WACHOVIA BANK & TRUST COMPANY v. Taylor

MooRE, J. The appellants contend that the court erred “in concluding and adjudging that the devise of the remainder interest in the real property to the children of Alice Lee Taylor McLeod and Martha Anne Taylor Swayze was in violation of the rule against perpetuities and therefore void.” There is no appeal from the court’s interpretation of the will with nrespect to the disposition of personal property. The judgment below as to the personal estate is binding on all parties and this phase of the case is not considered and discussed here. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562. Furthermore, the rulings as to the personal estate do not affect the rights or interests of the infant defendants or of the unborn children of testator’s daughters. We are here concerned only with the following provision: “The balance of my estate (real property) I leave in trust to my wife . . . for her lifetime — then in trust to my two daughters ... for their lifetime, and upon their death their share is to be divided equally between their children when they reach the age of twenty-five years.” “The paramount aim in the interpretation of a will is to ascertain if possible the intent of the testator.” Entwistle v. Covington, 250 N.C. 315, 318, 108 S.E. 2d 603. And the intent of the testator is ordinarily to be ascertained from an examination of the will from its four corners. Bullock v. Bullock, 251 N.C. 559, 563, 111 S.E. 2d 837. In construing a will every word and clause will be given effect if possible. Andrews v. Andrews, 253 N.C. 139, 147, 116 S.E. 2d 436. Testator in the devises to his wife and daughters uses the words *126 “in trust.” Yet an examination of the residuary clause as a whole indicates that no trust was created or intended. Certainly there is no manifest or implied purpose that an active trust be established and a trustee be appointed to manage the real estate for the benefit of widow, daughters and grandchildren. Ordinarily when property is devised to one “in trust,” the devisee is the trustee. But when we consider the language of the will in this light we find nothing to indicate an intent on the part of testator that the widow and daughters hold the land in trust during their respective lives for use and benefit of the grandchildren with obligation to account for rents and profits. The will provides that upon the death of the daughters their share is to be equally divided between their children. If testator intended that the daughters have a share which was to pass to the grandchildren after their death, he undoubtedly meant that share to be something more than the bare legal title of a passive trust. The interest of a trustee in a passive trust is a mere formality without substance, for in a passive trust the legal and equitable titles are merged in the beneficiary by virtue of the statute of use. Phillips v. Gilbert, 248 N.C. 183, 187, 102 S.E. 2d 771. “The Statute of Uses, 27 Henry VIII, preserved in this State by G.S. 41-7, merges the legal and equitable titles in the beneficiary of a passive trust . . . .” Finch v. Honeycutt, 246 N.C. 91, 99, 97 S.E. 2d 478. The essentials for creation of a trust are: “(1) sufficiency of words to raise it, (2) a definite subject, and (3) an ascertained object. Finch v. Honeycutt, supra; Thomas v. Clay, 187 N.C. 778, 122 S.E. 852. In the instant case no trust object is stated even if we concede that the first two essentials appear. No duties are imposed and no beneficiaries are designated, expressly or by implication. It is clear that testator intended that the widow and, in turn, the daughters, have and enjoy life estates in the land, with the benefits ordinarily accruing therefrom. If the words “in trust” created any legal estate as distinguished from the use or equitable estate, the two merged so as to vest in the widow and daughters life estates in the usual and ordinary sense. The words “in trust” as used in this will mean nothing more than that the life tenants pay taxes, not commit waste, and maintain and preserve the property as befits, and is required of, one having a life estate. We have this situation: A devise to the widow for life, and at her death to the daughters for life, and at their death “their share is to be divided equally among their children.” The devise of the remainder, subject to the life estates, is to a class (grandchildren). Some of the members of the class were living at the death of the testator. “A legacy given to a class subject to a life estate vests in the per *127 sons composing that class at the death of the testator; but not absolutely; for it is subject to open, so as to make room for all persons composing the class, not only at the death of the testator, but also at the falling in of the intervening estate. This is put on the ground that the testator’s bounty should be made to include as many persons who fall under the general description or class as is consistent with public policy; and the existence of the intervening estate makes it unnecessary to settle absolutely the ownership of the property until that estate falls in.” Mason v. White, 53 N.C. 421, 422. The rule thus clearly enunciated has been consistently adhered to in this jurisdiction. Privett v. Jones, 251 N.C. 386, 393, 111 S.E. 2d 533; Sawyer v. Toxey, 194 N.C. 341, 343, 139 S.E. 692; Walker v. Johnston, 70 N.C. 576, 579. We next inquire as to the effect of the language — “upon their (daughters) death their share is to be divided equally between their children when they reach the age of twenty-five years.” It is our opinion and we hold that this language does not exclude the devise of the remainder in the case at bar from the rule above quoted from the Mason case. “ 'The remainder is vested in the children of the life tenant who are in esse, and their interest is subject only to a contingency affecting the quantum of their interest, but not the quality of the estate taken by them.’ . . . Nor was the vested character of the remainder affected by the direction that the property be equally divided . . . after the death of their mother(s).” Beam v. Gilkey, 225 N.C. 520, 524, 35 S.E. 2d 641. The rule against perpetuities does not relate to and is not concerned with the part postponement of the full enjoyment of a vested estate. The time of vesting of title is its sole subject matter. McQueen v. Trust Co., 234 N.C. 737, 741, 68 S.E. 2d 831. “. . . (I) f there is in terms a devise, and the time of enjoyment merely is postponed, the interest is a vested one, but if the time be annexed to the substance of the gift or devise, as a condition precedent, it is contingent Bowen v. Hackney, 136 N.C. 187, 190, 48 S.E. 633. “. . . (A) remainder is vested if, so long as it lasts, the only obstacle to the right of immediate possession by the re-mainderman is the existence of the preceding estate; or, again, a remainder is vested if it is subject to no condition precedent save the determination of the preceding estate.” Trust Co. v. McEwen, 241 N.C. 166, 169, 84 S.E. 2d 642. “An estate is vested when there is either an immediate right of present enjoyment or a present fixed right of future enjoyment.” Patrick v. Beatty, 202 N.C. 454, 461, 163 S.E. 572. It is patent that testator intended, in the case at bar, that immediately upon the death of his daughters their children should have the right of possession. For reasons satisfactory to him he did not *128 desire the land partitioned among his grandchildren until they reached the age of twenty-five years. He certainly did not intend an hiatus in the title for the possible period between the death of the daughters and the time for actual partition. At the death of the daughters the roll is to be called and the quantum of interest of each is then fixed and determined. But the lands, according to testator’s wishes, are not to be partitioned until they “reach the age of twenty-five years.” . . (A) devise should take effect at the earliest moment that the language will permit.” McDonald v. Howe, 178 N.C. 257, 259, 100 S.E. 427. Had the language of the will been such as to show that the testator intended that the remainder go to such of the grandchildren only as survived testator’s daughters and were living at the time the youngest grandchild attained age twenty-five, then the remainder would have been contingent. Bowen v. Hackney, supra; Anderson v. Felton, 36 N.C. 55. It is our opinion and we hold that the remainder in fee vested in the infant defendants at testator’s death, subject to open so as to make room for any children thereafter born to testator’s daughters, but at the death of the daughters of testator the quantum of interest of each of the grandchildren will become fixed and certain, and the grandchildren will be entitled to possession immediately upon the death of the daughters, and that according to the wishes of the testator the property is not to be partitioned and allotted to the grandchildren until “they reach the age of twenty-five years,” or until the death of their mothers, whichever is later. We hold that the remainder interest in the real property to the grandchildren is not in violation of the rule against perpetuities — this being the only question for decision on this appeal. Both the appellants and appellees quoted from and relied on Parker v. Parker, 252 N.C. 399, 113 S.E. 2d 899. The devise in that case, as here, was to a class, including members of the class which might be born after the death of testator. (For further comment see Clarke v. Clarke, 253 N.C. 156, 161, 162, 116 S.E. 2d 449.) In all other respects the instant case and the Parker case are distinguishable. In Parker there was a private trust. The personalty and land were willed and devised to the trustee, with specific directions for the management of the property, accumulation of income and accounting to the clerk of Superior Court. The use and benefits of the trust income were given to such members of the beneficiary class as should finish public school and go to college. College expenses were to be paid from the accumulated trust income. There was no division of the fund among members of the class, and the right of a member to any part of the fund was contingent upon finishing public school and attending college. The *129 trust was to continue until the youngest member of the beneficiary class was 28 years of age. At the death of the testator the ‘possibility existed that the trust income would not vest in a beneficiary, if at all, within twenty-one years, plus the period of gestation, after some life or lives in being. (See definition of rule against perpetuities in McPherson v. Bank, 240 N.C. 1, 15, 81 S.E. 2d 386.) The trust to provide funds for college education was the primary obj ect of testator. The pertinent item of the Parker will uses no language which in any way tends to vest any interest in the corpus or income of the trust in any particular beneficiary or the beneficiaries as a class prior to the final distribution after termination of the trust. It is then provided: “When the child or the youngest one shall arrive at the age of twenty-eight (28), the trustee will convey the land . . . (and personal property) ... to such child or children, and if any child or children shall in the meantime have died leaving issue surviving, such issue shall stand for, and represent his, her or their parents, and receive the share that his, her or their parents would have received.” (Parentheses and emphasis added.) So it is clear that it was intended that the roll would not be called until the trust terminated, and the right to receive a share was contingent upon ability to answer roll-call. “. . . (W)hen there is uncertainty as to the person or persons who are to take, the uncertainty to be resolved in a particular way or according to conditions existing at a particular time in the future, the devise is contingent.” Trust Co. v. Schneider, 235 N.C. 446, 452, 70 S.E. 2d 578; Scales v. Barringer, 192 N.C. 94, 133 S.E. 410. Where there is no gift of an estate, or the income therefrom, or other interest therein, distinct from the division which is to be made equally between all the children and, for the first time, upon the termination of the trust, the “when” of the division is of the essence of the donation and is a condition precedent. It marks both the time of vesting and time of enjoyment of the estate. Carter v. Kempton, 233 N.C. 1, 6, 62 S.E. 2d 713. See also Anderson v. Felton, supra. In the instant case the court erred in holding that the remainder interest in the real property to the children of testator’s daughters was in violation of the rule against perpetuities and therefore void. This cause is remanded and the judgment below will be modified to conform to this opinion. Modified and remanded.