In my opinion the will of Mr. Crawford is entirely valid. I therefore dissent from the prevailing conclusion that the feature of the will relating to testator's real property is void because offensive to the rule against perpetuities; the affirmation being, in effect, that the testator undertook, illegally, to suspend the power of alienation of his real property for a period measured by time, rather than by lives in being as Code, § 3417, is declared to contemplate. If it is assumed, as does the majority of the court, that the presently material Alabama and New York statutes treating perpetuities are substantially the same the declaration to be quoted from the New York court in Moore v. Moore, 47 Barb. (N.Y.) 257, 260, cited approvingly in Lyons v. Bradley, 168 Ala. 517, 53 So. 244, serves to disclose that error affects the prevailing conclusion when Mr. Crawford's will is properly interpreted, in accordance with generally accepted rules of construction. In Moore v. Moore, supra, this was the pronouncement:
"In all the adjudicated cases upon this statute, the courts have uniformly held that the period of suspension of alienation could not be measured by time alone; that life must in some form be the measure of the period of suspension. Hawley v. James, 16 Wend. 123-172, 7 Paige, 25; s. c., 20 Wend. 464, 5 Sandf. 174, 3 Seld. 547, 3 Denio, 53."
When Mr. Crawford's will is soundly construed, to effect his intent — an interpretation that takes into consideration an important rule of testamentary construction that has not been accorded deserved or due operation in this instance — it will be seen that this testator did not measure "by time alone" the period of suspension of the power of alienation of his real estate; to the contrary, that he designed a scheme whereby the period of suspension was measured by life or lives in being when the testator died, thus casting his will into the category that, under the authority of Moore v. Moore, supra, does not fall within the condemnation of the New York statutes nor of section 3417 of the Alabama Code, providing, as presently material, as follows:
"Lands may be conveyed to the wife and children, or children only, severally, successively, and jointly; * * * but conveyances to other than the wife and children, or children only, cannot extend beyond three lives in being at the date of the conveyance, and ten years thereafter."
The testator chose an executorial trust to carry into effect his intent. Other than the statute quoted (section 3417), there is no statute in this state setting limit to the duration of an active trust like this, the trust created not being a trust for accumulation within the purview of Code, § 3410.
Upon his death this testator was survived by his widow, four children, and, as averred in the bill, more than four grandchildren. His manifest desire was to make the widow, the children, and grandchildren (other than Dorothy Carlisle) beneficiaries of his estate in the manner and after the method to be stated. To effect this obvious purpose he sought to employ an executorial trust. His first consideration was to make provision for the means wherewith to maintain his widow during the remainder of her life; and to this end he fixed a charge therefor upon his estate and the active duty thereunto upon his executors to so administer and devote, in their discretion, the income or corpus of his estate. Consistent with this purpose, along with others to be stated, he directed that his executors or their successors should keep his estate together and to administer and manage it according to the scheme he designed. The feature of the will making provision for the widow is not questionable and is not questioned. Anticipating that his estate would produce a fund in excess of that necessary to the maintenance of his widow, he directed that to the survivor or survivors of his four named children should be annually distributed until 1928 the net, ascertained income and profits from his estate, and that from 1928 to 1938 the annual, ascertained net income and profits should be annually distributed per capita to his "grandchildren (except Dorothy Carlisle) then in being," the corpus of the estate to be distributed at the end of the period stated among his "said surviving children and my [his] grandchildren," except Dorothy Carlisle. *Page 392
The feature of the trust preferring the surviving of the testator's four named children as the beneficiaries of the income (after provision for the widow) until 1928 is itself indubitably valid. Code, § 3417. One reason, among others, for this conclusion is that, notwithstanding the trust duration in this particular is expressed in time (1928), the prescription of time is obviously subordinate to the survival, pending the period to 1928, of one or more of the four named beneficiaries of the trust, viz. his four named children, the testator's paramount intent being to favor in that feature his named children, not to define, paramountly, the period that phase of the trust should endure. An efficiently declared trust fails, is not void or illegal, when pending its enjoyment, its designated beneficiaries cease to exist. Abercrombie's Ex'r v. Abercrombie's Heirs, 27 Ala. 489, 496, 497; 1 Jarman on Wills (6th Ed.) 527 et seq.; Trustees, etc., v. Caldwell, 203 Ala. 590,84 So. 848, 851, 852.
The presence of invalidating circumstances is to be found, if at all, in this will in the feature of the trust whereby the testator provided for annual equal distribution of income (only) among his "grandchildren then in being" during the period 1928-1938, the stipulation for retention of executorial control and administration over that period, and the direction to divide in 1938 the corpus of his estate among (to quote item 6 of the will) "my said surviving children and my grandchildren," Dorothy Carlisle excepted. The question of validity vel non, in the aspect touching the testator's real property, is dependent upon construction — a factor that does not seem to the writer to have had appropriate consideration in the attainment of the majority's conclusion to invalidity,
"When a will is fairly susceptible of two constructions, one of which would render it inoperative and the other give effect to it, the duty of the court is to adopt the latter construction." Castleberry v. Stringer, 176 Ala. 255, 57 So. 850.
The application of this sound doctrine to the case of asserted violation of the rule against perpetuities is strikingly illustrated in Nicoll v. Irby, 83 Conn. 530, 533,534, 77 A. 957, where the court preferred and gave effect to a construction of the instrument that avoided a pronouncement of its invalidity as a violation of the rule against perpetuities. Mr. Crawford's will, in the particular under review, is a fair object for the operation of the conservative rule whereby testamentary disposition may be soundly preserved, not defeated, consistent with the presumption that a testator intends the terms of his direction to express an intent to effect a lawful purpose in a legal way.
Aside from the stated stipulation that his estate should be kept together until 1938, and the income annually distributed as his scheme contemplated, the basis for the view that a violation of the rule against perpetuities is provided is held to result from the words "my grandchildren then in being," employed to describe those entitled to the contemplated distribution of the corpus in 1938. To that end, the will is read as defining a class, ascertainable only in 1938, that, through the birth of grandchildren prior to 1938, after the testator's death, may be composed of persons entirely different from those in being at the testator's death in 1918 or from those who were or will be grandchildren in 1928 when the annuity for "grandchildren" would come to be enjoyed. This testator did not expressly provide for after-born grandchildren. He left the expression of his intent as to the division of the corpus to the reference to those in being in 1938. Those "grandchildren then (1938) in being" may be those in being when the testator died. At the time he died he had, as stated, a number of grandchildren. The quoted phrase is not conclusive; it is subject to construction; it is fairly, reasonably open to an interpretation that accords the phrase the meaning of survivorship in 1938 among his grandchildren in being when he died. There is no term in the will this construction would contradict or modify. The provision for keeping the estate together, under an executorial trust, until 1938 is not at all inconsistent with the arrival of 1938 as the point of time at which the corpus of his estate would be distributable to such of his grandchildren, in being when he died, as survive the period intervening the distribution directed for the year 1938. To construe the will, particularly the quoted phrase, as but defining a class subject to altered personnel between the testator's death and 1938, through birth of grandchildren subsequent in that period, manifests a construction against, rather than in favor of, validity of the trust; this without proper regard for the office or effect of the rule of construction approved in Castleberry v. Stringer, supra, and Nicoll v. Irby, supra. Furthermore, to construe this feature of the will to invalidity, because violative of the rule against perpetuities requires the unwarranted exaltation of the provision with respect to time (1938) over the obviously paramount intent of the testator to bestow his bounty, annuity (income), and then the principal, in part, upon children of the testator's children, thus overemphasizing the minor above the major testamentary purpose, to the end of inviting a conclusion against validity. If, as the will should be interpreted, the testator designated, not a class the alterable personnel of which should be ascertained in 1938, but those of his grandchildren living when he died in 1918, and who survived to the time of distribution in 1938, the will is entirely valid, and represents no effort to offend the rule against *Page 393 perpetuities. In other words, the testator's design provided the same scheme with respect to the beneficiaries among his grandchildren as he did for his four named, surviving children. Under this proper construction, the provision as to time of duration and for distribution of the corpus would depend upon the survival, to the time of distribution (1938), of some or all of the grandchildren in being when the testator died. If all of such grandchildren should die before distribution of the corpus (1938), the death of the last of such grandchildren as were living when the testator died would simply terminate the trust for want of a beneficiary or beneficiaries (authorities, supra), a condition not at all predicable of illegality.
This construction of the will affects to bring it within the influence of the quoted rule of Moore v. Moore, supra, where it was held that, if life in some form rather than "time alone," determined the period of suspension of the power of alienation, the statute against perpetuities is not offended.
I therefore dissent from the conclusion of the majority in the particular that a feature of this will is void.