Nothing Lasts Forever by Gary Blackburn

Sarah “Sallie” Polk, the grand niece of President and Mrs. Polk

Nothing Lasts Forever

The Rule Against Perpetuities is best remembered as a law school logic game filled with word traps, which may serve as triggers to this day. Property must vest within a period measured by lives in being plus twenty-one years. To this, we may add a gestation period unrelated to Roe v. Wade.

The premise is clear; every piece of land must be owned by someone. I was taught that the origin of this requirement was fealty to the king. But the kings of my lifetime—Elvis and Richard Petty—are long gone.

So, regretfully, is Polk Place, a mansion and grounds in downtown Nashville built by Felix Grundy and owned by President James K. Polk. This beautiful structure, intended by Polk to be preserved for posterity, is lost forever. The tomb which contains the grave of the President and Mrs. Polk rests with their remains on the grounds of the State Capitol. All of this is because a great man and good lawyer wrote his own Last Will and Testament while he held the highest office in the land and violated the Rule.

The origin of the Rule Against Perpetuities stems from the days of the English feudal system. It is probable that the doctrine began with the “Duke of Norfolk’s Law,” 3 Ch Cas 1, 22 Eng. 931 (House of Lords, 1682). No less an authority than Wikipedia dates the twenty-one-year requirement to Cadell v. Palmer, 1 ch.Fin.372, 8 Eng. Ry. 936 (H.L. 1832, 1883).

Whatever its origins in England, the Rule Against Perpetuities was well established in America by the time Tennessee was admitted as a state in 1796. Article 1 § 22 of the Constitution of Tennessee states, “…[t]hat perpetuities and monopolies are contrary to the genius of a free state, and shall not be allowed…”.

Because the Tennessee Constitution fails to define “perpetuities,” Tennessee courts historically looked to the common law for its proper meaning. 1 However, in 1994, Tennessee adopted the “Tennessee Uniform Statutory Rule Against Perpetuities Act,” codified at T.C.A. § 66-1-201 et seq.

The most obvious deviation from the common law is found

in T.C.A. § 61-1-202 (a)(2), which excludes from the characterization “perpetuity” as an interest that “…either vests or terminates within ninety years after its creation.” Yet Mr. Polk’s will would not have survived even a review under the 1994 Uniform Act.

Mr. Polk’s historical significance is often forgotten. Elected president in 1844, without carrying his home state, he presided over the war with Mexico that added Texas, California, and much of the Southwest to the territory of the United States. In so doing, the expansion required the country once again to confront the extension of slavery. The Compromise of 1820 was undone, and the “Impending Crisis” followed.

Felix Grundy was a great man in his own right. A judge, congressman, and U.S. Senator, as well as a noted lawyer and orator from whom Mr. Polk had been given his early training as a lawyer. Grundy died in 1840. Polk purchased the house and property from his estate and intended it as his retirement home upon leaving office in March 1849.

Near the end of his one-term presidency, Polk drafted his own Last Will and Testament in the White House, but not in the Oval Office, as it was not created until the Taft administration in 1909. In his Will, he devised his home in Columbia, Tennessee, to his mother for her life and devised the remainder to his brother, William H. Polk. He also devised his property in Arkansas to his ward and nephew, Marshall T. Polk, a cadet at West Point. Polk directed that his remains and those of his wife, Sarah Childers Polk, be buried on the premises of Polk Place. Polk devised Polk Place to his wife for her life and devised the remainder to the State of Tennessee in trust for his blood relatives to ensure that the “lots and premises never pass into the hands of strangers, who are not related to [Polk] by consanguinity.”

James K. Polk, the 11th President (and second from Tennessee), returned to Nashville, and on June 15, 1849, died of cholera.

Sarah Childers Polk never remarried and not surprisingly was “grand dame” of Nashville society for decades. She is said to have entertained presidents and generals, both Union and Confederate, at Polk Place. Congress created a pension fund for widowed first ladies from which she collected $5,000 per year. She died on August 14, 1891.

Tasker Polk, Polk’s nephew, and other relatives of the president filed a Bill of Complaint in the Chancery Court for Davidson County, No. 15, 991, claiming that the testamentary trust created under Polk’s Will was “abortive, null and void.” They contended that the requirements in the trust that (1) the state maintain a trust in perpetuity for the “House of Polk” and (2) the tomb erected over the remains of Polk and his wife forever remain on the property violated the Rule Against Perpetuities because such provisions made the property inalienable. These provisions, the Complainants argued, created a “House of Nobility.” Further, Polk’s relatives argued that the state had no power to accept the trust created under Polk’s Will and that the trust was void due to vagueness because the persons Polk desired to “enjoy” the property could not be identified.

Neither the current governor, John P. Buchanan, nor the General Assembly agreed to execute or accept the trust Polk created under his Will. In the event the state declined its trusteeship, Polk had stipulated in his Will that a “blood relation” serve as trustee “from time to time,” yet no relative stepped forward, and the property was left without an owner.

No real controversy arose over whether the trust was a nullity. The court was then faced with the sensitive issue of where to place the remains of Mr. and

Mrs. Polk. Sale of the property was delayed facilitating the removal. The Clerk and Master was authorized to borrow $1,500 to defray the expenses, to be repaid upon sale of the property. The state agreed to the removal of the remains to the Capitol grounds where they remain today, covered by the same tomb which had been placed at Polk Place.

On February 5, 1898, Polk Place was sold by order of Chancellor Alison Humphries at the south door of the Davidson County courthouse. Jacob McGavock Dickinson purchased Polk Place for $20,000. 2 Interestedly, the court had appointed Dickinson guardian ad litem for certain beneficiaries, but he resigned to bid at the auction.

Two years later, on May 4, 1900, Dickinson sold the property to J. Craig McLanahan, an executive with the United States Iron Company in Philadelphia, and C.M. Gates for $30,000. A month later, Gates conveyed his interest to Mc- Lanahan and his wife.

In 1901, the elegant and historic Polk Place was demolished, and work began on Polk Flats and Watauga Flats, characterized as Nashville’s finest luxury apartments. The Young Women’s Christian Association, or YWCA, owned the apartments for decades, but in 1947, Polk Flats was razed for a parking lot. In 1961, a motel was built on the property of Polk Flats. 3 By 1961, few people lived in downtown Nashville. The mansions that had surrounded the Capitol grounds were gone, and that great implement of urban destruction, the automobile, made profitable the construction of an inexpensive motel where a president was meant to lie forever.

It is painful to contemplate what a present treasure would have been a

historic site on a grassy lot surrounded by ancient trees at 7th and Union in downtown Nashville. Could it have been saved? Probably not by Mr. Polk himself, without changing his intention.

He might have deeded the property with a reversionary clause, should a blood relative not have been willing to live there in his shadow. The possibility of a reversion does not violate the Rule Against Perpetuities. Commerce Union Bank v. Warren, 707 S.W. 2d 854 (S. Ct. 1986). But without a blood relative in residence, to whom would the property revert? Presumably, the property would revert to the Estate of James K. Polk and the process of sale, division, and demolition might have occurred nonetheless.

Assuming the property could have been left in trust, who would have maintained it? The Hermitage, home of President Andrew Jackson, ultimately came under the control of an organization initially called the Ladies Hermitage Association. It seems improbable that Polk Place would have drawn the same level of interest. Nostalgia and sentimentality have their financial and practical limits.

The property finally fell victim, not simply to Mr. Polk’s malpractice, but to hubris, naivety, and greed. He was, you should know, the first President to have been greeted upon entering a room to “Hail to the Chief,” a suggestion of his wife. He wrote his will in the final days of his presidency. He may have believed that his fame and the loyalty of his followers would not let his final home fall into the hands of a rich man from Philadelphia who would tear it to the ground. But that is what happened.

Dickinson sold the property for a 50% profit in two years. The steel executive from Pennsylvania razed the

house and built two apartment buildings. By 1947, no less an organization than the YWCA pulled down what would today be historic and high-priced condominiums for a parking lot. •

GARY

BLACKBURN

is an attorney with The

Blackburn

Firm.

His

practice

primarily

in-

¬volves

Business

and

Civil

Rights

Litigation,

Mediation, Employment

Law, and Medicare and Medicaid Fraud.

Endnotes

Eagle v. McCoy, 143 Tenn. 693, 228 S.W. 709(S. Ct. 1920)

Jacob McGavock Dickinson was a significantNashvillian. A Confederate veteran, he graduatedfrom the University of Nashville, studied law,and was admitted to the bar in 1874. He wasa member of the Tennessee Supreme Courtwhen Mrs. Polk died, taught law at Vanderbilt,represented railroads, and was president of theAmerican Bar Association. William Howard Taftappointed him Secretary of War in 1909.

The Watauga Flats building, however, stillstands today as a condominium and short-term

rentals.