. E. (2d) 107; Gordon v. Portland Trust Bank, 201 Or. 648, 271 P. (2d) 653.

The policies of insurance that insured had with the companies and his trust agreement with the bank are separate and distinct contracts. The contracts between the insured and the insurers are fulfilled upon payment by the companies of the proceeds of the policies to the named beneficiary. The alleged inter vivos trust agreement between the settlor and the trustee must be construed according to its intent, and as a trust agreement, and it must stand or fall by its own terms.

The true test to be applied to this instrument is: Did the settlor intend that upon its execution that a present interest or estate pass from him to the trustee in trust for named beneficiaries, or did he intend that the instrument have no effect until after his death?

Indeed, the test for determining whether a writing has effected a trust or is testamentary in character is whether the maker intended the instrument to have any effect until after his death, or whether he intended to transfer some present interest.” Allen v. Hendrick, 104 Or. 202, 206 P.733, 741.

Otherwise stated, did the settlor by this writing actually divest himself in praesenti of an interest in the subject matter or has he made only an illusory transfer during his lifetime?

The answer to this question is made plain by the settlor. In unequivocal language he said that no interest was to pass during his lifetime. In the addendum he expressly declared that during his lifetime the trustee’s only rights in the trust and policies was to hold them in safekeeping. That clear and understandable language negatives the idea or intent to pass eo instante any interest, vested or contingent, in the subject matter then owned by the settlor. It makes the bank trustee a mere custodian of the policies during settlor’s life and convincingly shows that its status as trustee and any rights and interests in the subject matter as trustee for the beneficiaries were to arise at and not until death.

A cursory inspection of the alleged trust and the will shows that Bickers undertook to execute a writing that would appear to be an inter vivos trust, but inoperative without a will and yet so integrated with the will then executed as to evade § 64-16, should his widow renounce. This he sought to accomplish by making the policies payable, not to ultimate beneficiaries which he could have done, but to an intermediate trustee, who would not function as such unless he left a will. By this illusory instrument, which was inoperative during life, and, standing alone, actually conveyed nothing to the trustee in praesenti, he undertook to retain full ownership in the subject matter of the trust and by a testamentary act; i.e., the execution and leaving of a will at his death, he sought to have the trust then become operative, and thus at death control the disposition of the trust estate. But this he could not legally do, for embellishment may not change actuality, nor can the repeated use of the words “settlor” and “trustee” alter the maker’s true intent and make of a testamentary instrument an inter vivos trust.

In case of intestacy the proceeds of the policies must be paid to the trustee by the insurance companies under their contract with insured. But in that event the trustee will not hold the funds for administration under the trust, for that instrument does not contemplate a trusteeship in case of intestacy. Through operation of law and not by virtue of the agreement, a resulting trust in the funds would arise and the bank would be required to turn them over to the administrator.

It is significant that the agreement provides that upon Bickers’ death, the trust trustee shall pay the shares of Jane Stuart Bickers and Barbara Rae Bickers to the will trustee. In the trust agreement the maker also undertakes to direct how the will trustee shall administer the shares of these two beneficiaries during the fife of one of them and as to the other until she attain the age of twenty-five. The addendum further provides that the trustee’s “only rights in the trust and policies placed in safekeeping prior to the death of the Settlor, are to hold the policies in safekeeping until and unless they are withdrawn by the Settlor.” These provisions constitute clear and express disclaimers of any intent to create an inter vivos trust.

Whether or not there is infirmity in an instrument of this type as intimated in Gentry v. Bailey, supra, if challenged by the maker’s widow on the ground of its revocability, we need not now decide. But aside from that question, had the writing by appropriate language evidenced intent to convey an estate or interest in praesenti, though distributable after death, to designated beneficiaries, whether the maker died testate or intestate, it would have been valid as an inter vivos trust. Then it would not have been testamentary in purpose, nor would it have been factually dependent upon a testamentary act as a condition precedent to its efficacy as. this writing is. The right of the widow to participate in the trust fund could then have been made dependent upon the condition subsequent of whether or not she renounced the provision made for her in the will. The existence of the will would have been a matter of independent significance for the intent to create a trust in praesenti would have existed and the trust would have been operative with or without the will. But dependent as this instrument was intended to be, and is, upon the existence of the will for any efficacy, it is impossible for the will to be a matter of independent significance. That is true simply because the trust agreement was never intended to and cannot stand alone.

Even though it be true that the trust created by the instrument is not made to depend upon the terms of the contemplated will, it is nevertheless dependent upon a will’s existence. If the will were revoked, there would be no trust even at the maker’s death. This shows that it was the maker’s certain purpose that if the trust agreement were to function at all, it was to do so as a testamentary instrument.

Appellees rely upon the decision of Russell’s Ex’rs v. Passmore, 127 Va. 475, 103 S. E. 652, and Cohn v. Central National Bank, 191 Va. 12, 60 S. E. (2d) 30. As bearing upon the question here presented, it is sufficient to say that those two cases are readily distinguishable because in each the instruments disclosed an intent to create a present trust; an interest was conveyed in praesenti to the trustee, and neither instrument was made dependent upon the existence of a will as a condition precedent to its efficacy.

Had this instrument been written in the handwriting of its maker and signed by him or otherwise executed with the formalities required of a will, it would have been capable of probate along with his will. That being true, its character as a testamentary instrument is established and it cannot operate as an inter vivos trust. It may not be both, an inter vivos trust and a will.

A revocable inter vivos trust is one that is valid and efficacious from its execution and delivery, and will, without further act of the settlor, accomplish its intended purpose unless revoked by the maker during his lifetime. But here we have a hybrid sort of inter vivos trust that is said to be effectual from execution, but by mere neglect or failure of the maker to leave a valid will at his death, it would never acquire any fife. Yet if he left a will, this writing, though not executed with the formalities required of a will, was meant to spring into life and function from and after death. This may not be accomplished, for an instrument that holds out a promise, but which actually conveys no interest itself to the intended beneficiary during the maker’s life and is to speak and be operative upon his death, is testamentary and can have no validity unless executed in the manner required of a will. Spinks v. Rice, 187 Va. 730, 47 S. E. (2d) 424.

If this instrument, ineffectual as it is without the will, were held valid as an inter vivos trust, then there is nothing to prevent a married man at any time prior to death from executing a revocable writing, reserving to himself a life estate in all of his property but conveying the remainder in his estate to a trustee for designated parties other than his wife, in case he leave a will and then execute a will that merely appoints an executor, (57 Am. Jur., Wills, § 27, p. 55) and he will by such dependent writings, retain full control of and beneficial interest in his property until death, and at the same time successfully prevent his widow from sharing in his estate. That is what this instrument was intended to accomplish to an extent materially detrimental to the widow, and what it would accomplish if it were held valid. The insurance proceeds go to designated parties if Bickers leaves a will, with the widow’s share only one-fifth, and nothing if she elect to renounce the will, and yet they pass to his estate if he does not leave a will.

The instrument is not invalid because the trust funds (proceeds of the policies) are not distributable until after the maker’s death, and it could be conceded that it is not invalid upon challenge by the widow solely because it is revocable by the maker at pleasure. Yet when these two provisions are coupled with its intended and actual dependence upon the existence of a valid will at the maker’s death as a condition precedent to its efficacy, it is made manifest that no interest was conveyed inter vivos, and the maker’s purpose and intent was that it operate only as an ambulatory and dispository instrument and that it was in fact testamentary in character.

Standing alone, the writing is wholly illusory and without substance as an inter vivos trust. Its efficacy is made dependent upon the condition precedent that its maker execute and leave a valid will at his death, which is an uncertain event within the maker’s control. In reality it is a testamentary disposition in disguise, and lacking the formalities of execution required of a will, it is inoperative.

Appellees assign cross-error and contend that the chancellor should have sustained the demurrers in all respects and thus refused to extend the time in which appellant might renounce the will as authorized by § 64-14, Code of 1950. This section provides inter alia:

“If the will is of doubtful import as to the amount or value of the property the husband or wife of the testator is to receive thereunder and a suit in equity is pending wherein it will be construed in that respect, the court * * * shall, within the year, on the application of the surviving husband or wife, enter an order extending the time within which the survivor is to make renunciation for such additional period beyond the year as will allow the survivor reasonable time, not exceeding six months, for malting the renunciation after a final order has been entered in the suit. * *

Upon application of the provisions of the foregoing section to the facts of this case as disclosed by the record, it was clearly the right and duty of the chancellor to extend the time within which the widow could make renunciation of the provisions made for her in her husband’s will.

For the reasons stated the decree will be reversed and the cause remanded for such further proceedings as may be necessary and proper, and not in conflict with the views herein expressed.

Reversed and remanded.

Eggleston, Buchanan and Whittle, JJ., dissenting.

1 TRUST AGREEMENT

“1. That the Settlor has delivered to the Trustee certain policies of insurance, and may in the future deliver to the Trustee additional policies of insurance, all made payable to the Trustee upon the death of the Settlor.

*****

“3. That said Trustee shall hold said policies in safe-keeping until they shall have become payable, and thereupon shall receive any and all sums of money payable thereunder, and when so received shall hold and invest said sums of money as a trust fund.

“4. Said trust fund shall be held and distributed in the following manner and upon the following trusts and purposes:

“A. In the event that the widow of the Settlor shall survive him, and in the event that such widow shall reject the provisions made for her in the will of the Settlor and shall elect to claim her marital rights in the estate of the Settlor then, in that event, the Trustee shall divided the trust fund into four equal parts. The Trustee shall then give one of these four equal parts to Frances B. Pinnell, a daughter of the Settlor, one of the four equal parts to Betty Bray Bickers, another daughter of the Settlor, one of the four equal parts to the Shenandoah Valley National Bank of Winchester at Winchester, Virginia, as Trustee under the Will of the Settlor, for Jane Stuart Bickers, another daughter of the Settlor, and the final fourth equal part to the Shenandoah Valley National Bank of Winchester, at Winchester, Virginia, as Trustee under the Will of the Setdor, for Barbara Rae Bickers.

“(B). The Trusts hereby created for the benefit of the said Jane Stuart Bickers and Barbara Rae Bickers shall be held and distributed in the manner hereinafter provided.

“(C). In the event that the widow of the Setdor shall elect to take under the will of the Setdor, then, the Trustee shall divide the trust into five equal parts, and shall pay one of these five equal parts to the Setdor’s widow, one of the five equal parts to Frances B. Pinnell, a daughter of the Setdor, one of the five equal parts to Betty Bray Bickers, another daughter of the Settlor, one of the five equal parts to the Shenandoah Valley National Bank of Winchester, at Winchester, Virginia, as Trustee under the Will of the Setdor, for the benefit of Jane Stuart Bickers, another daughter of the Setdor, and the last fifth equal part to the Shenandoah Valley National Bank of Winchester, at Winchester, Virginia, as Trustee under the Will of the Setdor for the benefit of Barbara Rae Bickers, another daughter of the Setdor.”

(Here are set out the provisions upon which the trustee shall administer the share of Jane Stuart Bickers during her life, and the share of Barbara Rae Bickers until she attain the age of twenty-five, and also who shall receive any corpus of these shares upon the death of Jane or upon the death of Barbara before attaining twenty-five.)

ADDENDUM

“As a part of the above trust agreement, it is understood and agreed between the parties that said trust is revokable at any time by the Settlor; and the Settlor shall have the right at any time to withdraw from the trustee any of the policies placed in safekeeping with the trustee under this agreement.

“This trust may be broken, or the policies removed as aforesaid, by the Settlor’s presenting to the trustee a demand in writing for the withdrawal or the termination of the trust agreement, as the case may be.

“This addendum is made and executed at the same time with the main agreement and forms part of said agreement.

“The trustee’s only rights in the trust and policies placed in safekeeping prior to the death of the Settlor, are to hold the policies in safekeeping until and unless they are withdrawn by the Settlor.”

THE WILL

By clauses Second and Fifth Barbara Rae Bickers is bequeathed testator’s piano and $10,000. By clauses Third, Fifth and Sixth he disposes of all the balance of his estate as follows:

“Third: All of my personal belongings, furniture, household effect, including pictures, papers, china, glass, silver and other items of a similar nature, and all automobiles not used in my business, I give and bequeath to my wife, Christine Melvin Bickers, and my four children, Jane Stuart Bickers, Frances B. Pinnell, Betty Bray Bickers and Barbara Rae Bickers, equally, share and share alike, provided they survive me, otherwise to the survivors. * * *

“Fifth: All the rest and residue of my estate, real, and personal, now in possession or hereafter acquired, shall be divided by my executor into five equal parts * * *.

“Sixth: My Executor shall then deliver one equal part or one-fifth of the net residue to each of the following: '

“(1) To my wife, Christine Melvin Bickers, which gift to her shall be in lieu of her dower and marital claims upon my estate;

“(2) To my daughter, Frances B. Pinnell;

“(3) To my daughter, Betty Bray Bickers;

“(4) Of the remaining two shares or two-fifths, one-fifth shall be held by the Shenandoah Valley National Bank of Winchester, at Winchester, Virginia, as trustee for my daughter, Jane Stuart Bickers, and the other one-fifth as trustee for my daughter, Barbara Rae Bickers.”

Here follow directions as to how the trustee shall administer the shares held for Jane and Barbara, which are practically identical to the provisions set out in the trust agreement.