Skinner created a testamentary trust that left life estates in the income to his children and then his grandchildren. The remainder was to be distributed amongst his great-grandchildren.
A trust creating a remainder in the testator’s great-grandchildren as a class violates the Rule Against Perpetuities.
Skinner created a testamentary trust. He left a life estate in the trust income to his children. Once his last child died, the life estate would pass to his grandchildren as a class. Once the last grandchild died, the trust proceeds would be distributed amongst his great-grandchildren as a class. Brody (Plaintiff), a trustee, filed for a declaratory judgment establishing his rights and duties under the trust. The trial court certified the matter for review by the state supreme court.
May a trust create a remainder in the testator’s great-grandchildren as a class?
(House, C.J.) No. A trust creating a remainder in the testator’s great-grandchildren as a class violates the Rule Against Perpetuities. The Rule Against Perpetuities states that any contingent remainders must vest within 21 years of a life in being at the time of the remainder’s creation. The testator’s children must be used as measuring lives as the classes of grandchildren and great-grandchildren could grow after the testator’s death. It is certainly possible that great-grandchildren who would be included in this remainder class would be born more than 21 years after the death of the testator’s last child. The remainder left to this class of great-grandchildren therefore fails. The rules of intestate succession will be applied instead.
The Rule Against Perpetuities deals with theoretical possibilities, not practical ones. Any life in being at the time of the creation of the will or trust is considered capable of having children for purposes of applying the Rule. The concept of the “fertile octogenarian” or the “precocious toddler” are a result of this analysis.