IN RE BIRD'S ESTATE
225 Cal.App.2d 196 (1964)

PROCEDURAL POSTURE: Appellant trustee sought review of the judgment of the Superior Court of Orange County (California), which determined the interests in an estate in favor of respondent claimant.

FACTS: Jeannette and Geoffrey executed their wills simultaneously Jeannette died a few months later and her will was admitted to probate She gave a trust to Geoffrey for his life and gave exclusive power to dispose of the corpus and undistributed income and if he failed to exercise that power or it was declared void, the corpus and any undistributed income shall become part of the estate of her husband and be distributed to his heirs at law Geoffrey died three months later and he exercised the power It was put in trust for the benefit of his children in equal shares for life and that trust was to terminate upon the death of the last survivor of his children and grandchildren living at the time of his death and the entire corpus and undistributed net income was to be distributed to the children of his grandchildren per capita The lower court found that the rule had been violated

ISSUE: Does the rule of perpetuities run from the time the power is created and the facts and circumstances are considered as of the time of its exercise?

RULE OF LAW: The rule of perpetuities runs from the time the power is created and the facts and circumstances are considered as of the time of its exercise

HOLDING AND DECISION: (Stone, J) After the trial court determined the interests in an estate in favor of the claimant, the trustee sought a determination of the manner in which the rule against perpetuities under Cal. Civ. Code § 715.2 was to be applied to the general testamentary powers of appointment. The matter was tried before the 1963 amendments to the California Civil Code pertaining to the rule against perpetuities became effective. The court found that only three months elapsed between the creation of the power and its exercise by virtue of the proximate deaths of the wife of the testator and the death of the testator. The court held that the lives in being at the time the power was exercised were in being when the power was created, so that the power of appointment did not, in fact, violate the rule against perpetuities. The court held that Cal. Civ. Code § 715.2 and the common law to which it referred was controlling. Therefore the court ruled that there was no violation of the rule against perpetuities at the time the power of appointment was created, when considered in the light of the facts and circumstances as of the time the power of appointment was exercised.