Industrial National Bank of Rhode Island v. Barrett
101 R.I. 89, 220 A.2d 517 (1966)

  • Arthur died leaving a will that put $65k into a trust. The trust was to give a life income to his wife Mary, and it allowed her to take as much of the principle as she wanted to for her own support and comfort. It also gave her a general testamentary power of appointment, so she could leave the property to whomever she liked in her will.
    • At the time of Arthur’s death, he had two grandchildren, Aline and Evelyn, and there was one great-grandchild.
  • Mary subsequently died, and left a will that exercised her general testamentary power of appointment. It gave life incomes to her grandchildren, Aline and Evelyn. When they died, their share of the life income would be given to their children per stirpes. Finally, the trust would terminate 21 years after the death of her youngest grandchild living at the time of Mary’s death.
    • At the time of Mary’s death, Aline and Evelyn were still alive, but there were now 6 great-grandchildren.
    • One more great-grandchild was born after Mary’s death.
  • After Mary’s death, the trustee (Industrial National Bank) went to Court to see if there were any violations of the Rule Against Perpetuities.
    • It could be argued that another grandkid could have been born after Arthur’s death, and so they would not be a life in being at the time of Arthur’s death. That theoretical grandkid could have outlived Mary, Aline, and Evelyn by more than 21 years, so the final distribution to the great-grandkids would happen more than 21 years after the death of the last life in being at the time of Arthur’s death.
    • The trustee argued that Mary’s exercise of the power of appointment created under Arthur’s will did not violate the Rule Against Perpetuities:
      • Since Mary could take as much of the trust principle as she wanted to, Mary’s control amounted to an absolute interest in the trust assets. For all purposes, the money was completely Mary’s. If so, the Rule Against Perpetuities would not be measured by Arthur’s death, but by Mary’s death.
      • Alternately, the trustee argued that even if Mary only had a general testamentary power of appointment, the perpetuity period should be counted from the date the power was exercised (Mary’s death), and not the date the power was created (Arthur’s death).
  • The Rhode Island Supreme Court found that the trust did not violate the Rule Against Perpetuities.
    • The Rhode Island Supreme Court found that the intent of the testator is the paramount factor in deciding how a will is to be construed. They decided that since Arthur only gave her a life estate and a power of appointment, as opposed to just giving her the money free and clear (aka an absolute interest), he must not have wanted her to have an absolute interest.
      • Also, Mary couldn’t have taken all the money, she could only take what she needed for her ‘support and comfort’.
    • The Rhode Island looked to precedent to determine when a power of appointment should be measured.
      • In general, courts have held that a general inter vivos power of appointment should be measured from the time the power is exercised.
      • In general, courts have held that a testamentary power of appointment should be measured from the time the power is created.
        • Although many courts take the alternate position.
      • The difference in the courts’ opinions stems from the idea that money in an inter vivos trust isn’t ‘tied up’, and can be appointed at any time, so it makes sense to measure from the time it is appointed. One the other hand, money in a testamentary trust is ‘tied up’ from the day the trust is created.
        • The Rule Against Perpetuities is designed to stop money from being tied up too long.
    • The Rhode Island Supreme Court broke with precedent and held that the measuring should be the time the testamentary power of appointment was exercised (Mary’s death).
  • The Relation Back Doctrine says that any time a donor gives a donee any power other than a general inter vivos power, you start calculating the Rule Against Perpetuities at the time the donor created the power, not when the donee exercises the power.