Thorndike v. Loring

A bequest of a fund in trust to accumulate for a fixed period of more than twenty one years, and then to be paid to the testator’s then next of kin, is void for remoteness. A testator directed his executors to pay a certain sum to a trust company, to be held by it for the term of fifty years after his death, in trust to invest the principal and interest from time to time, in order that the same might accumulate for the benefit of his heirs; subject however to a provision that sums (not exceeding in any event six per cent upon the original capital) might be paid to any of his children or grandchildren who should become poor and in necessitous circumstances; and upon the further trust, at the end of the fifty years to pay the whole principal sum with its" accumulations to those who would be entitled to his estate if he should then die intestate; provided that any attempt by any child or grandchild to alienate his share or right should forfeit the same to the remaining issue of the testator; and further directed that if the trust company should refuse to receive the fund on the above terms and conditions, his executors should place the same with the company on terms, conditions and agreements as near to the above as they could obtain, keeping in view his principal objects in making this bequest. The trust company being supposed to be authorized by its charter to take deposits only for a life in being, the executors deposited the fund with it upon a policy by which the interest was to be accumulated until otherwise directed, and, with the principal, payable to them upon the death of one of the testator’s sons, with the understanding on the part of the executors and the company that upon his death within the fifty years, a like policy should be taken out on another life, and so on till the end of the fifty years, and the fund should then be distributed according to the will. Held, that the bequest was void for remoteness, and that the residuary legatees were entitled to the fund.

Bill in equity by children and residuary legatees of Israel Thorndike, who died in 1832, against the surviving executor of his will and the Massachusetts Hospital Life Insurance Company, to recover the subject of the following bequest, upon the ground that it was void for remoteness. “ I order and direct my executors to transfer and pay to the Massachusetts Hospital Life Insurance Company aforesaid twenty thousand dollars, to be held by said company for the term if fifty years after my decease, in trust that the said company' shall invest the principal and interest from time to time during said term, in order that the same may accumulate for the benefit of my heirs; subject however to this provision: If any one or more of my children or of my grandchildren, after the death of his or her parent, my child, should during said term become poor and in necessitous circumstances and should need relief, and my wife and a majority of my children then living, and after her decease a majority of my children then living, shall certify the same in writing, or if from any cause such certificate should not be produced and the actuary and president and two of the directors of said company shall be satisfied that such child or grandchild is in necessitous circumstances and needs relief, then that said company shall pay such child or children, if more than one, grandchild or grandchildren, if more than one, such sum as in their judgment shall be sufficient to relieve him, her or them: Provided that the whole sum paid to any child, or children together of a deceased child, shall never exceed four hundred dollars in any one year. And upon the further trust, that at the end and expiration of said fifty years the said company shall and do pay and transfer the whole of said principal sum and all the accumulation of interest thereon to and among my lawful issue and those who would then be my lawful heirs and entitled to my estate, if I had then died intestate, by virtue of the statute of distributions, and in the same proportions as said issue in such case would have been entitled to my estate: Provided however, if any or either of my children or grandchildren should be so improvident as to attempt to alienate, transfer or assign, his, her or their share, right or interest in said capital sum of twenty thousand dollars, such child or grandchild shall thereby forfeit all right and claim to a share of said capital and the accumulations thereon, and the said company at the expiration of said fifty years shall transfer and pay such share or shares thereof to and among my other issue in the same manner as if such child or grandchild had died without issue and intestate. And in case said company refuse to receive said twenty thousand dollars on the terms, agreements and conditions above expressed, I direct my executors to place the same with said company on terms, conditions and agreements as near to the above ,as they can obtain, keeping in view my principal objects in making this bequest.” The testator left three children. At the time of his death, and until very lately, no question was made as to the legality of this bequest. The executors deposited the sum given with the said corporation upon a policy or annuity in trust, by which the interest was to be accumulated until otherwise directed, and, with the principal, was payable to them upon the decease of Israel Thorndike, Jr., one of the plaintiffs, with the understanding on the part of the executors and the corporation, that if he should die within the period of fifty years, a new policy should be taken out for another life, and so on till the fifty years should expire, when the fund was to be distributed, or that if he should survive that period, the fund should be distributed at the end of the fifty years according to the will. This arrangement was not made with any intent to alter the disposition of the principal or income directed by the will, to affect the legal rights of any persons, or with the knowledge of the residuary legatees; but because all deposits in trust made with that corporation are taken for a life in being; it being considered that, under its charter, it had only the right to take such a policy, reserving to either party the power to terminate the trust from time to time at the expiration of periods of five years. No part of the principal or income has been withdrawn, and the corporation asserts no right to retain the fund by virtue of this arrangement, if the bequest should be declared void, and the residuary legatees or any other person should be declared entitled to it. In August 1858, a' demand was made upon the surviving executor, and upon the corporation, for the, payment of the said sum of money and the accumulations, which was refused. The case above stated was submitted to the decision of the court, and was argued in writing at a former term.