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1. Matter of Heirs of Hodge, (1985); pg. 66, briefed 2/28/97
2. Facts: Appellee was 3 when her biological parents gave her to the Hodges. She was raised
by the Hodges as if she was their own daughter. There was an oral promise by the Hodges to
adopt Appellee, but the legal papers were never filed. Hodge died intestate, and Appellee
sought her intestate share as an adopted child (same as natural child).
3. Procedural Posture: The lower court found for Appellee.
4. Issue: Whether an oral promise to adopt may be enforced by the child in an intestacy
proceeding to establish rights of inheritance.
5. Holding: Yes.
6. Reasoning: The “virtual adoption” requires the showing of five elements: 1) an agreement
between the natural and adoptive parents, 2) the natural parents giving up custody, 3) the child
living with the adoptive parents, 4) the adoptive parents treating the child as their own, and 5)
intestacy of the adoptive parents. There is ample evidence here to prove these elements.
1. Matter of Estate of Hendren, (1984); pg. 72, briefed 2/28/97
2. Facts: The mother of an illegitimate child initiated a paternity action during the decedent’s
lifetime, but the decedent died before a formal court order recognizing his paternity could be
issued. However, the decedent father had actually formally acknowledged paternity during the
settlement negotiations.
3. Procedural Posture: The illegitimate child seeks a family allowance. The lower court
found for the child, and the estate appeals.
4. Issue: Whether a family allowance can be awarded to an illegitimate child in the absence of
a legal determination of paternity during the father’s lifetime, as long as the father acknowledged
paternity in a paternity case before his death.
5. Holding: Yes.
6. Reasoning: The general rule is that the illegitimate child is treated the same as a legitimate
one for the purposes of intestate succession only if the paternity of the father is established by
law during his lifetime, or the father marries the mother and acknowledges the child. However,
this rule appears to be an evidentiary one - to promote accuracy and fairness to the decedent.
Under these facts, the child has complied with the substance of the statute.
1. Bradley v. Fox, (1955); pg. 74, briefed 2/28/97
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2. Facts: Fox and his wife, Matilda, owned a property in joint tenancy. Fox killed his wife and
sold the entire property a few days later. Fox was convicted of murder and sentenced to prison.
3. Procedural Posture: Matilda died intestate, and her administrator brought this action to
have a constructive trust imposed on the property. The lower court dismissed their claim.
4. Issue: Whether a husband who murders his wife gains good title to land held by them in
joint tenancy for the purposes of intestate succession.
5. Holding: No.
6. Reasoning: It is well settled in many areas of law that a person may not profit from his
felonious actions. Some courts hold to the legal fiction that a joint tenant holds the entire estate
from the beginning, and as such the murderer would not “gain” anything he did not already have.
However, this legal fiction should give way to the reality that the murderer’s right of
survivorship is in the nature of a contingent interest. When the murderer murders his wife, he
removes that contingency. Thus, the court holds that murder of a joint tenant severs the joint
tenancy and that the murderer is only entitled to his one-half interest as tenant in common with
the estate of the deceased.
1. Matter of Estate of Josephsons, (1980); pg. 81, briefed 2/28/97
2. Facts: A son murdered his parents. The parents died intestate. The minor son was tried as a
minor, but due to a statute that protects young criminals, he was not convicted of a “felony”.
Additionally, the statute provides that the disposition in the juvenile court does not impose civil
liability.
3. Procedural Posture: The administrator of the estate sought to exclude the son from the
intestate share because he murdered his parents, and thus would be benefiting from the murder.
The lower court agreed.
4. Issue: Whether a minor, who by statute is not convicted of murder solely because of his age,
may take his intestate share from the parents that he murdered.
5. Holding: No.
6. Reasoning: The probate code provides that a person may not take intestate from the
felonious and intentional killing of the decedent. Even in the absence of a criminal conviction,
the civil court of probate may determine by a preponderance of the evidence whether the killing
was felonious and intentional. “Feloniously” as used in the probate statute means “wrongfully”,
it does not necessarily mean “convicted of a felony.” Thus, the protections afforded by the
juvenile protection statutes do not extend to the probate court. The danger of allowing a
murderous son to inherit from his murdered parents is obvious.
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1. Donough v. Garland, (1915); pg. 88, briefed 2/28/97
2. Facts: Father died intestate, leaving a Widow and five children. Father’s land passed to the
Widow and the five children according to the intestate statutes. One of the daughters, Margaret,
then executed a quitclaim deed of “all interest I now have or may hereafter acquire” in the
Father’s or the Widow’s land. Margaret died before the widow.
3. Procedural Posture: Margaret’s children brought an action to get their share of the lands
owned by the widow. The lower court found for Margaret’s children.
4. Issue: Whether the assignment of an expectancy cuts off an inheritance at the assignor if the
assignor dies before the ancestor through which he has an expectancy.
5. Holding: No.
6. Reasoning: A release by an heir cuts off the right of inheritance at the source, regardless of
whether the releasor or the ancestor dies first. That is to say that a release is binding upon the
releasor’s heirs. However, an assignment of an expectancy does not extinguish the right of
inheritance, but rather is simply a contract whose outcome is dependent on who dies first. The
assignee only acquires legal right to the estate if it ever vests in the assignor. Thus, since the
assignor, Margaret, did not outlive the ancestor, the Widow, the assignees acquired nothing, and
Margaret’s children retain their right of intestate inheritance.
1. McKamey v. Watkins, (1971); pg. 112, briefed 2/28/97
2. Facts: Testator left his entire estate to his mother, and made no provision for his minor child
which he was required to support by divorce court order. A statute in the jurisdiction provides
that the obligation to support minor children ends with the death of the parent, and that the
support obligations are not passed on to the estate.
3. Procedural Posture: Action was brought to seek inheritance for the minor child.
4. Issue: Whether the legitimate minor child of the deceased and a divorced spouse is entitled to
support after the death of the deceased, even though he was left out of the will.
5. Holding: No.
6. Reasoning: The statute is clear. The obligation to support minor children ends with death.
Any argument for change should be made to the legislature.
1. Matter of Estate of Hilton, (1982); pg. 114, briefed 3/23/97
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2. Facts: Testator had 4 children, three daughters and a son. The son predeceased the Testator.
Testator's will thus left his estate "to my three daughters" and further provided that if any other
person claims to be an "heir", they get one dollar.
3. Procedural Posture: The children of the predeceased son (the Testator's grandchildren)
brought suit to recover the son's share arguing that they were pretermitted grandchildren. The
lower court disagreed.
4. Issue: Whether a clause in a will leaving a nominal sum to anyone who claims to be an "heir"
is sufficient to disinherit grandchildren notwithstanding the pretermitted heir statute.
5. Holding: Yes.
6. Reasoning: The pretermitted heir statute provides that the omitted child, and his issue (here
the grandchildren Appellants) are presumed to be inadvertently left out, and thus entitled to their
intestate share unless it appears from the will that the omission was intentional. The specific
language of the no contest clause refers to anyone claiming to be an "heir". Thus, it is specific
enough to express an intention to exclude the grandchildren as heir from taking under his will as
a class - rebutting the presumption of pretermission.
1. Cunningham v. Cunningham, (1900); pg. 140, briefed 3/23/97
2. Facts: Testator was confined to his bed when he made out his will. The witnesses stepped
temporarily out of his vision, but only a few feet away, to sign the will on a table. Statute
requires that a will be signed by two witnesses in the testator's "presence".
3. Procedural Posture: An action contesting the validity of the will because the Testator could
not actually see the witnesses signing.
4. Issue: Whether the will was attested to and signed "in the presence of the Testator" even
though the Testator could not see the actual signing.
5. Holding: Yes.
6. Reasoning: A will is properly witnessed if done so within the "conscious presence" of the
testator. Under these facts, with the witnesses signing only a few feet away, and within earshot,
is within the conscious presence of the Testator. To hold otherwise would be extremely
technical without serving any purpose.
1. Matter of Estate of Collins, (1983); pg. 147, briefed 3/23/97
2. Facts: Testatrix's will was signed by two witnesses who were employees at her bank. The
will was submitted for probate, but neither witness could recollect the exact circumstances
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surrounding their signatures, but could identify their signatures and could remember signing the
will.
3. Procedural Posture: The lower court admitted the will to probate and the Appellate court
reversed holding that statute requires at least one witness to confirm that the testatrix signed the
instrument and intended it to be her will.
4. Issue: Whether a will may be admitted to probate where both attesting witnesses do not
recollect the events surrounding the execution of the will, but the court is otherwise satisfied
from all of the evidence that the will was properly executed.
5. Holding: Yes.
6. Reasoning: The statute provides that where an attesting witness has forgotten the occurrence
or testifies against the execution of the will and at least 1 other attesting witness has been
examined, the will may be admitted to probate upon the testimony of the other witness and such
other facts as would be sufficient to prove the will. Here, the evidence points in favor of the
will being properly executed.
1. Estate of Reed, (1983); pg. 151, briefed 3/23/97
2. Facts: A tape recorded statement was made by the deceased and intended to be a holographic
will.
3. Procedural Posture: The lower court refused to admit the recording to probate.
4. Issue: Whether a tape recorded statement made by a deceased person can be admitted to
probate as a will.
5. Holding: No.
6. Reasoning: Even though a tape might be a "voice print" it is not a "handwriting" and thus
does not meet the holographic will statutory requirement of being "entirely in the handwriting of
the testator." The court does not have the power to amend the statute to include tape recordings.
1. Maginn's Estate I, (1923); pg. 157, briefed 3/23/97
2. Facts: Seven loose leaf individual sheets of paper were clipped together and found in an
envelope. Each piece of paper makes a separate bequest, but none of the papers are connected
to the others.
3. Procedural Posture: Plaintiff seeks to admit the will to probate.
4. Issue: Whether the will is valid.
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5. Holding: No.
6. Reasoning: To find this will valid would invite the fraud of heirs to slip in or remove papers
from a will. Any one of these pages may be easily removed without disturbing the others.
Furthermore, any page could be added without disturbing the others and without interfering with
the structure of the will. A collection of papers such as this is not a valid will.
1. Maginn's Estate II, (1924); pg. 158, briefed 3/23/97
2. Facts: Same will as above.
3. Procedural Posture: Three of the pages of the above will are being submitted due to their
obvious intent to be a will.
4. Issue: Whether three pages which are loose leaf and not connected by their internal sense may
be a valid will.
5. Holding: No.
6. Reasoning: These are simply three unrelated sheets of paper. There is not internal sense
connecting them that would tend to show that they belong together, and there is no internal cross
reference among them. The will on its face would be just as complete with or without one of
the pages. It would be unsafe to probate a will that disclosed other pages as the one page might
be modified by the others. This will is not complete. Thus, even though the testator may have
intended this to be a will, he has not complied with the statute of wills, and therefore the pages
are not a valid will.
1. Clark v. Greenhalge, (1991); pg. 162, briefed 3/23/97
2. Facts: Testatrix executed a will which stated that the executor was to distribute certain items
of personal property according to a "memorandum" which would contain some specific
bequeaths. The testatrix then generated a writing entitled "Memorandum" which listed some
specific bequests. She then later generated another list of specific bequests entitled "List to be
given." Later, she executed two codicils to her will ratifying it in all respects. According to the
"List", particular painting was to be given to Clark, but the executor refused to give it.
3. Procedural Posture: The probate judge found that the list was properly incorporated by
reference into the terms of the will.
4. Issue: Whether the list in the notebook was a valid part of the will.
5. Holding: Yes.
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6. Reasoning: A properly executed will may incorporate by reference into its provisions any
document or paper that was in existence at the time of the execution of the will and is identified
by clear and satisfactory proof as the paper referred to therein. The "List" was in existence at
the time of the execution of the codicil, which served to update and ratify the will. Furthermore,
a plain reading of the will indicates that the "List" was intended to serve as a memorandum of
her wishes. The intent of the testator controls over any purely technical interpretation of the
will.
1. Breckheimer v. Kraft, (1971); pg. 173, briefed 3/29/97
2. Facts: Mrs. Johnson bequeathed her residuary estate to her nephew and "his wife Mabel
Schneikert." However, her nephew's present wife was named Evelyn, and his ex-wife Mabel
had re-married. So there was no person named Mabel Schneikert.
3. Procedural Posture: The trial court found that the will referred to the present wife.
4. Issue: Whether the will refers to the present wife or the ex-wife.
5. Holding: The present wife.
6. Reasoning: The ambiguity in the will is not on its face (not patent, but latent), and so
extrinsic evidence is allowable to interpret it. The ex-wife has had no contact with the testatrix
in the last 12 years. The present wife is loved by the testatrix. The testatrix merely forgot the
present wife's name. Thus, the name is not controlling. The description "wife" is controlling.
1. Siegley v. Simpson, (1913); pg. 175, briefed 3/29/97
2. Facts: Testator left $6,000 to "my good friend Richard H. Simpson." A person named
Richard H. Simpson existed, but he was not testator's friend. Testator's good friend was named
H. R. or Hamilton Ross Simpson.
3. Procedural Posture: The lower court found that the testator intended H.R. Simpson.
4. Issue: Whether H.R. or Richard gets the $6,000.
5. Holding: H.R.
6. Reasoning: Although parol evidence is not admissible to interpret a patent ambiguity, this is
a latent ambiguity because the defect was only disclosed by extrinsic evidence. Thus, parol
evidence is admissible. It is clear that Richard H. Simpson was not a "good friend" of the
testator. It is also clear that the testator did not know H.R.'s real name. Thus, the mistake is
curable by treating the words "good friend" as controlling, and following the testator's intent.
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1. Matter of Snide, (1981); pg. 177, briefed 3/29/97
2. Facts: Husband and Wife had a joint will execution ceremony. However, Husband
accidentally signed Wife's will, and Wife accidentally signed Husband's will.
3. Procedural Posture: Guardian ad litem for the minor child brought this action to refuse to
admit the will to probate arguing that the will failed for lack of intent.
4. Issue: Whether, under these peculiar facts, the will is valid.
5. Holding: Yes.
6. Reasoning: The court declines the formalistic view that the intent attaches to the document
rather than the testamentary scheme it reflects. Here it is so obvious what occurred that the
extrinsic evidence must be allowed to cure the will. There is absolutely no danger of fraud here.
1. Estate of Kremlick, (1983); pg. 181, briefed 3/29/97
2. Facts: Testator left part of his estate to "the Michigan Cancer Society." There was evidence
that the testator intended the American Cancer Society, Michigan Division, instead.
3. Procedural Posture: The lower court found that there was no ambiguity, and refused to allow
extrinsic evidence to establish an ambiguity.
4. Issue: Whether extrinsic evidence is allowable here to show the existence of a latent
ambiguity.
5. Holding: Yes.
6. Reasoning: Extrinsic evidence is not only allowable to show intent, but is also directly
allowable to prove the existence of an ambiguity that may exist, even if the will does not have an
ambiguity on its face. There is ample evidence here that the testator intended the American
Cancer Society, Michigan Division.
1. Union Planters National Bank v. Inman, (1979); pg. 183, briefed 3/29/97
2. Facts: The testator had a will in 1965 that left some of his property outright to his sons. In
1971, he changed his will to put the property in trust.
3. Procedural Posture: The sons brought this action, claiming that testator's lawyer mistakenly
induced the testator into putting the property in trust to keep it from the son's creditors, when in
fact, they were not in debt.
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4. Issue: Whether evidence of a mistake, and an alternate disposition must appear in the will
itself to be considered.
5. Holding: Yes.
6. Reasoning: For a mistake charge to be valid, two points must be established. First, the
testator was laboring under a mistake of fact, and second that if the truth had been known, he
would have made a different disposition. Both of these must be in the will itself, and they are
not present here.
1. Thompson v. Royall, (1934); pg. 198, briefed 3/29/97
2. Facts: Testatrix desired to revoke her previous will. Her attorney wrote on the back of the
will "this will is null and void" and testatrix then signed it. A statute in the state requires that to
revoke a will requires physical damage with intent to revoke, or an attested writing with intent to
revoke.
3. Procedural Posture: The will was contested.
4. Issue: Whether the action taken by testatrix in this case was sufficient to revoke the will.
5. Holding: No.
6. Reasoning: The writing on the back of the will is not wholly in the handwriting of the
testatrix, therefore it can not be a holographic revocation. Also, it is not attested by two
witnesses, so it does not meet the statutory requirement of another writing sufficient to revoke.
Lastly, the writing does not touch any of the words of the will, and so it has not affect them. If
the writing intended to be the act of canceling does not mutilate, or erase, or deface, or otherwise
physically come in contact with the written words of the will, it is not effective to revoke.
1. Kelly v. Donaldson, (1984); pg. 199, briefed 3/29/97
2. Facts: Testatrix executed two original copies of her will, and gave one copy to the proponent
of the will, because she was the sole beneficiary. At testatrix's death, the testatrix's original
copy could not be found, and was therefore presumed destroyed by statute.
3. Procedural Posture: The lower court rendered a jury verdict for the proponent. The heirs
appeal claiming that the presumption of destruction was not overcome.
4. Issue: Whether there was sufficient evidence to overcome the presumption of destruction.
5. Holding: Yes.
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6. Reasoning: Where an original copy is retained by the testator, and it can not be found, it is
presumed destroyed. Evidence that others had access to the will after the testator's death is not
enough to overcome the burden of the presumption. However, the proponent's testimony, taken
as a whole, tends to show much more than this. The testatrix reaffirmed the existence of the
will just a month before death. Also, her house was found in disarray, tending to show that the
will had been searched for and destroyed by the heirs.
1. Matter of Estate of Maruccia, (1981); pg. 206, briefed 3/29/97
2. Facts: Husband and Wife entered into a separation agreement that provided that "each party
hereby waives and releases to the other party the right to share in any of the property or estate of
such other which has arisen or may hereafter arise by operation of the law or otherwise."
Husband then died without revoking or modifying his will which left property to the Wife.
3. Procedural Posture: The lower court found that the separation agreement was inconsistent
with the testamentary gift, and therefore the testamentary gift was revoked as a matter of law.
4. Issue: Whether the language in the separation agreement was sufficient to revoke the
testamentary gift.
5. Holding: No.
6. Reasoning: A conveyance or settlement or other act of a testator which is wholly inconsistent
with a previous testamentary disposition revokes it. However, for a separation agreement (not a
divorce) to have the effect of revoking a prior devise, the agreement must contain language
which unequivocally shows intent to revoke. This settlement agreement is not unequivocal as to
the previous will.
1. In Re Kaufman's Estate, (1945); pg. 212, briefed 3/29/97
2. Facts: Testator had a 1940 will. In 1941, testator executed a new will that was the same as the
1940 will, except for changing the executor, and adding a charitable bequest. The charitable
bequest failed because Testator died within 1 month.
3. Procedural Posture: Action to have the 1940 will revived and admitted to probate.
4. Issue: Whether the doctrine of dependent relative revocation applies in this case to revive the
1940 will.
5. Holding: Yes.
6. Reasoning: Under the doctrine of dependent relative revocation, an earlier will, revoked only
to give effect to the later one on the supposition that the later one will become effective, remains
in effect to the extent that the later one proves ineffective. Testator, by repeating most of the
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prior will in his new will, intended to confirm it and not revoke it unless the new one proved
effective. The testator was never advised that the new one would be ineffective, and so his
intent clearly would be that the prior one be given effect if the later one failed.
1. Wolf v. Bollinger, (1872); pg. 214, briefed 3/29/97
2. Facts: Testator's original will devised land to Bollinger. Testator directed someone to line
out Bollinger's name and wrote in Wolf's name. The substitution of Wolf was ineffective under
statute because it was not witnessed.
3. Procedural Posture: The will, as amended, was admitted to probate, and Bollinger sued to
have it declared invalid.
4. Issue: Whether the interlineation, although insufficient to substitute Wolf's for Bollinger,
nevertheless destroyed Bollinger's interest in the land.
5. Holding: No.
6. Reasoning: The cancellation of the name Bollinger was merely to substitute the name Wolf.
Thus, the canceling must be viewed as being made only conditionally, on the condition that the
substituted name be given effect. To hold that the interlineation destroyed Bollinger's interest in
the land would cause it to pass intestate, which would be contrary to the testator's intent. It is
presumed that such interlineations are conditional, and invoke the doctrine of dependent relative
revocation.
1. First National Bank v. Perkins Institute, (1931); pg. 958, briefed 3/29/97
2. Facts: Testatrix willed "all of my stock in the Standard Oil Company" to her nephew.
However, during her lifetime, Testatrix exchanged the stock for debentures and some cash,
which she still held at her death.
3. Procedural Posture: The nephew brings this action to recover the debentures and cash in lieu
of the stock.
4. Issue: Whether the nephew is entitled to the proceeds from the sale and exchange of the stock.
5. Holding: No.
6. Reasoning: There was not stock of the Standard Oil Company in the estate of the Testatrix
when she died. Thus, the legacy was adeemed because it was a specific bequest which was
disposed of by the Testatrix before her death.
1. In Re Mandelle's Estate, (1930); pg. 959, briefed 3/29/97
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2. Facts: Testatrix bequeathed "1,200 shares, par value" of the stock of a Company to her doctor.
At the time, she owned stock that was $25 par value. The company restructured to no par stock,
and Testatrix exchanged her 1,200 shares for 6,000 shares of the no par stock.
3. Procedural Posture: The executors of the estate asked the court whether the doctor was
entitled to 1,200 or 6,000 shares of the no par stock.
4. Issue: Whether the doctor was entitled to 1,200 or 6,000 shares of the no par stock (i.e.
whether the bequest was general or specific).
5. Holding: Specific.
6. Reasoning: Where the testator uses the words "my stock" or "now owned by me" there is a
specific gift of the stock. The specific bequest was not adeemed because the stock was only
converted in form, and at all times remained substantially the same thing.
1. Matter of Estate of Wolf, (1984); pg. 962, briefed 3/29/97
2. Facts: Testator executed a will which devised all of his land in equal parts to his three sons.
Testator then deeded one equal portion each to two of his sons. Testator sent a letter to the third
son asking him how he wanted the remaining land deeded. Before Testator could give the
remaining land to the third son, testator died.
3. Procedural Posture: The third son brought an action claiming that the previous deeds, in
view of the letter to him, adeemed the other sons' rights in the remaining land.
4. Issue: Whether the deeds, in view of the letter to the third son, adeemed the other sons' rights
in the remaining land.
5. Holding: Yes.
6. Reasoning: The statute allows for ademptions of specific bequests, but also general bequests
if the intention to adeem is expressed by the testator in writing. Here, the writing shows that the
previous deeds were considered advancements because it spoke of sending the other two sons
deeds to "their land" and then refers to the remaining land as "your land."
1. Matter of Lutz, (1951); pg. 964, briefed 3/29/97
2. Facts: Testator had a favorite "niece" that he often gave gifts while he was alive. The total of
these gifts was about $9,000. Testator also had a son who he did not give gifts to. The "niece"
was bequeathed $50,000 under the will, which was more than the son was given. The
accountant attempted to credit the $9,000 of inter-vivos gifts as an advancement.
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3. Procedural Posture: "Niece" seeks to have the credits disallowed.
4. Issue: Whether these inter-vivos gifts constituted an advancement.
5. Holding: No.
6. Reasoning: For a presumption of advancement, there must be three things :1) a bequest in the
nature of a "portion", 2) a parent-child relationship, and 3) an advancement in the nature of a
portion which could cause inequality. Here, the testator did not stand in loco parentis to the
"niece" because she was at all times supported by her husband. Furthermore, there is no
evidence that the testator intended any of the gifts to be advancements. To the contrary, the
testator changed his will to make a bank his executor instead of his son to ensure that the "niece"
kept her favored place in the will.
1. West v. Coogler, (1983); pg. 968, briefed 3/29/97
2. Facts: Testatrix willed 160 acres of land to her four children in trust. Testatrix thereafter
deeded 40 acres to one of her children, Vivian, who later sold it. Testatrix then died.
3. Procedural Posture: Vivian brought an action to get one-third of the remaining 120 acres of
land.
4. Issue: Whether the deed to Vivian constituted an advancement on her portion of the trust.
5. Holding: Yes.
6. Reasoning: It does not matter whether Vivian knew of the trust when she obtained the land by
deed. Vivian paid nothing to her mother for the land. Thus, there is a presumption that the
deed was given as an advancement. Extrinsic evidence supports this presumption.
1. In Re Murphy's Estate, (1910); pg. 978, briefed 3/29/97
2. Facts: Murphy's will gave the residue of his estate to "the four children of my late sister
Catherine...that is to say...Timothy..., William...,Mary Jane..., and Kate." William died without
issue before the testator.
3. Procedural Posture: The executors allege that the bequest was to the children as a class, and
not as individuals. The lower court agreed, and the intestate heirs appeal.
4. Issue: Whether the language creates a class gift or a gift to individuals.
5. Holding: Gift to individuals.
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6. Reasoning: The language states expressly recites each legatee's name. This indicates intent
that they should not take as a class but as individuals. The words "children of my late sister" is
merely descriptive of identification. Thus, the deceased William's share passes intestate because
the residuary legatee failed (lapse).
1. In Re Slack Trust, (1966); pg. 982, briefed 3/29/97
2. Facts: A residuary legatee predeceased the testator without issue. Her interest was passed to
the remaining residuary legatees.
3. Procedural Posture: The intestate heirs challenge the disposition of the lapsed property.
4. Issue: Whether, in the absence of contrary intent, the lapse of a residuary legacy becomes part
of the residue and passes with the balance of the residue to the other residuary legatees.
5. Holding: Yes.
6. Reasoning: Although the majority rule is that the lapsed residuary legacy passes intestate, this
rule has no rationale and seems to defeat the intent of the testator in every case. Thus, the court
announces a contrary rule.
1. Gianoli v. Gabaccia, (1966); pg. 985, briefed 3/29/97
2. Facts: Testator's will bequeathed $5,000 to each of his brothers and sisters, and the residue to
his nieces and nephews. At the time of execution of the will, the testator had two brothers and
two sisters. However, only one sister survived him. The deceased brothers and sister did have
children.
3. Procedural Posture: The lower court found that the gift to the deceased brothers and sister
lapsed.
4. Issue: Whether the anti-lapse statute applies to the present case to give the issue of the
deceased brothers and sister their parents' share.
5. Holding: Yes. The anti-lapse statute applies in the absence of intent to the contrary. There
is no contrary intent here. Thus, the gift of $5,000 goes to the lineal descendants of the
deceased brothers and sister as if the children stood in their parents position.
1. Barry v. American Security & Trust Co., (1943); pg. 624, briefed 3/29/97
2. Facts: Testator's will had an anti-contest provision which provided for forfeiture and a gift
over of the interest of any person contesting its provisions.
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3. Procedural Posture: The appellant filed an unsuccessful challenge to the will asserting
mental incapacity, fraud and undue influence. The lower court held that this resulted in
forfeiture.
4. Issue: Whether the actions brought by the appellant resulted in forfeiture of their inheritance.
5. Holding: Yes.
6. Reasoning: Anti-contest provisions are valid, irrespective of the question of good faith or
probable cause for litigation. There was no evidence to justify the allegations made by the
appellant. The wishes of the testator are more important here than the public interest of greater
freedom of litigation.
1. Estate of Larsen, (1984); pg. 627, briefed 3/29/97
2. Facts: Mother left more to her daughter than to her son. The will also contained an in
terrorem clause that stated that the inequality was intentional and that anyone who contested the
will "directly or indirectly" would forfeit their share.
3. Procedural Posture: The son brought a creditor's action to recover amounts alleged owed to
him by oral promise for services rendered while his mother was alive. The lower court found
that the action was an indirect attack on the will and thus subjected the son to forfeiture of his
share.
4. Issue: Whether the creditors action by the son was an "indirect" attack on the will subjecting
him to forfeiture under its terms.
5. Holding: Yes.
6. Reasoning: Although in terrorem clauses are to be strictly construed, there is no question as to
the testatrix's intent here. The action by the son was an attempt to disguise an attack on the will,
and therefore is an indirect attack on the will. In order to satisfy the creditor's claim, the estate
would have to sell one of the parcels of land given to the sister. Thus, the son forfeits his share.
1. Matter of Estate of Kumstar, (1984); pg. 635, briefed 3/29/97
2. Facts: Testatrix bequested certain property to a brother who was long since deceased. Also,
she made several bequests establishing trusts of very small amounts of money.
3. Procedural Posture: The lower court submitted the issue of testamentary capacity to the jury,
who found that the testatrix lacked the requisite capacity.
4. Issue: Whether there was sufficient evidence at trial to submit the issue of capacity to the jury.
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5. Holding: No.
6. Reasoning: The proponent has the burden of proving lack of capacity. The testator only need
to 1) understand the nature of the will, 2) know the extent of the property being disposed of by
will, and 3) know the natural objects of his bounty. At trial, there was insufficient evidence to
disprove capacity. The decedents treating physician testified that the decedent was competent,
but the objectant's physician could not testify to incapacity to a reasonable degree of medical
certainty.
1. In Re Honigman's Will, (1960); pg. 641, briefed 3/29/97
2. Facts: Testator changed his will to cut off his wife. He made repeated accusations that his
wife was unfaithful to him after 40 years of marriage.
3. Procedural Posture: The widow contested the probate of the will, and the trial jury found that
the testator lacked capacity as being under an insane delusion. The appellate court reversed.
4. Issue: Whether there was enough evidence to submit the question of capacity to the jury.
5. Holding: Yes.
6. Reasoning: The issue is not whether Mrs. Honigman was unfaithful, but whether Mr.
Honigman had any reasonable basis for believing that she was. There is ample evidence to
support the proposition that testator had no reasonable basis to believe in her infidelity. The
court should not hesitate to put a factual issue like this to the jury. The dispository provisions
were caused by the delusion.
1. In Re Reddaway's Estate, (1958); pg. 654, briefed 3/29/97
2. Facts: The testator was close to his son, and had a will drafted that was very favorable to the
son. However, the testator later suffered some strokes, and came into the care of a daughter by
his first marriage and her mother in law. The father's previously warm attitude toward his son
changed dramatically, and he destroyed the previous will. There was evidence that the testator's
caretakers seldom allowed anyone to be alone with the testator, and induced him to draft a will in
their favor, but testator died before he could execute the new will.
3. Procedural Posture: An action to challenging the previous will which was admitted to
probate.
4. Issue: Whether the testator was under undue influence which caused him to revoke the
previous will.
5. Holding: Yes.
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6. Reasoning: The existence of a confidential relationship, when taken in connection with other
suspicious circumstances, gives rise to a presumption of undue influence. Here, there was a
confidential relationship between the testator and his caretakers. Also, it is suspicious that there
was a change in attitude toward the son, and a change in the will in favor of the caretakers. The
caretakers procured the previous will for destruction. They prevented him from seeking
independent advice. They acted with secrecy and haste. The changed will was un-natural in
that it was unfair to the son. And the testator was susceptible undue influence by his age and
physical condition.
1. In Re Estate of Kamesar, (1977); pg. 658, briefed 3/29/97
2. Facts: Testator had a two daughters and a son. The son took care of the father for many
years, but later after he remarried, one of the daughters started taking care of his affairs.
Testator changed his will to decrease the shares given to his other children, and increase that
given to the daughter that now took care of him.
3. Procedural Posture: The lower court found that there was no undue influence.
4. Issue: Whether there was enough evidence to support a presumption that testator was acting
under undue influence when he changed his will against the son.
5. Holding: No.
6. Reasoning: There are two ways to prove undue influence. The first is the four factor test:
1) susceptibility to undue influence, 2) opportunity to influence, 3) disposition to influence, and
4) coveted result. The other way is to show a confidential relationship coupled with suspicious
circumstances surrounding the making of the will. Here, the testator was ill, but that is not
enough to show susceptibility. Although there was opportunity to influence, there must also be
a willingness to do something wrong or unfair. Given the substantial gifts that the others
received, the daughter's influence to increase her share was not undue. Furthermore, although
there was a confidential relationship between the daughter and the testator, it was merely routine,
and the same type of relationship that the son had before her. Thus, no suspicious
circumstances were proven, and there was no undue influence proven.
1. In Re Carson's Estate, (1920); pg. 673, briefed 3/29/97
2. Facts: Wife married Husband and later made a will with him as the beneficiary. However,
the Husband was already married, but represented that he was single.
3. Procedural Posture: The portion of the will bequeathing certain property to the Husband is
challenged. The lower court granted a non-suit holding that there was insufficient evidence.
4. Issue: Whether there was enough evidence to present a jury question as to whether the bequest
to the Husband was a direct result of his fraud on the wife.
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5. Holding: Yes.
6. Reasoning: The wife had been tricked into the marriage. She believed that he was her lawful
husband. Although there was no evidence presented that the bequest was the direct result of the
fraud, such evidence probably does not exist. It is likely enough to present a jury question that a
woman deceived into marriage would not have made a bequest had she known of the deception.
1. Markell v. Sidney B. Pfeifer Foundation, 1980; pg. 675, briefed 3/29/97
2. Facts: The testatrix signed her property into trust without the understanding of the
consequences of a trust being irrevocable.
3. Procedural Posture: The trial court set aside the trust as being made under mistake.
4. Issue: Whether misconception of the legal effect of language used in a trust instrument is a
"mistake of law" sufficient to set aside the trust if a fiduciary who has an interest in the outcome
fails to inform the settlor of the consequences.
5. Holding: No.
6. Reasoning: A voluntary irrevocable trust may not be set aside without proof of incapacity,
mistake fraud or undue influence. Here the "mistake" was one of lack of understanding, not of
material fact. Not fully understanding the law is not a mistake which the law affords a remedy.
Only if the person is induced into signing by a fiduciary who has an interest in the document's
execution will it be set aside for mere lack of understanding (because the fiduciary has the duty
to explain the document to the person). Here, the lawyer had an interest in the trust, and so his
failure to inform the settlor was a breach of that fiduciary duty which voids the trust.
1. Pope v. Garrett, (1948); pg. 306, briefed 3/30/97
2. Facts: Two heirs prevented the testatrix from executing a will in favor of plaintiff, by using
physical force.
3. Procedural Posture: The trial court found for the plaintiff, and the Court of appeals
reversed in part holding that the heirs that did not take part in the wrongdoing should not have
their share placed in constructive trust.
4. Issue: Whether a constructive trust should be placed on the property in favor of the plaintiff.
5. Holding: Yes.
6. Reasoning: The statute of will writing requirement was enacted for the purpose of preventing
fraud. It may not be used as a means for perpetrating fraud. As to the interests of the heirs who
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did not take part in the wrongdoing, their shares should also be subject to the constructive trust
because they would not have had anything anyway but for the wrongdoing. To leave the
property with the heirs would be unjust enrichment.
1. Hooper v. Felgner, (1894); pg. 309, briefed 3/30/97
2. Facts: A will passed property in trust to A for life, and then in trust to A's issue then living.
3. Procedural Posture: Unknown.
4. Issue: Whether the statute of uses executes the trust at the end of the life estate.
5. Holding: Yes.
6. Reasoning: When a will attempts to continue a trust pass the life estate of the first beneficiary,
the statute of uses executes the trust and vests title in the remaindermen. A trust in regard to
personal property continues only so long as the purposes of the trust require.
1. Comford v. Cantrell, (1941); pg. 321, briefed 3/30/97
2. Facts: Testator devised certain real property to his wife "to be her absolute estate forever."
The will further stated that it was the husband's "request" that upon the wife's death, she devise
the land to certain relatives. The wife sold the land.
3. Procedural Posture: The lower court found that the wife had fee simple title to the property,
and that the relatives had no interest.
4. Issue: Whether the will gave fee simple title to the wife.
5. Holding: Yes.
6. Reasoning: The words "absolute estate forever" define a fee simple estate. The word
"request" is merely precatory and does not show sufficient intent to create a trust. Language
clearly granting a fee simple estate can not be overcome by later ambiguous wording.
1. Nichols v. Allen, (1881); pg. 328, briefed 3/30/97
2. Facts: Testatrix bequeathed the residue of her estate to her executors "to be distributed to such
persons...as they may think most deserving."
3. Procedural Posture: Plaintiff, next of kin of the testatrix, brought this action to have the trust
declared invalid. The lower court sustained a demurrer.
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4. Issue: Whether the language is valid to create a trust.
5. Holding: No.
6. Reasoning: If an instrument exhibits a clear purpose to create a trust, but the beneficiaries of
the trust are too indefinite, a resulting trust is created in the donor. A charitable trust can have
an indefinite class as beneficiaries, but the objects of the trust must be restricted to "charitable"
beneficiaries. Here, the trust could name any "person" as beneficiary. Thus, it does not qualify
as a charitable trust, and the plaintiff is entitled to the residue by way of resulting trust to the
donor.
1. Clark v. Campbell, (1926); pg. 336, briefed 3/30/97
2. Facts: Testator's will stated that he gave to "trustees" all his property, and that the trustees
were to distribute the property to such of his "friends" as the trustees shall select.
3. Procedural Posture: Unknown
4. Issue: Whether the language in the will created a valid trust in favor of his "friends".
5. Holding: No.
6. Reasoning: In a private trust, there must be a beneficiary or class of beneficiaries who can
come into court and enforce the trust. The language clearly attempts to create a trust in favor of
his "friends", but "friends" is not a term which has an accepted or ascertainable legal class
definition. Thus, the trust fails for want of a definite beneficiary, and a resulting trust is created
in the donor, which passes according to the will.
1. Fineman v. Central National Bank, (1959); pg. 341, briefed 3/30/97
2. Facts: Testator bequeathed a large sum of money in trust to pay income to his son "for as long
as he remains married to his present wife." If the son were to divorce the wife, the balance of
the trust would go to the son directly. Thus, the son stood to gain a large sum of money if he
divorced his wife.
3. Procedural Posture: An action to determine the validity of the trust.
4. Issue: Whether a trust is valid which places a reward premium upon divorce.
5. Holding: No.
6. Reasoning: The test is whether the provision in the will provides a premium or reward in the
vent of divorce. This clause is plainly intended to encourage divorce. It is void as against
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public policy for being an improper trust purpose. Thus, the trust fails and the corpus of the
trust vests in the son.
1. In Re Estate of Heller, (1968); pg. 343, briefed 3/30/97
2. Facts: Testatrix's will provided that her daughter would get nothing from the will unless "at
the time of [testatrix's] death, [the daughter] is married to...her husband." The daughter had
divorced the husband before the testatrix's death.
3. Procedural Posture: The trial court found that the clause was valid.
4. Issue: Whether the language requiring that the daughter be married to her present husband at
the testatrix's death was valid.
5. Holding: Yes.
6. Reasoning: A condition that a person not marry is invalid. A condition that restricts whom a
person may marry is valid unless the sphere of permissible marriage is so small that a permitted
marriage is not likely to occur. Restraints on remarriage are valid. Inducements to divorce are
invalid. This case does not fall into any of those rules. A will speaks at the testator's death.
Here, there is no restraint on marriage because there is no continuing inducement to do anything
after the testatrix's death. The rights of the daughter were fixed at her mother's death.
1. United States National Bank v. Snodgrass, (1954); pg. 345, briefed 3/30/97
2. Facts: Testator's will provided that the daughter was to earn income from a trust until she was
32, at which time the trust corpus would vest in the daughter, so long as she had not married a
catholic man. The daughter had married a catholic man before age 32.
3. Procedural Posture: The lower court upheld the will and forfeited the daughter's interest in
the trust estate.
4. Issue: Whether the trust restriction on the daughter not marrying a catholic was valid.
5. Holding: Yes.
6. Reasoning: The partial restraint only lasts until the daughter is 32. Furthermore, it only
eliminates a certain class of potential husbands. This partial restraint does not unreasonably
restrict the beneficiary's freedom of choice. Where the restraint is only partial or temporary, it is
valid if not unreasonably limiting.
1. Moss v. Axford, (1929); pg. 352, briefed 3/30/97
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2. Facts: Testatrix's will stated that the residue of her estate was to be given by her executor to
the person who, in the executor's judgment, "has given me the best care in my declining years
and who in his opinion is the most worthy of my said property." The executor selected Mary
Piers.
3. Procedural Posture: The heirs attacked the will as attempting to create an invalid trust for
failure of a definite beneficiary.
4. Issue: Whether the trust failed for lack of a definite beneficiary.
5. Holding: No.
6. Reasoning: It is not necessary that a beneficiary be designated by name. The testator does
not even have to have a particular person in mind. It is enough that the testator use descriptive
enough language to enable the court to determine the identity of the beneficiary by extrinsic
evidence. Even if the trustee had failed to name someone, there was sufficient description that
the court could determine the beneficiary and enforce the trust.
1. Olliffe v. Wells, (1881); pg. 354, briefed 3/30/97
2. Facts: Testatrix left the residue of her estate to Rev. Wells "to distribute the same in such a
manner as in his discretion shall appear best to carry out the wishes which I have expressed to
him or may express to him."
3. Procedural Posture: An action by the heirs to declare the trust invalid.
4. Issue: Whether the attempted trust creation was invalid for lack of a definite beneficiary.
5. Holding: Yes.
6. Reasoning: The trust did not name a beneficiary with enough certainty to be valid. Although
it did create a duty in the trustee, there is nobody to step forward and enforce the trust should the
trustee fail to perform adequately.
1. Farmers' Loan & Trust Co. v. Winthrop, (1924); pg. 358, briefed 3/30/97
2. Facts: The donor set up a trust with a certain sum of money, and then reserved the right to
delivery additional property to be held in trust. The donor then authorized, by power of
attorney, the bank to collect some of her stock and place the funds in the trust. However, before
all of the stock could be transferred, the donor died, leaving some $1 million in stock yet to be
transferred.
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3. Procedural Posture: The legatees under the will and the remaindermen under the trust are
litigating as to who gets the untransferred stock. The lower court found that the uncompleted
transfer did not become part of the trust.
4. Issue: Whether the property which had not yet been transferred to the trust was part of the
corpus of the trust.
5. Holding: No.
6. Reasoning: There is no expression of a purpose to effectuate a present gift. The power of
attorney, standing by itself, results in the creation of a revocable agency. When the donor died,
the agency terminated. There is no indication in either the power of attorney, or the deed of
trust, that this particular property was to be presently given. Both the letter and the deed of trust
are written in language of future gift, not present gift.
1. Wittmeier v. Heiligenstein, (1923); pg. 361, briefed 3/30/97
2. Facts: The donor attempted to create a trust in favor of the donee with a church as the trustee.
Local statute prohibited the church from holding title as a trustee.
3. Procedural Posture: The lower court found that the trust failed for lack of a trustee.
4. Issue: Whether the attempted trust fails for lack of a valid trustee.
5. Holding: No.
6. Reasoning: There was a beneficiary capable of taking but no lawful grantee. The void deed
did not transfer the title to the church, but rather it remained in the donor and passed according to
the donor's will. The general rule is that a trust will not fail for lack of a grantee. Thus, there
will be a constructive trust on the property in the hands of the heirs of the grantor in favor of the
donee.
1. Hebrew University Assoc. v. Nye II, (1961); pg. 363, briefed 3/30/97
2. Facts: The donor stated at a luncheon that she intended to give her library to the University,
and confirmed the gift in several letters to others. She also gave an itemized inventory to the
university. While the donor was packing the library for shipment, she died.
3. Procedural Posture: Remanded to the trial court for a new trial. The trial court found that
there was no gift for lack of present delivery.
4. Issue: Whether the gift was valid.
5. Holding: Yes.
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6. Reasoning: There was a valid gift inter-vivos based on the constructive delivery of the
inventory memo to the university. Furthermore, there is a constructive trust in favor of the
university based on the promise coupled with the university's reasonable reliance and material
preparations. Lastly, there is a constructive trust based on the donor's dying believing that an
effective gift had been made. Failure of the trust would mean piecemeal selling off of the
books, which clearly was not the donor's intent.
1. Gregory v. Bowlsby, (1902); pg. 371, briefed 3/30/97
2. Facts: Defendant is the father of plaintiffs. Defendant persuaded the plaintiffs to deed their
land to him for $1 and that he orally promised not to dispose of it, and that he would will it to
them at his death. The defendant then gratuitously conveyed a one-third interest in the property
to his second wife.
3. Procedural Posture: The lower court sustained a demurrer.
4. Issue: Whether a constructive trust should be enforced on the property.
5. Holding: Yes.
6. Reasoning: There is no express trust here because the statute of frauds requires a writing for
such land transactions. Furthermore, the deed was absolute on its face and thus no parol
evidence may be allowed to show the presence of an express trust. However, the statute of
frauds was not enacted as a means for sheltering fraud. There is enough evidence here of fraud
that the demurrer should have been overruled.
1. Orella v. Johnson, (1952); pg. 375, briefed 3/30/97
2. Facts: The plaintiffs borrowed money from the defendant to pay off a house. In return, the
plaintiffs granted title to the house to the defendant. The defendant later sold the house (fully
satisfying the debt) and used the proceeds to by another house. Plaintiffs allege that the original
conveyance was made on the oral promise that the defendant re-convey the land on request.
Defendant refused to reconvey the land.
3. Procedural Posture: The lower court nonsuited the plaintiffs.
4. Issue: Whether an oral promise to reconvey land is enforceable by way of a constructive trust
on the land.
5. Holding: Yes.
6. Reasoning: If a grantor conveys property to another in reliance on an oral promise for the
latter to hold the property in trust, and the grantee subsequently repudiates the trust, a
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constructive trust may be enforced against the grantee if the conveyance was induced by fraud or
if there was a confidential relationship between the parties. This prevents the grantee from an
unjust enrichment arising out of fraud which would otherwise be shielded by the statute of
frauds.
1. Jones v. Gachot, (1950); pg. 376, briefed 3/30/97
2. Facts: The donor made a deed to her nephews with the alleged oral promise that the nephew
hold the property in trust for themselves and their brothers and sisters.
3. Procedural Posture: The lower court dismissed the complaint.
4. Issue: Whether a constructive trust is justified under these facts.
5. Holding: No.
6. Reasoning: An express trust can not be established by oral evidence. A constructive trust
may be impressed if the transfer was made under fraud, duress, or undue influence, or if it was
made between parties who had a confidential relationship, or in contemplation of death. Here,
there is no evidence that there was fraud, duress, confidential relationship, or contemplation of
death. Thus, there is no trust.
1. Investor's Stock Fund, Inc. v. Roberts, (1961); pg. 381, briefed 3/30/97
2. Facts: The donor created a trust comprising certain stock in favor of a relative. The
declaration of trust named the donor himself as the income beneficiary for life with the
remainder to the relative, the donor himself as the trustee, and reserved the power to change the
beneficiary of the trust at any time.
3. Procedural Posture: The widow of the donor and the relative dispute who should get the
stock.
4. Issue: Whether the declaration of trust was valid even though it named the donor as trustee
and as life beneficiary of the income, as well as retaining a power of changing the remainder
beneficiary.
5. Holding: Yes.
6. Reasoning: The general rule is that there can be no trust when the full legal and equitable
ownership vests in a single person. However, the creation of the trust immediately vested an
equitable remainder interest in the relative. Furthermore, a person may occupy two capacities
with regard to a trust. In declaring the trust, the donor reserved the right to the income and to
change the beneficiary in his capacity as the donor, not as the trustee or beneficiary. The right to
reserve the power to revoke a trust is well established.
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1. Osborn v. Osborn, (1966); pg. 385, briefed 3/30/97
2. Facts: The donor created a trust. However, the donor retained power to revoke portions of the
trust. The donor used the trust assets as collateral on personal loans and to pay personal
expenses, and for each transaction, he completed a revocation form from a supply he kept
available. The donor also continued to manage the trust fund investments.
3. Procedural Posture: Unknown.
4. Issue: Whether a valid trust existed in light of the donor's conduct.
5. Holding: No.
6. Reasoning: The evidence here reflects that the arrangement between the bank and the donor
was so completely dominated by the donor that although it was referred to as a trust, it was in
reality an agency account. The agency terminated at the donor's death, and the "trust" corpus
passes either under the will or intestate, but not as a trust.
1. Gurnett v. Mutual Life Ins. Co., (1934); pg. 391, briefed 3/30/97
2. Facts: The donor took out an insurance policy on his life. He named the bank the sole
beneficiary of the policy. He then entered into a trust agreement with the bank that the donor be
able to borrow against the policy for life, and at his death, the proceeds of the policy are to be
paid to a beneficiary named. The donor also reserved the right to amend the trust or change the
beneficiary.
3. Procedural Posture: The lower court found that the life insurance policy was a valid trust
subject matter.
4. Issue: Whether a trust of the proceeds of a life insurance policy is valid even if the donor
retains the right to borrow against it or change the beneficiary.
5. Holding: Yes.
6. Reasoning: The date of the death of the insured merely fixed the time with the obligation of
the insurers to pay and the right of the beneficiary of the life insurance contract to receive the
proceeds became enforceable. The trust agreement itself became enforceable immediately. A
life insurance policy is a valid subject matter for a trust, and the fact that the donor retains a right
to change the beneficiary or revoke the trust entirely does not invalidate it.
1. Newman v. Dore, (1937); pg. 396, briefed 4/27/96
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2. Facts: Husband set up a trust in his will giving his wife a life estate in 1/3 of his property. He
then made an inter-vivos transfer of all his property to other trustees, making a second trust in
which he was the life beneficiary and in which he retained substantial control over the property.
He did this with the intent to divest his wife of any interest she might have in his property after
death because a local statute provided that a wife could not elect against the will if she were the
life beneficiary of a trust (even a worthless one).
3. Procedural Posture: The lower court found that the husband had attempted to circumvent the
decedent estate law, and held the second trust invalid.
4. Issue: Whether a husband may defeat his wife's interest in his estate by transferring title to all
his property to a trustee, and yet still retain such control and enjoyment of the property as to
make the purported trust illusory.
5. Holding: No.
6. Reasoning: Although the husband's intent was clearly to circumvent the decedent estate law
which favored his wife, intent is not a sufficient test of the validity of the transfer of property.
The only sound test of the validity of a transfer to a trustee is whether it is real or illusory.
Essentially, the test is whether the husband has in good faith divested himself of ownership of his
property or has made an illusory transfer. Here, the husband's conveyance was clearly illusory
given the control and enjoyment he retained over the property during his life.
1. Sullivan v. Burkin, (1984); pg. 400, briefed 4/27/97
2. Facts: Husband transferred all of his property in an inter-vivos trust during his life, where he
was the settlor, sole trustee, and income beneficiary for life with a right to principle on demand.
The wife elected against the will.
3. Procedural Posture: The wife sued to have the trust property included in the estate for
determination of her intestate share. The lower court dismissed the complaint.
4. Issue: Whether an inter-vivos trust created by a husband, in which he retains a general power
of appointment to direct the income of the trust to his own benefit, is sufficient to divest his wife
of her interest in his estate upon his death.
5. Holding: Yes for this case, but not in the future.
6. Reasoning: A husband has the absolute right, regardless of motive, to dispose of any or all of
his separate personal property during his lifetime without the knowledge or consent of his wife.
This is true even if his purpose was to disinherit her. However, the new rule laid out here
prevents a spouse from defeating the testamentary statutes by creating a trust in which he or she
alone has a general power of appointment of the benefit.
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1. National Shawmut Bank v. Cumming, (1950); pg. 406, briefed 4/27/97
2. Facts: Husband set up a trust naming himself and the bank as co-trustees, and reserved a
general power of appointment of income and principle to himself for life and that on his death
income of $150/mo. should go to his widow his mother and his two brothers for life, and
thereafter to go to the surviving issue of his nieces and nephews. Before his death, the husband
“delegated” his powers as co-trustee to the bank. If the widow were able to invalidate the trust,
she would get $4,000 plus half of his estate. However, if the trust is valid, she only gets $150
per month.
3. Procedural Posture: The bank brought this action to declare the rights of the parties and
remove the cloud of uncertainty on the title of the estate. The lower court found that the trust
was valid.
4. Issue: Whether the trust was valid.
5. Holding: Yes.
6. Reasoning: It was not shown that the trust was created to defraud the widow of her property.
The trust effectively disposed of all of his property prior to his death, and thus his widow may
not elect against the will because she is the beneficiary of a valid trust.
1. Canal National Bank v. Chapman, (1961); pg. 415, briefed 4/27/97
2. Facts: Testatrix willed the residue of her estate to “pour over” into an existing trust, “as well
as any supplemental agreement and amendments thereof.” The testatrix later amended the trust
to change the ultimate beneficiaries. However, the amendment was not executed and witnessed
in accordance with the formalities of the statute of wills.
3. Procedural Posture: The bank as trustee brought an action for determination of the rights of
the parties.
4. Issue: Whether the property in the pour over provision passes according to the terms of the
inter-vivos trust which was amended subsequent to the execution of the will.
5. Holding: Yes.
6. Reasoning: The testatrix’s intent was clearly to create a pour over trust. The inter-vivos
trust already existed, and had substantial assets. Thus, under the doctrine of facts of
independent significance, the trust had a purpose aside from distributing property upon the death
of the testatrix. The trust was not a mere shell created solely to circumvent the statute of wills
formalities. As such, it is given effect.
1. Rowe v. Rowe, (1959); pg. 427, briefed 4/27/97
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2. Facts: Plaintiff is the surviving life beneficiary of a trust which provided that the trustee had
the power to distribute income and principle to the beneficiaries “entirely according to his own
judgment and discretion.” In the five years since the trust was created, it has income of
approximately $7,500, but it had only paid out $600.
3. Procedural Posture: An action for declaratory judgment to construe the power of the trustee
under the trust.
4. Issue: Whether the trustee had sufficient discretion to withhold so much income from the life
beneficiaries.
5. Holding: Yes.
6. Reasoning: This is clearly a discretionary trust. In a discretionary trust, the court will not
interfere with the trustee’s judgment unless he acts 1) dishonestly, or 2) from an improper
motive, or 3) unreasonably. Furthermore, if the trustee has “sole” or “absolute” discretion, he
may even act unreasonably as long as he is not acting in bad faith or from an improper motive.
It is not necessary to determine whether this is a simple discretionary trust or a sole discretionary
trust, because the trustee’s actions have been reasonable. The life beneficiaries live
comfortably, and have no “need.” Therefore, it is not unreasonable for the trustee to accumulate
income for the benefit of the remaindermen.
1. In Re Gatehouse’s Will, (1933); pg. 431, briefed 4/27/97
2. Facts: Husband’s will provide for a trust for the support and maintenance of his wife for life.
The trust stated that the trustee had discretion to invade the principle if the income was
insufficient to maintain the wife’s present style of living, and that his intention was to provide for
the comfort of his wife. The wife later remarried.
3 Procedural Posture: The remainder beneficiaries brought this action to determine the
continuing right of the wife to receive income from the trust since she remarried.
4. Issue: Whether the private resources of the wife gained by her remarriage should be taken into
account in determining the amount due her from the income of the trust.
5. Holding: No.
6. Reasoning: The trust provides clearly that the gift of income to his wife was absolute, and
even gave the trustee the power to invade the principle. It is not a gift merely for “support and
maintenance” and is not subject to defeat by any extraneous condition. The fact that the wife
may be able to live comfortably from her new husband’s income is wholly immaterial in
determining whether an absolute gift is to be enforced.
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1. Hardenbergh v. Commissioner of Internal Revenue, (1952); pg. 443, briefed 4/27/97
2. Facts: The decedent died intestate, leaving a substantial estate to three intestate successors.
Two of the heirs were already wealthy, and so they renounced their intestate shares so that their
individual shares would go to the third heir. The IRS taxed the two shares as a gift to the third
heir.
3. Procedural Posture: An action for review of the IRS’s decision to tax the shares.
4. Issue: Whether the shares of an estate that passes intestate are subject to gift tax if renounced
by the intestate heirs.
5. Holding: Yes.
6. Reasoning: The general rule of intestate succession is that the title to the property passes by
force of law to the heirs. Thus, it vests immediately in the heirs and they are powerless to
prevent title vesting in them. This is different that the rule as to legatees who may renounce
their interest in the will prior to title vesting in them. Thus, it was proper to tax the shares as a
gift.
1. Broadway Bank v. Adams, (1882); pg. 446, briefed 4/27/97
2. Facts: Defendant is the beneficiary of a spendthrift trust that provided that the proceeds of the
trust were not subject to claims of creditors. Defendant owed the plaintiff money.
3. Procedural Posture: The bank brought this action to reach the proceeds of the trust in
satisfaction of the defendant’s debt to them.
4. Issue: Whether a spendthrift trust is valid as against a creditor in the state of Massachusetts.
5. Holding: Yes.
6. Reasoning: The founder of a trust has may secure the benefit of it to the object of his bounty
by providing that the income shall not be alienable or subject to the beneficiary’s debts. It does
not violate any principles of public policy to allow the testator to protect his gift in this manner
against the improvidence or misfortune of the beneficiary. Creditors in a commercial setting
have the power to exercise proper diligence before extending credit and thus avoid having their
debts be unsecured.
1. Scott v. Bank One Trust Co., 1991); pg. 449, briefed 4/27/97
2. Facts: Bank One is the trustee of a spendthrift trust which provides that the Bank shall
distribute the income of the trust to the beneficiary until the beneficiary is either insolvent,
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bankrupt, or would not personally enjoy the property, in which case the trust becomes wholly
discretionary. The beneficiary owes Scott money.
3. Procedural Posture: An action to reach the proceeds of the trust to satisfy a debt.
4. Issue: Whether spendthrift trusts are legally valid in Ohio.
5. Holding: Yes.
6. Reasoning: The non-enjoyment clause prohibits the trustee from distributing income to the
beneficiary if he would not personally enjoy it. Therefore, the beneficiary has no interest in the
trust to the extent that he can not enjoy it. A creditor can not claim any more right to the trust
than the beneficiary has, and here the beneficiary does not have the right to subject the trust to
his debts. The Sharrow court previously held that spendthrift trusts were invalid as against
public policy. However, Sharrow failed to recognize the interest of the settlor in disposing of
her property as she chooses. Thus, Sharrow is overruled.
1. In Re Matt, (1985); pg. 454, briefed 4/27/97
2. Facts: Ex-Husband is the income beneficiary of a spendthrift trust. Ex-Husband is also a
dead-beat dad who lost a judgment for $7,000 in back child support. The spendthrift trust
provision states that is shall not be subject to claims for spousal support, but is silent on the
provision of child support.
3. Procedural Posture: The trial court found that the intent of the settlor was not to protect the
trust from child support because it was silent thereon. However, the court of Appeals reversed
based on the spendthrift trust statute.
4. Issue: Whether, In Illinois, a spendthrift trust is subject to the child support obligations of the
beneficiary.
5. Holding: Yes.
6. Reasoning: The Non-Support Act in Illinois now provides for the withholding of income
“regardless of source” for the purpose of collecting unpaid support obligations. It further states
that it controls to the extent that it conflicts with other laws. Thus, there is clear legislative
intent to subject spendthrift trusts to child support obligations.
1. Todd’s Executors v. Todd, (1935); pg. 464, briefed 4/27/97
2. Facts: Todd is the life beneficiary of a trust which provides that the income or principle may
be paid to him at the absolute discretion of the trustee, and that in the event that the principle or
interest is applied to any debt of Todd, that the trust immediately cease and the principle vest in
the remaindermen. Todd has unpaid alimony and child support.
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3. Procedural Posture: The ex-wife and children of Todd seek satisfaction of back support from
the trust.
4. Issue: Whether this trust is subject to support payments.
5. Holding: No.
6. Reasoning: Where the trustee is authorized to withhold all payments, the beneficiary has no
absolute right which he can enforce. The beneficiary has no vested interest here because the
trustee has absolute discretion. Creditors can not have any interest greater than the debtor.
Thus, the creditors can not reach the trust because the beneficiary has no rights in it.
1. Matthews v. Matthews, (1982); pg. 467, briefed 4/27/97
2. Facts: Matthews was the life beneficiary of a trust which provided that the trustee had the
“sole discretion” to pay out amounts necessary for the support and maintenance of the
beneficiary. Matthews owes his wife and child back support.
3. Procedural Posture: A trust which provides for “sole discretion” but then puts forth
standards by which that discretion is to be exercised for the support and maintenance of the
beneficiary, is not a purely discretionary trust. The beneficiary has some vested right in the
trust, specifically for support and maintenance. “Reasonable support” includes the payment of
all the beneficiary’s normal, expected, and legal responsibilities. It would be unreasonable, had
the defendant lived with his child, for the trustee to refuse to pay Matthews sufficient income to
support both himself and his child. Thus, the child has the power to reach the trust based on the
father’s vested right to support and maintenance.
1. Department of Mental Health v. Phillips, (1986); pg. 468, briefed 4/27/97
2. Facts: The beneficiary of a trust is mentally incompetent and institutionalized in a mental
hospital for care at the expense of the state. The trust provides that the trustee has the discretion
to pay income out of the trust for the education, maintenance, medical care, support or general
welfare and comfortable living of the beneficiary.
3. Procedural Posture: The state seeks reimbursement out of the trust funds for the cost of care
of the beneficiary.
4. Issue: Whether the funds of this discretionary trust are subject to a claim for reimbursement
by the state for health care of the beneficiary.
5. Holding: No.
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6. Reasoning: The general rule is that the income of a trust is part of the estate against which the
state may bring an action for reimbursement, thereby lessening the burden on the public.
However, it is clear that in this case, the settlor’s intent was to provide that which the state was
unable or unwilling to furnish. Thus, the trust is not subject to the state’s claim for
reimbursement.
1. State Street Bank & Trust Co. v. Reiser, (1979); pg. 474, briefed 4/27/97
2. Facts: Dunnebier created an inter-vivos trust containing a substantial amount of stock. He
retained power to amend or revoke the trust and a general power of appointment of the trust
assets during his life. He then executed a will that poured over the residue of his estate into the
existing trust. In his trust, Dunnebier granted the trustees sole discretion to pay the debts of his
estate from the principle and income of the trust. Dunnebier was loaned a substantial sum by
the bank, and then died before he could repay the loan. Thus, Dunnebier’s power of
appointment died with him.
3. Procedural Posture: An action brought by the bank to reach the trust in satisfaction of the
loan owed by Dunnebier during his life.
4. Issue: Whether a trust is reachable to satisfy the beneficiary’s debts after his death when the
beneficiary retained a general power of appointment over the trust income and principle during
his life.
5. Holding: Yes.
6. Reasoning: There is no doubt that the creditors could have reached the trust during the
beneficiary’s lifetime. There is no reason why that should change simply because the
beneficiary has died. Here, the beneficiary had a general power of appointment. Equity
requires therefore, that the property that he enjoyed control and dominion over while he was
alive should be subject to satisfaction of the debts of his estate once he is dead.
1. In Re Lewis’ Estate, (1911); pg. 481, briefed 4/27/97
2. Facts: A trust provided for payment of the income to the settlor’s widow for life, and then for
the corpus to be distributed to the then-living descendants, per stirpes.
3. Procedural Posture: The widow and the sole living child of the settlor bring an action for
consensual termination of the trust.
4. Issue: Whether termination of this trust is allowable based on the consent of the widow and
the sole surviving child alone.
5. Holding: No.
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6. Reasoning: The court will be unable to determine who the beneficiaries of the trust are until
the death of the widow. The class of beneficiaries is the “then-living descendants.”
Descendants includes unborn children of the sole surviving child, or even the unborn children of
the widow. Thus, the class is still open. Since the consent of all beneficiaries is needed to
terminate the trust, the court is unable to terminate it for lack of representation of all
beneficiaries.
1. Levy v. Crocker-Citizen’s National Bank, (1971); pg. 482, briefed 4/27/97
2. Facts: Plaintiff is the trustor and life beneficiary of the net income of an inter-vivos trust. He
retained a general power of appointment to distribute the funds upon his death, but in default of
his exercise of this power of appointment, the funds were to go to his then surviving lawful issue
or to the then surviving lawful issue of his mother.
3. Procedural Posture: Plaintiff seeks to have the trust terminated on the grounds that he did not
know the legal consequences of what he was signing.
4. Issue: Whether the trustor may unilaterally terminate the trust.
5. Holding: No.
6. Reasoning: If a trustor is a sole beneficiary of a trust, he may revoke it even though by its
terms it is irrevocable. If there are other beneficiaries, however, consent of all beneficiaries is
generally necessary to revoke the trust. The plaintiff argues that he has a will, and thus it is very
unlikely that he will die intestate, and thus it is very unlikely that his general power of
appointment will fail. However, there is still a contingent interest in the remaindermen, and
thus their consent is needed to terminate the trust.
1. Hatch v. Riggs National Bank, (1966); pg. 483, briefed 4/27/97
2. Facts: Hatch created an inter-vivos trust which reserved the income to her for life and a
general power to appoint the corpus by will, with the unappointed remainder to go to her “next of
kin.” The trust stated that it was irrevocable.
3. Procedural Posture: Plaintiff seeks to terminate the trust.
4. Issue: Whether the plaintiff may unilaterally terminate the trust based on the doctrine of
worthier title which, if applicable, would create a reversionary interest in her estate upon her
death rather than having a contingent interest in her “next of kin.”
5. Holding: No.
6. Reasoning: The doctrine of worthier title is obsolete and not part of the law of the District of
Columbia. It is hornbook law that any trust, no matter how “irrevocable” by its terms may be
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revoked with the consent of the settlor and all of the beneficiaries. Here, there is a contingent
interest in the next of kin. As a class, they are identifiable, even though some of them may be
unascertainable presently. Thus, a guardian ad litem may be appointed to protect their interests
as a class.
1. Bennett v. Tower Grove Bank & Trust Co., (1968); pg. 490, briefed 4/27/97
2. Facts: A will left a share of the decedent’s estate in trust to his wife and daughter for life, and
to the survivor of them for life, and the remainder to vest free of the trust in certain nephews.
The trust provided for no invasion of principal, no discretion over income payments and not
spendthrift restraints. The widow elected her statutory share against the will, resulting in the
acceleration of the trust to the daughter as the sole life beneficiary.
3. Procedural Posture: An action by the daughter and remaindermen to terminate the trust.
4. Issue: Whether the daughter and the remaindermen, as sole beneficiaries remaining under the
trust, may terminate the trust without frustrating a material trust purpose.
5. Holding: Yes.
6. Reasoning: If all of the beneficiaries of a trust consent, then they can compel the termination
of a trust unless its continuation is necessary to carry out a material purpose of the trust. If a
trust is created, as here, for successive beneficiaries, in the absence of further purpose, the
inference is that the only purpose of the trust is to pay the funds according to the trust provisions.
Thus, the remaining beneficiaries may terminate the trust.
1. Matter of Pulitzer, (1932); pg. 494, briefed 4/27/97
2. Facts: Settlor created a trust containing, among other things, the stock of a newspaper. The
settlor provided in the trust document that the discretion of the trustees did not include, under
any circumstances, the authority to sell the newspaper stock because of its role in the
community. The newspaper began to fail so drastically that the trust was in danger of
substantial losses due to the declining value of the newspaper stock.
3. Procedural Posture: The beneficiaries of the trust seek a court authority to deviate from the
trust language to sell off the newspaper stock before it destroys the trust.
4. Issue: Whether the court, in such an emergency, to protect the beneficiaries of a trust from a
substantial loss of the corpus, may read into the trust an implied power of sale of the bad asset.
5. Holding: Yes.
6. Reasoning: The settlor intended permanence of the trust more than retention of the newspaper
stock. The settlor, having such business ability and wisdom, would never have intended that the
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newspaper he founded should continue futilely until the entire trust corpus was destroyed or
wrecked by bankruptcy dissolution. Thus, the court must read an implied power of sale into the
trust to preserve it for the beneficiaries.
1. Papiernik v. Papiernik, (1989); pg. 496, briefed 4/27/97
2. Facts: Settlor established an inter-vivos trust with a bank serving as trustee and the settlor’s
wife and accountant as “trust advisors” with the power of veto over all of the trustee’s decisions.
The wife has acted irrationally and irresponsibly in her role as advisor, to the damage of the trust.
3. Procedural Posture: Certain beneficiaries and remaindermen bring an action to modify the
trust to dispose of the office of “trust advisor” based on the abuses by the widow.
4. Issue: Whether the court should exercise its equitable power to delete the office of trust
advisor in this trust.
5. Holding: No.
6. Reasoning: Deviation from an administrative provision of a trust will be permitted, if owing
to circumstances not known by the grantor and not anticipated by him, compliance would defeat
or substantially impair the purposes of the trust. Here the widow alone has acted irresponsibly
to impair the trust, but the accountant has not. Thus, the court should only remove the wife.
Complete deletion of the office of advisor here would frustrate the intent of the settlor, and goes
beyond what is necessary to correct the threat to the trust.
1. Stanton v. Wells Fargo Bank & Union Trust Co., (1957); pg. 498, briefed 4/27/97
2. Facts: Settlor created a trust which specifically limited the trustee to investments in
government bonds or other high-rated bonds. The trust therefore did not make as much income
as an investment in the stock market would.
3. Procedural Posture: The beneficiaries of the trust petition the court for an equitable deviation
in the trust to authorize the trustee to make investments subject to the “prudent man rule”
allowing the trustee to invest in higher yielding securities.
4. Issue: Whether the court should exercise its equitable powers to allow the trustee to invest in
higher yielding securities contrary to the language of the trust.
5. Holding: No.
6. Reasoning: The courts will not permit the main purpose of a trust to fail by compelling
slavish adherence to the administrative limitations of the trust. However, the court should not
permit deviation simply because the beneficiaries request it where the main purpose of the trust
is not threatened and no emergency is threatening. There is no evidence here that any
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beneficiary is in need or that the distributable income is not sufficient to supply the reasonable
needs of all the beneficiaries. No emergency exists. No one can forecast the market, and it
may be that the settlor’s restrictions turn out to be wise in the future. In such a case, the court
can not merely substitute its own judgment for that of the settlor.
1. In Re Trusteeship Under Agreement with Mayo, (1960); pg. 500, briefed 4/27/97
2. Facts: Settlor created a trust which authorized the trustees to invest in real estate mortgages,
municipal bonds, or any other income bearing property, but not real estate or corporate stock.
Due to inflation and other forces of the economy, evidence shows that if current trends continue
for the next 20 years, the value of the corpus will be only 1/4 of what it is now.
3. Procedural Posture: The beneficiaries petition for an authorization to deviate from the
language of the trust to allow investment in corporate stock. The lower court denied the
petition.
4. Issue: Whether the court should exercise its equitable powers to authorize a deviation to allow
the trustees to invest in corporate stock in the face of a 75% expected decline in the value of the
trust corpus over the next 20 years.
5. Holding: Yes.
6. Reasoning: The general rule is that where prospective changes of conditions are substantially
known to or anticipated by the settlor of a trust, the courts will not grant a deviation from its
provisions. Generally, where by the terms of the trust the trustee is not permitted to invest in
shares of stock, the court ill not permit such an investment merely because it would be
advantageous to the beneficiaries. However, one of the court’s highest duties is to give effect to
the donor’s dominant intent. The court will permit deviations if accomplishment of the purpose
of the trust would be otherwise defeated or substantially impaired. Here, unless the deviation is
granted, the loss of the principal will be so great as to frustrate the purpose of the trust.
1. Colonial Trust Co. v. Brown, (1926); pg. 505, briefed 4/27/97
2. Facts: A will established a trust on two parcels of downtown land, limiting the height of
buildings on them to three stories and limiting all leases to periods of one year. The cost of
maintaining these buildings is high compared to their value due to these limitations, and since
good tenants are not interested in them, they are bringing down the value of surrounding
property.
3. Procedural Posture: The trustee brought an action to determine their right to deviate from the
express provisions of the trust to allow the trust land to be developed and rented for greater than
a year.
4. Issue: Whether the court should allow the deviation in the interest of public policy.
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5. Holding: Yes.
6. Reasoning: As a general rule, the testator has the right to impose such conditions as he
pleases upon a beneficiary as conditions precedent to a trust. He may not, however, impose one
that is uncertain, unlawful, or opposed to public policy. Here, the conditions retard the normal
development of the land and are an excessive burden on it. Thus, they are invalid as against
public policy.
1. In Re Van Deusen’s Estate, (1947); pg. 507, briefed 4/27/97
2. Facts: A trust exists to pay income equally to two daughters for their joint lives, and then all
of the income to the survivor for life, on the death of the survivor the trust is to terminate with
the principal going to the testatrix’s descendants by right of representation. The trust income
was expected to be $00 per month, but it was now less than $250 per month. Each of the
daughters has had financial difficulties due to medical problems and other things.
3. Procedural Posture: The two daughters brought this action to allow invasion of the principal
to satisfy their expected $400 per month income. The lower court granted the request in view of
changed conditions.
4. Issue: Whether the court has the power, in the absence of consent by the remainder
beneficiaries, to modify the trust to allow invasion of principal for the benefit of the life
beneficiaries, but to the detriment of the remaindermen.
5. Holding: No.
6. Reasoning: The interests of the remainder beneficiaries must be protected, regardless of the
sympathy that the court might have for the present plight of the life beneficiaries. A deviation
will only be granted if it does not deprive another beneficiary of their vested interest in the trust,
or unless that beneficiary consents.
1. In Re Freshour’s Estate, (1959); pg. 514, briefed 4/27/97
2. Facts: Testator left the residue of his estate in trust “for the benefit of the Parish of St.
Joseph’s Catholic Church” and “for the benefit of the members of the First Methodist Church.”
3. Procedural Posture: The testator’s intestate heirs challenge the trust as a private trust for the
benefits of the individual members of the church, and therefore invalid for indefiniteness and for
violation of the rule against perpetuities. The lower court found for the plaintiffs.
4. Issue: Whether the trust is a valid charitable trust.
5. Holding: Yes.
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6. Reasoning: A charitable trust may be made for the benefit of indefinite persons for the
purpose of advancing religion. It must be for the public use and benefit. However, this does
not prevent the donor from selecting a certain class of the public and limiting his benefaction to
that class, provided that the class is sufficiently indefinite. Here, the words “parish” and
“members’ were used to name the class of congregations, and not to identify particular persons.
Therefore, it is a valid charitable trust.
1. Hight v. United States, (1958); pg. 516, briefed 4/27/97
2. Facts: Testatrix left the residue of her estate to “such charitable, benevolent, religious or
educational institutions as my executors may hereinafter determine.” The IRS disallowed the
trust as a charitable contribution on the grounds that the inclusion of merely “benevolent”
institutions gave the executors the power to use the funds for institutions that were not legally
charitable.
3. Procedural Posture: Review of the IRS tax ruling.
4. Issue: Whether the trust is a valid charitable trust despite its use of the word “benevolent” as a
class of potential recipient institutions.
5. Holding: Yes.
6. Reasoning: The word benevolent is defined in Webster’s as being synonymous with
“charitable.” Although it may be broader in meaning when used alone, when it is used in the
same phrase as “charitable”, “religious”, and “educational” it may be interpreted as a synonym
for “charitable”. It appears that the donor’s intent was that the word “benevolent” be read in
context.
1. Evans v. Newton, (1966); pg. 526, briefed 4/27/97
2. Facts: Testator devised to the city of Macon, GA, a parcel of land in trust which was to be
used as a park for white people only.
3. Procedural Posture: Certain city officials brought this action to have the city removed as
trustee due to their inability to legally enforce the racial segregation in the park. The heirs of the
Testator intervened and asked for a reversion of the property should the petition for a private
trustee be denied. Several Black citizens also intervened to prevent the appointment of private
trustees. The lower court allowed the private trustees to be substituted.
4. Issue: Whether the substitution of private trustees is sufficient to keep the trust alive in face of
the 14th amendment.
5. Holding: No.
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6. Reasoning: Where the traditions of municipal control had become firmly established, the
mere substitution of trustees does not instantly transfer the park from the public to the private
sector. The trust remains invalid as against public policy and fails for frustration of purpose.
1. Jackson v. Phillips, (1867); pg. 538, briefed 4/27/97
2. Facts: Before the passage of the 13th amendment abolishing slavery, the settlor created a trust
for the purpose of putting an end to slavery, and for the benefit of fugitive slaves who may
escape from time to time.
3. Procedural Posture: The trustee seeks instructions as to the validity and effect of the trust
provisions.
4. Issue: Whether the court should use its equitable power of cy pres to apply the funds of the
trust to another related purpose.
5. Holding: Yes.
6. Reasoning: A charitable trust which serves the public should be given more discretion than a
mere private trust. Many charities would fail by change of circumstances and the happening of
contingencies which no human foresight could have provided against. Where the testator has a
clear intention to forward a general charitable purpose, and circumstances change which frustrate
the original scheme of the trust, the court may exercise discretion to apply the funds of the trust
in a related manner to carry out the general charitable intent of the testator as closely as possible,
rather than allowing the trust to fail and revert to the heirs. Here, the general charitable purpose
was the moral education of the public and the furtherance of the African race in this country.
Thus, the court may apply the funds to accomplish this purpose in another manner.
1. In Re Estate of Beichner, (1968); pg. 685, briefed 4/27/97
2. Facts: Testator’s daughter is executrix of the estate. She does not get along well with her
stepmother. The daughter failed to file some formal documents timely.
3. Procedural Posture: The stepmother successfully petitioned to have the daughter removed
and her substituted as executrix.
4. Issue: Whether mere animosity between the executrix and a legatee under the will is sufficient
to have an executrix removed.
5. Holding: No.
6. Reasoning: There is no evidence that the estate is being mismanaged or that the animosity has
jeopardized the stepmother’s rights in the estate. Animosity without more does not constitute a
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grounds for removal of an executrix in which the testator has placed such high personal trust and
confidence. Other remedies were available besides removal to correct the failure to file formal
documents.
1. McDonald v. O’Donnell, (1925); pg. 686, briefed 4/27/97
2. Facts: McDonald is the sole trustee of under the will of Mr. O’Donnell. The trust requires
that McDonald pay the widow $25 per month plus such additional sums as the trustee deems
necessary for “her needs condition and station in life.” The trustee and the widow are hostile
towards each other over the widow’s allegation that the trustee does not pay her enough from the
trust.
3. Procedural Posture: The lower court removed McDonald as trustee upon petition of the
widow.
4. Issue: Whether inharmonious or unfriendly relations between the trustee and the beneficiary
may be sufficient reason for removal of the trustee.
5. Holding: Yes.
6. Reasoning: There are no grounds for the allegation of mismanagement. However, the
relationship between the trustee and the beneficiary has become so irreconcilably hostile that the
continuation defeats the true purpose that the settlor had in mind when he created the trust.
1. Estate of Effron, (1981); pg. 693, briefed 4/27/97
2. Facts: The bank hired the lawyer who drafted the will as the counsel for the executor. This
“back scratching” was common practice among banks and attorneys. The attorney would name
the bank as trustee or personal representative, and in return, the bank would hire the trustee as
counsel.
3. Procedural Posture: An action alleging violation of anti-trust laws in the setting of the
statutory attorney’s fees, since the bank is not able to bargain for a lower price.
4. Issue: Whether the system of statutory attorney’s fees falls within the exception to the
Sherman act for state action.
5. Holding: Yes.
6. Reasoning: The public interest is served where those who are bereaved are insulated from
negotiating a lawyer’s fee during the traumatic post-death period. There is no doubt that
economic self-interest is a factor which motivates a corporate fiduciary to retain the same lawyer
who drafts the will. Nevertheless, where the testator’ selection of the executor is free and
voluntary, his wish may not be annulled by the court.
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1. Estate of Davis, (1986); pg. 696, briefed 4/27/97
2. Facts: The lawyer for the estate charged a fee equal to 5% of the estate, which fee totaled
$44,700 for 250 hours of work. A local statute limited fees charged to a “reasonable” fee.
3. Procedural Posture: The residual beneficiaries under the will challenged the fee as being
unreasonable. The lower court found that it was reasonable, and thus found for the defendant
lawyer.
4. Issue: Whether the lower court abused its discretion in finding that a $44,700 fee for 250
hours of estate work was reasonable.
5. Holding: Yes.
6. Reasoning: By enacting a statute on the determination of reasonable fees, the legislature
intended to do away with the customary 5% of the estate approach. The reasonable fee must be
based on the time and labor involved, the amount involved, the time limitations, and the
experience, reputation and ability of the lawyer. This case involved no difficult issues and
presented only routine work. Thus, the time spent should be the dominant factor, and the lower
court abused its discretion in finding that a fee that exceeded $400 per hour was reasonable for
this work.
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