Brief Fact Summary. Philomena Lux created a testamentary trust for the benefit of her grandchildren. The real estate in the trust could not be sold until the youngest of the said grandchildren reached the age of twenty-one years of age.
Synopsis of Rule of Law. A court will permit a class size to increase until the time for distribution. If a will shows no intention on the part of the testator that income be accumulated, income is payable to the beneficiaries as it accrues.
Where a testator creates a trust that is to be distributed when the youngest of her grandchildren reaches the age of twenty-one years of age, whether the testator intended that a trust be distributed when the youngest member of the class in being when the will was executed attains twenty-one, when the youngest of all living class members in being at any one time attains twenty-one even though it is physically possible for others to be born, when the youngest of all living class members in being at any one time attains twenty-one though it is physically possible for others to be born, or when the youngest whenever it is born attains twenty-one?
Whether a trustee may sell property to a member of the family where the trust reads, “it is my express desire that said real estate be sold to a member of my family,”
Whether income from a trust may be paid to the beneficiary as it accrues or does it have to be accumulated?
The trust is to be distributed at any time when the youngest of the then living grandchildren has attained the age of twenty-one. The testator’s statements about the necessity of the sale of the house show that she was aware that future circumstances might require the liquidation of her real estate sometime before her youngest grandchild becomes twenty-one. The distribution of the trust should not have to wait on the improbable conception of further members of the class. To require a trust to await the possible conception of additional members of the class is unjustified.
Yes. The testator’s use of the precatory language, “desire”, will be construed as words of command only it if it clear that the testator intended to impose on the individual concerned a legal obligation to make the desired disposition. The testator’s primary goal was to benefit her grandchildren.
The income is payable to the beneficiary as it accrues because the will does not show hat the testator intended that the income be accumulated.
Discussion. The court will determine a testator’s intent concerning distribution where the will is silent by considering the most reasonable inference under the circumstances. To hold that the trust must be maintained until later grandchildren became twenty-one would have jeopardized the trust gift itself.