## Facts

- In 1922, Caroline Haven Trowbridge created an inter vivos trust naming Second National Bank of New Haven as trustee.
- The trust paid income to Trowbridge’s daughter, Margaret Trowbridge Marsh, for life and granted Margaret a general testamentary power of appointment over one-half of the principal.
- In default of appointment, the trust directed distribution to Margaret’s surviving children or their issue per stirpes; if none, to another daughter or her issue.
- Trowbridge retained a limited right to revoke/modify only as to income payments; she died in 1941 without exercising that reserved power.
- Margaret partially released her general power in 1949, limiting permissible appointees to a narrower class for federal tax reasons.
- Margaret died in 1969, domiciled in Illinois, and her will purported to exercise the power by appointing the subject half into a new trust administered by Harris Trust and Savings Bank.
- The appointed trust directed income to Margaret’s daughter, Mary Marsh Washburne, for 30 years after Margaret’s death, then principal to Mary if living; if Mary died during the 30-year term, principal to Mary’s surviving children or their descendants per stirpes, with outright distribution at age 21.
- Mary was born in 1929, after creation of the 1922 trust.
- The trustee brought an equitable action for instructions on distribution and related relief; the material facts were largely undisputed.

## Issues

1. For Rule Against Perpetuities purposes, is the measuring date the 1922 creation of the inter vivos trust (creation of the power) or the settlor’s 1941 death, given the reserved power over income?
2. Is the 30-year income interest to Mary created by the appointment valid under the Rule Against Perpetuities?
3. Is the remainder to Mary at the end of 30 years valid under the Rule Against Perpetuities?
4. Is the contingent gift-over to Mary’s issue if Mary dies during the 30-year term void for remoteness, and may any portion be sustained under a “second look” approach when a power of appointment is exercised?

## Decision

- The court measured the perpetuities period from 1922, when the trust (and power of appointment) was created, because the principal dispositions were effectively irrevocable from that date; Mary, born in 1929, could not be a measuring life.
- The court upheld the 30-year income interest to Mary as valid, treating it as taking effect at Margaret’s death.
- The court upheld the remainder to Mary at the end of 30 years as valid, characterizing it as vested in Mary at Margaret’s death subject to divestment if Mary died within the term.
- The court treated the contingent gift-over to Mary’s issue as valid only insofar as it necessarily would vest, if at all, within the permissible period measured from 1922; any more remote contingencies were void and disregarded.
- The court entered an instructions decree directing distribution consistent with these rulings and addressed ancillary accounting and fee matters.

## Legal Principles

- Interests created by the exercise of a testamentary power of appointment are tested under the Rule Against Perpetuities from the date the power was created, not from the date of exercise.
- When a trust is irrevocable as to principal, a settlor’s retained power limited to income administration does not shift the perpetuities measuring date for principal interests.
- A “second look” method may be used in evaluating appointments: the permissible period is still measured from creation of the power, but the court may consider actual facts at the time of exercise to determine whether vesting is too remote.
- A remainder may satisfy the Rule Against Perpetuities if, at the time relevant facts are fixed (here, at the donee’s death), it is vested in an ascertained person subject to divestment, even though enjoyment is deferred.
- Remote contingent limitations that might vest outside the permissible period are void for remoteness; valid, separable interests may be sustained while invalid contingencies are excised.

## Conclusion

The court instructed the trustee that the Rule Against Perpetuities analysis ran from the 1922 creation of the inter vivos trust and its power of appointment, upheld the appointed 30-year income trust and Mary’s remainder as vested (subject to divestment), and invalidated only those contingent provisions for Mary’s issue that could vest too remotely.


Second Nat’l Bank of New Haven v. Harris Tr. & Sav. Bank, 29 Conn. Supp. 275, 283 A.2d 226 (Conn. Super. Ct. 1971)