Wolson, B. Bernard

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NOTES AND COMMENTS logWalsworth, 6 La. App. 61o (1928); Sexton v. Stiles, 130 So. 821(La. App., 1930).Under the circumstances of the principal case the court could notwell have taken the question of proximate cause from the jury.JUSTIN H. FOLKERTHTRUSTSRULE AGAINST PERPETUITIES- EXECUTOR AS TRUSTEE TOMAINTAIN GRAVES - GIFT FOR CHARITABLE PURPOSEThe testator by his will directed "that my executors ... hold in trustthe sum of $15oo and with the income thereof provide for the decora-tion of the graves of my parents... and also my own grave ... execu-tors to have the right at any time they desire to no longer act as trustees. . . to make arrangements with the Spring Grove Cemetery Associa-tion to continue the decoration of the above enumerated graves . . ."The question presented was whether this case was a chancery case andwas appealable. This depended upon whether the will created a trust.The Court of Appeals, First District, held that there was no trust, inview of the fact that no cestui is named, but rather an intent on thepart of the testator to create a power attached to the executorship. Whit-ing v. Bertram, 51 Ohio App. 40, 3 Ohio Op. 292, 199 N.E. 367,19 Ohio Abs. 363 (1935).It is an established principle of trust law that no trust can existwithout a cestui. "A trust without a cestui is like an agent without aprincipal or a husband without a wife." Smith, "Honorary Trusts andthe Rule Against Perpetuities," 30 Col. L. Rev. 6o (930). Somecourts have held that the cestui must be a living person, one who canenforce the trust. Festorazzi v. St. Joseph's Church, 104 Ala. 327,25 L.R.A. 360 (1893). Where there is no such living cestui, "itwould seem that they (the trusts) could be attacked on this ground inall cases." I Bogert, on Trusts, page 484. But see, Gray, "RuleAgainst Perpetuities" 3rd Ed. sec. 828.A study of the cases, however, reveals two exceptions to this rule.The first is the classification of trusts known as honorary or imperfecttrusts. This group involves trusts for the erection of monuments,tombs, mausoleums, and upkeep of graves for a limited time. The caseswarrant the following general conclusions:(a) Both the English and American courts have held overwhelm-ingly that a bequest for the erection of a monument, tomb, or gravestone190 LAW JOURNAL - MARCH, 1936is a valid trust. Musset v. Bingle, i W.N. 170 (1876); Masters v.Masters, I P.Wms. 420 (1717); Detwiler v. Hartman, 37 N.J. Eq.347 (1883); Mcllvain v. Hockaday, 36 Tex. Civ. App. i, 8I S.W.54 (19o4)- See Jones v. Creaner, 13 O.C.C. N.S. 585 (1910),aff'd. without opinion, 87 Ohio S. 48o, IO2 N.E. 1126 (1912); ReMcArdles Will, 264 N.Y.S. 764, 147 Misc. 876 (1933).(b) A trust for the upkeep of a grave, monument, etc., has gen-erally been held invalid. The ground of the invalidity of these trustswas not the failure of the cestui, but rather that these cases were withinthe rule against perpetuities. "Only in rare instances do courts noticethe fact that as private trusts, these cemetery upkeep trusts contain thevice of the lack of a living beneficiary." i Bogert on Trusts p. 484.The following authorities have held a trust for the upkeep of a graveinvalid as contravening the rule against perpetuities or creating a trustin perpetuity: Re Rogerson, i Ch. 715, 70 L.J. Ch. N.S. 444 (90);Re Barker, 25 T.L.R. 753 (1909); Coit v. Comstock, 51 Conn. 352,5o Am. Rep. 29 (1883); McCartney v. Jacobs, 288 Il. 568, 123N.E. 557, 4 A.L.R. 1120 (1919); Cf. Re Chardon, L.R. Ch. 4 64(1928) holding a trust to a cemetery association for the upkeep of twograves valid. See Itoo pert v. Geyel, 25 O.N.P. N.S. 516 (193 4). Thecommon law rule against perpetuities intended to avoid restraints onalienation requires the vesting of an interest within the period of livesin being and twenty-one years. It has been applied to trusts on a rule ofpermissible duration, the courts holding that a trust may not exist longerthan this period.Where the period of upkeep of a grave, monument, etc., is solimited as not to continue beyond the period of the rule against perpetui-ties, the trust has been upheld despite the lack of a cestui. Lloyd v.Lloyd, 2 Sim. N.S. 255, 21 L.J. Ch. 596 (1852). Trusts for theupkeep of graves have now been made valid by statute, if a cemeteryassociation be made the trustee. See Ohio G.C. ioIO to this effect;Hiff v. Hibbs, 215 Ia. 253, 245 N.W. 247 (1932).The second exception to the rule requiring a cestui is the bequestfor the maintenance of animals. Although the beneficiaries, horses,dogs, etc., cannot come into a court of equity and call the trustees toaccount, trusts for their maintenance have been upheld. In Re Dean,41 Ch. Div. 552, 58 L.J. Ch. 693 (1889); Re Kelly, (1932) IrishRep. 255; Willett v. Willett, 197 Ky. 663, 247 S.W. 739 (1923);Cf., In Re Iowells" Estate, 26o N.Y.S. 598 (932). See notes in 17Minn. L. Rev. 563 (i933); 42 YALE L. J. 1270 (1933) and 33Law Q. Rev. 343 at 359 (1917) "Restraints on Alienation." But theNOTES AND COMMENTS 191trust cannot be limited specifically to the life of an animal; for if thiswere allowed, testators might choose a favorite crocodile as a measuringlife which life might last longer than "lives in being and twenty-oneyears." And "lives" within the rule means human lives. See Gray,"Gifts for a Non-charitable purpose," 15 HARV. L. REV. 509, 530(1902). Also see In Re Howells Estate, supra, holding a trust mea-sured by the lives of five animals and one human being void.The foregoing trusts are private trusts and are to be distinguishedfrom charitable trusts in legal consequence. The charitable trust is notaffected by either the lack of a definite cestui or the rule with respectto duration of private trusts. Since the trust is for a public good, theattorney general may enforce it. Thus a bequest "to the Priests of Mt.Lebanon, Syria, to pay for masses" has been held valid as a charitabletrust. In re Stephen's Estate, 269 N.Y.S. 614, 150 Misc. 27 (934).See Minutum v. Conception Abbey, 166 Tenn. 29 o , 61 S.W. 2d 352(933). The upkeep of a public cemetery (as distinguished from aprivate grave) or a grave attached to a church have been upheld ascharitable trusts. Chapman v. Newell, 146 Ia. 45, 125 N.W. 324(191 o). A trust to keep up a family ground has been sustained as acharitable trust. Ford v. Ford, 91 Ky. 572 (1891); Naumann v.TVeUdnzan, 182 Pa. St. 263, 37 Atl. 863 (897); contra, Kelly v.Nicholas, 17 R.I. 306 (I89O).From the foregoing discussion it seems that the majority of thecourts would have held this bequest for the upkeep of a grave an invalidtrust, not because of the lack of a cestui, but because the attempted trustmight continue beyond the period of the rule against perpetuities. Thecourt found that the testator did not even intend a trust. The courtsuggested, that the fact that the testator gave his executor the privilegeof transferring the power of caring for the grave to a cemetery associa-tion was indicative of the fact that no trust was to be imposed upon theexecutor. It is submitted that not only is it legal and proper to occupythe dual position of trustee and executor, but a trustee may transfer hisduties to another trustee if the testator permits it. i Bogert on Trusts,sec. 5 12. It is difficult to see, therefore, how the court concludes thatbecause the executor might pass his duty of upkeep of the graves to thecemetery association, he did not intend a trust. While the decision is inharmony with the weight of authority, it seems that the rationalizationis not.B. BERNARD WOLSON

Rule Against Perpetuities -- Executor as Trustee to Maintain Graves -- Gift for Charitable Purpose

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Rule Against Perpetuities -- Executor as Trustee to Maintain Graves -- Gift for Charitable Purpose

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