Opinion
No. 5115.
Argued April 2, 1963.
Decided April 30, 1963.
1. Where the settlor of testamentary trust provided upon certain contingencies for the payment of income and distribution of the corpus of the trust to his son or if dead to his son's wife and issue if any it was held on a petition for termination of the trust by agreement that undisputed medical testimony that neither the son nor the wife were capable of having children was sufficient evidence to remove any doubt of the possibility of issue to them and sufficient to remove any reasonable doubt of violation of the Rule against Perpetuities.
2. This state rejects the so-called common law conclusive presumption that a man or woman is always capable of bearing children regardless of age, physical condition, and medical opinion to the contrary.
3. Where a will establishing a trust contained ambiguities and there was a possibility of an interpretation which might result in partial intestacy and a further question of whether the trust violated the Rule against Perpetuities, termination of the trust and distribution of the assets in accordance with the compromise agreement of all parties was authorized where it was not contrary to any material purpose for which the trust was created and expensive litigation was thus avoided.
4. A trust may be terminated for good cause shown if the possibility of birth of children is negligible although childbirth is not absolutely impossible.
Certification of a question of law from the probate court of Hillsborough county (Lemelin, J.) to this court relating to the termination and distribution of the testamentary trust under the will of Sheldon Bassett, late of Goffstown, New Hampshire, which was probated in 1925. RSA 547:30. The plaintiff is the surviving trustee who petitioned the probate court for authority to terminate the trust and distribute the principal and income thereof in accordance with a compromise agreement entered into by the parties having any interest in the testamentary trust under the will of Sheldon Bassett.
There are no disputed questions of fact and the reason for the compromise agreement is stated in the petition as follows: "That in consideration of legitimate controversy arising from uncertainties in the will, and in the interests of avoiding dissipation of the trust corpus in litigation, the following parties in interest, all of whom are sui juris, have entered into an agreement for the dissolution of the trust and the distribution of assets, believing themselves to be all the parties claiming or entitled to any interest whatsoever under the terms of the will and believing that no material purpose of the trust will be frustrated by dissolution and distribution at this time."
In skeleton summary the will has been paraphrased as follows: "The sole apparent purpose of the will and the trust created thereunder was to provide for the lifetime support of the testator's wife, daughter and son. [After the widow's death] the testator's son, Royal, was to receive one half of the income until he reached fifty (50) and then receive one half of the principal. This purpose has been accomplished. The testator also intended to provide for Royal's widow and his issue, if any. He also intended to provide for [his daughter] Naomi's issue, if any. Having provided for these persons, and in the event that there was no occasion to support them, the testator provided for benefits to Joseph W. Eaton and his wife and issue under certain circumstances. All of these contingencies failing, the testator provided for distribution to his heirs at law."
Paragraph (f) of the testamentary trust reads as follows: "In the event of the death of my said daughter without leaving issue then the entire income to be paid to my son, Royal, if living, or if dead to his wife and issue in equal shares until the youngest of the said issue surviving and in being at the time of my decease reaches the age of twenty-one (21) years, at which time the entire balance unexpended of said trust fund, (principal and income) to be divided equally between my said son's wife and issue free and discharged from the trust herein. In case my said son is survived by a wife and no issue then the income of said trust fund to her and upon her death or remarriage then to my stepson, JOSEPH W. EATON, until he reaches the age of fifty (50) years at which time the principal of said trust fund unexpended shall be turned over to him free and discharged from said trust."
No child was born to the daughter Naomi but she adopted a child of her former husband, whose name is Mary Elizabeth Jackson. The son Royal Bassett had no child but in 1940 adopted a child who is now living. Royal and his present wife Evelyn are both living. According to undisputed medical testimony, agreed to by all parties "the possibility of childbearing is over" for Evelyn, and Royal "is not capable of having children of his own." The testator's wife Emma and his daughter Naomi have deceased and Joseph W. Eaton predeceased the testator's widow without receiving any income under the will, survived by his wife and three children who are parties to this proceeding. All persons who would take as heirs-at-law or by intestacy, apart from the possibility of issue of Royal, are parties to the agreement for termination of the trust.
The compromise agreement provides that if the permission of the probate court is obtained the testamentary trust shall be terminated and the principal and income distributed, sixty per cent to Royal Bassett, and forty per cent to Mary Elizabeth Jackson, and that the sum of $5,000 shall be equally distributed to the surviving wife and children of Joseph W. Eaton, which sum of $5,000 shall be paid by Royal Bassett and Mary Elizabeth Jackson in specified amounts.
Booth, Wadleigh, Langdell, Starr Peters for the plaintiff trustee, furnished no brief.
Wiggin, Nourie, Sundeen, Nassikas Pingree and Dort S. Bigg (Mr. Bigg orally), for Mary Elizabeth Jackson.
Broderick Loughlin (Mr. Martin F. Loughlin) (by brief), for Royal Bassett and Evelyn Bassett.
Chester C. Eaton for the surviving wife and children of Joseph W. Eaton, furnished no brief.
Victor W. Dahar, guardian ad litem, furnished no brief.
One of the problems involved in the present litigation in determining the interested parties was the possibility that the son Royal (aged 63) or his present wife Evelyn (aged 45) might have children. There was an ancient common law so-called conclusive presumption that any person is capable of having children regardless of age, physical condition, surgery or medical opinion. This presumption, dutifully reported and supported by Littleton, Coke and Blackstone, received further impetus in Jee v. Audley, 1 Cox 324 (Ch. 1787). See Annot. 67 A.L.R. 539; 146 A.L.R. 794. This rule never made very much sense in the beginning (Exham v. Beamish, [1939] Ir. R. 336 (Ch.); 53 Harv. L. Rev. 490) and in the twentieth century has even less to commend it. 6 American Law of Property, s. 24.22 (1952); Leach and Logan, Future Interests and Estate Planning, 685-705 (1961). This so-called irrebuttable presumption that a man or woman is capable of having children as long as life lasts is an anachronism which has been severely criticized. 3 Powell, Real Property, s. 347 (1952); Bogert, Trusts and Trustees (2d ed. 1962) s. 1007, pp. 543, 544; 1 Nossaman, Trust Administration and Taxation, ss. 6.11 and 21.03 (2d ed. 1961); 14 U. Pitt. L. Rev. 452 (1953). "The reasonable certainty which suffices for other purposes should also suffice for the Rule against Perpetuities. Fanciful doubts, contrary to the common experience mankind, should not be permitted to disrupt family estate plans and frustrate reasonable expectations." 6 American Law of Property, s. 24.22, p. 72 (1952).
It is significant that in the practical field of taxation the conclusive presumption that a person is always capable of bearing children has been discarded. United States v. Provident Trust Co., 291 U.S. 272; Commissioner of Corporations and Taxation v. Bullard, 313 Mass. 72. See 9 Wigmore, Evidence (3d ed.) s. 2528. There is at least a partial statutory analogy in RSA 457:10 (supp) which permits the marriage of women over the age of forty-five years with inheritable defects.
This state rejects the "notion" there is a conclusive presumption that a man or woman is always capable of bearing children regardless of age, physical condition and medical opinion to the contrary. See 3 Scott, Trusts (2d ed.) s. 340.1, p. 2499. Although this question has not been considered in detail heretofore, it is consistent with the result reached in White v. Weed, 87 N.H. 153. See in this connection 34 Mich. L. Rev. 453, 455. In the present case we have undisputed medical testimony that neither the son Royal nor his wife Evelyn are capable of having children. This evidence is considered sufficient in this jurisdiction to remove any question about the possibility of issue to these people, and is sufficient to remove any reasonable doubt about violating the Rule against Perpetuities. This matter is well stated in new text added in the 1963 supplement to 3 Scott, Trusts (2d ed.) s. 340.1 p. 2500 as follows: "Even though it cannot be said that it is absolutely impossible that children should be born, it would seem that the court should permit the termination of the trust if the possibility of the birth of children is negligible." We adopt this statement. This is consistent with the Restatement of Property, s. 274 (1) (a), (b), which reads as follows: "(1) When a limitation purporting to create a remainder or an executory interest is in favor of a person whose birth is, or becomes, impossible because of either the death, physical condition or advanced age of a required parent, such limitation has no effect thereafter (a) to prevent or to delay the distribution of an estate or fund; or (b) to prevent or to delay the termination of a trust." See also, Restatement (Second), Trusts, s. 340, comment e.
In the present case there were ambiguities in the will; there was a possibility of an interpretation which might result in partial intestacy; and there was a question whether the trust violated the Rule against Perpetuities. All these matters were taken into consideration when the compromise agreement was entered into and it represents a practical and reasonable solution to what would otherwise result in expensive litigation. The termination of the trust and the distribution of the assets are not contrary to any material purpose for which the trust was created. Restatement (Second), Trusts, s. 337; Eastman v. Bank, 87 N.H. 189; Citizens Nat. Bank v. St. Peters Lodge, 102 N.H. 352, 356. The probate court is advised that the petition to terminate the trust and distribute the proceeds pursuant to the compromise agreement should be granted.
Remanded.
All concurred.