Appeal from Superior Court, Cochise County; Levi S. Udall, Judge.
Conner & Jones, of Tucson, for appellant.
Kramer, Morrison, Roche & Perry, of Phoenix (James T. Gentry, of Bisbee, Chas. D. McCarty, of Phoenix, and T. N. Stensland, of Chicago, Illinois, of counsel), for appellees.
Kelly, Superior Judge. Stanford, C. J., and La Prade, J., concur. Justice Udall having presided in the trial court, the Honorable Henry C. Kelly, Judge of the Superior Court of Yuma County, was called to sit in his stead.
Kelly, Superior Judge.
[67 Ariz. 124] The suit in the court below was one brought under the Declaratory Judgment Act, Code 1939, § 27-701 et seq., by plaintiff in her representative capacity of executrix against the trustee and all other beneficiaries and parties interested as heirs or legatees under the will of the late Lemuel C. Shattuck for the ascertainment and interpretation of the rights of her principal, who was her deceased husband, as a son and heir of said Lemuel C. Shattuck. By the complaint it appears that Lemuel C. [67 Ariz. 125] Shattuck, the ancestor, had died testate in Cochise County, the place of his residence, on September 7, 1938. His will was duly admitted to probate on October 11, 1938, and after the due administration of the estate all of which for the purposes of this litigation was by appropriate stipulation considered to be personalty the residue was finally distributed to the trustee, pursuant to the terms of the will.
A verbatim copy of the will was made a part of the complaint, and also a verbatim copy of the clause of distribution in trust as ordered in the probate court by its final decree as entered on December 21, 1939, closing and winding up the administration
of the estate. The effective clause as set forth in the order is in this language:
"To: Spencer S. Shattuck, as Trustee of the Lemuel C. Shattuck Trust:
"All the rest and residue of said property and estate, to be held in trust as provided under the Last Will and Testament of Lemuel C. Shattuck, as above described; and that all other property of said deceased, of whatsoever kind and nature, situated in the State of Arizona, whether known or unknown, be, and the same is hereby distributed to Spencer S. Shattuck as Trustee, above mentioned, and to be handled by him in accordance with the trust provisions of said Last Will and Testament of Lemuel C. Shattuck."
So far as material here the trust provisions of the will set up a trust of all of the residue of the estate by the terms of which the corpus was to be held by the trustee for the term of 40 years beginning with the death of the testator, all income meanwhile to be paid semiannually in equal shares (with an unimportant exception affecting the youngest child until age 25) to the testator's six children, or in the event of death to the issue living at the time of death, with the corpus finally divided equally among the children, the issue of any deceased child to take that share per stirpes. Additional terms effectively made the instrument into the equivalent of a spendthrift trust.
For a period of years following the distribution the trustee made the semiannual payments of income as the will and decree directed, but after the death of Mark Grenfell Shattuck, who died testate in California on November 5, 1942, the refusal of the trustee to continue the disbursement of income to his estate precipitated this litigation.
For its negative value it is but just to state that no word of fraud or irregularity in the probate proceedings is mentioned in the complaint and it may be assumed that all of those proceedings were fair and regular and in due observance of every applicable provision of the probate code.
The foregoing is not intended as a complete statement of every detail, for matters having to do with the accumulation of income in the interim between the latest disbursement and the death of Mark were disposed [67 Ariz. 126] of, and the position of the testator's widow which was in part adverse both to that of the plaintiff and her co-defendants was preserved by stipulation pending this appeal, but it effectively outlines the basic facts now pertinent to a disposition of the questions presented
The complaint asked for the construction of the trust provisions of the will, and prayed that said trust provisions thereof continuing the trust for 40 years be declared void as violative of the rule against perpetuities or restraints against alienation; that the trust be brought to an end; that the trustee account, and that one-sixth of the corpus with accruing income be distributed to her as executrix of the will of an heir. To the complaint many motions and objections were filed; to the jurisdiction of the court, that the claim was barred by limitations; that it was barred by laches; that the provisions of the will did not offend the rule against perpetuities; and that the decree in probate was, under the provisions of Sec. 38-1505, A.C.A.1939, conclusive. All other defensive motions were stricken down, but the motion to dismiss, based upon res judicata, was sustained.
Very interesting questions as to whether or not the rule against perpetuities applies to personalty, and whether the facts of this trust bring it within the proscription of the rule, and others, are learnedly and exhaustively discussed in the briefs. We find it unnecessary to discuss them, for if the rule of res judicata applies and the decision ...