Harrison v. PEOPLES BANK & TRUST COMPANY

174 S.E.2d 867 (1970)

Benjamin S. HARRISON, Executor of the Estate of Jennie S. Harrison, v. PEOPLES BANK AND TRUST COMPANY, Trustees under the Will of Jennie S. Harrison, et al.

No. 707SC178.

Court of Appeals of North Carolina.

June 24, 1970.

*868 Thorp & Etheridge, by Stephen E. Culbreth, Rocky Mount, for plaintiff appellee.

Dill & Fountain, by William S. Hoyle, Rocky Mount, for defendant appellant Hoyle, guardian ad litem.

James E. Ezzell, Jr., Rocky Mount, for defendant appellant Ezzell, guardian ad litem.

VAUGHN, Judge.

"What is ordinarily denominated `the rule against perpetuities' is as follows: No devise or grant of a future interest in property is valid unless the title thereto must vest, if at all, not later than twenty-one years, plus the period of gestation, after some life or lives in being at the time of the creation of the interest." Clarke v. Clarke, 253 N.C. 156, 116 S.E.2d 449.

The sole question presented by the appeal is whether the trial judge was correct in his conclusion that the trust created in the will of Jennie S. Harrison is invalid because it is violative of that rule. The portion of the will in controversy is as follows:

"(8) After my executor shall have provided for the payment of the taxes, debts and administration expenses due to be paid by my estate, I do devise, bequeath and convey all the remaining personal property not elsewhere disposed of elsewhere in this Will to The Peoples Bank & Trust Company of Rocky Mount, N.C. and its successors AS TRUSTEE, not for its own use and benefit, but on the hereinafter enumerated trusts, powers and authority: "A:The property herein conveyed shall consist of such items as cash, bank accounts, certificates of deposit, Savings & Loan Accounts and deposits, bonds, notes and evidences of debt, insurance payable to my estate, shares of Stock in *869 Mutual Funds and other corporations and companies, as well as choses in action or any kind and type of personal property. "B:Without in any way limiting those powers and duties granted by the laws of the State of North Carolina to Trustees and to fiduciaries, I do hereby authorize and empower my trustee to receive, hold, invest, reinvest, buy, sell, and to otherwise invest or to refrain from investing and to otherwise deal in the properties comprising this trust as my trustee, in the exercise of reasonable prudence, may deem proper and for the best interests of my beneficiary or beneficiaries under this trust. "C:During the Month of January of each year during the life of this trust my trustee shall figure the net profit of the trust, after the deduction of all expenses, charges and taxes for the preceding year. Each such preceding years profit shall be paid out during the year in regular and convenient monthly payments to my beneficiary or beneficiaries. "Payments as outlined above shall be made to my son Benjamin for the duration of his life. After his death, it is my will and desire that his children share equally in the income and benefits of this trust, with their issue standing in the stead of deceased parents on a per stirpes basis thereto, but in the following manner: "After the death of Benjamin, to any or all of his surviving children who shall then be thirty years of age or older, my trustee shall pay over his or her proportionate share of the corpus of the trust, either in money or in kind as my trustee shall deem to the best advantage of the beneficiary being paid at the time; the trustees will then be relieved of further responsibility as to such share. "As to such of Benjamin's surviving children as may not have reached the age of thirty years at the time of Benjamin's death, as each one of them reaches the age of thirty years, my trustee shall pay over to said child his or her proportionate share of the remaining corpus of the trust, and be relieved as to same. "As to the children of Benjamin who shall have predeceased him or died before reaching the age of thirty years, and without leaving issue surviving them, their share or shares shall go in equal parts to Benjamin's surviving children and, on a per stirpes basis, to the surviving issue of any child or children of my son Benjamin who shall have predeceased him or have died before reaching the age of thirty years; this said issue to stand in the stead of the deceased parent as to said parent's equal share of the benefits under this trust. "As to the shares of the surviving issue of such of Benjamin's children as have predeceased him or died before reaching the age of thirty years, their shares are to remain under the trust and handled as follows: As each one of said issue shall reach the age of twenty-five years, to said issue my trustee shall pay over his or her share of the remaining corpus of the trust, and my trustee shall thereby be released of further responsibility as to said share or shares. When all the corpus of the trust and the income therefrom has been disbursed, then my trustee shall be relieved of all duties and obligations under the trust. "9:At the present time my son Benjamin has the three previously mentioned children: Jan Iverson Harrison, Ann Daniels Harrison and Buff Aleta Harrison. If any additional child or children shall be born to him, said child or children shall share equally with these three as to the benefits under paragraph seven and eight of this Will."

It seems clear to us, and we so hold, that the trial judge was correct in his conclusion that the rule against perpetuities is *870 violated by the quoted provisions of the will.

"`The rule is one of law and not of construction, and it is to be applied even if it renders the express intent of the testator impossible of accomplishment. * * * In the case of wills, the time at which the validity of limitation is to be ascertained is the time of testator's death.' The Law of Real Property (3d Ed.): Tiffany, Vol. 2, secs. 393 and 400, pp. 153 and 163. `If by any conceivable combination of circumstances it is possible that the event upon which the estate or interest is limited may not occur within the period of the rule, or if there is left any room for uncertainty or doubt on the point, the limitation is void. * * The fact that the event does actually happen within the period does not render the limitation valid.' 41 Am.Jur., Perpetuities, sec. 24, pp. 69 and 70. Moore v. Moore, 59 N.C. 132." Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899.

The guardian ad litem for testatrix's grandchildren urges that even if the trust created by the will of Jennie S. Harrison is found to be in violation of the rule against perpetuities because of the limitations to the testator's great-grandchildren, the provisions for the benefit of the testator's grandchildren should be considered distinct and severable from the provisions relating to the great-grandchildren and, therefore, effective. We do not reach the questions raised by this argument for the reason that the limitation to testatrix's unborn grandchildren or those grandchildren who, upon the death of testator, have not attained the age of thirty, is also invalid. The rule against perpetuities condemns contingent interests which may not vest within the prescribed period.

"A remainder is vested when it is limited to an ascertained person or persons with no further condition imposed upon the taking effect in possession than the determination of the precedent estate. * * * A remainder is contingent if the taking in effect in possession is subject to a condition precedent either as to the persons who are to take or as to the event upon which the preceding particular estate is to terminate." 33 Am. Jur., Life Estates, Remainders, etc. Secs. 66, 68 (1941).

Even if all of Benjamin S. Harrison's living children had attained the age of thirty at the time of testatrix's death, there is an express limitation over to those of his children who may be born after testatrix's death and who attain the age of thirty. It is possible that the events upon which the interest is limited may not occur within the period of the rule and the limitation is void. Parker v. Parker, supra.

Affirmed.

CAMPBELL and PARKER, JJ., concur.