applying approximation to a charitable trust to avoid rules against accumulation and perpetuities
How later courts described this case
- applying approximation to a charitable trust to avoid rules against accumulation and perpetuities
Written by the judges who cited it.
The opinion
BROWN, Justice
(dissenting).
The fallacy of the statement in the opinion in Henderson v. Troy Bank & Trust Co., 250 Ala. 456 , 34 So.2d 835, 843 , that the equitable interest in the school trust vested on January 7, 1937, at testator’s death “in the part of the public to be benefitted” (meaning children of school age born in Pike County), is exposed by the self evident undisputed fact that such children were not in esse, were unbegotten and would not come into being for more than a generation after testator’s death. This purported gift is undisputedly a future interest, postponed for twenty years or more by contingencies set up in the will, as pointed out heretofore in my opinion, which might not be met during the twenty-one years permitted by the established rule against perpetuities. It is not only possible but probable that a gap between the death of the life beneficiaries will occur and other contingencies may not be met within the time prescribed by the rule. Said equitable interest designed by the testator for the benefit of children of school age coming into esse during future generations, is a “springing use” and cannot vest, if ever, until all of the contingencies set up in the will have been met and such contingencies must be certain to occur within the time fixed by the rule. The immediate gift of the entire corpus to the support of the trusts set up for the named individual legatees necessarily postponed any gift for charitable uses. In re Pott’s Will, 205 App.Div. 147 , 199 N.Y.S. 880 ; Holmes v. Welch, 314 Mass. 106 , 49 N.E.2d 461 , 157 A.L.R. 896 .
In the face of the uniform decisions of this court repudiating the cy pres doctrine through the past century, said doctrine cannot with honesty or justice be applied to save a bad situation nor is the court authorized to apply that doctrine in the absence of previous legislation enacting the same to save the educational trust.
The doctrine of approximation, as I have heretofore pointed out in the foregoing opinion, is not applicable and rests upon principles other than the doctrine of cy pres. Thurlow v. Berry, 249 Ala. 597 , 32 So.2d 526 ; Id., (on first appeal), 247 Ala. 631 , 25 So.2d 726 . To apply the doctrine of cy pres long since repudiated in Alabama and nonexistent at the time of the testator’s death is nothing short of judicial legislation, which deprives the heirs at law of said testator of their rights without due process of law. Thurlow v. Berry, supra.
The complainants, as heirs at law, were within their rights in filing the bill to test the validity of the will and if valid have it construed. I am, therefore, of opinion that the court costs should be taxed against the trustee, as was done in the Thurlow case, supra.