Hawkins v. Ghent

Urner, J., delivered the opinion of the Court. In 1876 John W. Hawkins and Amanda Hawkins, his wife, conveyed certain real and personal property to Augustine J ames Dalrymple in trust for Amanda Hawkins, one of the grantors, during her life, “with full power to the said Amanda to devise and bequeath the aforesaid property or any part thereof or any estate or interest therein to or for the use and benefit of such of her children and descendant* and in such proportion as she may see fit and such part thereof as she may see fit to her present or any future husband for life and to devise and bequeath the whole or any part of said property as she may see fit in case she shall leave no child or descendant living at the time of her death and from and' immediately after the death of the said Amanda in case she shall not have disposed of the aforesaid property under the powers above expressed and in so far as she shall not have made such disposition thereof in trust for the child or children of the said Amanda who may be living at the time of her death to take in equal shares if more than one and the issue then living if any deceased child or children of hers such issue to take the share or portion which its or their parent or parents would be entitled to if living.” Amanda Hawkins died in 1924:, leaving a will by which she devised and bequeathed all of her residuary estate “including all the property mentioned in the deed of trust” from which we have quoted, and “in pursuance of the power ²⁶³ therein contained in respect of said property/’ to Alexander H. Robertson, in trust to divide the net income into four equal parts, which she directed to be paid respectively for life to her sons, Joseph Mowell Hawkins and John W. Hawkins, Jr., and her daughters, Sarah E. Ghent and Amanda M. Carter, subject to the payment of specific life annuities out of three of the portions to designated children of the principal beneficiaries for life, and it was then provided: “And from and after the death of any of my said children his or her share of the said income to be paid by said trustee for a period of twenty years to the children, of such deceased child of mine who may from time to time (in said period) be living, in equal shares, the descendants living from time to time in said period of any such children (of any deceased child of mine) who may be dead or may die during said period, to stand in the place of and take the share of such income to which the parent of such descendants would he entitled if living, and at the end of such period of twenty years I give, devise and bequeath the corpus from which such income was derived to the children then living of such deceased child of mine in equal shares, the descendants of any child then deceased of any such deceased child of mine to stand in the place of and take the share to which the parent of such descendant would have been entitled if living; and I empower and direct my trustee to divide said corpus among the persons so entitled, either in kind or by converting it and dividing tbe proceeds of sales. And upon the death of any of my said children without leaving issue or descendants of issue, his or her share to be held by my said trustee upon the same terms and conditions for the benefit of the survivor or survivors, and in the event of all of my said children dying without leaving issue at the time of his or her death, or descendants of issue, I devise and bequeath all of my said property unto my said trustee, in trust, nevertheless, to pay the income unto my daughter, Emma P. Eusselbaugh, if living, during her life, and at her death leaving issue or descendants ²⁶⁴ of issue at the time of her death, the same to be held by said trustee for the benefit of the said issue or descendants of issue for twenty years, and then to said issue or descendants of said issue absolutely and free of all trusts, but if the said Emma P. Eusselbaugh be not living, then in trust to pay the corpus of principal to her issue or descendants of issue, absolutely free of said trust.” The four children of Amanda Hawkins named in her will as legatees for life of the income from the trust estate thereby created were all born after the execution of the deed conferring the power which the will exercised, and they have all survived the testatrix. In this proceeding they ask for a judicial construction of the provision of her will relating to the power of appointment, and, upon the asserted theory that its limitations are invalid as violative of the rule against perpetuities and that the plaintiffs are consequently vested with absolute undivided interests, under the terms of the deed of trust, in the property thereby conveyed, they further request that a farm which forms part of the trust estate may be decreed to be sold, and the proceeds divided, on the ground