## Facts

- Jeannette Miller Bird and her husband, Geoffrey Andrew Bird, executed wills on February 17, 1961.
- Jeannette died June 16, 1961; her will created a marital deduction trust for Geoffrey for life.
- Jeannette’s will granted Geoffrey an exclusive general testamentary power of appointment over the trust corpus and undistributed income; if the power was not exercised or Geoffrey’s will was invalid, the trust property would become part of Geoffrey’s estate and pass to his heirs at law.
- Geoffrey died September 16, 1961, and his will expressly exercised the power by placing the trust assets into a new trust administered by Citizens National Bank.
- Under Geoffrey’s trust: (1) net income was payable to his children in equal shares for their lives; (2) the trust terminated upon the death of the last survivor of Geoffrey’s children and grandchildren living at Geoffrey’s death; and (3) the remainder passed per capita to the children of Geoffrey’s grandchildren.
- In probate, a beneficiary (Lois B. Tiffany) sought confirmation of the interests as created; the executor (Citizens National Bank) objected, arguing the appointment violated the rule against perpetuities.

## Issues

1. For purposes of the rule against perpetuities, is a general testamentary power of appointment tested from the time the power was created (the donor’s disposition) or from the time the power was exercised (the donee’s will)?
2. If tested from the creation of the power, do the interests created by Geoffrey’s exercise (life interests to children; termination tied to children and grandchildren living at Geoffrey’s death; remainder to great-grandchildren) violate the rule against perpetuities?

## Decision

- The court affirmed the probate decree determining interests.
- The perpetuities period for a general testamentary power of appointment is measured from the time of creation of the power, not from the time of its exercise.
- Applying that measure, Geoffrey’s exercise creating a trust terminating at the death of the last survivor of specified lives in being, with remainder to the children of grandchildren, did not violate the rule against perpetuities and was valid.

## Legal Principles

- Under former California Civil Code § 715.2, courts apply the common-law rule against perpetuities, including common-law treatment of general testamentary powers of appointment.
- For perpetuities analysis, interests created by exercise of a general testamentary power are tested using a period measured from the creation of the power (the donor’s effective disposition), not as if the donee’s will created an independent new limitation.
- A disposition that must vest, if at all, no later than 21 years after the death of relevant lives in being satisfies the rule against perpetuities.

## Conclusion

The court held that a general testamentary power of appointment is analyzed for perpetuities purposes from the donor’s creation of the power, and that the donee’s exercised trust provisions here necessarily vested within the permissible period and therefore controlled the distribution of the appointed property.


Estate of Bird, 225 Cal. App. 2d 196 (Cal. Ct. App. 1964)