Complaint by executor and trustee under will for instructions. The Court of Chancery, New Castle County, Bramhall, Vice-Chancellor, held that under will providing that, upon death of life tenant, net income from trust should be accumulated and added to principal until children of life tenant should reach fifty years, at which time each child should receive equal share of principal and accumulated income, class would not be determined until after death of life tenant and gift to children violated rule against perpetuities.
Order in accordance with opinion.
[33 Del.Ch. 502] Complaint for Instructions by James B. Stuart, executor and trustee under the last will and testament of Robert D. Stuart against Joseph Stuart, 2d, Alfred I. Stuart, and Joseph Stuart, III.
Defendant Joseph Stuart was duly served. Defendants Joseph Stuart, III, and Alfred I. Stuart were not served and substituted service was ordered as to them. No appearance having been entered by any of defendants, it was ordered that the complaint be taken pro
confessor against all defendants. Plaintiff was ordered to submit a brief setting forth the relief to which he believed himself to be entitled.
[33 Del.Ch. 503] William Prickett, of Wilmington, for plaintiff.
No appearance for defendants.
Under subsections (1) and (2) of item Third (b) of the last will and testament of Robert D. Stuart, he directed that a trust be set up for the benefit of his son, Joseph Stuart, 2d, for life. The trustee was directed to invest the principal and to accumulate the net income until the life tenant should reach the age of 55, at which time the net income from the trust was made payable to the life tenant for life. The trustee was further authorized to expend such portion of the principal as might be necessary to provide for any serious illness or accident to the life tenant. Under subsections (3) and (4) of the same item testator provided that upon the death of the life tenant the net income should be accumulated and added to the principal until the children of the life tenant should reach the age of 50 years, at which time each child should receive an equal share of the principal and the accumulated income, provided he was not an habitual user of tobacco or intoxicants, and did not engage in gambling.
At the time of the decedent's death. Joseph Stuart, 2d, was 61 years of age and was then entitled to receive the net income from the trust estate. The only sons of Joseph Stuart, 2d, then and now, are Joseph Stuart, III, and Alfred I. Stuart. Another son, James B. Stuart, plaintiff, survived the testator. Testator's wife predeceased him.
The questions raised in the complaint for instructions which this court is requested to determine are:
(1) Did the testator die intestate as to the remainder after the death of the original life tenant?;
(2) Should this court find that the gift of the remainder failed and that as to the remainder the testator died intestate, should the trust be terminated?;
(3) If this court should determine that the testator died intestate as to the remainder and that the trust for the life benefit of Joseph Stuart, 2d, should be terminated, [33 Del.Ch. 504] should the trustee be directed to distribute the entire trust estate in equal shares to the two sons of testator?
1. The question raised under the first point for instructions is whether or not the provision in the will to the effect that upon the death of the first life tenant ‘ the net income from this trust fund shall again be allowed to accumulate and to be added to the principal from time to time and invested and reinvested until such time as the children of my son, Joseph Stuart, 2d, each attain the age of 50 years and as and when each one becomes 50 years of age, the then principal of this trust shall be divided into as many equal shares as ...