## Facts

- Nina Martin Dickerson died in 1967, leaving a holographic will creating a testamentary trust and naming Union National Bank of Little Rock as executor and, later, trustee.
- Nina was survived by two sons, Cecil and Martin, and seven grandchildren.
- The will directed the bank to transfer all estate assets to itself as trustee after administration.
- Trust terms provided for income distributions to the sons during their lives, with additional provisions for Cecil’s children’s education and for Martin’s widow and children after Martin’s death.
- The trust authorized discretionary advances of principal for “emergency or illness” and included survivorship-type shifts if a son and his line died before final distribution.
- The trust’s termination was tied to the deaths of both sons and Martin’s widow (not identified in the will) and, as described in the record, to the youngest child of either son reaching age 25.
- The will was probated and the trust funded without any challenge to the trust’s validity in probate court.
- In 1977, Cecil filed a chancery action asserting the trust was void under the rule against perpetuities (RAP) and alleging the bank breached fiduciary duties by not addressing the invalidity during probate.

## Issues

1. Whether the failure to challenge the trust’s validity during probate barred a later chancery action under res judicata.
2. Whether the testamentary trust was void under the common-law rule against perpetuities because interests might vest outside the permissible period.

## Decision

- The Arkansas Supreme Court reversed the chancery court.
- The court held res judicata did not bar the RAP challenge because the probate court had not actually adjudicated the trust’s validity, and will construction was not necessary to the probate decree.
- The court held the trust violated the RAP and was void.
- The case was remanded consistent with the holding that the trust provisions failed for remoteness.

## Legal Principles

- Under the common-law RAP, a future interest is void if there is any possibility, at creation, that it may vest beyond lives in being at the testator’s death plus 21 years.
- The “any possibility” test applies regardless of what later occurs in fact.
- A probate decree does not preclude later litigation of an issue not raised, not actually decided, and not necessary to the probate judgment; probate construction of a will is limited to matters required to resolve issues properly before the probate court.
- A trust measured by the life of an unidentified “widow” can fail the RAP because the widow could be a person not in being at the testator’s death, making vesting potentially too remote.

## Conclusion

The court permitted a post-probate chancery challenge to the trust because the probate proceeding did not decide the trust’s validity, and it invalidated the trust under the rule against perpetuities due to the possibility that vesting could occur beyond the permissible period, particularly given the unidentifiable widow as a measuring life.


Dickerson v. Union Nat'l Bank of Little Rock, 268 Ark. 292, 595 S.W.2d 677 (1980)