Farnan v. First Union Nat. Bank

139 S.E.2d 14 (1964)

263 N.C. 106

Frank X. FARNAN, Jr., Mary F. Arnold, Rebecca F. Hunter, Dorothy F. Darrocott, v. FIRST UNION NATIONAL BANK, as Executor and Trustee under the Will of Joseph Jenkins Farnan, Deceased, Vincent S. Waters, as Bishop of the Roman Catholic Diocese of Raleigh, North Carolina.

No. 239.

Supreme Court of North Carolina.

November 25, 1964.

*17 Clayton & London, Charlotte, for plaintiffs.

Harkey, Faggart, Coira & Fletcher, Charlotte, for defendant First Union National Bank, executor and trustee.

Bradley, Gebhardt, DeLaney & Millette, Charlotte, Francis J. Heazel and Joseph C. Gaither, Asheville, for defendant Vincent S. Waters.

MOORE, Justice.

This appeal presents for discussion and decision two questions or propositions.

(1) Plaintiffs make the following contentions: The provisions of the will are vague and uncertain in that it contains no guide, formula or instructions by which testator's wishes with respect to the Roman Catholic Church of the Diocese of North Carolina (hereinafter "church") might be carried out or the time within which the specified conditions imposed must be met and complied with. The gift to the church is contingent and not vested. The contingency arises by reason of certain conditions precedent which must be performed before title vests. These conditions are that the trust funds are to be matched and the combined total used to build and equip a church in Charlotte to be permanently named St. Mary's or St. Joseph'sthese "specified conditions must be strictly complied with in each and every detail." The language of the will indicates the positive intention that title shall not pass to the church unless and until these conditions are met. There is a possibility that the specified conditions might not be performed or capable of performance within the period of time limited by the rule against perpetuities, and therefore the purported gift to the church is void.

The rule against perpetuities requires that an estate vest not later than twenty-one years, plus the period of gestation, after the life or lives of persons in being at the time of the creation of the estate, and if there is a possibility that a future interest may not vest within the time prescribed the gift or purported estate is void. The rule is one of law and not of constructions, and is to be applied even if it renders the express intent of the testator impossible of accomplishment. Parker v. Parker, 252 N.C. 399, 113 S.E.2d 899. The period of gestation cannot be added in computing the time unless gestation is in fact *18 then taking place. 70 C.J.S. Perpetuities § 4, p. 580. It is obvious that the period of gestation may not be added in the instant case.

In our opinion plaintiffs misconstrue the provisions of the will with respect to the gift to the church. We agree that the gift to the church is subject to a condition precedent and is contingent. But the performance of the specifications which plaintiffs denominate "conditions precedent" is not related to the vesting of title. The plain and clear provision with respect to vesting is: "At the expiration of the said twenty years (after the death of the last surviving niece or nephew) the Trustee shall as soon as practicable after the * * Church * * * has in writing expressed its willingness to accept and use such fund for the purpose hereinafter stated, pay and distribute, free of any trust, to the * * * Church * * * all of the remainder of the principal or corpus of said trust fund and its accumulations * * *." A time limit of one year within which the church may accept is imposed. It is the acceptance in writing that will vest title, and the acceptance must be made within the year or "at the end" of the year. That the trustee is allowed indefinite additional time ("as soon as practicable") to pay and distribute the fund to the church after acceptance, does not prevent the vesting of title upon acceptance. Stellings v. Autry, 257 N.C. 303, 126 S.E.2d 140; Fitchie v. Brown, 211 U.S. 321, 29 S. Ct. 106, 53 L. Ed. 202; English v. Cliff (1914), 2 Ch. 376. The gift to the church does not violate the rule against perpetuities.

After stating the purpose of the gift and how it is to be carried out, the will states that the gift to the church is made "upon the express condition that the * * * specified conditions must be strictly complied with in each and every detail." This does not mean that an equal sum must be added to the fund, a church building constructed and equipped, the church be named and the name remain unchanged forever, before the donee shall be entitled to the fund. The fund shall be used for these purposes. The effectuation of these purposes are not conditions precedent to vesting of title to the fund. Any further interpretation of the last quoted provision is not necessary to a decision of this case. Should the church accept the gift in apt time, receive the fund, and fail in any particular to carry out the listed purposes, interested parties may then present the matter to the courts. The courts have no jurisdiction to enter anticipatory judgments. Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 243, 113 S.E.2d 689.

With reference to any question of vagueness or uncertainty as to any part of the challenged provisions of the will, see G.S. § 36-21; G.S. § 36-23.1.

(2) Plaintiffs further contend that under the provisions of the will there is a possibility that the church will neither decline nor accept the gift in writing. This possibility must be conceded. Plaintiffs say that, in such event, the time for vesting title in the alternate charitable donees will be beyond the period permitted by the rule, and for this reason the purported bequests to church or charitable institutions (western North Carolina orphanages) are void. This is the contention upon which plaintiffs principally rely in this case.

The provision for gift over to the western North Carolina orphanages is that if the church "at any time within one year after the expiration of the twenty year period following the death of the survivor of my nieces and nephew, above named, in writing declines to accept the said gift upon the said terms, or if at the end of said one year, it has not affirmatively elected to accept said gift upon said terms, then I direct that the Trustee shall pay and distribute the said trust fund, free of any trust, to" the orphanages specified. It is our opinion that the gift to the orphanages would timely vest under the above language. The applicable rule in this situation is stated as follows: "The fact that by the terms of *19 the instrument creating the future interest, such interest is to arise immediately at the expiration of the period of the rule rather than at some point `within' the period, should not violate the rule. Thus, a trust that is to arise `at the expiration' of a gross term of twenty-one years has been held to be good, the term being held to end and the trust to arise at the same instant." 41 Am.Jur., Perpetuities and Restraints on Alienation, s. 20, p. 65; English v. Cliff, supra. See also Kolb v. Landes, 277 Ill. 440, 115 N.E. 539; In re Lewis' Estate, 349 Pa. 571, 37 A.2d 482, 487; Singer v. Singer, 230 S.W.2d 242 (Tex.Civ.App.). We find no authority to the contrary.

Affirmed.