Tumlin v. Troy Bank & Trust Co.

SIMPSON, Justice

(dissenting).

I agree with Mr. Justice Brown that the residuary trust provisions of the will violate the rule against perpetuities and the law ■of accumulations.

Due to the great importance of the case, but with great respect for the two' opinions, I should like to give my own analysis of the questions involved, since neither opinion ■exactly expresses my views.

I, likewise, have become convinced that a basic fallacy in the deliverance in the first ■case, where a construction was sought on ■demurrer, is epitomized in the conclusion that the equitable estate vested immediately ■on the death of testator “in the part of the ■public to be benefitted, subject to certain allowances payable only from the accrued income,” ( 250 Ala. 467 , 34 So.2d 843 ) a fortiori the rule against perpetuities has been ■satisfied. The fallacy of such a statement ■of principle is manifest, since some part of the public is always the beneficiary of a ■charitable trust, otherwise it would not be such a trust. Hence, it is but to say that the rule does not affect charitable trusts — quite an erroneous conclusion.

It seems to me that futurity is annexed to the substance of the gift and that the remainder, rather than being vested, was contingent, resulting that the charitable provisions of the will fall within the ban of the rule.

“The chief characteristic which distinguishes a ‘vested remainder’ from a ‘contingent remainder’ is the present capacity to take effect in possession should the possession become vacant * * 44 Words and Phrases, Perm. Ed., page 186; Flanagan v. Spalti, 225 Iowa 1231 , 282 N.W. 347 ; Wright v. City of Tuscaloosa, 236 Ala. 374 , 182 So. 72, 77 ; Crawford v. Carlisle, 206 Ala. 379 , 89 So. 565 .

“A ‘vested remainder’ is an estate to take effect after another estate for years, life, or in tail, which is so limited that, if that particular estate were to' expire or end in any way at the present time, some certain person, who was in esse and answered the description of the remainderman during the continuance of the particular estate, would thereupon become entitled to the immediate possession, irrespective of the concurrence of any collateral contingency.” 44 Words and Phrases, Perm. Ed., page 200.

Assuming then, as it must be in applying the rule, that all of the life annuitants died immediately after the testator — or even if they died today — and even granting, arguendo, the public was supposed to be the equitable owner, there could be no vesting *255 in that part of the public “to be benefitted,” since that particular class — the unborn school children twenty years after testator’s death — were not and are not now in existence. There would, therefore, be no- right to the immediate possession “irrespective of the concurrence of any collateral contingency,” to quote from the last above. There would be a definite gap of many years between the day the annuitants might die and the twenty-year period that must elapse before anything at all can be done under the will toward the charitable gift. The equitable estate — laying aside for the present discussion of the various contingent features specifically conditioned in the will — ■ therefore could not be vested, so must be contingent.

As observed above, it should be especially noticed that if the vesting of the equitable estate in the public satisfies the rule (as was erroneously held on the first appeal), it is the same as saying the rule does not apply to charitable trusts, because some part of the public is always benefitted by such trusts. The law on the subject does not operate to that result. Gray, Rule Against Perpetuities, 4th Ed., §§ 592-597, pp. 570-572; § 605, p. 580; Scott on Trusts, § 365, p. 1967.

As I say, futurity seems to be annexed to the substance of the gift and I can rationalize no distinction in principle between the will in the instant case and the wills construed in many cases cited, such as Muir v. Archdall, 10 B.R.C. 559 (an English [Australian] case with full cy pres both judicial and prerogative), holding that a gift to St. Andrew’s Cathedral “when they should build” was too remote and a violation of the rule, yet there the congregation was a part of the public to- be benefitted; Malmquist v. Detar, 123 Kan. 384 , 255 P. 42 , a devise directing trustees to pay to- the first hospital organized in the town violated the rule, yet there the public in that town was the part to be benefitted; American Nat. Bank of Camden v. Morgenweck, 114 N.J.Eq. 286, 168 A. 598 , trustees to pay son for life and widow, if he left one, then to- support hospital; there the inhabitants of the community were the public to be benefitted, yet the holding was that the rule was violated. Many other sustentive authorities could be cited, but see also Easton v. Hall, 323 Ill. 397 , 154 N.E. 216 , and In re Tift, 110 Misc. 624 , 180 N.Y.S. 884 .

There are many contingent features of this will precedent not only to the vesting but to the execution of the trust. These are conditions to the vesting of the beneficial ownership. The testator so called them. To mention some: (1) The association might not be formed within twenty-one years from January 5, 1937, and it cannot be formed before twenty years, and the testator did not require that it must be formed within twenty years after the death. (2) It is possible that no one will donate a lot free of encumbrances within twenty-one years (or ever) and not one cent of the gift (annual income as and when earned) is due until all conditions are met and a schoolhouse built. (This cannot be brushed aside as a mere “detail in administration.”) (3) The three-mill tax might not be levied anywhere in the county when the time came to pass for the buildings to be erected. (4) Title to the land on which the buildings are to be situated shall be in the State and no court could force the State to accept and use the property for the testator’s purposes within twenty-one years from the death or at any time — hence a precedent contingency which cannot be ignored without the application of the chancellor’s cy pres power.

The expressions in the will “at” (expiration of twenty years after my death); “after” (all bequests have been paid,, etc.) “shall” (cause to be formed an association) and “before” (any such buildings are erected) are words making the conditions precedent to vesting.

“ 'It is a well settled rule of construction, that a gift of a legacy “at,” or “when,” or “after” a given event occurs, vests only upon the happening of the event. * * * Where the time' is annexed, not to the payment merely, but to the gift itself, the legacy does, not vest till the period arrives.’ Howell, Ex’r, v. Green, Adm’r, 31 N.J.L. 570 .” Clark v. Union County Trust Co., 127 N.J.Eq. 221, 12 A.2d 365, 368 .

*256 “ * * *' If we should construe away the terms ‘within’ and ‘after,’ how far might the court go in changing the terms of a will ? * * * ” In re White’s Estate, 130 Kan. 714 , 288 P. 764, 766 .

See also Phinizy v. Foster, 90 Ala. 262 , 7 So. 836 .

Therefore, conceding the public to he intended as the eventual owner of the beneficial interest, still that interest is not vested, hut subject to contingent conditions, with the possibility that they might not occur within the twenty-one year period, as is pointed out in Judge Brown’s opinion. As I read the will, the scheme devised for the use of the fund was exclusive of any other scheme and therefore vesting of interest was conditioned on the effectuation of that scheme and that scheme alone. To adopt another could only be done cy pres, without perverting the intention of the testator.

The only gift is the future annual income of future years to a non-existent association on many conditions which might never occur. These conditions cannot be wiped out by equitable approximation used as a substitute for cy pres.

Mr. Justice Foster in his opinion asserts: “In our cases what other courts call judicial cy pres, we call equitable approximation. Lovelace v. Marion Institute, 215 Ala. 271 , 110 So. 381 ; Williams v. Pearson, 38 Ala. 299 ,” and then seemingly uses authorities from the cy pres states to sustain the trust and avert the operation of the rule against perpetuities. I am most earnestly at variance with this conclusion of my learned and respected associate.

■I have always understood that cy pres and equitable approximation are distinct and diverse doctrines, and I think the cases in all jurisdictions so recognize it. Alabama has never sanctioned judicial cy pres (except by recent statutory provision), but as a natural and necessary branch of chancery jurisdiction over charitable trusts to relieve the trust from a circumstance which imperils or endangers the charity, the means or details prescribed for its administration may be so molded to carry out the wishes of the settlor as to meet an exigency which may be disclosed by a change of conditions or circumstances; but this does not include the power to alter the terms of the trust or avert the operation of the rule when the bequest is contingent or to an indefinite or uncertain group. The doctrine is limited to varying the terms of administration in handling the fund from what is precisely provided in the will if they have or shall become impossible or impractical of observance exactly as set up, in order to secure the object for which the trust was created. Thurlow v. Berry, 247 Ala. 631 , 25 So.2d 726, 730 .

And we have said “this doctrine of equitable deviation (approximation) applies to private as well a's charitable trusts.” Thurlow v. Berry, 249 Ala. 597, 605 , 32 So.2d 526, 533 .

But that doctrine is not judicial cy pres, which authorizes the equity court to exercise its power over charitable trusts it could not exercise over private trusts and apply the bequest, even though it be to an uncertain or unascertainable certain group.

As I understand the cases, when they speak of cy pres they refer only to judicial cy pres. There were in England two distinct kinds of cy pres; the first, that exercised by the king under his “sign manual,” an unlimited power to supply the purpose •if the purpose were indefinite, such as cases of a devise of property “to the Lord” where it would be given to any church designated by the king. That is prerogative cy pres.

The courts of the United States have never even considered such power (prerogative cy pres) as vested in them, but they have discussed and differed on the cy pres power — judicial cy pres — exercised by the chancellor of England. So, in this country, when the cases speak generally of applying cy pres, the courts have no reference to the prerogative cy pres — the king’s power under his sign manual — but to the powers formerly exercised by the chancellors of England. The courts of some states held that this power was inherent and possessed by them and thus employed the English doctrine of judicial cy pres and based their decisions upon it. Massachusetts is the leading cy pres state. Notable *257 among the cases from that jurisdiction are the leading ones of Brigham v. Peter Bent Brigham Hospital, C.C., 126 F. 796 (arising in Massachusetts) and the companion case of Codman v. Brigham, 187 Mass. 309 , 72 N.E. 1008 , 105 Am.St.Rep. 394 , cited in Mr. Justice Foster’s opinion. In applying this doctrine, the Brigham federal case stated [ 134 F. 525 ]: “And in such cases, and in such cases only, if the mode pointed out fail, it will provide another mode by which the charity may take, but by which no other than charitable legatees can take.” And in the Codman case, the Massachusetts Supreme Court stated: “If, for any reason, it should be impossible to establish such a corporation, the gift would not fail, but the court would apply the doctrine of cy pres, and would provide some other method of administering the charity to accomplish substantially the same result.” [ 187 Mass. 309 , 72 N.E. 1009 .] (Emphasis supplied.)

These cases were cited and considered in consultation as authority to sustain the trust here considered. But they are typical of cases in jurisdictions where judicial cy pres is used to save a charitable trust. Neither Massachusetts nor any of the other jurisdictions applying cy pres would have pretended to exercise the king’s prerogative, but specifically adopted the chancellor’s cy pres, that power of appointment applicable only in charitable trusts. The Alabama courts have never sanctioned such a doctrine and, until the recent statute (not here pertinent) cy pres as used in other jurisdictions was unheard of in our own jurisdiction. This distinction is fundamental to a correct decision of the question involved.

The authorities adopting cy pres, therefore, are based upon law repudiated by our own court. There are many states which have held to this judicial cy pres, but Alabama, more than one hundred years ago, joined the other group of states repudiating cy pres, that is, judicial cy pres. It is specifically so stated in Carter et al. v. Balfour’s Adm’r, 19 Ala. 814 , in the following language:

“ * * * I do not recognize the doctrine of ‘cypres,’ which, in substance is, if you cannot find the society specified in the will, or apply the fund to the charity intended by the testator, the court will then apply it to some other charity as nearly analogous to it as possible. The bequests should be paid only to the societies specified in the will, or their authorized agents. If the societies or either of them did not exist at the time of the testator’s death, or cannot now be fotmd, organized and known as above stated, then the bequest to such society or societies should be considered and disposed of as lapsed legacies * * * ” (Emphasis supplied.) ( 19 Ala. 830 .)

And in Williams v. Pearson, 38 Ala. 299, 307 , in the following language:

“The power exercised by the English court of chancery, in the two classes of cases just mentioned is not judicial power, and does not belong to our courts. * * * But, [1] the cy-pres doctrine and [2] the prerogative power to carry out indefinite charities being excepted, the law of charities, as administered in the English court of chancery is substantially our law.”

Thus, it is crystal clear that we have never sanctioned judicial cy pres as used in some other states, and what we call equitable approximation is not what other states call cy pres.

The opinion of Mr. Justice Foster seems to cite this Williams v. Pearson case and the Marion Institute case to sustain the conclusion that what other courts call judicial cy pres we call approximation, but, as I read them, these cases hold just to the contrary. In the Marion Institute case Mr. Justice Sayre took particular notice that while the appeal to equity for permission to mortgage the property against specific directions of the settlor was thought to be under “the equitable doctrine of approximation in virtue of which the court of chancery exercises jurisdiction merely to vary the details of administration in order to preserve the trust and carry out the general purpose of the donor” ( 215 Ala. 273 , 110 So. 382 ), yet that the real purpose was to “call for an application in some sort of the doctrine of cy pres,” which *258 he held could not be done, thus clearly-distinguishing between the two doctrines. The opinion of Judge Sayre then, in illucidating the difference, states that “the equitable doctrine of approximation is said to be in reality a principle of judicial construction resulting, not from an arbitrary power exercised in disregard of the donor’s wishes, but based on a judicial finding of his intention as applied to new conditions.” And Williams v. Pearson specifically points out that neither judicial cy pres nor the prerogative power exercised by the English king to carry out indefinite -charities has ever been applied in our own jurisprudence and that we were left with. administering charities exclusive of these two doctrines. Quotation, supra. See also Trustees of Cumberland University v. Caldwell, 203 Ala. 590 , 84 So. 846 ; King v. Banks, 220 Ala. 274 , 124 So. 871 ; Crim v. Williamson, supra.

Mississippi holds to the same doctrine as Alabama and against the principle of judicial cy pres. In the case of National Bank of Greece v. Savarika, 167 Miss. 571 , 148 So. 649, 654 , a good exposition of the distinction between the two doctrines, with quotation from the Marion Institute case in explanation thereof, appears where it is stated:

“ ‘ * * * the cy pres practice is not to be confused with the equitable doctrine of approximation which has grown up in the judicial administration ■(as distinguished from judicial creation) of charitable trusts. The ecclesiastical rule of cy pres is one thing, and the equitable rule of approximation is distinctly another. Their purpose, and their application are entirely different. As said by the Alabama court (Lovelace v. Marion Institute et al., 215 Ala. 271 , 110 So. 381 ), “The appeal in this case is not to any cy pres power of the court, but to the equitable doctrine of approximation, in virtue of which the court of Chancery exercises jurisdiction merely to vary the details’ of administration, in order to preserve the trust, and carry out the general purpose of the donor.” ’ ”

The following is a good explanation of the application of judicial cy pres by the jurisdictions holding to that doctrine, and is distinctly apposite to the case in hand:

“ * * * [a] gift may be saved by the application of the cy pres doctrine.

“A common situation is that which arises where a testator leaves property to or in trust for a corporation to be organized after his death for certain charitable purposes. The bequest is valid if the corporation must be organized within the period of the rule against perpetuities. Even if the corporation may not be organized within that period, the bequest is nevertheless valid if the testator has a general intention to devote the property to the specified charitable purposes. In such a case there is an immediate gift to charity subject to no condition precedent ; and although the particular mode of application is subject to such a condition, that does not invalidate the gift. Under the doctrine of cy pres the general charitable intention of the testator will be effectuated, even though the particular method of application specified by him should fail. If, indeed, the testator manifested an intention that the property should be applied to charitable purposes only in the method specified by him, only through the organization of a corporation, or if the doctrine of cy pres is rejected, then the bequest fails. [We interpolate this is the rule in Alabama where cy pres is rejected and applicable to the trust at bar.] Where the gift is valid the court will exercise its discretion as to- the mode of administering it. If the corporation is formed within a reasonable time, the court will direct that the corporation receive the property. If it appears that the corporation will not be formed within a reasonable time, the court will not wait until it is formed ■but will direct the application of the property in some other manner to the designated charitable purposes.” (Emphasis supplied.) Scott on Trusts, § 401.8, pp. 2139- 2140.

*259 In the same section of Scott there will be found a very pertinent example of the application of the cy pres principle and when the trust will fail even using judicial cy pres. It is thus stated by Professor Scott:

c£ * * * If the gift is contingent upon the establishment of the institution, it fails since the contingency is too remote. If, however, the testator had a more general charitable intention, if the establishment of the institution was not an essential part of his scheme, there is an immediate and unconditional gift to -charity, and the gift will not fail but the court mill apply the money cy pres. Similarly where property is given in trust to establish a charitable institution when third persons shall give a site for the institution or shall contribute funds for its support, the gift is valid if it is not contingent upon the giving of such a site or the making of such contributions. In such a case, if the site is not given or the contributions made, the court can apply the doctrine of cy pres.” (Emphasis supplied.)

Thus is the application of judicial cy pres which even if applied in the present case would indicate that the trust could not be relieved from the obliquities which beset it, since not only is the donation of sites contingent, but also establishment of the foundation is prerequisite to the scheme and it may not be formed within the period.

If is also clear that this authority, and for that matter, Mr. Gray and all others, in speaking of cy pres meant judicial cy pres and not prerogative cy pres, and equally clear it is to- me that the equitable doctrine of approximation authorizing the varying of the details of administering the trust to meet changed conditions in carrying out the settlor’s intention cannot be said to be the same as cy pres and cannot be used to save the trust in the present case.

To rationalize further, “the law of charitable uses does not protect a gift for a charitable purpose, made to take effect after a gift to an individual, upon a condition not necessarily to be fulfilled within the period prescribed by the rule against perpetuities.” In re Potts’ Will, 205 App.Div. 147 , 199 N.Y.S. 880, 883 ; Attorney General v. Gill, 2 P.Wms. 369; In re Johnson’s Trusts, 2 L.R.Eq. 716; Merritt v. Bucknam, 77 Me. 253 ; Merrill v. American Baptist Missionary Union, 73 N.H. 414 , 62 A. 647 , 3 L.R.A., N.S., 1143, 111 Am.St.Rep. 632 , 6 Ann.Cas. 646; Perry on Trusts(6th Ed.), 736.

“ * * * if a gift is made in the first instance to an individual, and then over, upon a contingency which may not happen within the prescribed limit, to a charity, the gift to the charity is void, not because the charity could not take at the remote period, but because it tends to create a perpetuity in the individual who is the first taker, by making the estate inalienable by him beyond the period allowed by law. * * * ” Odell v. Odell, 10 Allen, Mass., 1, 7.

But, “A gift to a charity, not preceded by a gift to an individual, is generally held to be valid, although a period greater than prescribed by the rule against perpetuities may elapse before the taker is empowered to receive the gift.” In re Potts’ Will, supra, 199 N.Y.S. 884 . That opinion then points out on page 885 the following:

“An executory gift to a charity, without a precedent gift to private persons, upon the organization of a corporation to execute the -charity, is held valid upon the theory that the general charitable purpose of t-he donor being immediate, a court of equity, having the power from the beginning to execute the charity in its own way, notwithstanding the fact that the donor’s method may cause delay, will regard the gift as immediate, involving neither postponement nor suspension. This theory explains why a similar gift made to follow a gift to private persons is held to be invalid. In that case the existence of an intent to make an immediate gift is conclusively denied by the act of the donor in interposing a prior gift. The theory is explained by Professor Gray as follows :

*260 “ ‘If the court, however, can see an intention to make an unconditional gift to charity (and the court is very keen-sighted to discover this intention), then the gift will be regarded as immediate, not subject to any condition precedent, and therefore not within the scope of the rule against perpetuities. The mode pointed out by the testator is only one way, though the preferable way, of carrying out the charitable purpose; and if it cannot, with regard to the general charitable intention, be carried out in that way, it will be carried out cy pres. * * * ’ Gray, Perpetuities (3d Ed.) § 607.” (Emphasis supplied.)

See also Woodruff v. Marsh, 63 Conn. 125 , 26 A. 846, 849 , 38 Am.St.Rep. 346 ; Russell v. Allen, 107 U.S. 163, 171 , 2 S. Ct. 327 , 27 L.Ed. 397 ; Perry on Trusts, 6th Ed., § 737.

I do not think Williams v. Pearson, 38 Ala. 299 ; Johns v. Birmingham Trust & Savings Co., 205 Ala. 535 , 88 So. 835 ; or Tarver v. Weaver, 221 Ala. 663 , 130 So. 209 , principally relied upon by appellees, are precedents to the contrary.

In Williams v. Pearson, the testator provided that upon the death of his daughter without issue (an event unquestionably within the period of the rule against perpetuities), his estate should be converted into money “to be equally divided into two parts; one half of said estate I loan to Pilgrim’s Rest Association, to be received by said association, and loaned out by commissioners to be appointed by said association, at eight per cent, per annum, and said interest to be equally divided annually between the ministers having charge of churches in said association; and the other half I loan to Vienna and Coohran’s Mill Beat; and my will is, that three commissioners be elected by a general vote of the two beats, to receive the money, by their giving good and sufficient security, in double the amount which they may receive, to the judge of the county court of Pickens County; and said commissioners to loan out said money, at eight per cent, interest, and the said interest to be collected annually, and applied by said commissioners to the education and tuition of all the pauper and poor children of said beats, whose parents are not able to support them.”

The exigencies of that decision were completely without the scope of the rule against perpetuities, nor was the rule considered. The gift of the remainder was (1) to an existing association and (2) to beneficiaries in two then recognized legal subdivisions of the county. The essence of the court’s holding was that “it is not necessary to their validity that there should be a grantee or devisee capable of taking or holding by law * * * ” because “if the object of a charitable donation can be ascertained, the want of a trustee will be supplied by appointment by a court of equity.” The case at bar presents an entirely different status. Here the educational association is quite “definitely described," but it might not be formed within the period allowed by the rule. In the present case the gift of future income of future years is manifestly contingent only and not vested and since it might not so vest within twenty-one years, it falls within the ban of the rule.

True, the Williams v. Pearson case did provide for the administration of the fund when received by the association, “by commissioners to be appointed by said association,” but this was merely an administrative duty to be performed subsequent to the vesting of the gift in the association, namely, after the association received the money. But the right of the existing entity (association) to receive and enjoy the gift was not dependent upon any condition. And, as regards the gift to the two county beats for the poor children in said beats, etc., hére again was a gift to an existing body, the court holding that “When this will was executed [July 8, 1848] a beat in this state was a well-known legal subdivision of a county, corresponding to the townships or towns in some other States.” In each instance there was a vesting of the remainder in a definite entity and had the life estate fallen in at any time there was a beneficiary to take without contingency or conditions. That is not our case.

In Johns v. Birmingham Trust & Savings Co., 205 Ala. 535 , 88 So. 835, 836 , the *261 gift was immediate to a trustee for immediate application of the income to' existing charitable organizations, commencing with the end of the first year of the trust. Each year, beginning with the first, the trustee was directed to “select an association, organization, society, or corporation, then existing and maintaining an institution in Jefferson county, Ala., which cares for, supports, and maintains and educates, where needed, orphan children, indigent persons, and needy old people, * * * indigent, injured, or helpless miners, their wives or children, any, one, or all of them, in the state of Alabama, and shall pay to the association, organization, society or corporation so selected by it the income derived each year from the trust estate, * * * ” etc. It was further provided that:

“ * * * The said Birmingham Trust & Savings Company, as said trustee, shall have the right to change the beneficiary so selected by it as above directed at the end of any year, but the same beneficiary may be selected from year to year, and a beneficiary, zvhen once selected, shall remain as such beneficiary until another is selected and designated in its place by said trustee; * * (Emphasis supplied.)

When the testator died there were such charitable organizations existing in Jefferson County. Under the terms of this will the equitable interest was to vest in one of the existing organizations at the end of the first year, well within the period of the rule. There was no question of remoteness and the only condition was the selection by the trustee which it was required to perform within, a period of one year. Once the equitable interest vested in the association selected as the beneficiary, it remained vested in that association until divested by a change of beneficiary from that charity to another charity. Such a change of charitable beneficiaries (without lapse of time between them) is an exception to the rule against perpetuities.

While in the Johns v. Birmingham Trust & Savings Co. Case the interest did not vest at the time of the creation of the trust, the only contingency of the vesting was the selection of the existing association to take the first year’s income. The trust was so limited that the trustee must perform this condition within the first year, thus vesting the beneficial interest.

Tarver v. Weaver, 221 Ala. 663 , 130 So. 209, 211 , does not consider any question related to those in the present case. In that case all bequests, upon the death of two living persons (an event within the rule) went direct to existing charitable organisations for immediate application to charitable purposes without any conditions or contingencies. There were no prescribed future events or conditions. The court said:

“The suggestion in the bill that the bequest to the Dallas Art League must fail because said league is nonexistent is of little force in the face of the record that it was made a respondent to the bill, has been served with process, and a decree pro confesso has been rendered against it, and that it has appeared by counsel and made motion to set this decree aside.”

Accumulation.

It also seems clear that the provisions of Item Four of the will which commands that the annual excess of income be made a permanent addition to the permanent corpus, never to be spent for any purpose, violates not only our own statute, but the common law, against accumulations.

In Thurlow v. Berry, 247 Ala. 631 , 25 So.2d 726, 729 , the following observation had the unanimous approval of the court: “Authorities seem to agree that after the ten year limit under § 146, supra [of Title 47, Code], has expired, the accumulations cannot ordinarily be made a permanent addition to1 the corpus.”

The excess thus commanded to be added to the corpus cannot be used for the paying of the individual bequests to collateral kin, since the will stipulates for their payment only out of each year’s income, but if the income of any one year is insufficient to pay them all in full, all bequests fail and lapse for that year. The income so *262 accumulated in prior years cannot be used. The accumulated income cannot be used for any purpose but must remain .forever a part of the inviolate corpus. This limitation, therefore, requiring that all excess income be added permanently to the corpus ■is a trust of estate for the purpose of accumulation only.

The fact that the will creates several trusts independent of each other and each complete in itself, some of which are lawful and others unlawful, and which may •be separated from each other, is no impediment to sustaining the valid and avoiding the invalid. The legal ones may stand, while the illegal may be cut off and declared invalid. Lyons v. Bradley, 168 Ala. 505 , 53 So. 244 .

The several trusts set up were: (1) a trust for the widow, payable from a separate tax-free fund; (2) a trust for the sister, payable similarly; (3) a trust for collateral kin not exceeding $8,600 annually; (4) the main and remaining trust of the entire balance of the income, requiring that each year’s excess be added irrevocably and irretrievably to the corpus. This last mentioned trust contains over ninety percent of the estate and the accumulated income, now more than $137,-000 a year, can never be used for any purpose, but must remain forever a part of the inviolate corpus.

There can be no doubt that the testator intended that this trust should be for accumulation only. We need only to quote the following provisions of the will:

“The corpus of the estate should increase, especially with the provision that when any of the bequests mature, either from death of the beneficiary or otherwise, the amount of such beneficiary’s bequest shall ■ remain and become a part of the corpus of the estate after each year when the bequests have been paid and all expenses with taxes have been satisfied, that whatever remains from the income of that particular year shall be entered as part of the corpus of the estate and subject to the same treatment thereafter as the original corpus of the estate.

“Item Five

“After said association has been fully formed,, the corpus of the estate, including what has been added to the corpus since my death, shall be held intact by the trustee * * *

“Item Six

“ * * * The watchword shall be that nothing but the income from the estate must be used from year to year, but sums added to the corpus each year should be striven for.”

Not only do the foregoing quotations show an intent to accumulate, but are specific directions for accumulation and the conclusion is manifest that said provision in • Item Four is void under our statute against accumulations. Pearce v. Pearce, 199 Ala. 491 , 74 So. 952 ; Campbell v. Weakley, 121 Ala. 64 , 25 So. 694 ; Henderson v. Henderson, 210 Ala. 73 , 97 So. 353 .

Analogous rationale also establishes that the provisions in the will .so limiting the expenditures of income to the particular year, covering all unused annual income into the trust to become a part of the inviolate corpus, violates the common law rule against accumulations. During each year from the testator’s death, forever, the trustee is commanded to add all excess annual income irrevocably to the corpus. This violates the common law rule against accumulations.

An unlawful accumulation, as touching the common law rule against perpetuities, is defined as “(I) the withholding, preventing or prohibition of the present enjoyment or present expending of such rent, income, or interest; and (2) the adding of such rent, income, or interest so gathered together over a period of time to the principal of a fund or the capital.” In re Hartman’s Estate, 126 Misc. 862 , 215 N.Y.S. 802, 806 .

Our own court, in speaking of the term, stated in Henderson v. Henderson, 210 Ala. 73 , 97 So. 353 : “ ‘The meaning which the word “accumulation” has in course of time come to have in our law is stated * * * as follows: “The adding of the interest or income of a fund to the principal, pursuant to the provisions of a will or deed pre *263 venting its being expended * * * ” ’ ” 210 Ala. 83 , 97 So. 361 .

We observe the following explanation of the operation of the rule against accumulations from the following authorities:

“The most explicit provision fitting the description of [an accumulation] exists when a trustee is directed or empowered to reinvest the income of a trust as and when received. Such provision may apply to the whole income of the trust, or to a specified fraction of the income during each year, or to a specified sum out of the income during each year, or to income in excess of current authorized payments therefrom * * * ” Restatement, Property, Vol. IV, § 439, p. 2563.

■i * * * ‘When an executor or other trustee masses the rents, dividends or other income which he receives, treats it as capital, invests it, makes a new capital of the income derived therefrom, invests that, and so on, he is said to accumulate the fund. And the capital and accrued income constitute accumulations * * * ’ ” Hussey v. Sargent, 116 Ky. 513 , 75 S.W. 211, 215 , quoting Black, Law Dictionary.

“In any case where it is made the duty of the trustee to treat as principal the income of the trust property, instead of distributing in the ordinary course, there is an accumulation * * *

“ * * * These trusts for accumulation have always been regarded with disfavor by the law, and the courts at an early day limited the time of accumulations to correspond with the period of the rule against perpetuities, and more recently statutes have been enacted in some jurisdictions still fur-, ther restricting the exercise of this right, in respect to both the beneficiaries and the period of accumulation.” 22 Am. & Eng.Encyc. of Law (2d Ed.), p. 728.

“ * * * It is also said, that the act is one of restraining force, and cannot give validity to trusts for accumulation, which are in themselves void, as transgressing the common-law limits of a perpetuity. Thus a-direction to accumulate beyond the-' time allowed by the statute, but within the time allowed by the common law, will be good for the actual time. allowed by the statute, and void only for the excess; but a direction to accumulate, beyond the rule of common law against perpetuity, is wholly void notwithstanding the statute. Consequently, in England a trust for accumulation may verge almost upon the outside of the limit of a perpetuity, and yet be void only for the excess beyond the time established in the statute; but if a trust for accumulation transcends in the slightest degree the boundary of a perpetuity, it is wholly void, and will fail without regard to the actual course of events.” Perry on Trusts, Vol. 1, § 395.

“A provision for accumulation which violates the Rule against Perpetuities is wholly void; but a provision which is good so far as the Rule against Perpetuities is concerned, but violates the Thellusson Act, is void only for the excess. Thus, if there be a direction in a will to accumulate income during the life of A., it can be accumulated for twenty-one years from the testator’s death.” Gray, The Rule Against Perpetuities, § 687.

“But the Thellusson Act does not render valid, pro tamo, a provision for accumulation which violates the Rule against Perpetuities; such provision is bad altogether.” Gray, supra, § 688.

The provisions for accumulation are clearly against the letter -and spirit of this common law rule.

Finally, I think the costs should be taxed against the estate. Presumably, the theory of the trial court, and sought to- be sustained here, is that because in the opinion of the court the plaintiffs, appellants here, did not sustain their position, the court should exercise its discretion in taxing them with the costs. The case, however, is not so simple. The bill was for a construction of tihe will and a declaration as *264 to the validity of certain provisions thereof. The case raised vital questions necessary of solution and the estate is not and and should not be interested on behalf of any one particular party litigant under a situation as here prevailing, where there were doubtful provisions of the will, and a declaration would benefit all concerned. Evidently, neither the executor and trustee, nor any others but the heirs, would invoke the jurisdiction of the court for a declaration. Some one certainly should have. I think, therefore, the estate should bear the entire costs o.f the proceeding. Costs were taxed against the estate in the construction of the Woodward will (Thurlow v. Berry, supra), where a minority of the trustees filed a bill and the contest was resolved against the minority. The instant case is even more to be regarded as for the benefit of the entire estate.

On the basis of these considerations, therefore, I respectfully dissent.

I am authorized to say that BROWN, J., concurs in the foregoing.