Also known as: destructible · destructibility of remainders
Written by attorneys — see sources below.
2 senses
The quality of evidence that permits its destruction by an arrestee. This characteristic justifies a warrantless search of the area within the arrestee's immediate control to protect officer safety and preserve evidence.
The quality of a future interest that permits its destruction through the uncontrolled volition of a person acting solely for personal benefit. This quality excludes the period of potential destruction from the perpetuities measuring period.
The quality of evidence that permits its destruction by an arrestee. This characteristic justifies a warrantless search of the area within the arrestee's immediate control to protect officer safety and preserve evidence.
The quality of a future interest that permits its destruction through the uncontrolled volition of a person acting solely for personal benefit. This quality excludes the period of potential destruction from the perpetuities measuring period.
Each sense below has its own examples, sources, and questions.
Detectives arrested Dana at her office cubicle and handcuffed her between two desks. Her purse sat directly under her chair within easy reach. Officers searched the purse and recovered documents. The search was valid because the purse lay inside the area from which Dana could have reached destructible evidence.
2 common questions
Officers may search the arrestee's person and the area within immediate control from which the arrestee might gain access to a weapon or destructible evidence. Areas beyond that wingspan require a warrant or another exception.
Supporting sources
Once the arrestee is handcuffed and seated, the cabinet lies outside the area of immediate control. The arrestee can no longer reach it to obtain a weapon or destroy evidence, so the justification for a warrantless search disappears.
Supporting sources
Harold created a trust to pay stipends to his descendants who enroll full time at law school. The class could increase indefinitely. Carla received an unrestricted power to terminate all future stipends and take the fund herself. The period of Carla's power is disregarded when measuring the rule against perpetuities because the interests remain destructible at her sole discretion.
A settlor granted a trustee an unrestricted power to revoke a trust benefiting an open class of grandchildren. The grandchildren's interests could be destroyed at any time for the trustee's personal benefit. The time during which the revocation power existed is excluded from the perpetuities period.
An attorney drafted a will creating contingent remainders that might vest beyond lives in being plus twenty-one years. The testator later died and the remainders failed under the rule against perpetuities. The attorney was held liable because the drafting did not account for the absence of any destructibility mechanism that would have saved the interests.
Plaintiffs, who are some of the beneficiaries under the will of Eugene H. Emmick, deceased, brought this action for damages against defendant L. S. Hamm, an attorney at law who had been engaged by the testator to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer to the second amended complaint without leave to amend. The allegations of the first and second causes of action are summarized as follows. Defendant agreed with the testator, for a consideration, to prepare a will and codicils thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15 per cent of the residue as specified in that paragraph. Defendant prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code. Paragraph Eighth of these instruments transmitted the residual estate in trust and provided that the trust shall cease and terminate at 12 o’clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over the probation of this will. After the death of the testator the instruments were admitted to probate. Subsequently defendant advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount. As a result, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator. The third cause of action alleges that after admission of the will and codicils to probate, Harold Houghton Emmick, Walton Russell Emmick, Delta Inez Spelman, and Retha Newell instituted a will contest. The executors, defendant, and the contestants reached a settlement agreement under which $10,000 would be paid to the contestants from the assets of the estate in return for releases. Defendant caused to be executed releases which did not preclude the contestants from a subsequent attack upon the validity of the testamentary instruments. As a consequence, the contestants joined in a legal attack upon the validity of the residual clause and plaintiffs would have received an additional sum of $15,000 from the estate if the releases had been prepared in accord with good legal practice. The trial court sustained a general demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal from which the plaintiffs appealed.
View case2 common questions
The period during which an interest remains destructible at the uncontrolled volition of a person acting solely for personal benefit is excluded from the perpetuities measuring period. This exclusion assists validity because the holder can collapse the future interests at any moment.
Supporting sources
Many jurisdictions have abolished the doctrine. Where abolished, a contingent remainder is not automatically destroyed if it fails to vest before or at the termination of the preceding estate.
Supporting sources
…upon the alienability of the property in the trust fund, and thus no reason to include this time during which the trust is so destructible in determining whether a limitation is violative of the rule against perpetuities. Restatement, Property, sec. 373 states: “The period of time during which an interest is destructible,…