Testamentary Trusts. In 1956, Jack Adams executed a will, the terms of which es-tablished a charitable trust. The trust income was to go to Prince Edward School Foundation as long as the foundation continued to operate and admitted to its schools "only

Question

members of the White Race." If the foundation admitted nonwhites to its schools, the trust income was to go to the Miller School, under the same limitation, and so on to two other educational institutions. If all of the successively named educational beneficiaries violated the limitation, the income would go to Hermitage Methodist Homes of Virginia, Inc, without any limitation attending the bequest. In 1968, Adams died. Subsequent to the execution of the will, all of the educational beneficiaries enrolled African-American students. The trustee, uncertain as to how to distribute the trust income under these circumstances, sought counsel from the court. Assuming that the racially discriminatory provisions are unconstitutional and void, which, if any, of the named beneficiaries should receive the trust income? Discuss.

Answer 1

Testamentary trusts
The trial court—which struck the racial provision—held that the gift would go to the first educa-tional institution named. On appeal, however, the court ruled that "where a gift or estate subject to a limitation is unlawful, in order to cure the defect the court must terminate the entire gift or estate." The "offending language"—the racial provisions—could not be stricken from the provi-sion, according to the appellate court, without changing "the essential nature and quality of the estate." Because Adams had not placed any unconstitutional limitations upon the final benefi-ciary, Hermitage Methodist Homes, the court declared that Hermitage "has the only valid, re-maining interest." Therefore, Hermitage would receive the entire trust.