Testator created a trust for his children including therein all
of his property except one parcel, the income whereof was to go to
a niece for life, the trustee to make such income up to a specified
sum from the property in the general trust. The general trust was
declared void as creating a perpetuity, but not the trust for the
niece. The children appealed, claiming that the trust for the niece
was also void.
Held, that
One not appealing cannot, in this Court, go beyond supporting
the judgment and opposing every assignment of error, and therefore
the niece could not endeavor to sustain the validity of the trust
as a whole.
The trust for the niece was not illegal, and was not so
intimately connected with the failing trust as to fail with it, but
the decree was modified so that the income could only be made up to
the specified sum from income from property in the
jurisdiction.
An objection that a person should have been made a party to a
bill of review comes too late when the existence of that person
does not appear of record.
25 App.D.C. 291 modified and affirmed.
The facts are stated in the opinion.
Page 203 U. S. 60
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an appeal from a decree of the Court of Appeals of the
District of Columbia affirming a decree of the Supreme Court upon a
bill of review brought by Gabriella K. Jordan, the appellee. The
decree under review was rendered in a suit for the construction of
the will of Thomas Kearney and for the determination of the
validity of a trust created by it so far as the same concerned land
in the District of Columbia. That decree declared the trust bad as
attempting to create a perpetuity. Under the bill of review, the
decree was modified, on demurrer, to the extent of the interest of
Gabriella K. Jordan, and the trust was declared valid as to her. 25
App.D.C. 291. The executors of the testator's heirs and a daughter
of the said heir appealed to this Court.
Thomas Kearney died on July 5, 1896. The will disposes of land
in various places. In item 3, it enumerates the testator's
Page 203 U. S. 61
property in Washington. In item 5, it devises this and other
property upon a trust to be continued until January 1, 1928, and
there and elsewhere, with the following exception, makes a fund
from the Washington rents and profits to be disposed of as directed
in the will. Item 6 is as follows:
"I hereby authorize and direct that my said trustee shall,
during the natural life of my beloved niece, Gabriella K. Jordan,
pay over to her regularly each month, as soon as collected, all
rents and revenues collected or derived from that certain property
described in the third item hereof as lot No. 611 'M' Street, N.W.
Washington, D.C., but, in case said rents and revenues shall at any
time be less than the sum of $40 for any one or more months, then
my said trustees are hereby authorized and instructed to add to the
sum so collected a sufficient amount to make the said amount of $40
for each and every month, it being my desire that she shall have a
regular income of at least $40 per month, and that the same shall
be paid over to her monthly; but if the income derived from said
premises shall amount to a sum in excess of $40 per month, she
shall have the whole thereof."
Item 7 directs the trustee to let all the Washington property,
except 611 M Street, and out of the rents to pay $90 a month to the
testator's daughter, Constance K. Vertner, as ordered in item 5,
the residue, so far as necessary, to be applied to the support and
education of her three children, named, with further provisions.
Item 8 gives the remainder in fee of 611 M Street to the testator's
grandson, provided that, if Gabriella Jordan dies before January 1,
1928, he shall only receive the rents and profits, and if she dies
before the grandson reaches the age of twenty-two, the rents shall
be disposed of as provided in item 7 as to other Washington
property. In item 21, the testator, "for fear that there may be
some difficulty in construing the different provisions" of the
will, states his intention that all the money
Page 203 U. S. 62
arising from the Washington rents,
"except that which is to go to Gabriella K. Jordan, shall be
placed in a common fund for the payment (1) of taxes, insurance,
and repairs on said property and of the premises at Luray,
Virginia; (2) of (90) ninety dollars per month to my said daughter,
Constance K. Vertner, during her natural life; (3) for the support,
education, and maintenance of my said three Vertner grandchildren
until Lillie K. Vertner shall have arrived at the age of nineteen
years, and until Edmund K. and Thomas K. shall have arrived at the
age of twenty-two years, respectively."
The persons in whose favor were made the provisions which were
adjudged bad were one of the testator's heirs, his daughter,
Constance K. Vertner, and the children of Constance. The daughter
pleaded that the other heir, Edmund Kearney, also provided for in
the will, died, leaving her his heir, that the trust was bad, and,
by implication, that she was entitled to the property which it
embraced. She now is dead. By the original decree, the whole trust
fund, including that given to Gabriella Jordan, went to the
testator's heirs as property undisposed of by the will. The only
person dissatisfied with that decree was Gabriella Jordan, and, on
the other hand, the executors and the children of Constance are the
only appellants from the decree on review. According to the rule
that has been laid down in this Court, Gabriella, as she did not
appeal, cannot go beyond supporting the decree and opposing every
assignment of error.
Mt. Pleasant v. Beckwith,
100 U. S. 514,
100 U. S. 527;
The Stephen Morgan, 94 U. S. 599;
Chittenden v.
Brewster, 2 Wall. 191,
69 U. S. 196;
Field v. Barber Asphalt Paving Co., 194 U.
S. 618,
194 U. S. 621.
We assume this rule to be correct. Although her counsel attempted
to argue the validity of the trust as a whole, and other questions,
we assume, without deciding, the decree to be unimpeachable and
right except so far as appealed from. Therefore we shall confine
ourselves to considering whether the gift to Gabriella is so
intimately connected with the failing scheme as to fail with
it.
Page 203 U. S. 63
It would be a strong thing to say that we gather from this will
an intent that, if the trust so far as it concerns the testator's
descendants should fail because they prefer to take the property by
intestacy free from the limitations of the will, therefore the one
gift outside his family should be defeated also. The trust is not a
metaphysical entity or a Prince Rupert's drop which flies to pieces
if broken in any part. It is a provision to benefit descendants and
a niece. There is no general principle by which the benefits must
stand or fall together. It is true that all the Washington property
was given to the trustees in one clause, and that a part of the
scheme in favor of the testator's grandchildren was the creation of
a fund from the rents. But, as is stated in item 21, 611 M Street
was excepted from the scheme, and the whole income of this lot --
or, in other words, an equitable estate in the specified land -- is
given to Gabriella Jordan for life by item 6. If that were all, we
see no reason for a doubt that that gift would be good whether the
gift to the other beneficiaries were good or not. The fact that the
testator's daughter takes all the rest of the property, instead of
her children's getting a postponed interest in a part, is no ground
for denying to the niece the life estate given to her in an
identified and excepted piece of land. It does not make the case
any worse that a part of the property thus going to the testator's
daughter is the remainder in the estate given to his niece.
The appellants lay hold of the instructions to the trustees to
add to the rents enough to make Gabriella's income up to $40 a
month, and argue as if the gift were in substance only a gift of
$40 a month from a fund that cannot be established. Such is not the
fact. The gift is primarily and in any event a gift of the income
of 611 M Street. But whatever may be the fate of the rest of the
trust, we see nothing to hinder the trustees from keeping the
income up to $40 from the other property devised to them. Of
course, they could not derive income from property not included in
the trust, and only the property included is charged with
Page 203 U. S. 64
the liability. The decree may be modified by inserting after the
words "against his entire estate" the words "in the District of
Columbia."
It is objected in argument, although not in the pleadings, that
the widow of Edmund Kearney has a right of dower in the Washington
estate which descended to him, and that she should have been made
party to the bill of review. The fact of the widow's existence does
not appear of record as against the appellees, and we agree with
the Court of Appeals that the objection is made too late.
Decree affirmed.