
    DEVISE FOR CEMETERY MONUMENTS DECLARED TO BE IN PERPETUITY AND ILLEGAL.
    Common Pleas Court of Montgomery County.
    William H. Hoopert v. Bessie R. Gugel as Administratrix, et al.
    Decided July 22, 1924.
    
      Vacation of a Trust — Where Construction of the Will Discloses a Devise in Perpetuity — Testator Sole Judge of the Amount to he Expended for a Monument — Construction of a Legal and Illegal Trust Constituting one General Scheme.
    
    1. A court in dealing with a testamentary provision for erection, from the proceeds of specific property of monuments, is without power to limit the proposed expenditure as against public policy or because it is wasteful or in violation of good taste. The testator is the sole judge of these things.
    2. The rule against perpetuities applies as well to trust estates as. to legal estates. »
    3. Where a legal and illegal trust are created by a will and so connected as to constitute one general scheme, the legal trust must fall with the one which is illegal.
   Snediker, J.

This case is before the court' for the construction of the will of William F. Hoopert, deceased, and for the vacation of a trust created thereby. There was a hearing on the merits. The language of the will to be construed reads as follows: , ¡

“Second: I give and bequeath to my wife, Bertha Hoopert, should she survive me the full use and benefit and all income from my estate, real or personal, during her natural life.

“Third: On the death of my said wife I direct that my Trustee hereinafter named shall set over for the use of my heirs the real estate I leave to the persons and in the maimer following:

To Carrie K. Hoopert, the East half of lot numbered 1503, on plat of lots in Dayton, Ohio.

“To Charles Edward Hoopert, the West half of- said lot No. 1503.

“To Bessie R. Gugel, the East half of lot No. 1545, on plat of lots in said city of Dayton, Ohio.

“To William II. Hoopert, the West half of said lot No. 1515. These bequests however, are in the relation and subject to the conditions hereinafter named. On the decease of my said children so named herein, such income shall pass to the remainder of them and so continue until the last survivor is gone, when the proceeds of said real estate shall be ex-, pended for monuments on the Cemetery lots in Woodland Cemetery.

“Fourth: I hereby nominate and appoint my daughter, Carrie K. IToopert to be the executrix of this will; to serve without bond. She will also act as Trustee her.ein; also without bond. I charge her with the care of all my property; for the care, comfort and maintenance of my said wife during her natural life. On the decease of my said wife, my said trustee in like manner shall have the care of all real estate designated in item third of this will; she can permit the' occupancy of the pieces designated by the persons named, or rent the same and pay over to such person the proceeds, for all taxes, keep up repairs and necessary insurance; all said matters to come first from the proceeds or income of said properties; her authority shall not be questioned or interfered with by any of said parties, otherwise the benefits vested to and in any of said persons shall lapse and cease. And on the death of any one or more of said persons the proceeds shall pass under her direction to the survivor of the four stated heirs, each parcel of property herein designated shall pay its portion of taxes, repairs etc., if occupied by the parties named. Otherwise said Trustee shall dispossess the occupant and rent said premises for said purposes and accounting • over of excess to the party delinquent in said matters.

“I further direct in regard to either of said parcels of real estate should it occur that it would be desirable to sell either of the parcels, I empower my said trustee to do so, to sell same to best advantage and execute proper deeds therefor without an order of court and to reinvest the proceeds in other dwelling house premises for the purposes herein set out, relying upon her judgment in all said matters, and no one of said heirs can object or. defeat said object under penalty of being disinherited of their portions.”

After this will was admitted to probate Carrie K. IToopert in accordance with the wish of the testator was appointed both executrix and trustee. She has since died and in her stead Bessie R. Gugel. one of the legatees in the will and a child of the testator has duly qualified as administratrix de bonis non with the will annexed and is acting as such. The surviving children of the testator now are the plaintiff, William IT. Hoopert, Bessie R. Gugel and Charles E. Hoopert.

It will be observed that the trust created by the testator imposes the duty upon the trustee after the death of his wife to control and manage his real estate and divide the proceeds among his children, and testator devises that certain pieces of property specifically mentioned ¡be set over by the trustee and their use allotted to his children naming them. The trustee is charged with the care- of all this property; with the care, comfort and maintenance of the wife during her life; and after her death, with a like care for the benefit of the persons named in the provisions of the will as to the properties allotted to them. The testator says that his trustee, if the legatees do not care to occupy the property, may rent it and pay over to any one of them, not so desiring to occupy, the proceeds after the payment of taxes, necessary repairs and insurance. In two places he specifies with respect to the death of any one or more of his children during the continuance of - the trust. He says: "On the decease of my said children so named herein sueh income shall pass to the remainder of them and so continue until the last survivor is gone.” Again: "And on the death of any one or more of said persons the proceeds shall pass under her” [trustee] "direction to the survivor of the four stated explanatory without further discussion of the intention of heirs.”

In Iiem three which contains .the first provision with reference to the decease of his children, we also find the following: "Wlhen the proceeds of said real estate ^hall be expended for monuments on the cemetery lots in Woodland Cemetery.” All of these clauses taken together mean that it was the intention of the testator that, after the death of his wife, the net income from the several properties should inure to the benefit of the persons named in the particulars named, and that as any one or more of them might die the survivor or survivors were to receive the income which had formerly gone to those who had deceased until the last survivor had died and then and not until then the proceeds of the real estate should be expended by the trustee for monuments on the two lots which he owned in Woodland Cemetery.

It is the contention of counsel for the plaintiff that this is an ixnalid trust, first, because the value of the property as shown by the ■ evidence is in excess of eighteen thousand dollars and the investment of that amount in monuments on these two lots woxxld be so extraordinary as to be against public policy and impossible of performance because of the limited space in which the monuments are to be put, the lots being almost entirely occupied by graves; and because of the absurdity of so great an expeixditure on these two lots. Counsel also contend that since this is a private trust and there is no cestique trust capable of taking title after the death of the legatees, that therefore the trust is invalid.

If our construction of this will was that upon the death of the last survivor the properties in question were to be sold and the amount so realized was to be expended in monuments, we would not regard ourselves as entitled to interfere with the wish and intention of the testator. The best ease that we have been able to find applicable to such a situation is that of Detwiler, Ex’r. v. David Hartman et al., 37 N. J. Eq. Rep., page 347. In that case there was:

“A trust to buy a burial plot, and erect thereon a monument to the testator’s memory, to cost not more than $50,000 and not less than $40,000.”

It was held by the court that this trust was valid. The chancellor in deciding the ease says:

“The trust to buy a burial plot and erect a monument thereon to the memory of the testator, and to provide a fence for the plot to pi’otect it and the monument, is valid. To hold otherwise would be to deny the right of the testator to dispose of his estate. It is conceded that a testator may make provision by his will for the erection of a memorial to himself at his grave, but his right to provide for one so expensive as that which this testator contemplated, and for which he has provided in the will under consideration, is denied. It is obvious that if the right to dispose of any part of his estate for the purpose exists, as it undoubtedly does, this court cannot limit its exercise except as the necessities of the administration may require.

“The suggestion that a much less expensive and ostentatious memorial would be more appropriate than that for which the testator has seen fit to provide, cannot enter into the consideration of the matter. The testator was the sole judge on that subject, and his judgment is not liable to be reviewed in any court. As this court manifestly cannot deal with the provision as a violation of good taste, neither can it deal with it on the ground that it is a wasteful expenditure. As to that, too, the testator was the sole judge.”

■But we do not regard the phrase “When the proceeds of said real estate shall be expended for monuments on the two lots in Woodland Cemetery” as being entitled to the construction that the property shall be sold and the entire amount so realized used in the erection of monuments. Throughout this will the testator uses the word “proceeds” in an entirely different sense. In item four he says, speaking of the trustee, that she shall “Pay over to such persons the proceeds” of the real estate and in the same connection it says: “All said matters to come first from the proceeds or income of said properties.” and further: “and on the death of any ' one or more of said persons the proceeds shall pass under her direction to the survivor, etc.” All of which indicates the meaning which the testator intended to give to the word “proceeds” in his will and which does not imply a sale of the real estate and a division of the fund. We feel justified, therefore, in saying that it was his intention, after the death of the last survivor of his children that the trust should continue to be administered, the real estate remaining intact, and the proceeds arising therefrom be used in the erection of monuments. This is not inconsistent with the definition of the word “proceeds” in eases where the word has been similarly used'. In the Appeal of Thompson, 89 Pa., 36, at 46, the court say:

“ ‘Proceeds, as used in a will bequeathing certain property to trustees, the income to be devoted to certain purposes, with power to sell any of the property and reinvest the proceeds, and also directing that so much of the proceeds of the property ■ should be paid to a certain person as she may deem necessary for the maintenance of herself and another, should be construed to mean the income which had been devoted to the purposes of the will.”

In the Appeal of Robert, 92 Pa., 407, 419, the court holds:

“ ‘Proceeds,’ as used’ in a will devising properly to trustees, and directing the trustees to distribute the proceeds thereof in a certain designated manner, is to be construed to mean ‘income.”

If this construction be placed upon this language, then we are forced to the conclusion that this testator by this item of his will undertook to devise property in perpetuity which he may not do under the law of Ohio, which provides:

“No estate in fee simple, fee tail, or any lessor estate in lands shall be given or granted by deed or will to any person or persons but such as are in being, or to the immediate issue or deseendents of such as are in being at the time of the making of such deed or will.”

It is the law that whenever a trust is created in real estate a legal estate sufficient to execute the trust will, if possible, lie implied. Another way of expressing this same thing is, a trustee takes such an estate • as the purposes of the trust require and if a fee is necessary to accomplish the purpose of the trust he will take a fee. We find in the last part of item four of this will the following provision':

“I further direct in regard to either of said 'parcels of real estate, • should it occur that it would be desirable to sell either of the parcels, I empower my said trustee to do so, to sell same to best advantage and execute proper deeds therefore.”

The trustee under this will, undoubtedly has the legal estate as she is given the authority to collect the proceeds arising therefrom and distribute it. She also has under the will for the purposes of the execution of her trust a fee simple, as she could not otherwise make a deed such as the testator provides that she may. In carrying out his injunction with respect to the expenditure of proceeds for the erection of monuments her interest in the estate was intended to remain the same. If the intention of the testator was to create a perpetuity for the erection of monuments, then the trust created in pursuance thereof is invalid.

“A perpetuity will no more be tolerated when it is covered by a trust than when it displays itself undisguised in the settlement of a legal estate, and courts of equity will not permit limitations of future equitable interests to transcend the limits assigned for the limitation of similar legal interests or executory devises, and shifting and springing uses at law. (1 Perry on Trusts, Sections 378, 382, 383; Gray on Perpetuities, pp. 144, 228; Marsden on Perpetuities, p. 4.) 152 Illinois, pp. 252-274.”

The trust created by the testator with respect to the control of the property by his trustee during the life of his children is not invalid but taken together with the trust for the expenditure of the proceeds of the real estate for the erection of monuments, which we have held to be illegal, it constitutes one general scheme which the testator had in mind and therefore both the legal and the illegal trust must fall together.

In the 109 Minn. Rep. at page 191, the court holds: Where a legal and illegal trust are created by a will and so connected as to constitute one general scheme so that it must fail if the one be retained' and the other rejected, the legal trust must fall with the illegal one. That ease was an attempt on the part of the testator to suspend the power of alienation of his land. The same thing in our opinion is true in this case. In the body of the opinion in the ease the court say:

“.The obvious reason for the rule is that the retention of the legal trust in such a case would lead to a result contrary to the purpose of the will.”

Under these circumstances, where is the fee of the testator’s property? After carefully reading his will and finding that the trusts there created are invalid, and that no further disposition is made of his real estate than we have here indicated, we are constrained to say that the law vests the fee simple of his real estate in his heirs at law, who are mentioned in the petition. And being a tenant in common with the defendants in this case, the plaintiff is entitled to partition.

This opinion of the court does not preclude the erection of a proper monument under the order of the probate court.  