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A Will for Willa Cather View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Missouri School of Law Missouri Law Review Volume 83 Issue 3 Article 7 Summer 2018 A Will for Willa Cather Thomas E. Simmons Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Thomas E. Simmons, A Will for Willa Cather, 83 MO. L. REV. (2018) Available at: https://scholarship.law.missouri.edu/mlr/vol83/iss3/7 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Simmons: A Will for Willa Cather A Will for Willa Cather Thomas E. Simmons* ABSTRACT ........................................................................................................ 642 I. INTRODUCTION .............................................................................................. 642 II. DISCUSSION.................................................................................................. 647 A. Artistic Sensibilities and the Desire to Preserve and Obscure ............. 648 B. Origins and a Brief Introduction to Trust Architecture ........................ 665 C. Types of Trusts: A Proposed Taxonomy ............................................... 671 1. Charitable Purpose Trusts .............................................................. 674 2. Noncharitable Purpose Trusts ........................................................ 679 a. Trusts for Masses, Gravesites, etc........................................... 680 b. Trusts for Pets ......................................................................... 683 c. Trusts for Other Noncharitable Purposes ................................ 687 d. The Purpose Enforcer as Proxy for an Ascertainable Beneficiary .......................................................................... 691 e. The Res Purpose Trust ............................................................ 693 f. The Hybrid Purpose Trust ....................................................... 694 g. Artistic Limitations, Virtue, and Vision: Drafting Hints ........ 697 3. A Tricky Income Tax Matter ......................................................... 701 D. Stumbling Blocks .................................................................................. 704 1. Contemporary Stumbling Blocks for Purpose Trusts .................... 705 a. The Rule Against Perpetuities (RAP) ..................................... 705 b. The Rule Against Accumulations (RAA) ............................... 711 c. Unreasonable Restraints on Alienation ................................... 714 d. Rules Against Capriciousness ................................................ 716 2. The Noncharitable Equivalent to Cy Pres ..................................... 719 E. Noncharitable Purpose Trusts: Recognition Achieved ......................... 731 1. The Evolution: Honorary Non-Trusts ............................................ 731 2. The Revolution: Enforceable Noncharitable Purpose Trusts ......... 733 3. Statutory Approaches: A Selective Survey .................................... 735 F. A Will (and a Testamentary Trust) for Willa Cather ............................ 741 III. CONCLUSION .............................................................................................. 749 * Associate Professor, University of South Dakota School of Law. Section II.C.3 of this Article originated as a paper titled “Income Tax Concerns with Purpose Trusts” presented by the author at the Tax Update XXXIX CLE of the State Bar of South Da- kota and the Committee on Continuing Legal Education in December of 2017 in Sioux Falls, South Dakota. Thomas E. Simmons, Income Tax Concerns with Purpose Trusts, Presentation, State Bar of South Dakota and the Committee on Continuing Legal Edu- cation Tax Update XXXIX CLE, Sioux Falls, SD (Dec. 8, 2017). Thank you to Pro- fessor Edward A. Morse, the McGrath, North, Mullin, and Kratz Endowed Chair in Business Law and former-President of the University Faculty at Creighton University School of Law, for his helpful comments on some of the tax issues raised in this Article. His generous help should not be seen as an endorsement of any of my views. All errors are my own. Published by University of Missouri School of Law Scholarship Repository, 2018 1 Missouri Law Review, Vol. 83, Iss. 3 [2018], Art. 7 642 MISSOURI LAW REVIEW [Vol. 83 ABSTRACT Artists hold their creative works dear. Whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Some may wish to ban the use of a song in a television commercial. Others may wish to stop their novel from being turned into an animated Disney movie. But directing particular uses of property from the grave can be met with several objections and legal impediments. The ob- jections sound in alarmist responses to “dead hand control.” The impediments include the Rule Against Perpetuities, uncertainty, capriciousness, and the re- pugnancy of restraints on alienation. This Article considers these and other recurring objections and impediments in one particular context and with one particular variety of creative works in mind: an author’s unpublished and pri- vate letters to her friends. A mechanism for achieving an artist’s restrictions over the use of her creative works after death is introduced in the form of a purpose trust. Purpose trusts are typically utilized by pet owners to ensure the continued care and preservation of their pets after the owner’s death. Purpose trusts are unique in that they lack ascertainable beneficiaries to enforce the trustee’s duties. Many purpose trusts do not qualify as charitable trusts, which can be enforced by the state attorney general’s office. Instead, a private “en- forcer” must be provided. Here, a noncharitable purpose trust designed to restrict access to an author’s private correspondence is introduced: a testa- mentary trust hypothetically created under the terms of the Last Will and Tes- tament of the celebrated twentieth-century American author Willa Cather. “Considering the circumstances, dead authors are a prolific group.” - Eva E. Subotnik, Artistic Control After Death, 92 WASH. L. REV. 253, 259 (2017) “I’ve got one! I’ve got a special purpose!” - Steve Martin, as Navin Johnson, THE JERK (Universal Pictures, 1979) I. INTRODUCTION Consider a songwriter who wants to ban the use of her music in adver- tisements or an author intent on eliminating the possibility that her novel will be optioned to a filmmaker. The law frowns upon these sorts of alienability limitations and use constraints.1 Property – including intellectual property – 1. See, e.g., JOHN CHIPMAN GRAY, RESTRAINTS ON THE ALIENATION OF PROPERTY 279 (2d ed. 1895) (“Any provision restraining the alienation, voluntary or involuntary, of an estate in fee simple or an absolute interest in chattels real or personal, whether legal or equitable, is void”); Steven J. Horowitz & Robert H. Sitkoff, Uncon- stitutional Perpetual Trusts, 67 VAND. L. REV. 1769, 1771 (2014) (“American law . imposes a handful of anti-dead hand public policy constraints . .”); Michael D. Kirby, Comment, Restraints on Alienation: Placing a 13th Century Doctrine in 21st Century Perspective, 40 BAYLOR L. REV. 413, 413 (1988) (“[T]he concept of free alienability is https://scholarship.law.missouri.edu/mlr/vol83/iss3/7 2 Simmons: A Will for Willa Cather 2018] A WILL FOR WILLA CATHER 643 comes with an assorted bundle of use and alienability rights.2 The law detests unreasonable restraints on alienability.3 Courts have deterred owners from placing use limitations on property that bind future owners.4 Restraints on al- ienation are said to be repugnant, as are future interests that vest too remotely.5 The dead hand is feared and the living hand is protected.6 Exceptions can be noted, such as short-term use limitations between contracting parties, equitable servitudes, and the nearly extinct determinable estates.7 These exceptions, however, are generally present either in commercial or charitable contexts.8 In the private noncharitable donative context, which we will be concerned in the pages that follow, use and alienability limitations are more closely scrutinized.9 a cornerstone of modern Anglo-American civilization . .”); see also Dunlop v. Dun- lop’s Ex’rs, 132 S.E. 351, 354 (Va. 1926) (holding that an attempt to condition a devise of a business with a requirement that the devisee share three-fourths of the sale proceeds with other heirs if the business was later sold constitutes an unreasonable restraint, re- pugnant to the estate, and was therefore void). 2. E.g., Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979); Phila. Eagles Football Club, Inc. v. City of Phila., 823 A.2d 108, 123–24 (Pa. 2003); JOHN G. SPRANKLING, UNDERSTANDING PROPERTY LAW 5 (3d ed. 2012). Typically, the four most important property rights are rights to exclude, transfer (i.e., alienate), pos- sess/use, and destroy. Id. 3. E.g., In re Jeromos’ Will, 166 N.Y.S.2d 959, 959 (Sur. Ct. 1957) (holding that a devise of realty with the limitation that “he can dispose of the house only to his daugh- ter” was void as an attempt to limit the devisee’s power of alienation). 4. See Kirby, supra note 1, at 415–29
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