Carl Malmquist et al., Appellees, v. M. Detar, as Executor, etc., Appellant

Kansas Supreme Court1927-04-09No. No. 27,427

123 Kan. 384

Summary · law.co

Holding. The trial court's judgment voiding the testamentary charitable provision as violative of the rule against perpetuities was affirmed, because the gift's vesting depended on a contingent future event that might never occur and thus could not be assured to vest within the perpetuities period.

A testator's will provided a $10,000 gift to the board of trustees of the first public hospital to be established in Kinsley, Kansas, specifying that if no hospital existed at the testator's death, an executor should hold and invest the funds until such a hospital came into being. Challengers to the will argued that the charitable bequest violated the rule against perpetuities. The trial court agreed and voided the provision; the executor appealed. The appellate court examined whether the gift could vest within the perpetuities period and concluded it could not satisfy the rule's requirements.

The court determined that vesting of the fund depended entirely on a future contingent event—the establishment of a hospital in Kinsley—which might never occur. Under the rule against perpetuities, a conditional gift to charity must necessarily vest within twenty-one years plus a measuring life, not merely possibly vest. Because no facts suggested a hospital would be established, and because the executor and successors lacked power to create one themselves, the condition precedent to vesting was too remote and indefinite to satisfy the perpetuities rule.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Application of the rule against perpetuities to conditional charitable gifts
Whether vesting of a charitable bequest contingent on uncertain future event satisfies perpetuities requirements
Meaning of 'necessarily vesting' versus 'possibly vesting' within the perpetuities period

Procedural posture

The executor appealed after the trial court overruled a demurrer and entered judgment declaring the contested will provisions void as violating the rule against perpetuities.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Mason, J.:

The action was one to contest provisions of a will as violative of the rule against perpetuities. A demurrer to the petition was overruled. Defendants stood on the demurrer. Judgment was rendered holding the contested provisions to be void, and defendant appeals.

The material portions of the will follow:

"I give and bequeath to the board of trustees or other managing body in charge and control of the first public hospital which shall hereafter be established in Kinsley, in Edwards county, Kansas, to be used to apply upon the cost of construction of a suitable building for such hospital, the sum of ten thousand dollars ($10,000), to be paid in cash. For the purpose of the interpretation of this will, the term public hospital shall be taken to include any such hospital as shall be owned and operated by a private corporation, individual, or association of individuals, as well as any that shall be owned by the county or city, so that same shall be operated upon a nonprofit basis, shall admit for care and treatment any worthy sick person without regard to his race, color, financial condition, or religious belief, and shall be qualified and eligible to receive aid, and to be partially or wholly supported either by the state of Kansas, the county of Edwards, or the city of Kinsley, under the law as it stands at the date of the execution of this will.

“In the event that no such hospital shall have been established in Kinsley at the date of my death, then it is my will and I direct that said sum shall be taken and held by my executor and his successors, in trust, to be invested in the registered bonds of the United States, or in other bonds of lilcfe safety and stability, and whenever such an hospital shall be established in said county and city, then said executor or his successors shall pay over said sum or assign and deliver said bonds in which the same shall have been invested, together with the accumulated income therefrom, less the reasonable expense of administration, to the board of trustees or other managing body in charge and control of such hospital, for the uses and purposes hereinabove mentioned.”

At the date of the testator’s death no hospital had been established inKinsley, and no facts were known from which it could be predicted that a hospital might be established in Kinsley at any future time. The gift was one for a charitable purpose, but not to the executor of the will. Neither he nor his successors in trust may establish a hospital. They are merely managing trustees, to invest the fund and keep it intact until a donee with capacity to take comes into existence. The court has no power to appoint a trustee who may devote the fund to the designated purpose, because of the form of the gift. Some one, a private corporation or other business association, an individual, or the county or city, must establish a hospital. The fund shall then be paid over to the board of trustees, or other managing body in control of the hospital, to aid in its construction. While the court can keep in existence a trustee who shall perform the functions of the executor and his successors, it can empower no one to establish a hospital in the construction of which the fund may be used.

The result of the foregoing is, vesting of the fund in a donee depends on a future contingent event which may never happen. The rule against perpetuities has to do with the beginning of estates, and its object is to restrain the creation of future conditional interests. (Gray, The Rule Against Perpetuities, 3d ed., § 595.) A gift to charity on a contingent event which is a condition precedent to vesting, is void if the condition be too remote (id. § 605), and it is not enough that the interest may, or in all probability will, vest within twenty-one plus years after a life or lives in being; it must necessarily so vest. (Klingman v. Gilbert, 90 Kan. 545, 548, 135 Pac. 682.)

The judgment of the district court is affirmed.