Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
The Morris County Court, Probate Division, refused to approve an agreement executed May 31, 1960 by Frank Elmer Ransom, Jr., Margery Emily Ransom, his wife, and William Frank Ransom, their son, whereby a testamentary trust for their benefit, created by Frank's father, Frank E. Ransom, Sr., who died on December 23, 1944, would be accelerated and terminated and distribution made by the trustee, Trust Company of Morris County. The aforesaid beneficiaries appeal, contending that they are entitled to accelerate the trust.
So far as pertinent here, decedent's will, executed on November 25, 1929, created a trust which specified that, upon the death of his wife Elizabeth (which event occurred on October 23, 1958), one-third of the income shall be paid to his son, Frank Elmer Ransom, Jr., "during the term of his natural life," and one-sixth of the income shall be paid to Margery Emily Ransom, wife of Frank, Jr., "during the term of her natural life" and while she remains the widow or wife of Frank, Jr. Upon the death of Frank, Jr. or his wife Margery, their share of the income "shall be paid to their children now living or born hereafter, share and share alike." (Emphasis ours) The will then provided:
"8th. I hereby give to and empower my grandchildren the power to dispose of the principal of the trust estate above set forth in the proportion that each of my grandchildren share in the income."
There were analogous provisions as to the other half of the trust estate in favor of the wife and children of decedent's other son, Samuel, who had been missing for some time. We are not concerned with that half of the trust estate on this appeal. Samuel's wife, Grace, divorced him in 1938, thereby terminating any right by her in the income. Samuel was judicially declared presumptively dead by judgment of our Chancery Division in 1959. Samuel and Grace had two children who were alive when decedent died, and there is no possibility of other children being "born hereafter" to Samuel
and Grace. The County Court allowed the two living children of Samuel and Grace to accelerate this one-half of the trust and directed the trustee to make distribution thereof to them. There is no appeal by anyone from this portion of the judgment.
In denying acceleration of the half of trust estate, in which Frank, Jr., his wife Margery, and "their children now living or born hereafter" were the designated beneficiaries, the trial court adjudged that:
"2. The power of disposal given by Article Eighth of the Last Will and Testament of Frank E. Ransom, Sr., is invalid as in violation of the rule of perpetuities with respect to the gift to the children of Frank and Margery Ransom. There is intestacy of the portion of the corpus allocable to this class gift.
3. There was no unconditional release by Frank and Margery Ransom of their life interests in income.
4. The class of grandchildren possible to be born to Frank and Margery Ransom was still open and acceleration will not be permitted when it will cut off subsequently born members of the class."
Reliance was placed by the trial court, with reluctance, upon the rule expressed by Blackstone, 2 Blackstone, Commentaries 125, that there is no time in the life of a woman, no matter what her age or state of health, when she is presumed in the law to be unable to conceive and bear children.
Margery Ransom was 71 years old when this matter was heard in the County Court on May 16, 1963. She became 72 years old the following month, on June 21, 1963. Her husband, Frank, Jr., was then 70 years old. Their one and only child, William Frank Ransom, was 39 years old at that time. When she had that child, according to her testimony, her doctor told her that probably she would never have any more children. His prognosis proved valid for the 39 years thereafter. ...