534 N.E.2d 782 (Mass. 1989)
Thomas A. Dewire died in January 1941.1 He was survived by his widow Mabel G. Dewire, his son Thomas A. Dewire Jr., and three grandchildren Thomas III, Paula, and Deborah, all children of Thomas Jr. His will placed substantially all his estate in a residuary trust.2 The income of the trust was payable to his widow for life and, on her death, the income was payable to his son Thomas Jr., the widow of Thomas Jr., and Thomas Jr.’s children.3
After the testator’s death, Thomas Jr. had three more children by a second wife.4 Thomas Jr. died on May 28, 1978, a widower, survived by all six of his children.5 Thomas III, who had served as trustee since 1978, died on March 19, 1987, leaving a widow and one child, Jennifer.6 The petition for a declaration of rights concerns the distribution of the one-sixth share of the trust income that had been payable to Thomas III.7
In his will, the testator stated that his grandchildren under guidance and discretion of the trustee shall share equally in the net income of the estate.8 At another point he referred to the trust income being divided equally amongst his grandchildren.9 The will provided for the trust’s termination twenty-one years after the death of the last surviving child of Thomas Jr.10 The property of the trust shall be equally divided amongst the lineal descendants of the testator’s grandchildren.11 There is no explicit provision in the will concerning the distribution of income on the death of a grandchild while the gift of income to grandchildren continues.12
A judge of the Probate and Family Court reserved and reported the case on a statement of agreed facts to the Supreme Judicial Court.13 The Supreme Judicial Court transferred the case on its own motion.14 The judge listed a large number of issues arising from the artlessly drafted will, but the court addressed them only to the extent necessary to permit a declaration of the present rights of the parties.15
Whether the one-sixth share of trust income formerly payable to Thomas III is now payable to his daughter Jennifer during her lifetime?16
Yes. The established facts establish that Thomas III died in 1987 leaving his daughter Jennifer.19 The will directed the grandchildren to share equally in net income while also directing termination twenty-one years after the last grandchild with division among lineal descendants of the grandchildren.20 These provisions demonstrate a consistent per stirpes pattern favoring representation by issue rather than survivorship among the five remaining grandchildren.21 The inference from the termination clause and equal-treatment language overcomes the default joint-tenancy construction.22
Jennifer Ann Dewire is entitled during her lifetime to one-sixth of the net income until the death of the last grandchild.23
Whether the class gift of trust income to the grandchildren is held by them as joint tenants with rights of survivorship or passes by right of representation to the issue of a deceased grandchild?24
A class gift of income is presumed to create joint tenancies with rights of survivorship unless the will expresses a contrary intention favoring per stirpes distribution to the issue of deceased class members.25
No. The established facts show the testator referred to equal division among grandchildren and provided for final distribution to lineal descendants of the grandchildren per stirpes.26 This language throughout the will reveals an intent to treat each grandchild's line equally at every stage including during the class-gift term.27 The pattern of equal treatment per stirpes therefore displaces the survivorship presumption.28
The class gift passes by right of representation to the issue of a deceased grandchild rather than by survivorship to the remaining class members.29
Whether the violation of the rule against perpetuities in the gift over affects the distribution of income during the term of the class gift to the grandchildren?30
A provision void under the rule against perpetuities may still be consulted to discern the testator's intention regarding valid dispositions and does not convert life interests into greater estates.31
No. The established facts confirm the gift over to lineal descendants twenty-one years after the last grandchild violates the rule.32 Yet the court may still examine that language to determine intention for the preceding class gift of income.33 The violation supplies no basis for treating the grandchildren's income interests as anything other than life interests measured by the class term.34 Distribution during the class gift therefore follows the same per stirpes pattern already identified.35
The rule against perpetuities violation does not affect the distribution of income during the term of the class gift to the grandchildren.36
Whether the trustee has authority to distribute trust principal during the term of the class gift of income?37
A trustee possesses only the powers expressly granted or necessarily implied by the will and no authority exists to invade principal during a class gift of income unless the instrument so provides.38
No. The established facts contain no language granting the trustee discretion to distribute principal while the class gift of income continues.39 The only reference to distribution in kind appears at termination and does not authorize earlier invasions.40 The trustee therefore lacks power to distribute principal during the income period.41
The trustee has no authority to distribute trust principal during the term of the class gift of income.42
Whether any provision of the will constitutes an illegal restraint on alienation during the lawful term of the trust?43
A direction to retain property in trust is not an unlawful restraint on alienation when it is limited to the lawful term of the trust.44
No. The established facts show the will may require retention of real estate during the trust term but any such mandate expires with the lawful termination of the trust.45 Because the restraint cannot extend beyond the period permitted by law it does not constitute an illegal restraint on alienation.46
No provision of the will constitutes an illegal restraint on alienation during the lawful term of the trust.47