Dickerson v. Union Nat'l Bank - 268 Ark. 292, 595 S.W.2d 677 (1980)

Rule:

A trust is void where there is a possibility that the estate will not vest within a period measured by a life or lives in being at the testatrix's death, plus 21 years. A bare possibility is enough. The interest must vest within the time allowed by the rule. If there is any possibility that the contingent event may happen beyond the limits of the rule, the transaction is void. 

Facts:

Nina Martin Dickerson, the testatrix, was survived by her two children. Cecil, 50, was single, and Martin, 45, was married. At that time the two sons had a total of seven children, who of course were the testatrix's grandchildren. The testatrix named the Union National Bank Trustee as executor and directed that at the close of the administration proceedings the bank transfer to itself as trustee all the assets of the estate. Upon the death of the testatrix in 1967, her will was presented to the Faulkner Probate Court by her son Cecil, The probate court entered a routine order reciting that the will had been properly executed, admitting the instrument to probate, and appointing the bank as executor, without bond. On May 31, 1968, the probate court entered another routine order approving the executor's first and final accounting, allowing fees to the executor and its attorneys, discharging the executor, and closing the administration of the estate. That order made no reference to the validity of the trust or to the manner in which the assets of the estate were to be distributed. Cecil attacked the validity of the trust. The chancellor rejected Cecil's attack on two grounds; First, Cecil should have raised the question of the validity of the trust in the probate court in connection with the probate of the will and the administration of the estate. His failure to do so makes the issue res judicata. Second, on the merits, the trust does not violate the rule against perpetuities. 

Issue:

Is a trust created by the holographic will of the testatrix, who died on June 21, 1967, void under the rule against perpetuities, because it is possible that the interest of the various beneficiaries may not vest within the period allowed by that rule?

Answer:

Yes

Conclusion:

The court explained that the will provided that the trust was to continue until the death of both of the testatrix's sons and of the married son's "widow," and until such time as the youngest child of either son reached age 25. The court held that the son's failure to challenge the validity of the trust in the probate proceedings did not preclude him from later raising the issue because the probate court made no determination as to the validity of the will. Second, the trust was void because there was a possibility that the estate would not vest within a period measured by a life in being at the testatrix's death, plus 21 years. If a son married a woman 20 years after his mother's death, then both sons died, the widow could live beyond the last measuring lives in being at the testatrix's death, and the trust property would not vest until past the maximum time allowed.