SECURITY TRUST CO.
WILLETT et al.
Suit involving validity of a cemetery trust, and question as to disposition of admitted excess in that trust. The Court of Chancery, Seitz, Chancellor, held that cemetery trust for perpetual care did not violate the rule against perpetuities, but that resulting trust as to excess over that necessary to carry out trust purposes would be declared in favor of testatrix' estate, in absence of indication of a specific charitable intent which might make doctrine of cy pres applicable as to the excess.
Order in accordance with opinion.
[33 Del.Ch. 545] C. Thomas Attix, Jr. (of Hering, Morris, James & Hitchens), Wilmington, for plaintiff.
Richard J. Baker, Wilmington, for defendants H. Clark Willett, Executor, and H. Clark Willett and Lane Willett.
David F. Anderson (of Berl, Potter & Anderson), Wilmington, for defendant Security Trust Co., trustee for Little Sisters of the Poor, Inc.
E. Ennalls Berl (of Berl, Potter & Anderson), Wilmington, for defendant Little Sisters of the Poor, Inc.
The principal issues are the validity of a so-called cemetery trust and if valid, the disposition of an admitted excess in that trust.
By Item Thirteenth of her will dated March 9, 1923, Anna Plunkett left $5,000 in trust with what is now Equitable Security Trust Company. The net income was to be applied forever for the maintenance of certain family cemetery lots and tomb stones. By the residuary clause in her will the testatrix created a trust fund in favor of the Little Sisters of the Poor, Inc. Testatrix died September 16, 1924.
The Little Sisters, because of certain rules and regulations of the order, disclaimed any interest under the residuary trust. In [33 Del.Ch. 546] consequence, the residuary trust failed and the money was paid to the person who would have taken had the testatrix died intestate. This was a niece, Natalie Plunkett.
Defendant Security Trust Company (now Equitable Security Trust Co.), trustee for Little Sisters of the Poor, Inc., on the order of its beneficiary, has disclaimed any interest in the so-called cemetery trust. It follows that H. Clark Willett and Lane Willett as the successors in interest to Natalie Plunkett are the parties who will take any interest due the estate of Anna Plunkett.
After the commencement of the cemetery trust the burial locations were changed with the result that the upkeep expense has been almost nominal, amounting to only $10 per year. As a result the trust
corpus has increased to the point where in September 1952 it amounted to $15,000 and was producing a yearly income of $600.
The individual defendants claim that the cemetery trust is invalid because it is a perpetual private trust not validated by statute and therefore violates the rule against perpetuities. They say that the trust should be declared invalid and the entire proceeds should be paid to them. This court recently decided, in Delaware Trust Company v. Delaware Trust Company, Del.Ch.,95 A.2d 569, that such a trust would be upheld because ...