This is an appeal from a part of the judgment of the Probate Court of Hamilton County, wherein that court construed item 9 of the will of John F. Schoeny, deceased.
Letters testamentary were issued to Robert W. Gwinner as executor and The Central Trust Company was appointed trustee under the terms of the will.
After making specific bequests, the testator in item 9 of his will created a testamentary trust, the interpretation of which by the court below constitutes the ground for this appeal. The trial court held that item 9 was violative of Section 2131.08 of the Revised Code of Ohio, and was, therefore, invalid.
Section 2131.08, Revised Code, provides:
"No interest in real or personal property shall be good unless it must vest, if at all, not later than twenty-one years after a life or lives in being at the creation of the interest. All estates given in tail, by deed or will, in lands or tenements lying within this state, shall be and remain an absolute estate in fee simple to the issue of the first donee in tail. It is the intention by the adoption of this section to make effective in Ohio what is generally known as the common law rule against perpetuities."
Item 9 is as follows:
"All the rest, residue and remainder of my estate, both real and personal, of every kind and description, wheresoever situate, which I may own or have the right to dispose of at the time of my decease I give, bequeath and devise to The Central Trust Company, Cincinnati, Ohio, as trustee, with full power, without any order of court, to control, exchange, sell or otherwise dispose of all or any part thereof, and to invest and reinvest in such bonds or other obligations of the United States government, such first mortgage bonds and such mortgages on improved real estate or participations therein, and in such other bonds and securities which are by the laws of Ohio proper investments for trust funds as the said The Central Trust Company, as trustee, may deem suitable and proper, with the right to retain as investments any property coming to said trustee from my estate, without liability for depreciation in value and specifically including any capital stock interests in The Central *Page 187 Trust Company, Cincinnati, Ohio, which I may own at the time of my decease.
"I request that no bond be required of said trustee.
"Out of the income and/or principal of said trust fund there shall be paid the sum of two hundred ($200) dollars each month to my son, John Robert Schoeny, during his lifetime and after his death the said payments of $200 each month shall continue and be paid to his issue, per stirpes.
"Out of the income and/or principal of said trust fund there shall be paid the sum of two hundred ($200) dollars each month to my son, George Eugene Schoeny, during his lifetime and after his death the said payments of $200 each month shall continue and be paid to his issue, per stirpes.
"Out of the income and/or principal of said trust fund there shall be paid the sum of two hundred ($200) dollars each month to my son, James Wilson Schoeny, during his lifetime and after his death the said payments of $200 each month shall continue and be paid to his issue, per stirpes.
"Out of the income and/or principal of said trust fund there shall be paid the sum of two hundred ($200) dollars each month to my son, William Merritt Schoeny, during his lifetime and after his death the said payments of $200 each month shall continue and be paid to his issue, per stirpes.
"Out of the income and/or principal of said trust fund there shall be paid the sum of two hundred ($200) dollars each month to my son, Richard Thomas Schoeny, during his lifetime and after his death the said payments of $200 each month shall continue and be paid to his issue, per stirpes.
"The payments out of said trust fund shall begin as of the first day of the month following my death and shall continue until said trust fund has been depleted."
It is obvious that this item creates a trust in the residue of the estate and provides for the payment of $200 per month to each of testator's sons, and that upon the death of any son, the $200 payable to such son should be paid to the issue of such deceased son, per stirpes.
It is further obvious that these payments of $200 each month shall be paid out of income or principal of said trust until the trust fund has been depleted. *Page 188
At the outset we must keep in mind that it is admitted by appellants that the trust, after termination of the life estates of the great-grandchildren, violates the law against perpetuities. It seems to this court from a reading of the law and the cases on the subject that it is our duty to determine what was in the mind of the testator when he created this trust. Did he intend to tie up the residuum of his estate, in excess of a quarter of a million dollars, until it was depleted; all of which being subject to life estates of great-grandchildren, not yet in being? Are such life estates so remote as to invalidate the entire trust? It is conceded, as stated above, that the time will come in the administration of the trust, when the rule against perpetuities will arrive, and thereafter the administration of the trust must end. The sole question then, it seems, is whether or not the invalid limitation of the trust is an integral part of the general plan of the trust. If the invalid part is a necessary item of the general purpose of the trust, then the whole trust must fail. This appears to be the weight of authority on the subject. As stated in 41 American Jurisprudence, 105, Section 61, "where the chief purpose of the testator is to tie up the estate and prevent its distribution until a period too remote under the rule against perpetuities," then the trust is void for remoteness. It seems that this is not only the real purpose of the testator in the case at bar, but the actual result.
See, also, 41 American Jurisprudence, 100, Section 57.
In the light of the language of the trust, that the payments shall be made to the sons, and after them, to their issue, great-grandchildren and great-great-granchildren, until "said trust has been depleted," what other conclusion can be reached? It is urged that this situation will never arise because investments at 4% are unlikely, and the cost of administration of the trust, plus fees to attorneys and to the trustee, would cause the corpus of the trust to be exhausted before the arrival of the time when the trust would expire because of the application of the rule against perpetuities. Who can say that such a result is probable? It is possible; but is it the province of the law to administer trusts of such uncertainty and remoteness?
It is further urged that because there was a great-grandchild in being at the time of the vesting of the life estates, that *Page 189 this saves the trust from invalidity as to all persons in that class, born or unborn. It seems to us that where the estates in remainder, to the issue of any sons, are void by reason of the violation of the rule against perpetuities, the fact that there is one of the class who can take, does not save the trust as a whole; if that is so, then the life estates attempted to be created in all great-grandchildren fail and the property descends to the testator's sons as intestate property.
In 41 American Jurisprudence, 102, Section 58, we find this statement of the law: "* * * where there is a general scheme essentially for the benefit of a class [issue, per stirpes, great-grandchildren], such as the testator's grandchildren, all of whom are presumably the equal objects of his [testator's] bounty, and the devise to part of them is invalid under the rule against perpetuities, the whole devise must fall, since to uphold part as valid would be to work an injustice between members of the class." See, also, 70 Corpus Juris Secundum, 595, Section 16; 31 Ohio Jurisprudence, 324, Section 26; Dayton v. Phillips, 28 W. L. B., 327, 11 Dec. Rep., 680; Hatch v. Hatch, 31 W. L. B., 57, 1 O. D., 270.
In other words, the phrase "issue, per stirpes" creates certain classes. It is conceded that the rule is violated as to some in those classes. Therefore, the respective remainders in each of the classes are void.
If what we have said is true; if the trust fails, it is obvious that only the sons have any vested interest in the corpus of the trust or residue of the estate; for failure of the remainders to the issue of the sons, the life estates of the sons and the remainders merge; the sons become "the absolute owners of the corpus of the trust estate and are entitled to have the trust terminated, and such corpus delivered to them free of all restraint imposed by the trust." Morgan et al.,Exrs., v. First National Bank of Cincinnati, 84 Ohio App. 345, at 355, 84 N.E.2d 612.
It is the opinion of the writer that the testator in this case conceived and adopted a general plan to provide life estates not only for his sons but for their issue, "per stirpes," in perpetuity, if necessary, until the corpus of the estate was depleted. As pointed out, invested at reasonable rates of income and managed by one of the best trust companies in this community, *Page 190 it is possible for this trust to last for hundreds of years. It is my opinion that the trust is violative of the rule against perpetuities, and for that reason, the judgment of the Probate Court of Hamilton County, Ohio, should be affirmed.