Kendall v. Kendall

261 P.2d 422, 43 Wash. 2d 418, 1953 Wash. LEXIS 326

• Court: Washington Supreme Court
• Decided: October 5, 1953
• Docket: 32326
• Status: Published

Opinions

Hill, J.

We are required to construe a declaration of trust.

On December 30,1938, John Kendall and Frances M. Kendall, husband and wife, then being, respectively, seventy-five and seventy years of age, executed a declaration of trust wherein it was recited that they each owned 477 shares of the common stock of the Standard Lumber Company and that their, combined total of 954 shares represented a controlling interest in that company. (There were a total of 1,740 shares outstanding.) By that instrument, they each assigned their 477 shares to their three children, Frank C. Kendall, Homer B. Kendall, and Jean Kendall Gibbs, as trustees. In the event of a vacancy, the remaining trustees or trustee could appoint a successor trustee or trustees whose powers would be identical to those of the first named trustees. The terms and conditions of the irrevocable trust, in so far as material, will be hereinafter set forth.

The declaration of trust recites that each of the trustors had devoted many years of personal work and attention to the promotion and management of the company, and that they each desired

“ . . . to see and enjoy that devotion of their children to the family interests, which would naturally be inspired by a gift of said stock in trust at this time for the benefit of the donor’s children and grandchildren.”

The only named beneficiaries of the trust under its terms are the three children, who were named as trustees, and four grandchildren. The names and ages of these beneficiaries at the date of the execution of the trust agreement were as follows: James L. Kendall, fourteen, and Diane Kendall, ten, children of Frank C. Kendall, fifty; John Homer Kendall, seventeen, son of Homer B. Kendall, forty-three; and Marian Frances Gibbs, fourteen, daughter of Jean Kendall Gibbs, forty-one. We will hereinafter make reference to the extent of their interests as beneficiaries.

The trustees are directed to vote the stock as a unit “and not otherwise.”' It was pointed out in the declaration of trust that they would thus exercise control of the management and all of the affairs of the company.

The trustees are directed to hold the stock interest in one fund and not to sell or transfer any shares until (a) the stock is sold in one block or (b) the company is finally liquidated or (c) merged with some other company.

Two periods are covered by the declaration of trust:

First, “Until said common stock in the Standard Lumber Company or the interest which it represents is liquidated, as hereinabove specified,” each of the three children of the trustors is to receive one-third of the net income from the trust estate. In the event of the death of any one of them, the share of the income of the deceased son or daughter is to be used for the care, education, support, and welfare of his or her child or children, such children being specifically named; and any part of the income that would have gone to the deceased son or daughter that is not necessary for the child or children for the above purposes, is to become a part of the trust estate established for such child or children by the trustors.

Second, “When the trust property has been liquidated as hereinbefore specified” the trustees are to divide the trust estate into three equal shares to be distributed as follows:

A. Share for benefit of Frank C. Kendall and his children: One-half of this share (one-sixth of the trust estate) is to be paid to Frank C. Kendall, if living. If he dies intestate before his portion is paid to him, it is to be added to that of his living children. (He is the only child of the trustors who has more than one child; his two children are elsewhere specifically named.)

The other half of this share (one-sixth of the trust estate) is to be held in trust for the benefit of the children of Frank C. Kendall, and is to be divided into as many equal shares as there are children of Frank C. Kendall. The trustees are directed to use the income, and principal if necessary, for the care, education, and support of these children. When each child reaches the age of thirty, he or she is to receive one-half of his or her share, and the remainder when he or she arrives at the age of thirty-five years. (Other provisions are not here material.)

B. Share for benefit of Homer B. Kendall and his son: One-half of this share (one-sixth of the trust estate) is to be paid to Homer B. Kendall, if living. If he dies intestate before his portion is paid to him, it is to become part of the trust estate of his son, John Homer Kendall.

The other half of this share (one-sixth of the trust estate) is to be held in trust for the benefit of John Homer Kendall; and the trustees are directed to use the income, and principal if necessary, for his care, education, support, and welfare,

“. . . and when he has arrived at the age of thirty years, pay and deliver over to him one-half of said trust estate and the remainder when he has arrived at the age of thirty-five years, unless he sooner dies.”

(Other provisions are not here material. It is on this portion of the declaration of trust that respondents rely as the basis of their contention that it is mandatory that the stock be sold and John Homer Kendall be paid one-twelfth of the trust corpus, since he has attained the age of thirty years.)

C. Share for the benefit of Jean Kendall Gibbs and her daughter:

This share (one-third of the trust estate) is to be held in trust until Marian Frances Gibbs (daughter of Jean Kendall Gibbs) has attained the age of twenty-one years, all of the net income to be paid to Jean Kendall Gibbs. If that income is not sufficient for her welfare and support and for the care, education, support, and welfare of her daughter, Marian Frances Gibbs, then the trustees are to encroach upon the principal for such amounts as shall be adequate for such purposes. When Marian Frances Gibbs attains the age of twenty-one years, this share is to be divided into two equal.parts.

One part (one-sixth of the trust estate) is to be held for the benefit of Jean Kendall Gibbs during her lifetime, she to receive all the income therefrom, and if the income is not sufficient for her welfare and support, then the principal is to be available for that purpose. Upon her death, the remainder of her trust estate is to become part of the trust estate of Marian Frances Gibbs, if she is then living.

The other part (one-sixth of the trust estate) is to be held for the benefit of Marian Frances Gibbs, she to receive such part of the income as may be necessary for her care, education, and support, and the principal to be encroached upon, if necessary, for that purpose. When she attains the age of thirty, she is to receive one-half of her trust estate, and when she attains the age of thirty-five, she is to receive the balance. (Other provisions are not here material.)

The stock has not been sold, nor has the company been liquidated or merged with another company. The three children named as trustees are still alive and acting in that capacity. Hence, the income from the stock is still being divided equally among the three children of the trustors, as provided for during the first period covered by the declaration of trust.

The company owns land and operates lumber yards in nine cities and towns in eastern Washington. It also has two lumber yards in Idaho. The total assets, as of May 31, 1951, were $1,127,115.76, with current liabilities of $335,-147.87. For the year ended May 31, 1951, the corporate net income, after taxes, was $92,097.72.

This is an action by John Homer Kendall, one of the grandchildren, who takes the position that, having attained the age of thirty years, he is entitled, under the terms of the declaration of trust, to have half of his share of the corpus of the trust paid over to him, i.e., one-twelfth of the trust corpus. The trial court agreed with this contention and directed that the stock be sold so that distribution of the trust corpus could be made as provided in the declaration of trust. Two of the trustees appeal, and will be referred to as the appellants. The third trustee, father of plaintiff-respondent John Homer Kendall, agrees with his son’s construction of the trust and is a respondent.

The trustors, John Kendall and Frances M. Kendall, intervened in the court below, alleging that the declaration of trust was void as being in violation of the rule against perpetuities and asking that the stock be returned to them. That rule prohibits the creation of future interests in estates which possibly may not become vested within a life or lives in being and twenty-one years, together with a period of gestation where the latter is necessary to cover cases of posthumous birth. The trustors’ attack on the validity of the trust which they created is solely and exclusively on the ground that they had failed

“ . . . to place upon said, trustees and their successors any limitation of time within which said shares should be sold or said trust property liquidated, and the trust corpus thereafter divided and distributed”;

and that they had thereby

“ . . . so suspended the vesting of any estate or interest in the corpus of said trust estate as to render said trust and any and all estates and beneficial interest thereunder, void.”

A demurrer was sustained to the trustors’ complaint in intervention, and they perfected an appeal. Pending the hearing on the appeal, John Kendall died, and the appeal is prosecuted by Frances M. Kendall, individually and as executrix of the estate of John Kendall.

The issue to be met first is that raised by the trustor, because if she is correct in her contention, the other issues raised on this appeal are moot.

The only challenge presented to the validity of the declaration of trust is that contained in the allegation of the trus-tors’ complaint in intervention. We are convinced that no violation of the rule against perpetuities was alleged in the complaint in intervention of the trustors, and that the demurrer thereto was properly sustained. We will outline, in five steps, our reasoning in reaching this conclusion:

■ (1) Al-1 parties to this litigation are agreed that the trust is for the sole benefit of seven persons who were alive when the declaration of trust was executed, and that income from and ultimately the corpus of this trust is intended to go to the three children and four grandchildren of the trustors, all of whom are named in that instrument.

(2) When.the survivor of the seven named beneficiaries dies, there will be no person to whom income from the trust could be distributed and the objects of the trust will have been fully accomplished, with no existing purpose to support it and no possible reason for its continuance.

(3) When, as here, no term for the duration of a trust is explicitly set by the trustor, the court will construe the trustor’s intent to be that the trust will endure for the period necessary to accomplish the objectives of the trust. Kohtz v. Eldred, 208 Ill. 60, 69 N. E. 900 (1904); Wood v. Continental Illinois Nat. Bank & Trust Co., 411 Ill. 345, 104 N. E. (2d) 246 (1952); In re Shaw’s Estate, 342 Pa. 182, 20 A. (2d) 202 (1941); 4 Bogert, Trusts and Trustees (part 2), 422, 491, §§ 991, 1002; 2 Perry, Trusts and Trustees (7th ed.), 1560, § 920.

(4) The corpus vests when the trust terminates. This follows as a matter of course. The full equitable interest vests immediately upon termination. The trustees are required to convey legal title within a reasonable time. See: 2 Restatement, Trusts, 1070, 1072, § 345 and comment “e”; 3 Scott on Trusts 1890-93, §§ 344-45; 4 Bogert, Trusts and Trustees (part 2), 517, § 1003.

• (5) Since all of the corpus must necessarily vest upon the death of the survivor of the seven named beneficiaries, there is no violation of the rule against perpetuities.

It will be noted that to arrive at this result it is unnecessary to consider when, if ever, the trustees must exercise the power to sell the corporate stock. The trust terminates and the corpus vests within lives in being and twenty-one years thereafter, whether or not such power has been or must be exercised at any particular time. The power of sale continues as long as the trust exists. 4 Restatement, Property, 2230, § 382; see: 47 Harvard L. Rev. 948 (1934), 51 Harvard L. Rev. 638, 664 (1938).

The trustor places great reliance upon Denny v. Hyland, 162 Wash. 68, 297 Pac. 1083 (1931.) The will there in question provided that the trust “ ‘shall be and remain in effect for such period of time as the trustees shall deem best.’ ” The contention there made, that the trust would terminate with the death of the survivor of the two trustees, was rejected, the court saying that there was nothing in the will creating the trust which provided “that, at the death of the trustees, the trust shall end.” The property comprising the residue of the estate was made the corpus of the trust, and the trustees were directed to apply the income to the upkeep of the property, any excess income to be paid to named children and their children. The will.made no provision for distribution of the corpus unless and until the trustees, in the exercise of an unlimited discretion, determined to sell part or all of the property. Nowhere in the will, as the court pointed out, was there a suggestion that the property was to be in trust for the children. Under these facts, the court was of course unable to say, as it can here, that the objectives of the trust would necessarily be accomplished within lives in being and twenty-one years. For a discussion of the issues dealt with in the Denny case, see “The Rule against Perpetuities and Powers of Sale,” 7 Wash. L. Rev. 237 (an article written by Judge Hamley in 1932, he being then president of the student editorial board of the Washington Law Review).

A shorter answer to the contention that the trust -is rendered void by the possibility that the power of sale might be exercised beyond the period of perpetuities is found in a paragraph in W. Barton Leach’s article, “Perpetuities in a Nutshell,” 51 Harvard L. Rev. 638, 664 (1938), where he says:

“We have seen that a power of appointment (unless it is a general power exercisable by deed or will) is void if it can be exercised beyond the period of perpetuities. There is no such restriction upon powers of sale in trustees during the continuance of a trust. Such powers facilitate rather than hinder the free circulation of property, and to strike them down frustrates the policy of the Rule against Per-petuities. Likewise, there is no such restriction upon powers of sale in mortgagees. Such powers are ancillary to the security title of the mortgagee, are administrative rather than dispositive in character, and do not give rise to the abuses which the Rule against Perpetuities was designed to remedy.”

This statement is based on Melvin v. Hoffman, 290 Mo. 464, 235 S. W. 107 (1921), and the author’s more extended discussion of the subject in an article, “Powers of Sale in Trustees and the Rule against Perpetuities,” 47 Harvard L. Rev. 948 (1934).

The respondents here prevailed in the court below on the theory that it was the intent'of the trustors that each grandchild, when he or she attains the age of thirty years, should receive one-half of his or her part of the estate and, when he or she attains the age of thirty-five years, should receive the other half; and that it was the duty of the trustees to sell the stock or liquidate the corporation by the time the oldest grandchild had attained the age of thirty years and became entitled to one-half of his part of the estate.

If that were the intent, the trustors envisioned a continuance of the Standard Lumber Company as a family controlled corporation for a term of not more than thirteen years, because John Homer Kendall, the oldest of the grandchildren, was seventeen years of age at the time of the execution of the declaration of trust. Actually, this construction would have limited the family control of the corporation to seven years, for when Marian Frances Gibbs, fourteen years of age at the time of the declaration of trust, reached the age of twenty-one, she would have had the right to' have one-sixth of the trust corpus segregated for her use and benefit.

It seems plain to us that it was the hope and expectation of the trustors, then in their seventies, that by this trust arrangement they were continuing the control of the corporation in the family through the active lifetime of their children, or at least so long as two of them desired to continue it. What they wanted to see and enjoy was the devotion of their children to the family interests. They realized that the stock would be sold sometime, and that the Kendall family control of the Standard Lumber Company would come to an end, and they made provision for what was to be done when that happened; but that they intended to put a time limit on their family’s control of the corporation at either seven years or thirteen years, or any other specified period, is something that cannot be read into the instrument except by wishful thinking.

Unless the stock is sooner sold or the corporation liquidated, the trust will, as we have seen, terminate with the death of the last named beneficiary. It may be, as respondents forcefully argue, that the trustors never contemplated or intended that their grandchildren would never be permitted to have their shares of the corpus of the trust during their lifetime (and this, it seems to us, is a very remote possibility, but nonetheless we concede that such a possibility exists); but by the same token, we think it was never contemplated or intended by the trustors that one of their grandchildren could compel a sale of the stock by the trus-tors’ children, as trustees, while those children desired to continue the operation of the corporation (and such an effort by a grandchild is not a possibility but an actuality).

If we are to speculate on contingencies, it seems to us that the trustors contemplated what will in all probability happen, i.e., that the stock will be sold when two of the three children, as trustees, regard the Kendall operation and control of the Standard Lumber Company as no longer desirable or practical. (The record indicates that the three trustees are in accord on the desirability of a sale, and that the only issue (eliminating, as we have done, the contention of the surviving trustor) is, when? Respondents take the position, as did the trial court, that the trustees have breached their duty by not selling at an earlier date, and that an immediate sale should be directed. Appellants are willing to sell but do not want to be forced into a sale precipitously. They say, with the supreme judicial court of Massachusetts in Rowland v. June, 327 Mass. 455, 459, 99 N. E. (2d) 283 (1951):

“It seems to us to be the reasonable inference from the trust instrument that a paramount purpose of the settlor was to provide for retaining the shares as a unit until the trustees, whoever they might be, should deem the time propitious for disposing of the entire holdings ‘in block.’ In this way the control of the corporation, not unlikely a source of value beyond the intrinsic worth of the shares, could be preserved. See Restatement: Trusts, § 337, illustration 11.”)

The question is not whether a contingency has developed or may develop which the trustors did not contemplate (few trustors have a prescience which takes in all contingencies) ; the question is: When are the trustees required to sell the stock? It is clear that the declaration of trust fixes no specific time, and that there is no suggestion of the possibility of a compulsive sale.

By the terms of the declaration of trust, none of the trustors’ grandchildren are to receive any part of the income from the trust estate until the death of his or her parent, nor will any of them receive any portion of the corpus of the trust estate until the stock is sold. The father of plaintiff-respondent John Homer Kendall has not died; the stock has not been sold; and John Homer Kendall has no present right to either income from or a portion of the trust estate. He has neither alleged nor established a cause of action against the trustees to compel the sale of the stock.

The trial court’s dismissal of the trustors’ complaint in intervention is affirmed; the judgment directing the trustees of the Kendall trust to sell the stock of the Standard Lumber Company is set aside and the cause is remanded with instructions to enter an order dismissing the amended complaint of respondent John Homer Kendall.

Grady, C. J., Mallery, Hamley, and Finley, JJ., concur.

Weaver, J., did not participate.